dLbt Iti&ratp of tijc On!tiet0itp of BortI) Carolina Collection of jl2ottS Caroliniana i?'^^'' aasiis^w i 1 i UNIVERSITY OF N.C. AT CHAPEL HILL 00032761645 ^ TTiis book must not f be taken from the i Library building, ^ ^£.«=^ ,^B««x«u.^««.««r-<^^ ^ ,K c^ .rfg^ l«iBao«^^^';.^ SBI^IPCDIBIP^ (DW 0^^®^ ADJUDGED IN THE SUPERIOR COURTS OF LAW AND EQUITY OF THE STATIC 0¥ Noa \B^-eAB,01i\Xa, FROM THE YEAR 1789, TO THE YEAR 1798. BFJOHJy HJiTfFOOD. ESq. One op the Jcdqes op the Superior Courts of Law and EauiTT. SECOND KDTTION, With References to subsequent enactments of the Legislature, and decisions of the Court of Conferente and the Supreme Court, a Table of the Cases reported, map" ginal Abstracts, and a new Index. BY WILLMM H. BATTLE, Of Fhanklin Countt. PRINTED BY JOS. GALES & SON. 1832. 0' PREFACE TO THE SECOND EDITION.. In presenting the Public with a new edition of the first volume of HAYvvDOu'b (North-Carolina) Heports. the sub- scriber trusts that his efforts will be received with iiidul- geiice. As that very valuable book w as out of print, a bare republication of it must have been an acceptable present to the profession. P»ut the subscriber has ventured to annex lieferences in each case to such legislative enactments or Judicial decisions as have been subsequently made upon the points adjudged, or the doctrines embraced, in the Re- ports. He has also prepared a Table of tlie Cases reported in the volume — affixed to each case that required it a mar- ginal note or abstract ol the points adjudged — and to the whole, has added a new Index. The subscriber is fully aware, that the W ork niiglit have been executed in a much better manner by one of greater skill in (he profession, and of more ample sources ol research. A limited Library has forbidden a reference to many of the English Authorities and to all the American Books of Reports. It is hoped and believed, however, that all the decisions of our own Court.* Lave been consulted and properly referred to. The same remark is applicable to our statutory provisions. But what- ever may be the defects in the attempted improvements of the present, edition, it is matter of consolation that it pre- serves the full value of the original woik. WILL. H. BATTLE. Franklin County, June. 1832. ri ■OF THE NAMES OF CASES REPOR riiD IN THIS VOLUME. A. Adams ». Spi-ar /iffye 215 A lei)'-' K.\ ciitKr«.u. Stokes 12J All^.' V VVi|li:iiiis 17 Alst 1. V T»>1. r 3 i Aniiiymi.us. Slier, ff's Sale 2 Oi ,iha' ' Bond 144 • li.jiinction 162 Appe.il 171 — DepririaiM currciic) 18 ) AccmirK 2^6 ;-ta'iite otX'n-.itutions 243 Sirvic of.B'l 286 — ^ PIt'M o' plene ailminis- InnU 295 Pl.i> . t ,1(>. 297 Ceriiorari 302 p.,t;ioii et al. ■ V B ilty • V Ur iwii's Executors • u l)i iieny - ». Jucksoii - V Keiii.ii's Adininistnilors - V OliUiam - II. Sian on 484 485 487 ib. 488 500 164 .76 227 248 14 216 165 271 395 1 369 363 Al Ki V. B II AniiiKlon V Aiiington Avery v- Br.inc>- Aveiy V '.Moure's Executors B. Bailey's Adm'rs. w.Cocliran'a .\dn; Bakei' V- Loiv Rai i^es Oy lier guardian v. Hogg Beiry's Adm's. v. Pullam nil lews, Adm'r. v. Bo,:;an Bla' k, assignee v. Bird Blanionu. Miller Bl iUnl ,.. fhU Blacklfcd^e v. Simpson Ri-..df.rd 2) Hill Brckell V. Bass Br gill V While Brown, CamphoU h C . v. Cleaiy & Craig, Adm'r of Crag 107 Urown, Caiiphi II Sc Co. v. llie adini's. o! Cr.ig & Cl.Mi} 378 Bunii V. Mo re's Executors Uunovv V Seller's Ex"CUlurs Buiio' V. Shep;;ard C. Ca n ■» Put lam ( ampbell, \»s gut-e v. Mumford 0-irruthers r. Tillman Carter v Brancli 135 Carter's Executors A Riitlaiul 97 lot 1 485 15 13 273 4 502 259 22 137 492 279 501 399 173 398 501 TIULE Ul' TUL .NAJUES OF CASL:*. Chambers I). Smilli pa ^e 366 Clirislrra'i . t :.l. V. r .m^ibell et al. 125 CI trk r. Ki'iion and IIill 308 Cl:ir> V. AHlvon 111 (;le;iry v- Coor ami Hiwk"! 22i ClemV • s & Co. v. Kison & Wiiplit 13 Colil>- II Fowler 12 CoH-ns V nirkiii^oii utid Allen 240 Conn . ti Gwiiin's Kxeciitors 121 CO' k V. Little Miul arollicr I6S Cowpcrr. Edwards. A. Taylor 20 Flower'. V Clasijow 12y Fori man xi. Tyson 496 G. Gallir.ith V. Whyte 464 Ge V V'-tinpr 17 Glr r R v., olds 114 & 143 Ilnsrh. •• t'. Gi. s V 26 Hii};h--'s Adm'r t) Stokes's A 'mV 372 lluntc. Jui-ks& London, Sur. Part's or.liicks& Co. 173 I. Ingram Assignee v. Hall 19.*? Ingnm v Lmi. r 221 J. Jamiesnn, Assig'nef v. Farr 182 Jonc s V Uri' I:tey 20 Jon s'sAdm' . v- mount's Executor 238 Jones ■». Jones 488 K. Kenne.ly v. Ale\o>d r 25 Kennedy & Co. ti. Filrnian 404 Kennedy & C"- f. Faimian 408 Kennedy & Co. v. Fiirman 458 Kenon's Ex'is. v. AVilliamson, Mor- ris 'in. I others 350 Kiddie Snr.P rt. of Ramsa\ & Kiddie V. Debruiz 420 Knight and Wife v. TI omas 2b9 L. Lee t). Ashley 186 Lr wis V. Hynes 278 t.ew.a V. Williams 150 l.owtliorpe Smith 255 Liitterloli V. Powell 395 M. Midox ti. Hi skins 4 Martin t». Si.ier ..nd Montgomery 369 Mivw'lc Holland 302 M. Klzu'sEx'rs.t-.Ol pliant sEx'r . 4 M'Kmze » Asho 502 Ml Mi'pphev V. Campbell 181 M( N iiph'dii's Kx'rs. V, Mosely 331 M. Naiifflitiin'sSur. Part's v Naylor 180 V. Moon 189 V. Norris Sur. Part. 216 — V- Blocker's Adm'r. 417 t'. Lester t) Hunter McKa V. Moi>rc's Adinr's. M, ■ ilTi V Spears M.rrti t> Merritt Jlerritt t. WarmoutU 423 454 182 li2 20 12 TABIE OP THE NAMES OP CASES. pctse Mills u. McAllister Mil jT, V- Gilmour Moniliirt''! Excculor v. Alston Mooii' V. Sn' I rill's \dm'r. Mtirli e V R'^Minfi Miiri.lif.\ V. Work MusliK.w & Co. V. Graham N. Nasli V. N.sh's Ailm'r. Nelius V. Brickell's Adm'r, O. O'Nial V Owens P- Fark u. C"chran et at. Paikcj' I'. Stephens l>:.ik. r& Wifei). Philips Patterson el at- v. Patterson and Sel- lars Patters' n v Patterson et al. PeMie V. Foisome Pe rie v Knisom Pefie's I'.x'r!-. v. Webb's Admr's. Perkins v Bullmger Peliiford J). Sanders Porter u. McClure Q. Quinton v. Courtney R. Reynold-- v. Flinn Ritchii- V. McAuslin Robenson v. Stone R.ib" rtso" V Smart Kluxles » Browrilow Kf)(j<-r< V. liril' y Rutherford v. Nelson S. Seek«r|(r||t on dem. of Wright and Will- «. Bogan Seers » P-irker Sherri'd v. Davis Sm'th V. S'. Luwrence Smilli ri a). V. EsttS Smitii ti. Powi-ll Snitil V. Mite rll's Executors SnoW'U-n V. Humphries Southerhnd ». Mallett Sp'il r D, Sinllcr Stan'l' I V. Bains Stall V V I'ma 303 279 2 16 276 105 361 228 19 410 218 451 167 163 181 413 96 367 399 360 106 220 402 159 16 256 105 176 126 283 174 348 452 289 21 461 482 238 463 Sf8 221 Slate V Blount and Blount 4 " V Rr dley 403 & 463 " ,. Bown 100 " «. ("oulter *• V tlurtis " TI Dickens " V- F.vaMS " V arrijues " r Greenwood " V. Grisham " V Irwin " V. Jiiinston " V. Joyce *' V. Long " V. f ontj " V. Moore " V. Minn " V. Miiftniss " T). N'Tr's " V. OMham " V, Ransome «' V R.berts " V. Tw:tty " V VVfbb " V White V. Wilson V. Anthony Strong V. Spear Strudwi. k Ti. Shaw fiw.mn V. G.UKe Swepson V. Whitaker T. Tinilatl's Executor V' Johnston Trnxler v- Gibson Tune V. Wdlams Tuton V. Sheriff of Wake U. Univi-rsity of N. Carolina ti. Johnston 373 W. Wnlk'.r's Adm'rs v. Hawkins 398 Waller j;. Bmddie 28 W' Id) V. « .tkins an Pickett 369 Whiibie's \dm'r. K. Fraaier 275 \' il. ox t). R }• 410 Wii, si w t.. Bloom 217 Winsowj) W:.lker 193 W LSI auj). thelieirs&c of WiRstead243 Wiihevs.jo.mt,. M.ell 12 Witii-rspoon & " ifc V. Blanks 496 Y. YarboTonjjh »•. Giles 4^ 40 Sfee 3 471 406 281 241 141 12 112 293 43 154 458 482 4 99 429 450 1 176 102 103 13 242 98 214 5 224 372 465 IS 485 IMMM H/^lf WDDD^i mmiPDB^go HALIFAX, OCTOBER TERM, 1789. Arrington v, Arrington. In a gift of pefsonal chattels, a s mbolical delivery is sufficient. ACTION of Detinue, fur a no.a;i'o boy given fo the Plaititiff Oy liis uncle SanilU'er. The boy licins in Vir- ginia at tlie time of tlie i^ift, and no \ : the Court rnl-d, that delivery of possessinn in such cases, is principally in order to identify tlic property, and that it inij;ht hIso answer the purposes id' iiotoiiety ; but when the identity of them could be proven, the gift v\as good without de- livery : a verdict for the FlainiifT accordingly. And as well as 1 recollect, )ier Spkncer, if tin le had been two boys of the same name, a delivery might have lu>en ne- cessary, but as there was only one, the proof of identity was easy. Note.- QHsrc i!e hoc. Actual delivery ii necessary, not for identity, but to obviate the ohjection oi'nudum pactum. A g\(t accompanied with a delivery of poMsession, is a contract executed ; but if there be no actual delivery, the contract, if silt, would be executory, and could not be enforced without a sufficient consideratiim. Vide 2 Black. Com. 441. Bullock V. Tinn;n U loifi, 2 Car. Lav, Rep. 271. Picot, ttdm'r of Li-gget v. Sander.ion, 1 Dev. Rep 309. The only case which seems co«/™, 'ts'in Brookes'sAbridg. Tre.ipass, 303, cited in ficoi r. Saiiilerson ; but that cast turned upon Iht question whether Trover or Trespass could he maintaineii upon a general property without ac- tual possession ; ar.d it may be presumed, that the word "j^ives" was used without considering it.i confin d .id tcclinical meaninjc. 2 Sujid, 47 a. In the case vf Liivendtr v. Prilchard's attm'r the delivery of a few ears of corn, was held a gond ileli>cry of all the duuot's corn, though hut a small quantity of it was present. 3 j^uj. 337. i Haywood's reports. I^llj^" HALIFAX OCTOBER TERM, ir90. Baker v- Long. Where there is judgment and execution ap^-ainst the ancestor in liis lieiinoe. no sci fa. is nrcesiary against heirs or devisees. — The de- mnrrinp of the parol does not hold in this State. • The lantl** were devised after payraeiit of debts to the ( O PlaintiflT, and there was judgment again'st the anr.estop ill hi^ lifitime. It was adjndijed n(» sci.fn. was neces- sary in order to affert the lands in the liands of the heir or devisee after the death of the ancestor or devisor, be- canse the lands never descended ; and if they had, it was cum 07iere of the jud.^inenf, and tlie sci> fa, is only ne- cessary where a new party is to be charged ; but in this case, execution was taken out in the lifetime of the an- cestor, and the Court said, that attached upon the land and went with it to whoever it came. Also, per Wiii- liAMS & Spencer, the demnrrin;; of the parol had its origin in feudal principles, and does not ap|ily here. NoTK.-Tbe statute of 5th Geo. 2, c, 7, makes lands in this State liable tothe/./o. execution, «nd the case o( JBragner v . Langmead,7 T.R 20, shews, that if a Defendant dies after the commencement of a term, a judgment obtained on any day of that term, will relate back to the first moment of the term, and an execution may issue upon the judjfment, and be levied upon the property of the deceased without making his representatives parties : a fortiori, a jndKment and execution before the death, will be pr-.per without a set. fa. to the representatives — Vide Sen an dem. of Btiker v. Webb, post i3. Sell v. Hill, post 72. Jones a others v. Edmonds, 3 Murphey 43. State V. Ransorae. Per WiiLiAMs, Justice. A man may as well be in- dicted on an affidavit not signed, as if it was signed. The signing is only for the sake of evidence, to prevent one man being mistaken for another, and it shews also that it was dotie with deliberation. ( 2 ) Farrel t;. Perry. If a father, at the time of the daughter's marriag^e, puts a negro or other chattel into the possession of the sonin.law, it a primu ficic. • gif Int< resit in the event of t'le question, but not of ihe cause, Wii not exclude a witness. Per Williams, » ho delivered the opinion of the Court. If a father at the time of his daughter's marriage, puts a negro or other chattel into the possession of the son- in-l)iw, it is in law a gift, unless tlie contrary can be proven. For though nut in the HAYWOOD'S REPonrs. '3 event of the cause, must be admitted aH a witneag, con-Oct. 1790. tra Rerves and Symonds, and the rases there rired ; and '•^'^'''^i' said, if we begin to exclude from testimony for bias, we shall be without a rudder or a polar star to direct us — for friendship, resentment, religious opinions, sense of honour in diff'-rent men, &c. are to be considered, in or- der to find out the bias wliicii will probably be in each f 2 ■) witness, and of tiiese the Court cannot know any thing in most instances. It is best to adhere tu the ancient rule that interest shall alone exclude. NeTE -Astothe first point, vide Carter'sex'rsv.Ilniluid,post97. Par- ker & -wife V. Philips, post 451. The act of 1784 f i?f!). c 2J5, s. 7) makes void paiol gifts of slaves ; but in < onslruing the act, the Courts have uniformly decided, that such a gift is good between the parties, and void only as against creditors and purcliaser-. Knight & iiiife v. Thomas, post 289. Pearson v. Fisher, 1 Cor. L. Rep 460. Sherman V. Rnisel ib. 467. M'ltee v. Houston, 3 JUvrphey 429. n'atjord v. Pitt, ib 468. (In the two last cases the purchasers hid notice of the gift). Lt,nch's cxr v. Ashe, 1 Jla-wka 338. The act of 1806 Cliev. c. 701, «. 