Doughty v. Atlantic & North Carolina Railroad

78 N.C. 22

• Court: Supreme Court of North Carolina
• Decided: January 5, 1878
• Status: Published

Opinions

One of the grounds of demurrer assigned is that the plaintiff in his complaint has joined a cause of action on contract with one for an injury to property, which is not allowed by C. C. P., sec. 126. Logan v. Wallis,76 N.C. 416.

An action for a penalty given by a statute to any person injured is an action on contract. This has been the settled law. 3 Bl. Com., 158, 160, 161. These authorities were cited by counsel for defendant, (24) and sustain their position on that point. Judge Story says an action of assumpsit will lie upon a statutory liability. Opinion of Story,J., in Bullard v. Bell, 1 Mason, 243, 292, 299.

It is equally clear that an action to recover damages for illegally obstructing a navigable river is an action for an injury to property, as it is called in C. C. P., sec. 126, or, as it may more briefly and quite as intelligently be called, an action in tort.

We sustain the demurrer on this ground, and it is unnecessary to consider any others. If when the judge sustained the demurrer the plaintiff had requested the judge to divide the action, we may assume that he would have done so under C. C. P., sec. 131; but this Court cannot do it.

Demurrer sustained. Defendants will go without day and recover costs in this Court.

PER CURIAM. Affirmed.

Cited: Hodges v. R. R., 105 N.C. 172; Benton v. Collins, 118 N.C. 199;Cromartie v. Parker, 121 N.C. 204; Land Co. v. Hotel, 132 N.C. 531;Hawk v. Lumber Co., 145 N.C. 49.