Sherrill v. . Conner , 107 N.C. 543 ( 1890 )

The action was brought for waste by the plaintiffs, reversioners, against the defendant, tenant in dower. The appeal of the plaintiffs raises but a single (544) question for our consideration.

It is provided by statute (The Code, sec. 629) that "in all cases of waste, when judgment shall be against the defendant, the court may give judgment for thrice the amount of the damages assessed by the jury, and also that the plaintiff recover the place wasted if the said damages shall not be paid on or before a day to be named in the judgment." This section is substantially the same as the law in force before the enactment of The Code (Revised Code, ch.) 116, sec. 3; Revised Statutes, ch. 119, sec. 3), except two important changes. The word "may" has been substituted for "shall" in the old statute of Gloucester, and, by a qualification added to it, the judgment for the place wasted must be conditional, and can take effect only upon the failure of the defendant to pay the actual damages before a day certain. So that it is left within the sound discretion of the judge who tries (545) the action to determine whether he will give single or treble damages, as well as to fix a day after which a writ of possession may issue for the place wasted, if the damage allowed shall not have been meantime actually paid. The old statute was, manifestly, amended when The Code was enacted, for the purpose of vesting a discretionary power in the court in reference to the amount of the judgment, and to fixing the time for forfeiture of the place wasted, on failure to pay the amount recovered.

Counsel contended, on the argument, that this is a case in which the court should construe the word "may" in the statute as intended by the Legislature to mean "shall". It would, very obviously, be not only judicial legislation, but a repeal of a law passed by the General Assembly in 1883, were we, by the construction insisted on, to strike out the amendment, and restore the provision of the old statute of Gloucester as to the amount of damage for which judgment must be given. Even in England the courts have never gone so far in the liberal construction of statutes. Parke, B., inJones v. Harrison, 6 Exch., 332. Where the Legislature expresses its intent in unequivocal terms, the courts must give effect to it by interpretation, without regard to other rules of construction. Bank v. Hole, 59 N.Y. 53;Chapin v. Crusen, 31 Wis. 209; S. v. Eaves, 106 N.C. 752. It was not error in the judge below to exercise his discretion as to giving judgment for single or treble damages.

No error.

Cited: Hybart v. Jones, 130 N.C. 228.

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