1) provides tliat no parol gift of slaves shall be good in,any case ; accordingly it has been lield, that a written transfer is necessary in all cases, even as between the parties. Cotten v. Poviell, 2 Cur, L- Pep. 432. Barro-w v. Peniier, 3 Mtirph. 483. The third section of the act of 1806, requires those claiming title under parol gitts, to bring their actions within three years, &.c. which was decided to bar the legal remedy, but to give no ^ir/e to the possess' ir Skinner v. Skinner, ?•, Murph. 535. Lynch' sex'r v. Ashe, 1 /fowts 338. But this is altered by the act of 1820 fHev. c 1U55). Tlie third section just referred to, provides that children in possession of slaves at the death of their parent under a |jarol gif', may either retain thi-m as an ad- vancement, or may bring them into hotchpot and claim a distributive share. And the proviso extends to cases thereafter to be made, as well as to those theretofore made. Bull's adm'r v. Brooks, 3 Murp. 133. Stalliiigs V. Stallings, 1 Vev. Eg. Hep. 298 — A reservaticn of a Jife-estate in a gift of slaves is void, but it before the act of 1806, such .1 reservation had been made in a parol gift, and the donor had conti- nued in possession until his fieath, which was more than three years from the time of the gift, yet the donee would not be barred, as the donor might be considered as holding under his title. Vass y leifeii others v. Picks, 3 Murph. 493. — Since 1806, if a parent puts a slave into the possession of a child, without an express parol gift, this pos- session is not adverse, and will not divest the title of the parent, or b.ir his action. But dictum by Hai.l, Judge, that an express parol gift might be ripened into an indefeasible title by a possession of three years. Justice v Cobbs SJ Jeter, 1 Uev. Rep. 493. This dictum of ' Judge Hall is overruled by the case ot Palmer \. Faucet, 2 Vev. Rep. .240. As to the second point decided in this case, vide Madox v. ffo^- tins, post 4, contra. Porter v. JM'Clure, post 360. Harrison v, Har- .-ison, 2 Hay. 355, &c. Vide also Philips on Evidaice, vol. 1, 38. JiuJ. jV. P. 283, and the cases referred to in each of those treatises, which iuWy support the decision in Farrei v. Perry. Montfort's E.\'rs. v. Alston. Bond for Virginia money. Per mritim. When Vir- ginia money is contracted lor in tliis Stale, payable here, it mnat be determined according to the rates established 4 HAYWOOD'S REPORTS. I Mar.iysi by law, nof aero 1(1 ins; to the exrliango ; otIiRrwisc, were ".^"^''"^it cnntrarfi'fl in a foreign couiitry and there payable. But if ill State rontracts, the cxrhan.aje at Halifax f(ir' instance shall be the measure, wiien it is diffennt at; . Edenton. and still more so at other places, this would ^ ' be a strange mode of administering justice. ( 3) MORGANTON, MARCH TERM, 1791. ANONYMOUS. Henderson moved against the Sheriff for not returning the execution ; and among other things it appeared, the Sheriff had bought part of the property himself. And per Spencer, the sale is not lawful and the Sheriff ought to be punished. This opinion was said to be grounded on a derision that had taken place at Salisbury some time before. NoTE.-Vide Ormondv. Fairdoth, Con. Rep. 550. 1 Mnrph. 35. It is a general rule, that all persons who stand in the character of trustees for the benefit of others, are prohibited from purrhasing' at their own sale. Vide Judre Mesdibbok's opinion in Gordon v, Finley, 3 Hawks 239. HILLSBOROUGH, APRIL TERM, 1791. State V. Coulter. A person entitled to a reward, offered by the General Assembly, on the conviction of an offender, is a competent witness ag.iin9t such offender. Indictment for horse-straling. — The General Assem- tly, at their last scssioti, had offeicd a reward to any peison who would apprehend him, to be j)aid upon con- viction. Stokes apprehended him for stealing his horse; and now upon trial of the indictment for stealing this horse, Stokes was offered as a witness on the part of the S'aie ; and '', 429, Daniel, Judge, says, " In this State no fixed rule has bem es- 352. tablished, within what time notice of a demand and non-payment should be given " Kut in that case, fifteen months were held to be too long. Subsequent cases have shewn a disposition in the Courts to adopt the strictness of the Enijlifh law, at least in banking and mercantile transactions. In the Stale Bank v. Smiih, 3 Mwph. 70, where a note fell due on the lltli, and notice wa* not given to the endorser who lived in the same town, until the 17th of the same month, the endorser was held to be discharged by the delay. It was said by the Court, that even if they should allow three da\s of grace, yet tiotice should have been given on the 15th, and the del.ay till the 17lh was too long. In Brittain ex'r of Brown v. Johnston, 1 Dev. B. 293 The Court (after an advisaria) say, tliat '• \rhcre the parties all reside in the name town, and are engaged in mercantile pursuits, or have transactions with a bank," the Court " have considered them- selves warranted in rtiquiring the utmost diligence in such circum- stances." But the same case decides, that among farmers resident in the country, less stric'ness is required, and that ten or twelve days ■delay was not too long. Taney v Litthjohn, 2 Sa-wks 5*25, holds, that ^vbtre the parties all resided in the same village, four months delay would discharge the endorser. The correct principle deducible from a view of all the cases seems lo be, th:it the que.stion of reasonable diligence (which is to be determined by the jury, under the directions of tiie Court) mus' be ascertiined by a consideration of the pursuits and residence of the parties resi>eclively. Brown's ex'r y. Johnaton, 1 Dev 293. That a witness may be introduced to explain the condi- tion of an assignment, is established by the case of H right v. iMtham, SJllurp 298, in which it was decided by Mali,& llBNDi-nsos, Juilges, ag.'inst TATLon, Chief-Jusiice, that parol testimony was admissible lo prove a contract variant from what the law implies upon a common endorsement. M'K.innie's ex'rs v. Oliphant's ex'rs. Per Williams, the onlj Judge in Court, trover, tre.s- pass, deceit, or any other aciioii of Ihe like nature, will lie against executors, where the thing itself has been used HO as to go into and increase the testator's estate, so that the benefit thereof comes to the (lossession of tho executor, otherwise where the thing is destroyed, as if a r 4 ^ man take my bullock and eat him. The case ot Hambly ^ Trott, in Cuwper, is nut law ; and further, I never knew a ca^e in Cowper to be received as law in our Courts. NoTX.— Vide Jiecraw v. JHone'i ex'rt, pott 21. Clark v. Bill, poll 308. Jvery v. Moore's ex'rt. post 362. In th.- lant case cited, the article of property for w hich the action was brought, did not go into and in- crease the estate of the testator ; but it was decided that that made no oifference. The Kditor lia> it from good authority, that the ex- pression attributed tu Judge Williams in this c»hr, that he " never knew a case in C W/ier lo be received as law in otir Court;," is i mis- iMe, ami tvas never oied by hin. HAYWOOD'S REPOIlTd. 2 Blanton v. Miller. Ejectment. Sep.1791. Ruled per Williams, tliat the Court have never de- '^'''"''''^^ parted ('mm this rule — where the |»arty hath hist his deed, or is out of po>'^^ii'in.a;ly, the rest, they never applied ; and the qi|pstii»n now was, wliether interest sli'>ui i»i'C- ^-■^"■'"'^ ,;,niises mentioned in tht?i lieciaiation, and tlie location be- ing settled by iocmef dctertiiinatioiis, shall not be broiigiit into nuestioii at jn'escn! : bill (here are several material objections aa;ainst tlie Plaintiff's I'ccovei-y. 1st. It does not appeal- that there has been any actual possession in the lessor of the Plaintiff, or the persons under whom he claims since the year 1728 ; therefore, if the Plaintiff ever had a i'i;;ht to recover in an action of ejcclniont, tiiat ris;hf has been lost by his laciies. The nature of the title to lands is such, as to make it ^ f. -^ divisible into liiree liistlnct species of projierty, or kinds *■ ' of ri^lit. It may consist of tlie naked possession or a right of possession, or a mere right of properly. The first may happen, where a person in this country should enter upon a woodland, though (granted estate, and settle and culti^ate it, and tiius actually occupy, without the sha- dow of right w colour of titlf, as it is called in our Courts. The second will take [vlacc, where the patentee submits to the nnsanctioTied occupation of the seitler, who has the actual possession, while t[ie right of jiosses- sion resides in.the pei'son to wliom the land was granted. The third s|)ecirs of pi'opcrfy will be found, where the • grantee may liave " the ti'ue ultimate property of the lands in himself, but by the intervention of cei tain rir- rumstanci's, cither by his own negligence, the solemn act of bis ancestor, or the determination of a Court of justice; tlie presumptive evidence of that I'ight is strong- ly in favor of his antagonist, w ho lias thereby obtained an absolute rig/if of possession." ZBl.Com.l 95, 196, 197. Co. Lit. 345. 385. Gilb. Ten. 18. Ejectment iieing a possessory action, it lies only where tlie lessor of the Plaintiff could righiluily enter, and the title to support a recovery must theri fore be inseparably connected with the right of possession, anil must have this ingredient at least. The title of the Defendant is entiicly out of view. It is an old maxim that a man must recover by the strength of his own title in eject- ment, not in cotisequence of any weakness in that of his adversary. Evei-y Plaintiff in ejectment, says Lord Manstfieii), in the caseof MJiins v. Horde, must shew a right of possession, as well as a right of propertj ; there- fore, tiic Defendant need not plead the statute, and the 10 HAYWOOD'S REPORTS. Oct. IT'S!- Plaintiff must shew that his lessnp had a right to enter : ^-^'^''''^'^ ami tliis can only he cffpcied by proving h pDsscssion within seven years in the FlHintiflT, his ancestors, or tiie jjei'sons miller wh'im he I'laims. arid such possession must be an actual possession, i Burr. 119. Runn. 112, 113. By the stature of 21 Jac. 1 ch. 16. " None shall make an ciitiy into land, but within twenty years after their riglit or title sliail first descend or accrue." Our own act of limitations only alters the phraseology to " shall thereunto enter or make claim," and shortens the limita- tion to seven yeaivs: so flial the English decisions may be considered authorities as to tiie operation of tliis part of the statute ; and it will appear by all these, as well as the opinions of every writer on the subject, that wlicrc there hath bet-n no possession during the lime limited in ( 7 ) the statute, either in the lessor, his ancestors, or tlie per- sons under whom he claims, the Plaintiff in this action will be nonsuited, unless his case may be brought within some of the exceptions allowed by the act of Assembly. Tiie action of ejectment is only competent where the Plaintiff may enter; and the riglit of entry is, in this case. Completely taken away, by the statute, and tiie claimant, by sue!) default, utterly exrludcd and disabled from any entry, or claim to be made, after the seven years are expired. This is not only the plain letter of the law, but the construction has been uniform. Runn. 14 to 17. Salk. 205. 5 Bur. 2635. 6 Mod. 44. Cas. K. B C73. 2 Keble 127. 1 Bur. 119. Thus the neglect of (lie Plaintiff, in this case, to enter, or make claim, as I take it, has wrought an actual bar ; not by tlieUtfitidant acquiring title, but by his losing or destroying his own right of action ; and to the authori- ties already adduced, may be added the case in Strange 1142, and the law as stated in 2 Black. 196, 197, 198. The law ])resumps that tlie tenant in possession, eithcf had at first, a good title, in corisequenco of which he en- tered on the binds in question, or that since his entry he bad acquired one; and theiefore, after so long an ac- quiescence, his possession sliali not be disturbed, without enquiring into the absolute and real riglit of the proper- ty, uncntiiiectcd with the right of possession. He said ihat the legal notions of |iossession in this country have been extremely vague and indefinite, but lie did not recollect any case in which this doctrine had been settled with due precision. The constructive pos- Haywood's reports. 