53 N.C. 317 | N.C. | 1861
This action was brought to recover from the defendant $200 for having, as guardian, hired the property of his ward at private hiring, instead of hiring it publicly, as required by the Revised Code, ch. 54, sec. 26, and ch. 46, sec. 20, and the only question made was whether the action was rightly brought in the name of the present plaintiff or should have been in the name of the State of North Carolina. (318)
A verdict was permitted to pass for the plaintiff, subject to the opinion of the court on the question above stated, with leave to set aside the verdict and enter a nonsuit if his Honor should be of opinion against the plaintiff on the question reserved. And on consideration of the question of law, the court was of opinion that, according to the provisions of the Revised Code, ch. 35, secs. 47 and 48, the action should have been in the name of the State. The verdict was, therefore, set aside and a nonsuit ordered, from which judgment the plaintiff appealed. We do not agree in the opinion expressed by his Honor in the court below, that the suit ought to have been brought in the name of the State. Section 26, chapter 54, Revised Code, prescribes that "all sales, hirings, or rentings by guardians shall be made and conducted in the same manner and under the same rules and regulations, and the same penalties for disobedience as prescribed for sales made by administrators." It is admitted that a penalty was incurred by the defendant, as guardian, for a violation of the provisions of this section, and the only question is, In whose name is it to be recovered? We think the reference to the act in relation to administrators makes that the rule, not only as to the amount of penalty, but also as to the person who is to sue for the same, and the use to which he is to apply the recovery. By turning to that act, then, we find that the penalty given for its violation is $200, which is to be forfeited and paid "to any person suing for the same." The forfeiture thus prescribed clearly creates an action popular, which has always been brought in the name of the person who thought proper to sue for the penalty. If the recovery were for his sole use, his name alone appeared as plaintiff in the suit; but if part of (319) the recovery were given to the State, then the action, although in his name, was called a qui tam action, because it was stated in the writ and declaration that he sued as well for the State as for himself.Qui tam actions for usury have always been so brought, because the statute gives the penalty, "the one moiety to the State and the other to him who will sue for the same."
The rule thus established for the manner in which suits for penalties are to be brought is not varied by the new provisions contained in sections 47 and 48, chapter 35, Revised Code. These sections prescribe that "Where a penalty may be imposed by any law passed or hereafter to be passed, and it shall not be provided by the law to what person the penalty is given, it may be recovered by any one who will sue for the same and for his own use," and "Whenever any penalty shall be given by statute, and it is not prescribed in whose name suit therefor may be commenced, the same shall be brought in the name of the State." We cannot believe that these provisions were intended to apply to actions popular, that is, to actions expressly "given to any one who will sue for the same." The rule applicable to cases of this kind was, as we have already seen, well established and uniformly adopted in practice. There was another class of cases where a penalty was annexed to a specified violation of the law, without saying to whom it should be forfeited and paid, or who might recover it. Instances of both classes are to be found in the act contained in Revised Code concerning "marriage." Section 6 of the act (see chapter 68) gives a penalty of $200 for the offenses therein mentioned, "one-half to the use of him who will sue for the same, *245
and the other half to the use of the county wherein the offense is committed"; while section 13 says that for the offense therein referred to, "the person so offending shall forfeit and pay $1,000." Under the latter section the suit must, undoubtedly, be brought in the name of the State, but the person who brings it will, by virtue of sections 47 and 48, chapter 35, Revised Code, recover the penalty for his own use (see Caroonv. Rogers,
The result of our opinion is that the judgment of nonsuit must be reversed and a judgment entered in favor of the plaintiff for the penalty of $200, according to the verdict of the jury.
PER CURIAM. Reversed.
Cited: Duncan v. Philpot,
Overruled: Middleton v. R. R.,