WREG_Box1_Folder37

Case.

In 1740 . An Act of Assembly was pass'd in the Province of No. Carolina, for regulating the several Officer's Fees within that Province.

The 2d. Sect. runs in these Words. _ Be it Enacted &c . "That it shall be "lawful for the several Officers within this Province to take and receive in proclam[atio]n. "Money or Bills of Credit such Fees only as is appointed by this Act for such Service "to wit,

Then follows the Enumeration of the particular Fees, of which the Fees of the Public Register are set down thus

"For registring every Birth , Burial or Marriage _ ___ 0 .. 0 .. 7

"For registring a Conveyance , or any other writing , or _ _ } giving a copy thereof _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _} 0 .. 2 .. 0

For every Certificate of Birth , Burial or Marriage .... 0 .. 0 .. 7

The following Sect. relate to particulars Foreign to this Case

The 7th. . 'runs thrus' __ " That if any Officer shall Demand, Extort , Exact or _ "receive under Colour of his Office any other or larger Fees than what is particularly _ "mentioned in this Act , or shall refuse to do the particular Service in his Office for "the Fees in this Act expressed , such Officer , shall for every such Offence or Default , forfeit "the Sum of five Pounds ." (which Penalty by the 9th. Sect. is declared recoverable in the same manner as other Debts one half to the Informer , the other to the Parish)

Under the words , other writing , it had been long customary among the Registers to charge 2/0 . for each writing of receit or Certificate Indorsed on any Deed. _

In an Indictmt. in Hillsborough Supr. Court of Justice for sd. Province in _ Sept. last , Edmund Fanning Regr. of Orange County duly appointed and qualified ,_ was found guilty of Extortion in his Office as Regr. for taking 6/- on the Deed No. 13 .

On the Trial it was given in Evidence , and declared from the Bench that the taking did not by any means appear to be a tortious taking , as the said Rogr. had previous to his entering on the said Office , requested of the Justices of the County Court (the supreme Juricdicn. of the County) to consider on the Fee Bill , who after so doing in open Court instructed the said Regr. that he was legally intitled to 6/_ and odd Pence at least for every Deed whatever , with Probate , Order for Registo. and Registers Certicate of the due Registring , and in case of other Instrumts. more , as by Bill drawn up by the Court , and delivered to the sd. Regr. The _ opinion of the late Atty Gent. of No. Carolina was likewise taken on this matter , _ who declared that the Regr. was intitled to demand Fees to the Amount of 0/7 on any Deed. _

[In margin] 2

On application sevl. other Regrs. furnished him with Bills under their hands, for Fees taken for the same Services for considerably more than 6/-

The so.. Regr. however to be within the Laws as he conceived , demanded and took upon all Deeds 6/ only. .

[Off to side of the paragraph] 1st. The Questions upon which Mr. Morgam's Opinion is desired , and What Fees may within the meaning and intendment of the exprefsion in the Act pafs'd in 1740 , for regulating of Officer's Fees , be legally taken by the _ Register on the Deed no. 13. &. 14 . severally?

[Off to side of the paragraph] 2dly. Whether an Indictment for Extortion will lie at Common Law for _ taking more or other Fees than allow'd by Act of Afsembly , in the Execution of an Office created by Act of Afsembly , and if so , whether a heavier _ Sentence may be passed by the Court , than the Penalty in the said Act _ proscribed for this Offence charged in such Indictment ?

[Off to side of the paragraph] 3rdly. Whether a Register may be prosecuted by way of Indictment for taking other or larger Fees than what are particularly mentioned in the afsd. Act for regulating of Officers Fees _ The 7th. sect. of sd. Act which relates to Regrs. being [sent?] , prohibitory , but only if he does , that then he shall be liable to a Forfeiture of £5 , which in the 9th. sect of the same Act is said to be recoverable as other Debts?

[Off to side of the paragraph] 4thly. Whether a Register may be Indicted and Punished as an Extortioner for taking more by Color of his Office than he is legally intitled to , such taking happening thro' Mistake either of the sum taken , or the Sum _ which might lawfully be taken ?

[in margins] exd.

[In footnotes, different handwriting] 1. __ On the Deed No. 13 & Indorsemt I am of Opinion the Regr.. is Intitled to four [unintelligble] wit. 1 for ye deed _2_ for ye Cert. of ye Exam[inatio]n of ye Fence Covert _3_ Cost of the persons Examining being Justices _ & 4 _ The Oath of Execution and Order to Register.