11 session, mentioned in some cases by our Judges, is a Oct. 1791. doctrine unknown to (lie common law ; but lie held tliat ^-^~'^'^^^ tlie correct idea of that possession, which would arrest the operation of this act, is such a posspsHinn as is des- cribed by Coke List. 15. ^uasi pedis posilio — 'I'hat the claim must be made by suit in law uikUt the exjiress terms of tiie 2d sec. of tlie act, and tliat the entry must be an actual entry, and the possession an actual jiosses- sion. fill/. 102, 103. 1 Salk. 285. Indejiendent of (lie opiralion of the 2d sec. of our act of limitation, by tlie di'terminations in England, receiv- ed as authority here, seven years ad\erse posscs.sion is not only a negative bar to llie action, or remedy of the Plainiiff, but a positive title to theDeiVndanl ; and tliere- fore, where A had the [lossession of lands for twenty years in England, Avitliout interruption, and then B got into possession, on wliiciiAwas put to his ejectment : here, though A v\as Plaintiff, yet his possession for twen- ( 8 ) ty years was deemed a good title, and he recovered ac- cordingly. This was ruled by Holt, Chief Justice, say- ing that a possession for twenty years, was like a de- scent, which tolls an entry, and gives a right of [losses- sion, which is sutKcicnt to maintain an ejectment. Salk, 421. In the present case there has been an actual uninter- rupted and adverse possession for thii'ty-six years by the Defendant, and those under whom lie ( hums, whereby he has acquired a title, upon the strength of which he could I'ecover in this form of action against the Plaintift' himself, who has now nothing left but the mere right of j)roperty. The Court will also please to observe, that this objec- tion, under the form of tlie title arrpiired by the Defen- dant from possession, collects additional force from a comparison of the statute of Jtimcs w ith tlie act of North- Carolina. Tlie 3d sec. of our ;u t is an abstiact from the 1st sec. of the English slaiuie, and ojierates on the riglit or title of the person wlio is out of |)ossession, svitli- out appearing to touch in any manner Avhatsoever, the right or title of the tenant in iiossession. The 2d sec. of our law enacts, " that all possessions of, or titles to any lands, tenements or hereditaments whatever, deiived from any sales made either by ciedi- tors, executors or administrators of any persons deceas- ed, or by husbands and their wives, or husbands in right 12 Haywood's reports. Oct. 1791. „f Oicii' wives, or Iiy indorsrmctit of patents, or otlicr- ^'^'"^'''^^ uise, of vvliicli the piii'cliasrr oi' (inss-ssor, or any rlaim- ina^iiiuier ilirm, liave contimicd, or shall continue in pos- session of the same for the sjiare of seven years, without any suit in law. l)e, am) are iiereby ratified, confinned, and dcclafpd _a;ood and lej^al, to all intents and piifposes whatsoever, against all and all manner of |ici-sons : any former oi- other title, or claim, art, law, iisa.Efe or sta- tute to the C'lnti-ary, in any wise, notwitlislandinK." In the whole of the statute of James, there is nothing like this section, yet the adjudications in this country iiave always followed the construction of that statute, and have generally fallen short of them, without noticing the extensive and heni'ficial operation of this clause. It will be remarked, that this clause relates only to the right of the tenant in possession, operating in such a nianiser as to ripen an inchoate or defective right into a complete lille. That the act emhraces "all possessions of lands," as well as "titles to latids," derived from any sales made to creditors, &r. or hy indorsement of the patents, or otherwise. Thus every " sale," vvhethei- of the posses- ( 9 ) sion, or right of occupancy, oi' the title comes within the purview ofHiis clause, which goes to the absolute confir- mation of the title of the |»nrchasei-. The act appears to have embraced expressly b»th the cases of a mere right of occupancy, and what is usually called a title, hy the expressions of " all possessions of," or "titles to," "which the purchaser or possessor:" So that sales of the right of occupancy, a very com- mon case in this country, ever since its first settlement, are clearly within the letter and policy of the act. The sale and assignment of the possession by the heir of Hop- kins, connected with a continued possession, a possession that has not been interrupted hy any suit at law, we con- tend has now ripentd into a complete lille, absolutely ratified and cpiness of the community. I'lie leadiiij;; motive of enierint; info society, was the protection of iiropcrty, and tlie _e;reat ohject of the law is, to secure and quiet men in the possession of it : fliis |»iiii(y is stronj^ly ex- pressed in the preamble of the act, '• Whereas great suit, debate, and controversy iiath heretofore bceo, and may hereafter arise, hy means of ancient titles to land deriv- ed from patents granted by the Governor of Virginia, the conditions of which patents have not been performed, nor the quit-rents paid, or the lands have been deserted by the first patentees, or for, or liy leason, or means of former entries or patents granted in this Goveiniiient ; for prevention whereof, and for quieting men's estates, and for avoiding suits in law, Be it enacted," &c. The case under the consideration ol tlie Court, is pre- cisely one of the cases contemplated by the act. Where patentees have deserted tlieir lands still a wilderness, and others, ignorant of s;ich ap])ropriation, have settled upon them, and improved them by the labor of many v '" J years, exjiecting to acquire a title in the course of time, on the usual terms from Lord Granville or the King; it would be incompatihh^ with the principles of justice, or the policy of an infant Governmenf, struggling witii the difficulties of settlement and a feeble pojmlatioii, to turn tiie improving tenant out of possession. He said he relied w iih confidence ujjon tiiese objections arising out of the statute, sup|iiirted hy an uniform train of decisions, and no determination in this counti-y could be said to have shaken these autiiorilies, unU-ss tlie case o( Mnllett and Minns in this Court, should he consider- ed as militating in some measure against the consiruc- tion contended for on the first point. In that case, two points were determined, 1st. That tlie delivery of" the grant to the gri^ntec, should raise a constructive posses- sion, sufficient in law to preserve the grantee's right of entry where their is not an adverse possession. 2d. That the Plaintiff sliall be put to jirove an actual posses- sion in himself within seven years, only v here the Dc 14 uaywood's reports. Oct. 1791. fendant sets up an adverse possession for that time. In '•^'^''^*^ this case, there lias been an actual ad»ci'se pnssession ever sinre the year 1751 ; and for more than seven years by the Defendant himself; so that this new doctrine of consti iictive possession, which owes its bii-th to this case of Mallclt and Minns, will not serve the Plaintiff in this instance. It may perliaps he said, tiiat the absence of Burring- ton beyond sea, as well as that of tlie lessor of the Plain- tiff, and the time strnck out im account of the interven- tion of tiie war, will bring tiiis case within the exception of the act of Assembly. To this he answered, that tlie proviso of the act of As- sembly saves tiie ri.i^ht of action to [lursons beyond seas, only for eight years after their title shall accrue, the ■words of tlie act being, " or persons beyond seas, within eight years after tiie title or claim becnmes due, shall take benefit and sue for the same." So that it becomes necessary to bring suit within eight years after the ad- verse possession took iilnce, even upon the doctrine deli- vered in the case of Mallett and Jlinns. It is also to be observed, that Mr. Sirudwick came to this country in the year , alter the sale of Burrington to him, and that the act certainly attached upon his right at that time, and his returning to England would not prevent the statute running; so tiiat after striking out the ten , .. years from March '73 to '83, there is sulBcient time for ^ '' the statute to have complete effect ; and when the act be- gins to run, it cannot be suspended on account of any af- ter defect or impediment whatsoever. To prove this point, he cited Plowd. 368 to 37G, saying that indeed this was the case of a fine, but that the reason and principle w as the same in a common case under this act; and that the determination upon tiic statute of limitations had ever since followed the decision in tlie case of Stowell v. Lord Zouch. Svi: Z mil. 5S2 3. iW'iH. 134. Stru. 556. Tliere is one other point of great importance, which has not yet been sanctioned in this country by any direct decision. He said, I admit the doctrine has been ques- tioned, hot there is no part of the conimon law more clearly settled than that, when a descent is cast, the heir of the disseisor has the jus jmsscssionis, because the dis- seisee cannot enter upon his possession, and evict him, but is put to his real action, because the freehold is cast by the law upoti the heir. Howell was thirteen Haywood's reports. 15 years in possession, died in actual possession, and the Oct, 1791. law cast the fieeliold upon liis son ; and the reiison of •«-^~''~>^ the law as stated in 2(1 Black. \77, applies to this coun- try as strongly as any other. The law, says he, will presume tliat the possession, which is transmitted from the ancestor to the heir, is a riglitful possession, until the contrary be judicially shewn ; and tlierefore, the heir shall not be tWicted by a mere entry, although such a measure would have been competent in law to iiave dis- possessed the ancestor. Tiie alteration by tiie statute of the 32d Henry 8tli, of this common law rule, only re- quires that the disseisor should have five years peacea- ble possession next after the disseisin, and a descent cast under these circumstances tolls an entry, unless the dis- seisee should have made continual claim. He therefore concluded, that there being a descent cast in this case, the riglit of entry of the lessor was also tiiereby taken away, and that therefore, the Plaintiff could not recover in this action ; and relied as to this point, upon Inst. 250, 225. See. 426. Gilb. Ten. from 21 to 36. Mr. Moore, in reply, cited Burr. Rep. 60, to shew the doctrine of seisin and disseisin, and to prove there could be no disseisin in this country. The Court, consisting of Judges Williams and Mac ay, after advising toge- ther on the bench for some time, said that tiie jus pos- sessionis was lost by the PlaintiflT; and without giving their opinions at large, directed the PlaintifiF to be call- ed : and accordingly he was called, and nonsuited. Note. — The Court gave no reasons for their decision in this case, so that we know not with absolute certainly upon what grounds their opinion was formed. Whether the Plaintiff lost his right of posses- sion by laches, or by the descent cast : Whether the possession of the Defendant and those under whom he claimed, operated only to bar the Plaintiff's remedy, or likewise to perfect his own title', are mat- ters left for conjecture. A reference to subsequent cases may per- haps point out to us ihe principles upon wliich it should have been decided. If the descent cast was relied upon by the Court, I know of no decision in this State, either gffirming or overruling it, and it would be presumpiuc'US in me to venture to predict what would be the decision of our Judges upon a case in which that point should arise. The question mi.nht occur in the case of a pi-rsnn who had ob- tained, and continued in po>session of lands for five years, either with or witliotit colour of title, and then should die in possession leav- ing heirs; with the additional circumstance, in case where he had colour of title, thai his dealh should be before the expiration of seven years. Where the possessor had no colour of title, I presume, ac- cording to the present notion of such a possession in this Sta'r, his heir would acquire no greater right than he had ; but if the posses- sion WRs accompanied with colour of title, it would be for our Courts 16 HATWOOU'S REPORTS. Oct. l791. tQ 55y whether ihe Knptish law was f"live posses ■ion, which preserves liis riprht of eutr", until it be destroyed by an actual adverse possession, contintied for seven years under col 'Ur of title. SIdde V. Smith, pout 24S, deci^les, that when a man has obtained a g^rant of land, he has a construc'ive possession until an actual adverse possession commences, which advtrse possession tniist be a continued one for seven years before ihe junintra'uli of the [grantee is lost. And the case of Bnrfefi v. Tirner, 2 ffd!