Opinion
June, 1822.
Writ of error to the Justices of the Court of Common Pleas, Sussex County.
This was a qui tam action brought by Gaskins against Ingram for selling with an intent to export a negro slave named Jenny from this state into the State of Maryland. . . .
At an adjourned term of this Court in October last, this cause was submitted by the counsel of each party, without argument, on an agreement that their notes of cases should be referred to the Court for their view and consideration.
The following is a copy of the notes furnished by Mr. Cooper, counsel for the plaintiff in error. Plaintiff relies upon the following cases: 1 Chit.Pl. 357, 358, (new edition) 263, 264; 1 Term 144. Where a person is exempt from a penalty in a statute by proviso, plaintiff need not state in narratio that defendant is not within the exemptions; but where the exemption is contained in the enacting clause, it must be negatived in the narratio. 2 East 339; 1 Saund. 135, note 3; 6 East 140; 2 East 240, 340. When act was not an offence at common law, it is necessary to conclude "against the form of the statute or statutes." The words, "whereby and according to the form of the statute," will not suffice when action is founded on two statutes; it must be against the form of the statutes. 4 Burr. 2021, 2490, a common informer is not entitled to damages, and therefore narratio should not conclude, "to the damage of the plaintiff." 2 Del. Laws 885, this Act imposes a penalty of £100 for exporting, selling etc. to the West Indies or either of the Carolinas or Georgia without license from three justices. The second Act is in [2 Del. Laws] 943, and in addition to the places named in the first Act extends the prohibition to Maryland and Virginia, and also prohibits the selling, with an intent to export, without license from five Justices of the Peace. In 2 Del. Laws 1094, s. 3, power is given to the Justices of the Court of General Quarter Sessions to grant permits etc. The narratio refers to the provisions in the Act, in [2 Del. Laws] 943 and 1094, and alleges that defendant sold with an intention to export without license from five justices of the peace or from the Justices of the Court of General Quarter Sessions, and as the two Acts are referred to, narratio should have stated "against the Acts of the General Assembly." 2 Hawk.P.C, c. 25, s. 116, a penal action requires nearly the same strictness as an indictment. The plaintiff below could not have maintained his suit without an averment negativing the license by the five justices and also the Quarter Sessions. The exportation then must be contrary to the Acts of the General Assembly, and the narratio ought to have alleged it. 1 Bac.Abr. (new edition) 69, title "Actions Qui Tam" E, if judgment be that informer shall recover, without saying anything of the king, it is erroneous.
Copy of the notes of defendant in error furnished by Mr. Vandyke. On the part of defendant in error, and in answer to the errors objected and insisted on by plaintiff in error, the following authorities and remarks are submitted. The suit is brought on the provision contained in Act of Assembly, 2 Del. Laws 943, which Act alone gives the right of action qui tam for the penalty of £100 for exporting, or selling with an intention to export to Maryland etc. And this is the only Act in which Maryland is named, and therefore narratio concludes right, "against the form of the Act of the General Assembly." 3 Lev. 61, information for not coming to church, and concludes, "contra formam statuti"; objected, ought to conclude "contra formam statutorum" for it is contrary to divers statutes, viz 1 and 13 Eliz.; but it was held good, for though the 1 Eliz. does enact that all shall come to church, yet the 13 Eliz. only gives the penalty. Cro.Jac. 187, 2 East 333, 7 East 476, 1 Chit.Pl. 358, in narratio on Statute of Winton, 13 Edw. I, c. 2, of hue and cry, shows how according to Statute 27 Eliz., c. 18, and concludes "contra formam statuti." Court held it best to conclude so, because the action was grounded only upon the Statute of Winton, which gives the penalty and the remedy; the other shows how and in what time the examination is to take place before action brought, without which he shall not have the action. This authority and reasoning applies in all points to the case under consideration. 2 Hawk.P.C. 379, s. 20, it is doubtful whether there be any necessity that either writ or count do express that it is brought for the King as well as the party. 2 Hawk.P.C. 379, s. 21, if the action demand the whole forfeiture for the party informer where the statute gives part to the King, it is insufficient.
As to the verdict and judgment, the verdict is for the sum in the narratio as usual, and assesses six cents damages besides the costs expended. Damages and costs were released, and judgment entered only for the debt, which is strictly and formally legal. In the short entry of judgments invariably used in our courts, the Court of Appeals will always construe them as if they were drawn out at large and in legal form, and will not raise a presumption against the form of entry to defeat a verdict and judgment.
After verdict, any matter in narratio that is surplusage and unnecessary to be averred will not vitiate the proceedings. The conclusion of the narratio, "to the damage of plaintiff," if unnecessary, is only surplusage and does no harm, especially after verdict. 4 Burr. 2021, 2490, judgment for debt, and reversed as to damages and costs. 3 Lev. 374, demand was that defendant render to Domino Rege and Sedgwick, qui tam and informal issue and finding, yet held good. There is great difference between raising presumptions to reverse and to support a verdict and judgment. Though penal suits are said not to be favored, yet the proceedings in them are entitled to the same sensible and liberal construction as in other cases.
