Whereupon the Court,
after having considered the special verdict, directed judgment to be entered for the defendant.
Doe on the Demise of Cleary v. Wrenford, 1 N.C. 57, 1 Mart. 57 (1787)
May 1787
·
North Carolina Superior Court
1 N.C. 57, 1 Mart. 57
Newbern,
May Term, 1787.
DOE on the demise of CLEARY versus WRENFORD.
EJECTMENT. The jury found the following special verdict.
“The jury find that the premises in question were vested in “ Timothy Clear late of Newbern, deceased, in fee, that the said Ti " mothy died intestate, without issue, on or about the month of Sep " tember 1775; and that Simon Cleary his heir at law, the lessor of " the plaintiff was then an inhabitant of the kingdom of Ireland: " that about the month of December 1777, an act of the general as " sembly of this state was passed, entitled,
‘ An Act for confiscating the property of all such persons as are ini " mical to the United States, and of such persons as shall not, with “ in a certain time therein mentioned, appear and submit to the State “ whether they shall be received as citizens thereof, and of such per " sons as shall to appear and shall not be admitted as citizens, and “ for other purposes therein mentioned.” 2, 1777, 17, 341.
“I. Whereas divers persons who have heretofore owned and “ possessed lands, tenements and hereditaments, and also moveable “ property in this state, have withdrawn themselves from the same, “ and attached themselves to the enemies of the United States of “ America; and also divers persons who have withdrawn to places “ beyond the bounds of any of the United States, in order to avoid bearing their proper and equal part in defence of rise freedom and " independence of the same; and also divers persons who having " been beyond the bounds of the United States at the beginning of “ the present war, have, failed to return and unite their efforts for “ the common defence of American liberty; and it is expedient and “ just that every person for whom property is protected in any state " should be and appear within the same, or join in defence thereof “ whenever the same is threatened or invaded; and it is also just that a reasonable time be given for such as have it in their power to alledge favourable or mitigating circumstances to induce “ this state, ever attentive to the rights of natural justice, and ever ready and willing to receive to grace and favour all who are “ sincerely attached to liberty, to receive them as citizens, and re" *58 store them to the possessions which once belonged to them.
“ II. Be it therefore enacted by the General Assembly of the State of North-Carolina, and it is hereby enacted by the authority of the fan " That all the lands, tenements, hereditaments, and moveable pro" perty within this state, and all and every right, title and inter " therein, of which any person was seized or possesed, or to which " any person had title on the fourth day of July in the year one “ thousand seven hundred and seventy-six, who on the said day was " absent from this state, and every part of the United States, a “ who is still absent from the same, or who hath at any time during the present war attached himself to, or aided or abetted the en" emies of the United States, or who has withdrawn himself from this or any of the United States after the day aforesaid, and still " resides beyond the limits of the United States, shall and are here “ by declared to be confiscated to the use of this state; unless such “ person shall, at the next General Assembly which shall be here " after the first day of October, in the year one thousand seven hun" dred and seventy-eight, appear, and be by the said Assembly ad" mitted to the privilege of a citizen of this state, and restored to " the possessions and property which to him once the same.
“III. Provided, That this act shall not extend to such persons " as are, or have been actually employed in the service of the U " nited States, or any of them, and have not deserted to the enemy “ or traiterously violated their trust, as are imprisoned, of unsound “ mind, or under the age of twenty-one years.
“ IV. And provided also, That nothing herein contained shall be " construed to give permission to such persons as have removed themselves or have been removed under the compulsive authority of a“ ny law of this state, or who have removed themselves to avoid taking the oath of allegiance to this state, to return thereto, or to “ avoid any sales of lands, tenements, hereditaments, or moveable property, by such persons bona fide made before their departure, “ pursuant to an act of Assembly, passed at the last session of this as" sembly, entitled, " An act for declaring what crimes and practices “ against the state shall be treason, and what shall be misprision of trea" son, and providing punishments adequate to crimes of both classes and “ for preventing the danger which may arise from persons disaffected “ to the state.” 1, 1777, 3, 284.
“ And the aforesaid jury also find that in the month of November “ 1784, the following act, entitled, An act to remove all disabilities from Simon Cleary, and others therein named, was made and “ passed in the words following, viz. 1, 1784, 34. 14.
“ Whereas Timothy Cleary (otherwise Clear) late of the town: “ of Newbern deceased, departed this life on or about the month of “ September, in the year of our Lord one thousand seven hundred and “ seventy-five, without issue, possessed of a considerable real and “ personal estate, the real estate descending to his eldest brother and “ heir at law Simon Cleary, and the personal estate after deducting *59" the distributive share of the widow to the said Simon Cleary, Pa " trick Cleary, Esther Beetle widow, otherwise Cleary, Thomas Con"nor and Margaret his wife otherwise Cleary, and Mary Cleary, " single woman, brothers and sisters of the said Timothy; and “ whereas the said brothers and sisters of the deceased, were, inha“ bitants of the kingdom of Ireland and other parts without the li" mits of the United States, by reason of which the commissioners of " confiscated estates for the county of Craven have seized and sold the greatest part of the said estate which formerly belonged to the said Simon Cleary, Patrick Cleary, Ester Beetle, Thomas Connor and Mar " garet his wife, and Mary Cleary; the said Simon, Patrick, Esther, " Margaret and Mary, nor any of them, not appearing at the first Ge" neral Assembly which was held after the first day of October, one “ thousand seven hundred and seventy eight, agreeable to an act com" monly called the confiscation act, passed in December one thousand " seven hundred and seventy seven: and whereas the said Patrick " Cleary hath applied to this present General Assembly and offered " testimonials to induce a belief that he hath made several attempts " to come to this state during the war, properly impowered by his " brothers and sisters; the first of which attempts appears to be on of about the latter end of the year one thousand seven hundred and “ seventy six, but was each and every time unfortunately taken by " privateers: and whereas the General Assembly have resolved that " the several claimants of the estate of the said Timothy are entitled " to relief, and have voted that they shall receive out of the pub" lic treasury, the amount of the sales of the said estate, and it is" necessary that they should be further relieved by enabling them " or some of them to commence an action or actions for the recove" ry of such part of the estate as hath not been sold, and the rents, " issues and profits thereof, and of such things in action, if any, as " as may be in the hands of individuals.
“ II. Be it therefore enacted, by the General Assembly of the " state of North-Carolina, and it is hereby enacted by the authority of the " same, that it shall and may be lawful for the said Patrick Cleary " to sue for and obtain letters of administration on the personal es" tate of his diseased brother, unadministered by James Coor, John " Hawks and David Barron, and the survivors of them, and as ad" ministrator to commence and prosecute such suit and suits as may " be necessary and in the name of the said Simon Cleary, other the " heir or heirs at law of the said Timothy, to commence and prose" cute to final judgment any suit or suits either in law or equity " which may be necessary for the recovery of any of the real estate " which was of said Timothy Clear, and law to the contrary not" withstanding.”
“And the aforenamed, jury do further find that the premises in " question were not sold by any commissioner of confiscated property, " before the passing of the last recited act.”
"And upon the whole, if the law is for the plaintiff, they find the defendant guilty of the trespass and ejectment as laid in the plain" *60tiff's declaration, and assess six-pence costs: if for the defends " they find the defendant not guilty.”
Maclaine for the plaintiff,
— for the defendants.