/. 9T, and of Stanly v. Turner, Con. Tie/). 533. S. C. 1 Mnrf)h 14. sliows, thitlhe adverse possession must he under colour of title. Vi le the observations of Haiwoop, JudfTP, upon tlio case of Jlrmoiir v. Whitf, 2 Hay 87 ioserted like- wise in a note to Sianbj v. Turner, X Mnr 14. \s to wha» is a suffi- cient possession under the act, viik .indrnmi v. .Hvlford, post 311. Gram V frinbournf, 2 Ifny. -56 .Srio'i ib. 76. As 'o cdour of title, vide V. .fs/ie, -.1 ffn/. 1)3. Pentcf v O-mens, if>itl'2SS' Evitm v. Saltfrfield, 1 l/Kr. 413 " Vitl'i !i. irs v tt-lton's tieim, 2 Mur. 14 Trus- tees i^f TTniversilti v. Blown, N C Term Jiep. 13. Jmes v. Putney, 3 .«»)•. 562. Tdt^ V. Saii'lmvfl, \ H-jilcs .5. Campbell v MKIrthur, 2 Hn-wks 33 F.fnscopdl Churcli of Netobern v. Ni-taberti Acudemy, ihid 233 Rayner y -wife v. Capeltart, ib. 37o. Tate'a heirs v. Soulfiard, S Hawks 119. ( 12) HALIFAX, OCTOBER TERM, 1791. Metrit v. Wartnoulh. DeHniie. Warmiuith hail liirrd tlip tipsfro in question of Waller; aixl Ihe ui's;in had hi-pii d>Miiaii(!e(I wliiic in Ills |)()'<'5('ssiiiii : but before the issuint; of the writ ho de- livered the ni j^tii ti) Waller, 8i> titat liie ne^i^fo was not in the Defendaiil'.s |(i>s.sp>«/ principle of this decision is distinctly recDgiiized. See also, Slate v. Txciitij, post 102. State I'. Joseph & Reuben White. An indictment for trespass in taking and carrying away neRi'oes out of the possession of one, may be sustained, although it may have been done at the command of the p.irty who had the real title to the property. Indictment fur trespass, in takinj^ and carrying away two ne.cjrops from and out of tiie |)ossessioii and owner- ship of WIDiani Daily. After the facts were proven on • the part of tlie State, Mr. Avtrij, on the part of tlie De- fendants, oflTercd to produce several witnesses, to prove that the iM'oiierty of tliese negroes was in one Saniuel Scott, of Soiitli-Carolina, and that the Defendants had taken them for him and by liis command : but by his Honor Judge Williams, property here is not tlie ques- tion — the law prescribes a method whereby Scott might Jiave regained the possession of that property if he had a right to it— that is to say, by a civil suit. Such metliods of acquiring [)ossession as ihese Defendants have taken, » are in violation of tlie rules of law, and of evil example to the public ; and if such kind of evidence should be re- ceived, would render jirnperty of this kind very insecure: for great numbers of negroes have been brougiit hither from other States, and they may all be taken and carried away again toother States, if there sliould be any claim- ants of them there ; and the honest purchaser here would be left almost without a remedy. There was a vci diet for tiie State. Note. — Vide State v. Flowers & Hampton, 1 Car. Law Sep. 97 ~ 3 Murp. 225. Stale v. M'Dowell W Guiy, 1 IlajuKs 449. SALISBURY, MARCH TERM, 1791. Billews, Adm'r. v. Patrick Bogan. By Williams, Judge. An acknowledgment made to an executor will prevent the operation of the statute of limitations, as well as if made to the testator. Ashe, Judge, contra. Verdict against evidence is not sufficient for a new trial, if justice is done by it. In this case, the debt had accrued above three years before the commencement of the action, but there was an acknowledgment of tho note having been executed within havwood's heports. 19 three years : and per Williams, on a molion fur a new Apr. 1792. trial, that is sufTirieiil to prevent the har by the the sta- ^-^'^^^^ tute, as well in the case of an cxei ntor as of the party himself who made, tlie contract. He niied upon Salk. 29. PL 19. Adojited by 3 Bac. .')I7. L. Ev- 1S\. 1 Morg. Ess. S31. — Bu' Jtidi^e Ashe, contra, reiyina; upon Sulk. 58. Greene k Crahu and L. Ray. 1 101 — But by ( 14 "- boiii of tiie Judges, the jury in tliis case have found tlie debt not barred by tlie art of limitations; whereas it is contended by the Counsel, it really was barred : suppose lliis to be true, yet this verdict, althougii it be against evidence, has done justice between the parties, and there- fore the Court will not grant a new trial — Where the equity and justice of the case is with the vei'dicf, (he circumstance of its being against evidence, is not of it- self suflicient to set aside the verdict, and a new trial was refused. XoTE The cise of Sard, ailni'r v. Wine, 3 East 408, fully sup- ports the opinion of Judpfe Ashe. Vide also, 2 Sand. 63. a note b. 1 Chit. Plead. 204-5. 2 Vhit. Plead. 96. But see Bank of Ncwbcrn t. Sneed, 3 Himks, 500. As to the point of the new trial, Vide .lllen v. Joriian, 2 Ilai/. 132. Jones v. Zollicoffer, 2 Jlmvks, 492. Smith v. Shep,- pard, 1 Dev. 461. HILLSBOROUGH, APRIL TERM, 1792. V. Jackson. A person, who did not make it his ordinary employment, undertook to curry goods (or hire ; he is not to be taken as a common carrier, and liable to the same extent, but is bound only to common pru- dence. The Piainlilf, a merchant, employed the Defendant, for a reward, to bring goods and merchandize Irom Vir- ginia, to Hillsborough, in this State, in his waggon ; tbt Defendant received the goods in Virginia, and in bring- ing them to Hillsborough, when about to cross a river, the flat receded from one of the fore ■iv heels of 4hc wag- gon, and it ran with the goods into the rivt-r, and tlic goods were greatly damaged and impaired in value. The Defendant did not make it his common and ordina- ry em|iloyment to carry goods, but was employed on this occasion only. Moore for the Plaintiff (at a former term when this case was on trial) insisted that any person who undertakes for liire or reward to be given him, to 20 MAVWOOW's KEPOftTS. Apr. 1793. carry j2;ooils for aiiDllicr, is a roimnon carrier, and liable '■''"^''"'^' to iiulrniniiy his employer against all damages that may happen to (lie pfoods, exreji' hy a public PHemy, or ine\i- faiile arddeiit." Recited L. Ray. 915. Salk. 143. Bid. J\/'isi Prius, 170. SV/Zfe. 2S2. Tatlor e contra, iTisi.stecl that however the l;iw may be in resuert of common car- riers, who nndertake, like all oIIk r persons exerrising public employnjents, for skill and dili.arenrc in their pro- fession, no such uiidertakina; is im|ilioil_\ gi-ounds of ex- cuse, and these to be fully and fairly (Mo\cn by himself. Being a person in public employment, the law requiie.'? of him security to the public for his good behaviour, and obtains it by imposing on him general respimsibility. with only two exceptions. Salk. 28Q. L. Ray. 9\S. True it is, the books say in some instances lliat persons carry- ing goods for hire are common carriers, and they some- times speak of carriers only, without the additional word common. But these are inaccuracies, and to be Haywood's reports. 21 explained or iindprslnod in a raaiincr wliic'i accords vvitli Apr. 1792. the spirit, not ihe letter of iIk- rase. A jifrson cm-rvjii!^ n-^v^s,/ goixis) Cor liit'c, must be intended (if one «li<) makes it his cointnrtn eiiipio} incut, and tlie moans of his liveiilinoil. — 2 L. Ray- 9'. S — and wliei-e it is said a carrier is abso- Julelv liable, nmst be understood ol' a jjersun of that (h*s- criplion. Sii|i|)(ise the FlaintifiT. in tlie pr'esent case, had gone to the Defiudanl's with the comnioti price for (he carriajs^i' of e;'»ids from Virginia t;h, ;tnd reqniri'd of him to proceed to Virginia and recei\e. the goods, and to hrii;g them to Hillsborough — might not the Uefei'idant lia\e refused ? — Was he bound to ntider- lake the business assigned him ? Nd, certHiolv he was not. An'd why? Because lie had not undertaken to serve the public generally ; or in the words of mj L. Bolt, (Salk. 249.) "all persons indiflTereitly for hire in cari'ying goods from place to place." If he is not thus bound, he is not tliat cimimon carrier spoken of in the law -bonks, and in the cases produced, wlio is liable in all events, except for tin- acts of God, and |iul)lic enemies — and lie must then stand upon the ground of a person ■whose common business it is not, undertaking to do an act for another at iiis request and for him — llic eni|)l!)j'- f 15 > er knowing hint not to be commonly conversant in that business, 3 Jil. Com. 166. In other words, he is not lia- ble to the political rule before mentioned, but to the rule oiilv which resiilis from natural justitT, which ii((>iires no more of him than common and usual prudence, and diligence in the peilbrmance of wliai he has uudeitakij!, and does not subject him to answer for accidents wliiih liavc not happened for want of that prudence and dili- gence. Of tliis opinion were the Court, cotisisliug of Macay and Williams, and under their diitctiuu, tlic jury found for the Defendant. Ni>TE. — Vide, as coiToborativeol'this decision, Jones's inw of Bnil- mfnla, 106. On llie siihj.-ct of cnmnion Ciinieis in ihis bt;sU;, v ile Sjnvii V Farmer's aJm'r. 2 /lay. 339. It'iiliamsou v. lircnsim, 1 Mw. 417. Backhottsc V. Snead, Ibid. 174. Ad'im v. Hay, ." Mui: 149. Berry's Adm'rs. w. Puliiam. Ruled fer ciirium upon argument, that letters of admi- nistration need not remain in Coui>l. and are not de- inandable after issue joined, and cited hymark's case, 5 Jtep. 74. 22 Haywood's reports. Apr. irsz. 2n on the case, an'l nrnnf that ilie instrument was arkn>wledj^-d, ii no proof of tlic sealing, and will not make it to be a deed. Note — Ttie case of hwhum v. Hull, overrules the objection that case, and not covenant or rl- lit, is ttip proper ^ictio;i upon ;in unattest- ed sealed instrument. Pant 193. The oilier o!>jeclion would iiow be Hqiially untenable. It is a rule well establish'd, tli:it tlie sabscrib- inp uiiiess to a deed or oiber seaV d instrument, must be produced to pi'ive its execution. Ormichvii'l v. B'trk-rr, 1 .llhins, 49. Mhot T. Plumbe, 1 Doiiff. 236. This rule is never departed from, except the vfitness is dead, not to be found after dil'g-nt enquiry, removed be^ond the process of the Tourl, become infamous, or interested by opcrHtioH of law Mam and H'ife v. AT-rs, 1 Bns. (J Pul. 360. Cngian v Jrillinmaon, 1 /Mi/?. 93. ' Prince v. lllackburn. 2 Enst. 250. Jtnesy. Mnaon. 2 Strange 833 Cunliffev. Seftoii, 2 lias! IS". Ndiui V. Briclcell's iidrn'r. fco«< 19 Jonts v B-inlcl v, post 20 Juhnslunv. Knight, I. Mvrph 293. i'e% v Cl.Tk;A Hnvks,'265. Neatly all the cairs concur, under these circumstances, in re<|uirinp proof of 111 • wit- ness'.s l>:,n(l writing;, and from the ease of Milwunl v. Temple, 1 Camp. JV.P Rep. 375, it would seem that the proof of Irs hand wriiin); would be sufficient, without proving the haml-wiitinR of tli< obli(for. In the State n( N York, it has b-en expressly so adjudij d. Motl v.Dongh- ty, 1 John. Cu. 230. Sbiby v. Champhn, 4 John. "i61 Where there is a subscribing witness, it has been cxuressly decided, that the acknow- ledjjmeni of the oblffor is not sufficient proiif of the execution of the bon'l. Abhoty. Plnmbe. and Cwiliffe v. Srflon, cited iliove. Call v. Xhlnning, 4 Eiisl, 53. Jikmton v. Knighl, 2 Mupti. 237- Where the subscribing' witness is deid. and his liand-wrliinc; cjnn it be proved, proof of the oblinor*s hao'l writing will be admitted. Jn/ies* adm'ra.v,' Blount's ex'i-s. 1 ffay. 238. i there be no stihsrvibing witness, or if the name of the su'iscribins; witness can be sliown to be in the hantt- writin^ ot the obligor, or if the subscribing witness, upon being call- ed, cannot prove the execution of the bond, otiier evidence may be Tccei'-ed, as of the obligor's hand-writing or his ucknowledgilienl of the intiMment. Ingliam i. Hall, ci.ed aboe.-. .Mm v. Martin, 1 Car L i-a Jiepos 93. H'llhmit/ v. Lawvna, 1 Hmcks, 49. Wiieie a subscribing witness leav s the St .te in t le exerc se of a public duty, (as in 'lie esse of a nie' ib'-r o' Coiijjress) his h»nd-writiiig may be prov ■!. Selbii v. Clark, 4 Hawks, 265. Seealao 1 Philips on Evidence, 419,420. (3 Am. Ed.) HILLSBOROUGH, OCTOBER TERM, 1792. Dock t). Caswell. Debt on a single hill, atiil nayment pleaded : the bond has been assigned by Uook, thu t>biigeee, to Bentun, and Haywood's reports. 