Kennedy v. Garlington

16 S.C.L. 424

• Court: Supreme Court of South Carolina
• Decided: November 15, 1824
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Huger.

It does not appear from the process in this case, whether tresspass or debt was intended to be brought: and this should appear, to enable the defendant to shape his defence. Although the same strictness may not be required in a process as in a declaration, yet the cause of action must not be so informally slated, as to leave it doubtful whether the plaintiff was suing for a penalty given by statute or for damages in trespass.

The motion must therefore be granted.

JYott, Colcock, and Richardson, Justices coricurred.

Gantt, Justice. — This was evidently designed as an action of debt to recover a penalty; and is admitted by the demurrer to have been so; for the first cause assigned is, that, an action of trespass should-have been brought, instead of the action of debt.

If the action be debt, then “vi et armis, contra pacem’3 were not necessary to be inserted, as has been contended for under the 2d cause of demurrer. The act upon which this process is based, is a public one, and courts are bound to notice their provisions, without their being stated in pleading; Cowp. 17. Chitty says, that in the case of a public statute,- it is not advisable to recite any part of it, for a misrecital, with a conclusion “ contrary to the form of the statute aforesaid,5’ would be fatal. Here, however, the plaintiff has undertaken to recite the words of the statute, and has recited them strictly; having donesojitfollowsthatthere was no necessity to conclude Contra formarn statuti. Nor is it essentially necessary in any case, where from the facts stated, it appears to the court to be a case embraced by a.public statute,, to coasludo with tire words «con*. trary to the form of the statute,” This is generally done, according !to Chitty, where enough it stated, in the process, hy which the cáse slralV appear to be affected by the statute.

Irby, for motion. Simpson and Dunlap, contra.

The act 'giving the penalty being therefore a public one, and the words of the act having been recited in the body of the process, "and as courts áre bound to notice public statuteSj and it being admitted, by the demurrer that the action was debt, J could see no force in the objections which were raised on the circuit against the correctness of this process to recover a penalty, &, therefore overruled the demurrer: in which i am not yet satisfied. that any error was committed respecting the law of the case.