Harrington v. . McFarland

"Henry William Harrington, who sues as well for the State of North Carolina as for himself, in this behalf, complains of Duncan McFarland, who being in the custody of the sheriff, etc., of a plea that he render to the said State of North Carolina, and to the said Henry William (544) Harrington, who as well, etc., five hundred pounds lawful money of the State of North Carolina, which he owes the said State of North Carolina, and to the said Henry Wm. Harrington, and unjustly detains; for this, that whereas, by an act of the General Assembly of the State of North Carolina, passed at New Bern, in the year of our Lord one thousand seven hundred and eighty-five, in the tenth year of the independence of the said State, entitled `An act to amend an act passed at New Bern, in November, one thousand seven hundred and eighty-four, *Page 459 entitled an "Act to describe and ascertain such persons, who owed allegiance to this State, and to impose certain disqualifications on certain persons therein described," it is enacted by the authority of the same that every person who at any time since the fourth day of July, one thousand seven hundred and seventy-six, attached himself to or traitorously corresponded with, or in any manner aided or abetted the enemies of this State in prosecuting the late war, shall be incapable of holding or exercising the office of Governor, Counsellor of State, Delegate in Congress, Judge or Justice of the Peace, Member of the General Assembly, or any office of honor, profit or trust, whatsoever, within this State.' And it is by the aforesaid act further enacted, that any person of the above description offering himself as a candidate, or consenting to serve as a member for any county in the General Assembly, or who shall hereafter offer as a candidate for, or accept of or qualify to either of the aforementioned offices, or holding either of the said offices, shall presume to continue to exercise the same ten days after being served with an authentic copy of this act, or after the expiration of three months from the ratification hereof, shall forfeit and pay the sum of five hundred pounds current money for every such offense, to be recovered in any court of record within this State, one-half to be applied to the use of the person suing for the same, and the other half to the use of the State:Provided, nevertheless, that nothing herein contained shall be construed to include any of the good citizens of this State from holding and exercising any of the aforesaid offices who were under the necessity of receiving protection from the late common enemy, and who after (545) receiving that protection did not stay voluntarily with them, nor took any active part in any manner, by furnishing them willingly with provisions, or bearing arms against the State, or accepting any appointment under the said enemy, civil or military. And the said unfortunate citizens having only received protection as aforesaid, and having renewed their allegiance to the State in good time are hereby restored to the rights and privileges of citizens, as fully as if they had never received protection from the common enemy as aforesaid, any law to the contrary notwithstanding. And whereas, the aforesaid Duncan McFarland, on the 14th and 15th days of August, in the year of our Lord one thousand eight hundred, at the county of Richmond, within the district aforesaid, did offer himself as a candidate to represent the county of Richmond aforesaid in the General Assembly of the said State, and did consent to serve as a member for the said county of Richmond aforesaid in the General Assembly aforesaid, and did actually serve as a member thereof. And the said Henry Wm. Harrington, who, as well, etc., in fact says, that the offering as a candidate to represent the county of Richmond *Page 460 aforesaid, in the General Assembly aforesaid, and consenting to serve as a member for the county of Richmond aforesaid, and his actually serving as a member thereof in the General Assembly aforesaid, was after the expiration of three months after the ratification of said act. And, whereas, the said Duncan McFarland having since the fourth day of July, A.D. 1776, attached himself to, or traitorously corresponded with, and aided or abetted the enemies of the said State during the late war with Great Britain, he, the said Duncan McFarland, hath forfeited and become liable to pay the aforesaid sum of five hundred pounds, by reason of which, and the force of the said act of the General Assembly, the said Duncan hath become liable to pay the said Henry Wm. Harrington, who as well, etc., the said sum of five hundred pounds," etc. The defendant demurred, and stated the following causes of demurrer, viz.: (546) 1. That the said declaration does not show in any manner in what court the suit is pending. 2. That the defendant is not therein precisely alleged to be in custody of the sheriff, or otherwise shown to be before the court. 3. That the said declaration is uncertain and insensible, inasmuch as a certain act of Assembly is therein pretended to be recited, and no conclusion drawn therefrom. 4. That a certain act of the General Assembly therein pretended to be recited, or in part recited, and on which action is founded, is untruly recited, and is materially variant as recited in the declaration, from the act itself. 5. That to the material fact on which the action depends, to wit, the defendant's adherence to the enemies of the State during the late war with Great Britain there is neither time nor place alleged; neither is the fact itself alleged precisely, but by the way of recital, viz.: "Whereas, the said Duncan having since, etc., attached himself," etc. 6. That the said declaration is uncertain in that part thereof which charges the defendant with having offered as a candidate to represent the county of Richmond in the General Assembly, inasmuch as it does not appear how or for what he was a candidate, whether to represent the said county in the Senate or House of Commons. 7. That the said declaration does not charge the defendant with having committed any offense; neither does it conclude as it ought to do, after charging the offense, with the words "contrary to the form of the statute in such case made and provided." The fifth cause of demurrer must prevail, connected with the additional circumstance that the charge is in the disjunctive, *Page 461 and does not call the defendant to answer any one of the offenses specifically, which the act of Assembly enumerates. In penal actions precision in the charge is indispensable for the same reason that it is required in indictments; and none of the statutes of jeofail, nor (547) even the Act of 1790, intends to them. Cited: Martin v. Martin, 50 N.C. 349. NOTE. — The act "concerning the amendment process, pleading and other proceedings at law," contained in the Revised Statutes. (1 Rev. Stat., ch. 3, sec. 10), extends to penal actions by express provision.