25 liaii llip assignment scratclici! out witli a pencil— Ob- Oct. 1792. jerked, the assi;;iiineiit had transfrrrcd the interest of tlic ^'^''^^'^*>^ bond to Boiiton, and tlicrcfore liis exi^cutoivs were the proprietors. To this it was answered, the assignors having possession of the bond, is evidenre of his having pnid the money to tlie assignee, and that enables the as- signor to sue in his own name ; besides, tiie indorsement was strnck out Judge Ashe, the |)ossessor had a riglit to strike out the indorsement, and now the case is no more than tliat of a bond made to the obligee, which lie lias an uiiiloiibteil right to lerover llie money upon : and so a verdict was given fur the I'lainliftand he liad judg- ment. Note. — Vide Smith v. St. Laierence, post 174. — Slmt^ v. S/tear^ /rost 214. — Dickinson v. Van Noordeti, 1 Car. Law Rep. 497. Tunc V. Williams. Judgment had been given for tiie Plaintiff on a bond, in the County Court of Warren, for twenty-nine pounds; and WiiUams alleging be ought to have credits to a con- siderable amount, Plaintift" agreed to come to a settle- ment, and credit tlic judgment witli sucli sum as lie had paid : they came to this scltlement, and credited all but fifty shillings ,• and Williams assumed to ptiy that .sum if Mr. Lyiie had not paid it for him to the Plainiift". Mr. Lyne in fact had not |)aid it, and a warrant was brought upon this assumpsit, and judgment for Plaintiff: and the suit removed by certiorari to this Court, Upon the evi- dence here, it was objt-ded by Col. Davie, that there be- ing a judgment now existing for this fifty sliillings, no action upon assumpsit could be brought for it ; and so ruled tlie Court and nonsuited the Plaintiff. Col. Buvie (19) cited Bull. 128, which cites Cro. J. 2u6. Note. — Vide Bain v. Uimt, 3 J/aioks, 592. HALIFAX, OCTOBER TERM, 1792. Nelius V. BrickcU's Administrators. Proof of tlie hand-writing of the wife of obligor is not admissible.—. The mark of a subscribing witness, who is dead, maybe proved to let in testimony of the obligor's hand-writing. Debt on a bond, and general issue pleaded. The bond was attested by Nancy firickell, the wife of the obligor, 4 3tt Haywood's reports. \ Oct. 1799. g„j ijy ai,(,f|,er prison who made Itis mark. The Plain- ^'^'"^''"^^ tiflf'H Hftoriipy would have proven the lianil writing of Nancy Brickfll. reljin_ajon the rase in Slrn. p. 4, w liere a witness to a hond having benmie the adnnuistrator of the oliligco, proiif of his hand writing waa admitted. — Sed per curiam, in that casr the witness was rinupetent at the time of his attestation, and having become dis- qnalified whilst living, hy being a paiMy to the suit, his hand-writing was tiie best proof which could reaHonal)ly be expected; hut here the witness was inrompi'tent from the beginning, and if she could not be admittfd as a wit- ness, nitich less ougiil her hand-writing to be received as c\idcnce ; but the Court saifl, if ymi can prove tlicrc was once such a man as that v\hi) has matle his mark, and that he is now dead, or nut tu be found, and also that he used to make his mark in the manner tiiat it ap- pears to be made to this bond, it will he such a presump- tion as will let you info the furilicr pioof of flu- hand- writing of the obligors, like the case in Douglass, p. 93, of Coghlan v. fVilliamson. Wherrupon the I'laintiff's attorney proved there was such a man, who was alive about the time of the dale of the h(md, in the neighbor- hooil vvliere it was gi\en, ami that he was dead; and that he used to tnake his mark as it appeared nprni the ". bond ; and that the name of the obligor was in tlie obli gor's hand-writing: and he bad a verdict and judguient •" for the I'laintilf. Note — Vide Swire v. Bell, 5 Term. Rep. 371. — Xaie to Clemen I i and Co. V. Eason & Wright, ante 18. Cowpcr V. Edwards, Adm'r. of Webb. Action of debt against Oefi-ndant, naming him execu- tor. Flea in abatement, that he is administrator and not exrcnfor, Plaintilf moved to anrend upon the act o( 1790, and cited Strange 890. when- after issue Joimd, the court pertnitted an amendment, by laying the as- sumpsit to be nc'.de to the I'laintilfs tlitntselves, instead of its being made to their testator: hot the Court said, the act of 1790, is but a re|)elition of the |'ro>isions be- fore made by the acts of amendment and jeofail, and that (20} by this act nothing could be amended, but what the oilier party might have demurred to, and spec iaily set down as the cause of his d«murrer, which was not the case iu the present instance. The amcndiuent of wrlts> tu make Haywood's ueports. 27 that maititai(ial)Io wliirh licfurr tlip amendmptit was nnt Apr. t79J, 80, niift'lit lie productive nf great liat'(lslii|) ; fe misplaced in point of time. Note — Vide Superior Court OJfics v. Lickman, \J)cr. Hep. 146. HILLSBOROUGH, APRIL TERM, 1705. Ferguson and Wife v. Taylor. I'laintifT's wife, while sole. lent to Defendant specie certificates, to be relurned jo three weeks, or at any time when requested. Tiie PlaintifiT did n<;t bring suit until after the expiration of Ihiee years fi'oni the end of the three weeks: but Plaintiff's pmved Ta> lor had ac- knowledgtd the receiving the ceriificatcs wi'.liin three years before the aciimi brouglit ; and s;od he had not settled for them, but would pa_> them lfl777, Rev. ch. 115, sec. 30—1 Sand. 67, note 1. EDENTON, APRIL TERM, 1793. Dccrow T. Mono's Executors. ., Trover. Tn this case the Court, consisting of Judges 4 p" 3t°308 Ashe and Wiixiams, dei ided that Trover would lie 362. against executors lor a conversion in the time of their Haywood's reports. 29 testator. Vide Cowper 371. — 4 Mo. 404, and a case at Sep. 1793. WihniiigMii, May 1796. y.^->f-*^i^ Note. — Vide note to JMcKinnie's cx'rs. v. Oliphant's ex'rs. ante 4. Snoden v. Humphries. Tliis was an action of debt, and verdict for tiip Plain- tlflr. Mdtioii in arrest of jiiiis^niorn, and U(n)ii ar.ifii'iient the niniion overruled. Fn>ni wliich .Sfiiienre tiic Defen- dant apjifalfd, and now on maiion of .Wr. Hamilton. t!iat tlie cause shuTild stand not on the leasoiis in arrest, but as a new cause on tiie isMie fo tlie countrv ; it was so ruled per curiam, Cinisisting of Jiiiiges Asuii and WtL- liAMs. Ex relatione. Note.— Vide lint ion v. Sheppard, post 399.— inrin ci H'ife v. .ir- Ihiir's Ex'rs. Con. Hep. 490. — tst.Je v. Jackson & Davis, 3 Murph. 230. MORGANTON, SEPTEMBER TERM, 1793. Haj'le V. Cowan. Petition to rectify error in a patent, heard by the Court witliDut tlie iniervcntion of a jury ; and the error was ordered to be rectified agreeably to tlit act of As- sembly. This was in tiic case of a royal iiatent, and Hajle had summoned four wilnesses, the dispute being only wheiiier ilie first line described in the certificate an- nexed, was really north 54 dcgiecs east, or south 54 de- grees cast. Mr. Jiverij then moved, that as two of these witnesses had not been sworn at all, and as there could be but one fact to be established, th-it the Defeiiuant should not be subject to the |)aymeni of tliesi- two wit- nesses : but per curiam, jou informed us a while ago, yon had a witness suinmmied who does not attend ; these two witnesses not sworn, might be intended to counter- act his testimony, and your not pr()ducii;g him might be the reason why they were not called upon; we cannot undertake to say tiiey were to prove the same fact the other two were sworn to — the motion denied per Judges AsHii and Macay. Note.— Vide Carpenter v. Taylor, N. C. Term Rep. 265. (22) 30 Haywood's rbforts. Oct. 1793. HALIFAX OCTOBER TERM, 1793. '""^"'^^^ BiadforJ v. Hill. Ib the case of bounclaries expressed in deeds .ind patents, the courses and distances inenlionrd in such deeds oi- patents, must be observ- ed, except when a natural boundary is called for and shown, or when marked line? and corners can be proved to have been made- at the original survey. Ejertinent. The boimdarips exprrssed in the deorl to Bustin, under whom Hill claimed, win- — Beginning on Fishing creek, thente east 330 poles to Pollock's corner, thence north sump number of poles to Bryant's, ihence along Bryant's liire west 320 polfs to the ri-eek : Bry- ant's cornel" being fonr degr-ees to the east of north from Poiloi'k's corner, the line fi-oni Pollock's corner inter- sected Bryant's line considernbly to the west of Bry- ant's corner. It was pi'oven ili'i-e wa-i an old marked line, leading from Pollock's to BrvHiii's corner, hut that , in running by the compass from Pollock's corner north 64 degrees east, which was the general course of that line, the marked line would be sf»metiincs on one side, sometimes on the other side of that I'un b_> the compass; whence it was taken by the jury, to have been run by some person after the survey ; the trimigli" formeil by the said ni>rth line, part of Bryam's line, and a line from Pollock's corner to Bryant's corner, included the land in dispute. It was insisted for the PlainlifT, that the ex- pression of the word iwrth was a mistHke in the survey- or, as the line would gi^e but about half tlie com|)leinent of acres ; that it would not measure the distance called for by the deed, as it would itilersect Bryant's line be- fore tlie distance was gained, and because from the point of its intersection witii Bryant's line, along Bryant's line to the cret k, would he only 130 poles ; whereas, tlie deed called for the wliolr leiiglli of Bryant's line, to wit, 320 poles. Add to this, that the true grammatical con- struction of the words used in the patent, to Pollock's corner, thence to Bryant's, will detertninc the sense to Bryant's corner, not to Bryant's line, there being no . line antecedently mentioned. E Contra, it was argued ' ' by Darie, and agreed to by Judge Williams, that in all cases where there are no natural bouiidaries called for, the dispute must be decideil by course and distance, or by proving the line and corner: that supposing the marked line running from Pollock's to Bryant's corner, not to be the line run by the surveyor, thcr« was nothing Haywood's reports. 31 but llie description oF tlie derd by cmrscs and distances Oct. 1793. to direct iis : that indeed, if llie line was terminated by ^■^■""^"^ a natural hoiindaiy, ilien if the distance expressed in the deed was stiorter tlian tiie distHiire to that natural boun- darj, the distanre ('xpressed in the deed would be disro- gar^ and the rlainiant under the |>ateiilee in tlie present case, not beins; able to prove a line run by the surveyor for the patentee, between these two corners, tliojui-y, under the tlir(!crion of Judge Williams, then the only Jndi^e in Court, f nind a verdict a^ijainst liitn. (Q* The otiier party claimed the triangular piece in dispute, by a State gi-ant of a late date. Note. — Vide the case of Cherry v. Slade's Atlm'r. 3 Jilurph. 82, in wliicli tlie Chiet'-Juatice makes an able review of all the cases upon this subject, and I'rom which he deduces four rulss relative to boun- dary. 1st. Th it whenever a natural boundary is called for, in a pa- tent or deed, tl?e line is to terminafeat it, however wide of the coursfi called for, it may be ; or however short or beyond tlie distance spe- cifitd. 2d. Whenever it can be proved that there was a line actually run by the surveyor, was murked and a corner made, the party claiin- inn under the patent or deed, shall hold accordinjjlv, nolwithstand. ing' a mistaken description of the land in the patent or deed. 3d. Where tht lints oi courses of an adjoining tr-ict are called for in a deed or patent, the lines shall be extended to them, without reg'ard to distance, provided those lines and courses be sufficiently estab- lished, and no other departure be permitted from the words of the patent or deed, than such as necessity enforces, or a true construc- tion renders necessary. 4th. Where there are no natural boundaries called for, no marked trees or corners to be found, nor the places where they once stood ascertained and identified by evidence : or where no lines or courses of an adjacent tract are called for ; in all such cases, we are of necessity, confined to the courses and distances described in the patent or Ihoiight material or necessary ; and moreover, the She- ^ " ' I'iffmay lawlully sell the land of the Defemiant, where he does not show him personal property siitHcient to sa- tisfy the execution; it would be absurd lo say. that the sale of land should in no case be good, vvhere the Defen- dant had personal propei-ty ; were tliis the law, the De- fendant might conceal liis personal property. Suppose tlie Sheriff comes with his execution, and the Defentlaiit shuts his doors against the Slierilf, the Slieriff cannot break them open ; and shall this disappoint the .judg- ment creilitor ? As to his not selling »>n the day ajipoint- cd, but a day or two after, this is not absi>lutely unlaw- ful ; he may adjourn his sale, sometime^ for the benefit of the Defendant, when he expects a belter day or nxirc bidders, and gives notice to tliose atteniling, that the sale will be made at that future day : sometimes indeed the SlierifTinay have so many goods to sell to eatisly the ex- 5 34 Haywood's reports. Mar 1794. rpuHon, that lie rannot make sale of all in one day ; and ^"^"^'"^^ sIihII lie fhi'ii be obliged to wait till anothrr ten nr forty ilays sb:.ll intervene? N", lie sliali rontiiiue the sale by adjoMiiinieiil till the whole be sold : — so tlie PlainlifT bad a verilict ami judgment. Note — On the first point, vide Adams on Eject. 