Opinion
(December Term, 1847.)
1. Where a writ is signed by a clerk in blank and delivered by himself or his deputy to another person to be filled up and placed in the hands of the sheriff, the clerk is liable to the penalty of $100, under the act of 1836 (Rev. St., ch. 31, sec. 46), if no security for the costs has been given, especially after the writ has been returned and regularly docketed by the clerk.
2. In an action upon a statute to recover a penalty, the plaintiff must set forth in his declaration every fact which is necessary to inform the court that his case is within the statute.
3. Therefore, in an action on the statute (Rev. St., ch. 31, secs. 44, 46) against a clerk for not taking "sufficient security" for the costs, the declaration must set forth either that the clerk took no security or that he took insufficient security knowing it to be insufficient; otherwise a demurrer will be sustained or a judgment after verdict be arrested.
APPEAL from the Superior Court of Law of ROCKINGHAM, at Fall Term, 1847, Bailey, J., presiding.
Waddell for plaintiff.
J. T. Morehead for defendant.
The defendant, in 1843, was and still is Clerk of the Court of Pleas and Quarter Sessions of Rockingham County. In that year a writ issued from his office, at the suit of one Charles G. Taft against the present plaintiff, Nathan Wright. The plaintiff's declaration states that the defendant did issue said writ, and caused it to be placed in the hands of the sheriff, "without having taken of him, the said Charles G. Taft, before issuing said writ, sufficient security, conditioned," etc. The action is brought under the act of 1836, Rev. St., ch. 31, to recover the penalty of $100, given in section 46. By section 44 "the clerk of every court of record, or his assistant in office, is required, before issuing any writ or other leading process, to take sufficient security of the person applying for it, conditioned," etc. Section 45 directs that the clerk, by himself or deputy, shall enter all writs issued by him in a book to be kept (185) for that purpose, together with the names of the plaintiff and defendant, and the place of their abode, and the names of the security or securities, and where they live, etc. By section 46 it is provided: "If any clerk, either by himself or his assistant in office, shall issue any writ, etc., otherwise than as by the two preceding sections directed, he shall pay to the defendant, etc., and shall also forfeit and pay the sum of $100, etc., for such offense so committed by such clerk or his assistant in office, recoverable, etc., one-half to the use of the person suing for the same, the other half to the use of the poor of the county." The action is brought to recover this penalty. The case states that Mr. Read, a practicing attorney of the court, was furnished with a blank writ — by whom he did not know, but, he believed, by the deputy clerk — which was signed by the clerk, and that he filled it up and put it into the hands of the sheriff to be executed. It further appeared that it was executed and duly returned, and entered on the docket by the defendant, and the defendant afterwards executed a bond for the prosecution of the suit. Under these circumstances the presiding judge charged the jury that the plaintiff was entitled to their verdict, as it was a matter of indifference from whom Mr. Read received the writ, whether from the clerk, his deputy, or some member of the bar.
There was a verdict for the plaintiff, and the defendant appealed.
In the opinion of the court below we entirely concur. The defendant, by signing the writ in blank, and suffering it, in that situation, to leave the office, became responsible for the act of the person who did issue it, without taking the security as directed by law. He thereby constituted Mr. Read his agent, or, in the words of the act, Mr. Read was his assistant in issuing it. The language of section 46 is, "If any clerk by himself or his assistant in office, etc.," and section 45 directs "that the clerk, by himself or his deputy, etc.," thereby recognizing in the act to be done by the clerk, before issuing the writ, a difference between the deputy and the assistant. The deputy is an officer, who must take an oath of office before he enters upon his duties, and those duties continue as long as his appointment endures. An assistant is one who is called in by the clerk, without any regular appointment, to aid him, either in conducting the business of the office generally or to aid him in some particular. A may be his assistant to-day, and B tomorrow, and they may both be assistants, either in doing the same matter or divers matters at the same time. But the defendant's liability in this case is conclusively shown by the fact that the writ was returned to him, and received by him, and regularly docketed. And he further became, after its return, the surety on the prosecution bond. By these acts he recognized and adopted the writ as regularly issued, and is concluded from the defense that it was done by one not authorized (188) by him. Upon this latter ground the opinion of my brother Ruffin is founded on this part of the case. If there were no other objection to the plaintiff's recovery, we should, without hesitation, affirm the judgment. But, unfortunately, the record discloses an error for which the judgment must be arrested. It is a principle in pleading that the declaration must set forth a good title to that which is sought to be recovered; if it does not, the defendant may demur, or move in arrest of judgment, or bring a writ of error. Archb. Civ. Pl., 109. In an action upon a statute, to recover a penalty, the plaintiff must set forth in his declaration every fact which is necessary to inform the court that his case is within the statute (Arch. Civ. Pl., 106); and it is laid down by Mr. Chitty in his treatise on pleading (1st vol., 405), that it is necessary in all cases that the offense or act charged to have been committed or omitted by the defendant appears to have been within the provision of the statute, and that all the circumstances necessary to sustain the action must be alleged. In Bigelow v. Johnston, 13 Johns., 429, the same principle is recognized, and the Court state it to be a well-settled rule in pleading that, in declaring for offenses against penal statutes (when no form is expressly given), the plaintiff is bound to set forth, specially, the facts on which he relies to constitute the offense. Here no form is presented by the statute. So in McKeon v. Lane, 1 Hall, 324, it is decided by the Court that the declaration must have sufficient certainty on its face to enable the Court to know what has been done. Facts are to be stated, not inferences or matters of law, and the party succeeds upon his facts as alleged and proved; nor will the conclusion contra forman statuti aid the omission. 1 Saund., 135, n. 3; 13 East., 258. In the case before us the declaration states the omission of duty on the part of the defendant to consist in not taking sufficient security before the writ was issued, but it does not inform us of what that insufficiency consists. Did it consist in not taking any bond (for that would come within the meaning of the statute), or did it consist (189) in taking security which was known to the defendant, when he took it, to be insufficient? The insufficiency meant by the Legislature must have been one of these two, and could not refer to any deficiency in goodness, arising after the bond taken, for it would come neither within the letter nor the meaning of the statute; that evidently refers to the state of the facts at the time when the security ought to have been taken. The declaration, then, is defective; it does not set forth specially the facts upon which the plaintiff relies to constitute the offense; it has not that certainty on its face as will enable the Court to see what has been omitted. The plaintiff has satisfied himself by stating only the inference which the law draws from the facts. McKay v. Woodle, 28 N.C. 353. For anything that appears on the declaration the defendant may have taken a bond for the prosecution. If he did, the penalty was not incurred, according to the true construction of the act, although the surety might not, in fact, have been sufficient, unless the defendant willfully received him, knowing him to be insufficient. For it was certainly not the intention of the act to visit the clerk with the penalty, over and above damages to the party, for an innocent mistake as to the sufficiency of the surety. Therefore, the declaration ought to allege either that the defendant took no bond at all or that he took a bond from persons that were not sufficient, to the knowledge of the clerk. For it is not enough to bring a case within the words of the statute, but it must be brought within its meaning and legal effect, and as if the words had fully expressed the meaning. As it is the duty of this Court to look into the whole record and pronounce such judgment thereon as the court below ought to have done, the judgment must be arrested for the defect in the declaration.
PER CURIAM. Judgment arrested.
Cited: Croom v. Morrisey, 63 N.C. 592; Turner v. McKee, 137 N.C. 259; Stone v. R. R., 144 N.C. 222.
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