Scroter v. Harrington

• Decision Date: 31 December 1820
• Citation: 8 N.C. 192
• Court: North Carolina Supreme Court
• Parties: SCROTER v. HARRINGTON.

8 N.C. 192

SCROTER

v.HARRINGTON.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1820.

In actions on penal statutes it is necessary in the declaration to name the statute, or recite its provisions, or refer to it in some manner as by the general terms, "contrary to the statute in such case made and provided." so as to give the party notice of the law, with the violation of which he is charged.

Held, therefore, that a warrant against H. to answer S. "in a plea of debt of ? for obstructing and turning the public road leading, etc., from etc. to etc., being one month," is insufficient.

Held further, that this is a defect in substance and is not cured by verdict, nor to be overlooked in proceedings before a justice of the peace, in which mere matters of form are not regarded.

THIS was a warrant returnable originally before a justice of the peace against Harrington, from ANSON, to answer the plaintiff Scroter, "in a plea of debt of five pounds for turning and obstructing the public road leading from Haley's Ferry to Sneedsborough from Little Creek to Jones's Creek from 23 April, last past, until 23 May, following, being one month." Upon this warrant, judgment was given for the plaintiff for the five pounds and costs, by the justice of the peace; and upon successive appeals by the defendant to the county court and Superior Court, upon the plea of nil debet, verdicts were given for the plaintiff, and similar judgments rendered in those courts. The point made in the Superior Court, as stated in the record was, that the plaintiff could not maintain the suit in his own name only, under the act of 1784, ch. 14; because the fine belonged to the county, under the 17th section of the act, as was contended. This Court, however, did not consider that question at all, but without argument, decided for the defendant upon the insufficiency of the warrant. Judge Henderson delivered the opinion of the Court:

That the defendant may be informed of the nature of the charge against him, the law requires that the facts constituting it should be stated with precision, and, in cases where it is practicable, the law also against which it is said he has offended. In cases of penal statutes, which are written laws, and therefore may be referred to with ease and certainty, it is required that they should in the charge, be stated or referred to— anciently, by naming the statute by its title, or reciting its provisions; in modern times by referring generally to it in the following or similar terms "contrary to the statute in such case made and provided." The Common Law, being unwritten and traditionary,...