Governor v. Howard, 5 N.C. 465, 1 Mur. 465 (1810)

July 1810 · Supreme Court of North Carolina
5 N.C. 465, 1 Mur. 465
The Governor v. Henry B. Howard

The Governor v. Henry B. Howard.

1 I From New-Hanover. J

The repeal of an act of Assembly giving a forfeiture for an offence, is a repeal of all forfeitures incurred under the act repealed, unless there be a special exception to the contrary.

A. sues E. for the forfeiture of £100, given by the act of 1794, for buying a slave knowing him to have been imported contrary to that act Pending the suit, this act is repealed, and the repeal is pleaded in bar. The Plaintiff demurs to the plea. The demurrer overruled, ^nl the plea allowed.

This was an action of debt, to recover the sqm of onfe hundred pounds, as a forfeiture for having bought a slave, knowing the same to have been imported into this State, contrary to the act of 1794, ch. 2. Pending the suit, and after issue had been joined therein, the act of 1794, ch. 2, was repealed; and at the next term of the Court after this repealing act was passed, the Defendant pleaded it in bar, by way of a plea since the last continuance. To this plea the Plaintiff demurred $ and the Defendant having joined in demurrer, the case was sent to this Court, upon the question, Whether the demurrer should be sustained; or should be disallowed and the plea sustained ?

Hate, Judge,

delivered the opinion of the Court:

It is laid down in Cro. Eliz. 138, that the Attorney-General cannot enter a nolle prosequi to an action quv tarn, except for the King’s part of the penalty; nor can she King after action commenced, release any but his own part of the penalty.'* But it is in the power of Parliament to release the informer’s interest.† If so,, they surely have the power of taking away the informer’s right of action, by repealing the act which gave birth to it. It is said‡ in Sir William Blackstone’s Reports, *466«that no proceeding can be had or pursued under a repealed act of Parliament, though*begun before the repeal, unless by special exception.” And by Sir Matthew Hale,-* “ that when an offence is made treason or felony by an act of Parliament, and then that act is repealed, the offence committed before such repeal, and the proceedings thereupon are discharged by such repeal.” Froni these authorities, and others which might be referred to, as well as from the circumstance that the suit in the present instance must be brought in the name of the Governor alone,, (the act having directed the forfeiture to be sued for in bis name) although after a recovery one moiety thereof is to go to the informer or the person who brought the suit. The demurrer must be overruled and the plea allowed.