22, according lo which i> se. iTis thai in England the woid tenenjent is not sufficiently certain in an ejtctmi-nt, though it does not appe;ir that the English casi'S hail ihe aiUl'iional designation bv metes and bounds, vide also Burdv. Clark, 2 Cur. Lina He/) 622. As to ihe other points, vi.Ie Governor v. Curlti & oth.rs, 3 Ha-^hs 22^— .let of 1820, Rev. ch. lOfip, and ihe case in such a week; and it was held a good notice j because at so great a distance, the taker of Ihe de|iosi- tion, might not know how to proctire the witnes.s's at- tendance on any paiticnlar day; the witness might be absent, or not be fiiuini ; after ,going thiiher, .some ac- cident might delay the party intending to take the depo- sition ; and he uiiglit not arrixe on the very day, and it 'noiild be extremely inconvenient, to force him first to go thither, and know when the witnesses would attend, and then come back and gi>e notice of the time, before he crevail, that he should not be allowed such Costs in the taxation of costs. Tiie Court in this case, .Tu«l,a;e \A'ili,iams beiii,e; on the bench, made such order j and the Defendant before the continuance granted, was required to pay, ai'd did pay the costs tif the attendance of all the Plaintiff's witnesses during;' the tei-ni ; and some of the bar requesting; to know if this ua« intended to be a genei-al rule for the future, the Judge answered no — only for cases circumslanced like the present. Note. — Vide Park v Coc/ifan & others, post 178. Hughes X'. Giles. Trover for a horse. A and B both liave bills of sale for a horse from a person who had borrowed him for a particular purpose ; A, whose bill of sale is the oldest, has him in possession, B by some means gets him from A, and sells him to C. A is entitled so recover liim of C in the action of trover. The case was, A intrusts the horse to B for a parti- cular pill pose ; B remains at Salisbury sometime, and ctmtracts debts with several persons, arid gives a bill of Sale for the horse to Hughes, and also to one Biem ; his sale to Hughes is prior to the date of the bill of sale to Brem. Bretn by some means gets possession of the (26) 36 UAVWOOD's UEl'OUl! Mar ir94. liorsR from HiigliPH, wlio Iiail liiin, and sells (o Gilos — ^'^^■''^^^ ami now ainntigst otlier tliiit.cjs it v\:is iiisi>ilcil lor (iilcs, that Hiigties <>uj;lil not to have a verdict agaiusi liiin and reciiMT daniascs, for thai a rcroMMV by I1m;;Iiis, vvlio was not llic pi'opriotof, wniild lie no Itar to A, lo hinder him from brint;ins; his action at a rmure day against Giles, and recovering also. Tlie books indci-d say, that lie wiio has a sperial propiMty may recover in this spe- cies of action, as in the Case of a carrier', bailee or fni- dei', a Sheriff v\lio lias seized goods in execution, or ilic like ; but the reason is, that those persons arc liable over for the goods to a third person, and they are allowed this action, in order that tln-y may Iwjvc it in their power C ^" } to indemnify themselves, by recovering against tiie wrung doer, that value wliicli Ihey have to pay to llic owner ; and it is because tliey are entitled to recover, that they arc said to have a special properly ; but surely if the cai-rier, bailee, &c. \oluiitarily sell or dispose of the pro- perty, they cannot afterwards maintain an action for it, tfiey are stopped by their own act ; hut yet ilieir sale Conveys no properly, because they had none tiirmselves j and ill order to convey an inierest or pr-oper ty by sale, the vendor must liav(> the general or alisolute jiroperty j a special |>ro|)cr'ty only enaliles him to sire a wroirg doer, not to convey the propei-iy ; because in so doing he com- mits a breach of trust, nnless where he Iras the property for the purpose of selling it, as in the case of the Sheriff, arrd (hen what he does is only good by virtue have a special one in order to hid ^-^""-"^-^ own iMdeninificaiiou ? But per Williams Judgi, not- wiihstanding these ar.qiinients, tiie Plainiiff lias a rii^ht to recovery. Hiij^hes had purchased the properly that B had, and was in poss'-ssion : and is to be consideied as havitis:; a spi'cial property, niitil a better could be shewn; and no one hut tlie lis^ht riwiier could intert'erc with his possession, or lawfully deprive him o( ii ; this is an aclvantat;e which should not be takeo Irom hicn by a tliird person — so the Plaintift' had a xerdict and judg- ment. Note. — The case of Laspet/re v. McFarland, N. C. Term. Hep. 187, dfcidesth:it trover caniv)t bt- maintained un the pussfSiii'.ii ot'acli:iitel, wh-rc it uppe:irs llial the 1> g:(l title is in another, and that 'he Plain- tiff las only a trust. But See the cases on this subject coll.ctedin 2 Sand. 47, a. no:e 1 the t;ourt in Laspeyre v. Mct'urland, seem to intimate that trespass would liave lain in that case, ;ind authorities are cited in Sunders to sh )W that wherever tfspvss will lie tur t'l-- WDng- tul takinj; ol goods, trover will also lie ; tor one ma; ijualify but not increase a tort. HILLSBOROUGH, Al'RIL TERM, 17D4, Elwick's E.\'r.s. r. Rush. demand is necessary to sust^.in the action of detinue, and it must be made by the clainiiint himself, or by some person for him, ;ind so made known at the time of the demand. Said ur^iiendo by the Judpfe, that the statute of limit -tions begins to run from the time, thai the Plaintiff knew whiie the negroes were, and tha. the De- fendant claimed them as his own, although no demand had been made. ■ ' Detinue. Plaintiff by one Tally, proved that Barton, who "as a legatee, ■(xent wirh him to Rush, and informed Rush that the negroes mentioned in the declaration were of the estate of Elwick ; tliat he. Barton, was a legatee, 01- heir of that estate ; and that Co!. Tayhn- was execu- tor and demanded the negroes. — Ef per Jiuli^e Williams, a dtniand is necessary lo eotille to the action, and it must be made by the PlainlifT, oi- hy some i>ne by his au- thority ; here he did not inform the Defendant of his au- thorifj at the time of making the demand, or say that he demanded in the name of the I'laintifT; therefore it was not a good demand, and the IMaintiff was iionsnitpd. Note, In the arguing of this case, Jnilgc Williams said, the act of limitations would run indetiiiiic, without (28) B8 lIAYWOOn'S REPORTS. Apr. 1794 a demand, if tho PLiiniifT kiirw where tlie ne_e;roes were; ^^'^^'^sm/ and that tliey were rlHiined by Dtfendaiit as his own, and did nut Uv'iug suit within Ihi- lime |ii-rsrribed in the act: liut this he saiil arguendo only. See the case of Berry's adm'rs. v. I'uUam. Note. — Tlie npinion ot the Judge on the first point of this case is doubled of liy Bayioo'id in his note to Z.i'-wis v. If'illiams, post 150, and ovenuhdin an annnymous case, 2 Hay. 1Z6, &ni Shepard's adm'rs. V. lid-wards. Ibid. 186. Waller v. Brnddie. Certiorari. The Plaintiflf affei' iihtaining (he cerliffrurl to remove (his caiiRe fioin the Court hclow, into which it had come by appeal from the jii(le;ni(nt of a Justice of the Peace, had removed into South-C.irolina ; and now upon motion to the Court for that purpose, Judge Wil- XiAMS u|)on the bencli, i( was onlered, that unU'ss by tho next term or before, the Plaintiff put in sureties for pro- secuting this cause, and for pa>ing costs in case he fail therein, that this cause shall be dismissed. The Judge said upon (his occasion, (iiat the act of 1787. fretjuenlly o|)erated with hardship, and peculiarly so, in the case of poor persons who haassei»^ illy txceiils the limits of the rdiislitiiiiori, they act wiih- ( SO ) out atitliority, and then their acts are no more bindinij; than tiie arts of any other assembled body. Suppose when met toj^jetlier, they should pass an art to continue tlte Assembly for two years — ilu- rniistitution says it shall continue but for one — and suppose in the .second year they should pass an art — would the Judt^e^ be bourid to eflTi'ctiiate it ? Suf-eiy not. No more are they bound to regard an act not njade atjreeable to the constitution. I am alone on the bench — I am sori-y to be (d)li^ed to prevent the e.vccution of an act whicli tiie Lcijislature tiiought necessary to be passed, and no doubt mij^ht be of public utility — but what end is an equivalent for a precedent si> dan;;eroiis iioive all the laws of Edsxard the Conlcssor — Gotdsmitli''s Eng- land, 1 vul. 133. Stephi-n, his immidialc successor, |iio- miscd a restoration of tlie laws of Edward the Confes- sor in his charter — Goldsmitli's England, 1 vol. 145. — (32) These laws of Edwai-d the Confessor, were the ancient laws, usages and customs of tlie difterent parts of Kng- land, collected and digested into one code. 1 Bl. Com. 66, 4 Bl. Com. 405. I( apjjears from the frequent sti- pulations contained in tlie charters of tliese limes, pro- misini^ to observe and restore these laws, tliat they had been neglected, and some other law introduced in their place. Indeed we arc expressly informed of tliis in the preface to the 8fh report, page 8, where immediately af- ter the autlior bus been speaking of King Stephen's cha- racter, he says, " King Stephen foi bude by public edict that no man should retain tiie laws of Italy, formerly brouglit into Et:g!and." In these times therefore, the term lex ferrtc, meant the English law in contradistinc- tion to the laws of Italy, or of any otber foreign coun- try : and in like manner in our constitution, where the Convention are doclai-ing the rigli's of the people, and use the words of the Magna Charta of England, they mean to assert in general, that the peo|)le of Nortb-Ca- rolina have a right to be governed by their own laws, and not to be subject lo laws made by any foreign power ujion earth ; in like manner as in the 2d clause, iliey de- clare that the people of tliis state ougiit to have the solo and exclusive right of regulating the internal govern- ment and police thereof — by all which they mean to vin- dicate the sovereignty of this country, and the inherent right of the people thereof to govern themselves — the term lex feme, in the times of King John and Henry 111. began to have a meaning additional to wiiat it had in the former reigns : these princes were guilty of great abuses under tlie pretence of prerogative — they had con- fiscated the estates of many of their subjects — they had exiled and destroyed many also by the power of prero- gative. It is remarkable that in King John's charter it is stipulated, that no freeman shall be taken, or impri- soned, or disseised of his free tenements and liberties, or outlawed, or banished, unless by the legal Judgment of his peers, or by the law of the land j and all wlii> suf- fered other wiiio in this and the two former reigns shall Haywood's reports. 43 be rpstored to tlicir ri,e;lits and possessions. 1 vol. Go/(/- Apr. 1794.- smitli's England. 