{
  "id": 1972631,
  "name": "JOHN McRAE, FOR HIMSELF AND THE WARDENS OF THE POOR vs. JOHN KELLER",
  "name_abbreviation": "McRae v. Keller",
  "decision_date": "1849-12",
  "docket_number": "",
  "first_page": "398",
  "last_page": "401",
  "citations": [
    {
      "type": "nominative",
      "cite": "10 Ired. 398"
    },
    {
      "type": "official",
      "cite": "32 N.C. 398"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
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  "last_updated": "2023-07-14T15:31:28.368244+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "JOHN McRAE, FOR HIMSELF AND THE WARDENS OF THE POOR vs. JOHN KELLER."
    ],
    "opinions": [
      {
        "text": "Ruffin, C. J.\nThe writ was commenced by warrant to recover the penalty of $100, given by the Revised Statute, ch. 34, sec. 75, for selling spirituous liquors to a slave. It was submitted to the Court upon a case agreed, in which the facts charged were admitted, and the only objection taken to the recovery was, that the act does not give the informer an action. His Honor held, that it did ; and from a judgment against him the defendant appealed.\nThe opinion of the Court is, that the judgment was right. The act gives the penalty, \u201cto be recovered by warrant before any justice of the peace, and applied, one half to the use of the party suing for the same, and the other half to the use of the wardens of the poor of the County.\u201d The single question is, in whose name the suit is to be brought; and it seems difficult to imagine a clearer direction, that it is to be in the name of any person who will bring the suit \u2014 \u201cthe party suing for the same.\u2019 It is true, that an informer has no right, at common laws to an action for a penalty ; and therefore he cannot bring an action unless the statute give it to him. It is so laid down in Fleming qui tam v. Bailey, 5 East 313 ; which was cited for the defendant not only for that position, but also for the further one, that such wmrds as are in our Statute are not sufficient to give the informer an action. But it is plainly not an authority to the latter point. The statute there sued on gave various penalties of different amounts, and enacted that any of them \u201cex~ ceeding \u00a320 shall and may be recovered before a justice of the peace.\u201d By a subsequent clause it was further enacted, that all the penalties, when recovered either by action in any Court or in a summary way before a justice \u201cshall be applied, one moiety to the plaintiff in any such action, or the informer before any justice, and the other moiety to the King.\u201d It was held, that an informer could not sue qui tam for any penalties of \u00a320 or under ; because, although the act applied one moiety of them, \u201cwhen recovered,\u201d to the informer, yet it conferred on him no right to sue for those penalties, as it did in respeet of those exceeding \u00a320. That, as it seems to us, was clearly right; since, when a statute prohibits a thing, as an offence to the public, under a penalty, no debt arises to a private person, unless the statute also gives the penalty or a part of it to him, who will sue for it, as laid down, long before the case cited, by Sergeant Hawkins. PI. G. Bit. 2, Cl). 25, Sec. 17. The reason is, that the penalty for such public offence belongs to the sovereign as a debt, and is to be recovered by action in the name of the sovereign. Rex v. Malland, Str. 828. The case of Fleming v. Bailey is, then, an authority to this only, that applying a part of the penalty, after its recovery, to the benefit of an informer does not confer on him the power of suing for the penalty. In other words, that the term \u201cinformer\u201d in the statute does not^er se imply, that in such a case he may be \u201cthe plaintiff\u201d in an action for the recovery, but only the informer or prosecutor, as he is sometimes called. But the provision in this statute is not of that hind. It creates a penalty, \u201cto be recovered by warrant, and applied one half to the use of the party suing for the same, and the other half to the wardens of the poor.\u201d This recognises the right of action in some person. In whom? Why, \u201cthe person suing,\u201d as plainly as it can be. Sergeant Hawkins, in the section already quoted, states, that when a statute gives a part of a penalty \u201cto him who will sue for it,\u201d he took it to be settled, that any one may bring an action and lay it tam pro domino rege quam pro seipso; thus using the very terms in which the act under consideration is expressed. There are, indeed, many acts, in which the like language is found, on which informers have sued in their own names. Both the English statute and our own against usury, for example, have the words, \u201cthe one moiety of which forfeitures to be to him that will sue for the same by action of debt, and the other,\u201d &c. ; and we know that in both countries the action of debt in such cases is constantly brought in the name of the informer qui tam. Those words, \u201cto .him, that will sue for the same\u201d and \u201cto the use of the party suing for the same,\u201d not only determine the interest which the informer is to have in the penalty, but necessarily imply, if they do not expressly confer, his right of action qui tam.\nPer Curiam.\nJudgment affirmed.",
        "type": "majority",
        "author": "Ruffin, C. J. Per Curiam."
      }
    ],
    "attorneys": [
      "No counsel for the plaintiff.",
      "I). Reid, for the defendant."
    ],
    "corrections": "",
    "head_matter": "JOHN McRAE, FOR HIMSELF AND THE WARDENS OF THE POOR vs. JOHN KELLER.\nUnder our statute, prohibiting the sale of liquor to a slave, which gives a penalty of one hundred dollars against the offender, and declares, that it shall \u201cbe recovered by warrant, before any justice of the peace, and applied, one half to the use of the party suing for the same, and the other half to the use of the poor of the County,'\u2019 any person may sue for the penalty, as informer, qui tarn.\nAppeal from the Superior Court of Law of New-Hanover County, at the Spring Term 1849, his Honor Judge Caldwell presiding.\nThis is an action of debt, to,recover a penalty given by Statute for trading with a slave ; commenced before a Justice of the Peace, and brought to this Court by successive appeals. Plea, not guilty. And it was submitted to this Court upon the following case agreed, \u201cThat the defendant, John Keller, on Sunday the 28th day of March 1847,did sell and deliver to Larcel. a slave, the property of B.Flanner, in the County of Mew Hanover, spirituous liquors, without the permission in writing or otherwise, from his master or manager, so to do.\u201d\nThe defendant contends that the plaintiff cannot recover ; because the Statute, which gives the penalty, sought to be recovered in this action, does not confer upon the plaintiff the right to sue.\nThe Court being of opinion with the plaintiff, rendered judgment accordingly. And\u00f3n motion judgment against sureties to the appeal, from the judgment of thp County Court. Whereupon the defendant appealed to the Supreme Court.\nNo counsel for the plaintiff.\nI). Reid, for the defendant."
  },
  "file_name": "0398-01",
  "first_page_order": 398,
  "last_page_order": 401
}