THE CHANCELLOR. I am of opinion that it is not necessary that the offense stated in this declaration should be charged to have been committed against the Acts of the General Assembly, because the Act entitled "An additional Supplementary Act to an act, intituled, An act to prevent the exportation of slaves, and for other purposes," 2 Del. Laws 942, alone gives the action. By the "Act to punish the practice of kidnapping free Negroes and free Mulattoes, and for other purposes," 2 Del. Laws 1093, s. 3, the Justices of the Court of General Quarter Sessions of the Peace and Gaol Delivery, or any two of them, are substituted for the five justices of the peace, in open sessions, as mentioned in the additional Supplementary Act, etc.; but still it is upon this Supplementary Act alone that the action is founded.
The Constitution had repealed that part of this last mentioned Act by which the five justices of the peace, in open sessions, were authorized to grant a license for the exportation of a slave, by abrogating the power of the justices of the peace to hold a Court of Quarter Sessions after the first Tuesday of October, 1793; and therefore by the Act to punish the practice of kidnapping the authority granted to the present Justices of the Court of General Quarter Sessions, or any two of them, is ingrafted in and made part of the additional Supplementary Act etc.; but no suit is given by this last mentioned Act, and it was the intention of the legislature merely to supply a defect in the previous law in the power to grant licenses created by the Constitution. In the second section of the Act to punish the practice of kidnapping etc., special bail is required to be given by persons prosecuted for offenses committed against the additional Supplementary Act etc., and it seems to have been considered by the legislature that the action was given by that Act alone. The Act to punish the practice of kidnapping etc. in no form creates an offense or provides a remedy in relation to the exportation of slaves, and consequently an action cannot be founded on it.
The case of Andrews v. The Hundred of Lewknor, Cro.Jac. 187, is similar to the present, because, as the court then said, the action was grounded only upon the Statute of Winton, 13 Edw. I, c. 2, which gives the penalty and remedy, and the Statute 27 Eliz., c. 13, only shows how the examination shall be and in what time before the action brought. Lee, C. J., in Merrick v. The Hundred of Osselstone, Rep.T.H. 409, Andr. 115, also says that the action is founded upon the Statute of Winton only; and the subsequent Acts of Parliament do not entitle the plaintiff to the action, but only restrain him in the manner of suing. And so here the Act to punish the practice of kidnapping etc. gives no action but only supplies a defect in the additional Supplementary Act. The law stands precisely as if the additional Supplementary Act, 2 Del. Laws 942, had been re-enacted with the third section of the Act to punish the practice of kidnapping etc., 2 Del. Laws 1094, the whole making but one Act as to the granting licenses, but more especially as to the penalty and the remedy.
It is no error that the verdict was rendered for the sum mentioned in the narratio. This is the usual mode for rendering verdicts when the suit is brought for a penalty or for a certain sum, and is sufficiently certain.
And the form in which the judgment is entered is well enough; for it should be considered as if drawn up at full length with the legal precision in such cases.
The plaintiff below could not recover damages for the detention of the debt, because the debt did not accrue until the judgment was recovered. 4 Burr. 2018. The conclusion of the declaration, that the plaintiff Gaskins is injured and hath damage, is mere surplusage. The costs have been released; and if judgment had been rendered for the costs or damages, the whole judgment would not have been erroneous, but only so much as related to the costs or damages, or both; and the judgment might be reversed for part and affirmed as to the other part.
The seventh error assigned I do not perfectly understand. The plaintiff below in his declaration named the slave, and this seems to be considered as an error, but I do not perceive in what manner this particularity can be erroneous. It might have imposed some difficulty at the trial; but as the jury has found the fact, it can be no error and would not have been a good cause of demurrer.
It is surplusage only in the declaration to allege that "the defendant below sold with an intention to export etc. without the license or permit first had and obtained from five justices of the peace of the county where the owner or owners of such negro slave did reside, in open sessions," because such justices had no authority to grant such license or permit, as I have before mentioned. And if the point of objection turns on these words, "did reside," [it] is now immaterial. The Act intended that five justices of the peace of the same county in which the owner resided should grant the license in open sessions, but now the justices of the peace having no such authority, all that part of the declaration is unimportant and should be rejected; and then the declaration would read thus: "that the said Ingram, on such a day and year, at Sussex County, did sell etc. without license or permit first had and obtained from the Justices of the Court of General Quarter Sessions of the Peace and Gaol Delivery, or any two of them," which would have the declaration correct in this particular.
I perceive no error and am of opinion that the judgment should be affirmed.
Judgment was unanimously affirmed at an adjourned court, October, 1822, by RIDGELY, CHANCELLOR, JOHNS, Chief Justice of the Supreme Court, DAVIS, Justice of the Supreme Court, and STOUT, Justice of the Court of Common Pleas.