233. This iiiainly evinces that the ■•'^~''~^-^ words per legem tcrrce, here spoken of, iinport an acting by a pret<'rid(>d jirerogative aj^ainst or v\itliont the autho- rity of law. I vol. Goldsmith's England, 224, 225, 219, 220 : and t'lns the ttinn, law of the land, is to be nnder- stood in our constitution, beside the nicaninaj already as- ci'ibed til it, to declare, tliat tlie people of this st.ite are not to be deprived of libeity, property, the benefit of the law, nor exiled from their eonnti-y, by any power what- rn^^ soever, acting witiiout or contrary to the established law of the country, or by any proceeding not directed or au- thorised by that law. The meaning of the words lex tcr- rce may therefore be thus shortly defined — a law for the people of North Carolina, made or adopted by them- selves by the intci'venlion of their own Legislature,— This delinitirm excludes the idea of foi'eign legislation, of royal or executive prerrigative, and of usurped povverj and leaves the power of inflicting punishments, or rather of passing laws for that purpose, in their own Legislature only. In tliis sense, the lex terrcc of North-Carolina at present is the wole body of law, composed partly of the common law, partly of customs, partly of the arts of the British Parliament received and enfoi'ccd here, and part- ly of the acts passed by our own Legislature, 2 Inst. 46. If this body of laws, is not the lex terrce. designated in our Bill of Rights, but the comtmni law only, then the common law is immutable, and the Assembly cannot al- ter it by any legislative act. Should the Assembly in any instance attempt to alter any rule of property, with respect to its transmission, descent, &c. so as to entitle any other person to it than is entitled by the common law, he that is entitled by the rule of the common law, may say, no man is to be deprived of his property or rights but according to the law of the land, or the cnm- mon law. If an act not punishable by the common law, or punishable only in a smaller degiee, should be render- ed penal, or more penal than it was by the common law, , by any legislative act, the party to be affected by it might say, i am not to be imprisoned, or exiled, or disseised of my freehold, or in any maimer destroyed, but according to the law of the land, or in other words the commoo law. It is easy to see into what a labyrinth of confusion this would lead us — it would contradict the very spirit of the Confltitution. which in establishing a Republic»ii 44 IIAYWOOU'S BJ3P0RTS. Apr. 1794. c,„,„, „}• Gnvrrnment, must have been inevitably led to ^■^'"""'^^Torespe the great alteratiDii tliat the new state of things would make necessary in the great fabric of the rommon law : they must have intended sucli changes therein by fTie legislative |)ower, as would moi-e perfectly adapt it to the genius of that species of government, many of the maxims of which are sodianieti-ically opposed to all those of the common law which liave any view towards the sup- port of the kingly power, or that of tlie nobles. Such a construction would destroy all legislative power whatso- ever, eK(e|)t that of making laws in addition to the com- ,,.-> mon law, and for cases not provided for by that law. It *• •' would lop oR' the whide body of the statute law at one stt'cdve, and l^ave us in the most miserable condition that can well bt- imagined — alt capi'al |)unisiiments ordained by the stiitute law for murder, rape, arson, &c. would be done away, and every malignant passion of tlie human . heart let loose to roam tlirougii the land, unbridled by fear, and free from all manner of restraint, except those very ineffectual ones the comnn)n law imposes. This cannot, therefore, be the true meaning of tiie term law of the land, made use of in the Bill of Rights ; it must be that which I have already contended for, or something very similar to it ; and if that be the true meaning of the term, then how do these words at all im|)ly that the Le- gislature have not a right to pass such an act as that which is the subject of our present discussion ? Do they not on the other hand prove, that as this is neither the act of any foreign Legislature, nor the arbitrary edict of any usurped power acting independent of the people, but the act of their representatives assembled for the pur- pose of legislation, and to consult togctiier for the public welfare, is such an act as ouglit to be respected ? Does it follow, because tiie Constitution hath declared the right of the people to be exempted from all foreign Jurisdiction, and from all power acting independently of the laws, that their own representatives cannot make a law which ^s useful and necessary for the public good ? There is no part of this Constitution that directs the process by which a suit shall be instituted, or carried on, and the Legisla- ture are therefore free to direct what mode of proceeding in Courts they think proper : and accordingly in a great variety of instances, both in England, after Magna Cliar- fa, and in this country, since the Constitution, judg- ments have been rendered against Defeadanti withont Haywood's reports. 45 tlieir bavina: Itad any jnevious actual notice, and the ^P""- 1''^*- Jiiilgos liavp nrxer inlimated a doubt of the constitution- '•^'^'"*»^ aliiy of tlipse |iioceedings. I will instance in the case of statute meirhant, statute staple, and recognizance in En- gland ; there, after the recognition and day of payment ai'tixes, no process is'^ues against the debtor to shew whe- ther he has jiaid or obtained a discharge, hut execution issues wiihont any further notice. 1 will instance in tlie case of outlawries — a man's whole properly may be ta- ken away, and jet he ne\er may !ia\e had any ; ctual no- tice of his appearance in Court being required. Both he- fore and since the Revolution in this country, and until the year 1783, bonds, called judgment bonds, were in , use here, and many judgments were taken njion them af- ^ ' ter the formation of this Constitution, without any notice. at all to the Defendants, and the Judges did not say it was an unconstitutional proceeding; and I su|)pose it would have been practised to this day, had it not been foi- the legislative interposition in the year 1783. Sec Jiev. Laws, c. 188. The necessity for this interposition, j)ioves tliat it was an inconvenience the Judiciary could not remedy upon the gi'ound of its unconstitutionality. Had it been such, as it was a public evil, the Judges would most certainly liave opposed to it the principles of the Constitution. I would instance in the case of the at- tachment laws — the property of an absentee is seized, judgment is oblairjed against him, and his properly sold, when perhaps, and very probably too, he has not the least intiinalion of it. The attachment law, is a law of pub- lic convenience, but yet it is liable to all Ihe objections which have been made to tiiis act for taking judgments ; without any previous notice actually given to the Defen- dant, a judgment by default is taken, and the Jury is sworn to ascertain the quantum of damages, the Defen- dant not being presetit, and indeed knowing nothing of it — yet the validity of Ihe attachment law was never ques- tioned by the Judges, nor did they, that 1 ever heard, ex- press the least reluctance to its execution. If a bill in equity is filed, and the Defendant cannot be found within the Stall, to be served with process, it is published in the Gazette, that such a bill is filed, and if the party should not appear by the prefixed day, though he hath no , actual notice, yet a decree is passed against him. If a judgment is obtained against the principal, and two set. /o's agaitist the bail are returned 7iihiL here a judgment 46 Haywood's reports. Apr. 1794. passes a.e;ainst (lie bail, (liough he has no adual notice ^"^^'''^^ of (his pioreediii.e;, and nfcoiirsc no opportunity to plead in his defence a matter to be submitt."d to a Jury. All the confiscation laws lately passed in this country, what are they but proceedings to take away the property of ab- sentees, who perha|>s knew nothing of these intended pro- ceedings? If to proceed to judgment before actual no- tice be given to the Defendant, be against this clause of the Constitution, how hath it happened that so many pro- ceedings of tiiis nature have been cstiiblishod by the uni- form decisions and practice of the Judiciary ? It may be fairly inferred, that all tlicse are so many proofs tliat such a proceeding is not unconstitutional, and that the Legislature may enact sucli laws. But to obviate these objections in every shape, let it be granted for the sake (36) of argument, that the phrase lepc terrce in our Bill of Rights, really means the common law, and tliat the com- mon law requires notice to he given to the Defendant be- fore the Plaintiff can proceed to judgment, it also allows an exception to the rule when the Defendant voluntarily renounces that privilege by the nature of iiis contract. — It is one of tl>e maxims of this very common law, that ^uilibet potest rniundare juri pro se introdndo. And maxims being the founilations of (he common law, when they are once declared by the Judges, are held equal in point of authority and force, to acts of Parliaaient. — Wood's Inst. 6. The maxim that ^uUibet potest, Sfc. ex- tends even to cases wiiere the life of the renouncer is con- cerned ; the accessary by renouncing his right not to be tried before the conviction of the principal, may put him- self upon his trial, and be hanged for it, Zlast. 501, 183. If the rule of renunciation extends thus far, it will liard- ly be contended that a man may not renounce some lesser advantage, such as the having of actual notice of the State being about to proceed to judgment against him. — But if tliis point be establi«hed, yet the question recoils — Have the receivers of public monies in this State agreed to renounce this privilege ? To pmve that they have, we have notliing more to do than to refer to the several acts of tiie Legislature for the better security of the re- venue, 1784, Rev.Laws, c. 219. Tiie Legislature directed judgments to be taken against delinquents by tlic Trea- surer, in the name of the Governor, and declared that such judgments should be as valid as if the usual process- es of law had been observed } the same in elTcct is repeated HAYWOOD'S KEPORTS. 47 in 1 78T, Rev. Laws. c. 269. Now surely every oflicer who Apr. 1794, hath ietei\t(l liis a|ipi>intuipn! ainre tho 22il Oct. 1784', v-*'"''''*^ intisf be deenieil to have takon it undei- tlic cinulition [)i'c- scribed by these laws, and must in the very act of arcept- ing the office, have consented, that in case of delinquency he would be subject to the operation of tliese laws; and is he not then as inucii bound as in the case of tlie Judg- ment before mentioned ? And I would remark, that these acts of 1784 and 1787, weie so far from being viewed as unconstitutional by the Judiriaiy at first, that no scru- ple was e\er •■iiiertaineil with lespect to them, from tlic time of passing the act of 1784', nn'il some time in the year 1788, hut in ihis interval, judgments foi the public were unifornily entrred as the act directs, without actual noiice to the Defendant. The records of this Court will verify the assertion, and tlie gentleman concerned foj' tho Strtte at that time can certify the same thing. [Mr. Moore was tiiis gentleman, who was then |)resent.] In (37^ 1788 a judgment was moved for, and the Court for the firsi time enquired, if the Defendant had been served with notice of the motion, and being answered in the negative, refused to give Judgment. Tliis determination was fol- lowed by a practice of giving notice, productive of enor- mous exjience to the State — in order to prevent tliis ex- pence for tlie future, and to leave no doubt in tlie mind of the Court with res|)cct to the will of the Legislature up- on tills subject, tiiey have unequivocally ex()ressed it in the most pointed terms in their act of the last Session. Situe the year 1784, there have been nine Assemblies of this State, the most of tliem have approved, some have amended tliis part of t!ie revenue laws, and none have ever thought proper to repeal it. Would so many As- semblies, each of whom has done something upon the re- venue business, have suffered tliosc clauses to have re- mained unrepealed, had they believed them to be uncon- stitutional ? Are these legislative bodies, charged and entinstid by their countrymen with tiieir most important conicriis, to bf all regarded as men who either could not discover the iinconstitutioiiHlity of a law, or were willing to countenance it? VVliat interest have they in the con- tinuance of an unconstitutional act more than the rest of ,heir fellow citizens? Had the clauses been repugnant to the Consttution, tliey would undoubtedly have repeal- ed them. Tlie Legiblatnre, thouj;li frequently blamed, •re unduubtedly in general entitled to this commenda. 