Statewide County NcArchives Court.....Page, Vs. Farmer 1811-18 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 12, 2008, 11:44 pm Source: North Carolina Reports Written: 1811-18 June Term 1813. PAGE v. FARMER. In an action of debt on a penal statute, the writ called upon the defendant "to render to the plaintiff the sum of £50 due under an act of the General Assembly to him, and which from him he unjustly detains, to his damage, etc.": Held, that this writ is substantially in the debet and detinet. This was an action of debt on a penal statute, and after verdict it was moved in arrest of judgment that the writ was not in the debet and detinet, but in the detinet only. The writ called upon Farmer to answer Page of a plea "that he render to him the sum of £50, due under an act of the General Assembly to him, and which from him he unjustly detains to his damage, etc." The plaintiff contended that the court must necessarily adjudge, from the phraseology of the writ, that the action was in the debet and detinet, and was therefore such an action as the defendant contended should be brought; and it was submitted to this Court, whether this writ was in the debet and detinet, or detinet only. Taylor, C. J. It is not deemed necessary to decide the question whether a vicious writ can be taken advantage of after verdict, or whether the statutes of jeofails extend to actions upon penal statutes. The construction of this writ which presents itself to the Court as the just and necessary one, and derived from the unavoidable import of the words, renders it a writ in the debet and detinet. Though not precisely in the form that the usage of the law has annexed to such process, yet the words in which it is expressed will not, without a strained interpretation, convey a meaning substantially different. The defendant is called upon to answer to the plaintiff, "that he render to him £50, due under an act of Assembly to him, and which the defendant detains from him." It is due to the plaintiff, under or by virtue of the act of Assembly, and the defendant cannot detain it unjustly, unless it is due from him. If A call on B to demand payment of a sum of money, which the former states to be due to him by bond, the amount of which he charges the latter with detaining from him, B cannot doubt that the meaning of A is to charge him with owing as well as detaining the money. Whether the writ uses the verb in the present tense, or substitutes for it the past participle, the charge of owing and detaining is in substance equally made out. The general issue then is nil debet, to which the verdict of the jury is responsive by its finding that the defendant does owe. Let the reasons in arrest be overruled. Additional Comments: North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. Uzzell and Company, State printers and binders, 1910. File at: http://files.usgwarchives.net/nc/statewide/court/page571gwl.txt This file has been created by a form at http://www.genrecords.org/ncfiles/ File size: 3.5 Kb