As to the 3 former I think yres[there's] scarse room for a doubt_ with respect to the Cost my opinion is nearly the same. I do not Consider the Oath or Order aa part of the Deed _ the Instrum[en]t was, in itself, before complete_ the Oath & order additional , i.e. farther Securities to the purchaser There's some time limited for Registring such a Deed. Consequently the party is not formed to Register before the last day of the desire. I take it for granted if 'twas requisite in the Intermediate time , to produce if

[In margins] 3

Deed in Evidence , 'two'd be accepted as such tho' not Registred. - If so, I think it beyond a doubt that if Regr. is Intitled to such 4th fee.

As to No. 14 for the above reasons I think him Intitled to two fees.

2 - At [Courseorcharn?] the taking more than is due by Color of Office is Extortion. 1. Inst 3 b or. C. 10. Rep. 102. pls. Com. 68 This being a maxim four hours, is universally true _ and I Conceive is not confined to sufcient offices only, but extends to every one newly created. An Indictmt. will therefore, in my opinion well lie, for an Actual offence tho' in a feas office N3- [?] 2 Limits ye fees to be taken , by the word only as to the penalty given by S. 7. I consider it only as an additional Security to the Subject _ and rather / if I may so express it / in in Aid than in restraint of the Common Law. and that a prosecuter hath his Election, either to proceed for the penalty by action of Debt, or by Indictmt. for Criminal punishment which by the Common Law is Fine & Imprisonmt.

3 - This Question is already answered

4 - I think in the present Case the Regr. was not liable to be Indicted for two reasons -1- I am clearly of decision he was legally Intitled to more than he took ^ as to No 13) -2- Suppose he was not we should then enquire pro Animo ad claim he took the 6.A. the answer. [tear] with Intent to extort - But here we have Contrary mistake - under a supposition of right.** In this case Mr. Fanning did actually intend to take less than he conceived himself Intitled to _ And on entring his office, acted in the most prudent manner by requesting the Justices of the Cty. Ct. to ascertain his fees. I should think that very allowance by a Court of Justice would be sufficient to exculpate Mr. F. at Common Law - Had he taken more than he was Intitled to by the Act of Assembly - And, that in such a case there would not have been any mode of prosecuting , but by Action of Debt.

He may be said to have acted with the approbation of the Justices, & therefore for their Honor, tis Incumbent on ye Judges before whom this in after is depending , to give all the relief they can to Mr. F. which brings me to yr. last [Inoint.?]

Circumstanced as Mr. Fanning is, what may be proper for him to do?

I would advise him to move for a new trial - I scarse need [Inentn.?] authorities Will. 606. 613 _ or, that he must appear in pson. 2 Stra. 908

Shod. that be overruled / wch. I can't easily conceive / he may then move in Arrest of Judgmt. 2. Salk 64%

The Indictmt. may be bad , if not , the whole matter I take it for granted, appear on the record.

[on left margin, sideways] ** Consequently he is not Criminal - In even killing a man, if done by Compulsion, ^(or) by an Insane pson, &c is not Felony.

[in bottom right margin] [verte?]

[Sideways, in large text] Case X

For the Opinion of Mr. Morgan [B pas?]

Mr. Mc. [Culloh?]

[On next page,right side up] [Mr.?] There must be a positive allegation that [tear in paper]son Charged took so much [extensive?] or Colore Officii which words are as Essential as proditoril or Folonice for treason or Felony. 2. Salk. 680 On the Law only I should think a good argumt. might be made in arrest of Judgt. (supposing the Indictmt. states the facts fully) for the Act of Assembly is of itself Evidence of the Fees Mr F was Intitled to. And I think all the Indorsements on ye Deed, ought in substance to appear, in ye Indictmt. otherwise it should be void for the Incertainty - If fully stated, then it appears evidently to be a Verdict Contrary to Law - Shod. both auditions fail Mr. Fanning must [begin crossed out] [end crossed out]

John Morgan James Temple 1st. May 1709 -

[in margins off to side] 1769

[In margins] 5

With respect to the last question, on Mr. Fanning's Case, I conceive a full answer is given in my former opinion. _ I do not see the least foundation, for Criminating the Defendant, and I am therefore clearly of opinion, he ought, in every respect, to be exculpated.

In my opinion on the Second Question, I observed that a Prosecuter had his Election, either to proceed for the Penalty, by Action; or for Criminal punishment, by Indictment.

This perhaps, hath induced a Supposition that I doubted, with respect to the Case in question. But, if my answer is reconsidered, I apprehend 'twill clearly appear, I was only attempting to Elucidate (if it required any Elucidation) the seventh section of the Act of Afsembly, + to show that it doth not restrain the operation of the Common Law. Yet I had not, nor could have if in contemplation to apply any Criminality to Mr. Fanning.

John Morgan James Temple 6 Augt. 1770.

[faint reversed text on back end of separate paper]