45 Haywood's reports. Apr, 1794. tion, that they soek the Rood of their country ; with mm ^"^"^'''^^ elcctcil as tliey are, and fi>r siifh a p'-riod. it ran haidly be othiTvvise. Iti (I'luhtful case-!, tlie argmnenfuni ab in- cnnvenienti is of wei^'it, and I roiireive it may he |)i*(i()ef. ]y introduced on the present occasion ; if the inronveni- ence ofdeclarin;? this act t^ he unconstitutional h*- cin-- siderahic, I presume tliis consideration will not he en- tirely overlooked by the Court. It was to avoid great public inc'invenience tliat tliis act was [»as«ed. The cx- pcnce of seudinfif a messen2;er to all parts of tlie Stite, to };ivc notice to delinquents, cost the State annually, not less llian one thousand pounds; and besides tliis.the par- ties well koowin:; it to be the duty of Mie Treasurer to take judi^ment after the first day of Ortiher in each year, eitlier- go out of the neigiiboriiood, or conceal themselves about the time when tiie messenger is expected, so that after travelling a great distance, he frequently returns without seeing any of tliem, but he must still be reconi- pcnsed for his services out of tlie pnldic coffers. Some- rS8) times he is fortunate enough to serve tiie notice npon''*w/ of the old one, vvhicli has pfevailcil since the year 1788. At this time tlierc are but a few hnndred [loiuids in the. Treasury, ami the sitnalion of public affairs renders it probable, that tlie Le£;islature may be convened beXorc (he diiy of its usual niretini;;' — how are they to be sup- ported ? Slioiild (he public einert^encics require (he ail- vanccuient of any cnnsideralile sum, which is not impro- bable, how is it to be obtained if the public juclgMients are not now taken ? Oi- how is tlie Treasury to be sup- plied for the e,\peiices of the next meetinj^ of tiie Assein-' bly ? I do not ur.a;e tiie hitler ari;uments as projiei-iy ])ossessin,2^ any sucli force as should have an influence in the decisions of a consiitutional exerii- tioii and sanctioned l)_v the Juiliciary. See Ire.dcWs Rev. 2-fi Sec. 24. 289, 3 18 Sec. lOO. 386 Sec- 4. 424, 454, 403,487, 489 Sec. 5. 573 Sec. 6. 7. 9, 10, 11. 16. Tlie fact is, the aftairs of Government will som'*times, nay often, i'e(|uirp the exercise of this power. These instan- ces may serve to shew the necessity of if. And it is not like an ex post facto retrnsppctlve lnw any way incompa- tible with the safety of a free people. 'I'he Cunvention ^ foresaw the necessity there wonid he for somplimes en- actinfi; such laws, and therefoi-e they have been careful to word ihc 24tli section so as not to exclude the power of passin.!? a reti-'ispective law, not fallini;^ within the des- ''^ cription of an ex post faciei law — the Cmiventioii meant to leave it with the Let!;islrtture to pass sucli laws when the public convi-tiiencc required it. I will not stir this point any further, l)ut conclude with expressing my hope tiiat the Uourt will suffer us to take judgment. ^ -' Judge Williams stiil adlipred to his opiTijou of yes- terday, giving nearly the same reasons lie then gave. At Halifax Court a few days after, the Attorney-Ge- neral again moved the Court, consisting of .lodge Ashk and Judge Macay, and stated to them tlie arguments wiiich bad been used at Hillsiiorough ; after hearing him the Court took time to advise for a few days: when tlio matter being muvrd again, .Judge AsiiK gave the o|)iniun of the Court, saying he and Jiiilge MAt:AY had conferred together' — that lor liimself lie bad had very considrrabic doubts, but that Judge Macay was very clear in iiis opi- nion (hat the judgments might be taken, and ha«l given such strong reasons, that bis (Judge Asm:'s) otijections were vanquished, and tbcrelore that the Attorney Gene- ral might proceed — but tliat yet lie did not very well like it. — So the judgments were taken. Note. — Vide Sank of Nexvbem v. Taylor, 1 Car. Lrnii Jiep. 246. .5. V. 2 Murph. 266. HAYWOOD^S REPOUTS. Quiiiton V. Coiii'tncy. A common ir.n-l;eeper is liiibie for any loss wliich liis guest may sup- lain in his properly, except it be by the antniy of u servant or compunion ot the ijiiesi himself, or when llie guest is admitted np- ' on terms when the inn is full. The possession of money gives the property of it as to any disposition which the possessor may make of it. Cnse. Courtney was a tavern-keeper, and Quititon a traveller, wlio had sa(l(lle-lja,:j;s in wliich wire two liiin- dretl and eijrli'cen dollars ; ii(ion ali^htinj; at ihe itm, lie, gave (lie bags to a servant nf the tavern-liec|)er, but did not iidorni either tiie servant or the tavern kcOjicr lliat money was in the bags : these bags were phurd in tlic bar-roont, and were afterwards Ibiind on the lot, ciit open, anil the money gone. The declaration was in these words, to-v. it : NOItTIl-CAROI.INA, ■> a^ J rr i-n- HlILSUOnOUGlI UlSTUlCT. 3 ^ ' l)avi-pair of leather ^ddle bags in which were contained dther two hundred and (.ighteen r.i' 52 HAYWOOirS UEPORTS. Ap' 1794. Spanisli inilled dollars, of tlie value of oiip Imndred ami nine pounds v.^'V^^ of the ciirrecit money of ibis Slate, within the samt- dw Hin:.;-hoiise then and there htinp, and dehvered the same to the raid William, then and there to be saf'rly kept for i certain time, received, to-wit. the sum of to be paid by the said David when the said Wdiiam for the safe keeping thereof; nevcrthtliss the said WiUiam, well knowin)> the premises, on the same day and year last aforesaid, in tlie county and district idbresaid, so negligently kept the said bags and money that the said bags and money, lor want of such due care as aforesaid, were lost from and out of the said dwelling-house and possession of him Ihe said WiHi;im ; whereby (he said Uavid hath to- tally lost and been defrauded of the said bags and money, and of Ihe whole use, profit, value and benelii thereof; and ihe jaid AVilliam liath not delivered to Ihe said David the saiil bugs and money, al- though th<* said AViUiam on the fourteenth of January, in the year of our Lord 1793, in the county aforesaid, was thereto required, but tiitherto hath refused, and still dot'i refuse so to do or to make any satisfaction for tlie same ; whereby the said David sallh lie is injured and endam.aged to the value of pounds, and therefore he brings this suit, &c. And whereas also the said William afterwards, to-wit, on the afore- said thirteenth diy of JanuKry, in the year of our Lord 1793, in the county and district aforesaid, had undertaken safely and securely to ■' keep in his custody, one other pair of leather saddle-bags, containing vithin the same the sum of two hundred and eighteen pieces of sil- ver, coined money, commonly cal'.td Spanish milled dollars, of the value of one hundred and nine pounds of the current money of this State, being the bugs and money of Ihe said David, and to restore and redeliver the same to the said David, whenever thereafter the said David eliould request him so to do, and for thai purpose had received the said bags and money into his custody ; the same William, his ser- vants and agents afterwards, to wit, on the same day and j'ear last aforesaid, in the county and district aforesaid, the aforesaid bags and money so negligently and carelessly kept for want of due care of the aforesaid Wiiliaui, his servants and agents, the aforesaid bags and money then and there were stolen and carried away by some person unknown, from and out of the custody and keeping of the aforesaid William ; and by reason thereof the aforesaid D.ivid the said bags and money, and the whole value, profit and benefit thereof, hath totally lost and been deprived of from rhence hitherto ; and the said Wil- liam hath not restored or re-delivered the said bags and m-mey to the said D ivid, although the said William afterwards, to-wit, on thefour- ternth day of Januaiy, in llie year aforesaid, in the county and dis- trict aforesaid, by the said David was thereto required, but hitherlu hath refused and still doth refuse so to do, or to make any satisfaction for the same, whereby the said David saith he is injured and endam- aged to the value of pounds, and therefore he hath brought this suit, &c. Aim! the genrral isstir was pleaded. (42) Hnywood, fur the Phiintiff". insisted thaf iirdinary- keepers weie liable for liie ir)ds of theif quests Committed to tlieir rat-e, unless the loss happens by the dpfault (if the sjiiest himself. Inns were instituted for tlie lieni fit o( travellers, that they inight know wliere to go when travelling amongst strangers, without the dan- IIAYWOOU'S REPORTS. 53 ger of bpin.sf robbed or dcfi'aiukd of tlieir cftVcts ; and to Apr. 1*94. say Ibat tbo inii-lcrcper sbould iitit be linblc for llic loss ^■^"'•''"^^ of liis guest's gfiorls, would in effect destroy one of the piincipal cuds of the institution of ions : and if it should be cequircd to prove fraud or nc!i;lect upon the inn-keeper, before a guest rould recover for the loss of iiis effects, this W'luhl destroy the utility of the institution in a great measure ; for frequently a stranger would not have it in his power to prove the circumstance — there is no incon- venience on the other hand comjiarahle to this. The inn-kfe|(er has nothing to do bat to be careful — if he takes sufficient care, in genei'al the goods will not be lost. The same answer may be given to the objection that the guest did not inform him of tiie contents of the bags — if he takes sufficient care, a thitrg of great value will no sooner be lost than a tiling of small value ; and he ought to use this care in resjtect to all his guests, and all the effects they have with them, he the value great or small ; and therefore there is no necessity that he should be informed of the contents or value of the things confided to his care, and he cited S Rep. 33. — Bac. Jih. 182. — Bulkr 73, of edit. 1778 Cro. Jac. 224. Mr. Moore, for (he Defendant, insisted in general that he could not be made liable but by means of liis neglect. He cited Coggs v. Bernard, and many other autliorities ; and he argued that the laws of England are not in force here, any further than the circumstances of the country make them necessary ; that these kinds of frauds which the laws of England were so careful to guard against, arc not fiequently practised here, and that therefore there is no necessity for the adojition of this hard law. But jier WiLLi.vMS (the only Judge on this circuit,) the law is as laid r this he was indicted, ami now upon the trial, it was ruled clearly by Jud;;e Williams, that one bid- der at a Sherifl["'s sale is snOicient ; saying if it was not so, noexecuiii>n < onld ever be satisfied wiiere the Defen- dant conhl procure a friend to attend and bid more titan the |)roperty was worth at the first bid. — Uc was con- victeil and fined. NoTi.— Vide Slate v. Johnston, post 295. Haywood's repokTS. 55 HALIFAX, AFRIL TERM, 1794. A^..i794. Den oil (lein. of Blake Bilker v. Webb. I'er Macav, Jiirlfre. — Tlic statute Jtli George 2le to the p lymenl of debts ; and as to the payment of debts, are lobe proceeded against as |iersoiial chiliels. They descend to ihe heir charge. ble with all such debts as may he reC'ivered against the executors. Wicliams, Judge, (ni a pre- vious case eX|jressed an opinion similar to Macat's. (i'a deed be lost and its lonncr existence proved, a coi.y, and If no ciijjy, parol evidence may be given of its contents. t 'I'his was an iirtiun of tiesjiass in ejccfmiMit, whofcin the Piaiiitirrilt'iiiiCifl his title as fallows: This liiiid was mMiiti'd the '2(1 (lay of Ajiril, 1741, by l!ie Kai'l Gtaii- (44) vilic to yeiiiamii) iSl'tiiiiiiie ; by him the 17lh Ociober, ir4.5, to N'i'illiain Rinchtri ; by !iim the ISth Ooidbee, 1746, to David tloijpci' ; by bini the 12!li Septeiriber, 1747. to (Hie Caitei ; tlie 3d September, 1760, it was Ci'.;iveye(l by oiie Mays to De«ey, wliii li i-oeite=! a li'-ed ffom Caiicr to IJays ; by Dewey to Suiait, the 14tl» Febiiiaiy, 1765 ; by Smart to Jo.sepii Ldii;:;, Ihe 20l!i July, 1768: and by Long to lllake Baker, the elder, tlie iGlh Decetnber, 1768;'\vbieh Blake Baker, tlie cider, was the father of the les.sor of the Piaiiitiif, to wli'iin the PiaiiitifTis heir at law ; asisi the said Blake Briker the elder, was posse.ssetl. and dietl pos.sessed iti 1769. It was farther proven oji the part of the Plaiiilift', that (Jarier was in possession for seven years and iijjwards, and also that after his possession, the saiil Uays was in pusses- sion for a prcal len.j^tli of time before he sold to Dewey, and used the land by selfin;^ litiiljcr ofT ii : that Dewey was possessed two or ti>cee yrars, and that Loii.!^ was j)ossest>ed for soii;c time; and that diiriiijj the time of Hay's possession, Carter frequently declared that he had conveyed it to Hays. The Defendant on bis jiart set up ' a title as follows : That one James M'Neil obiained a jud.^ment for debt and costs, a.qaiiist tlie executurs of - Blake Baker, the elder, anil took out execution tliereoii, tested in Apiii, 1772; wiiiib e:;etuiion conimandid (lie SherilT, tiiat he should levy of the soods and chattels, lan(l.s and tenements in the hands of the executors, &c. 56 Haywood's reports. Apr. 1794. And that by virtue thereof tlie Shpriff sold the lands iu '~''"'^'''*^ quostioii, and executed a deed for the same, hiMrina^ date the 22il February, 1773, to Joseph Mrmtfort, who liy his will devised that his executors shouhl sell ; wlio sold ac- coriliiis;ly to one Wilburn, who s(dd to J. Wehh, who died leaving the Defendant his heir at law. Thejuilg- ment was obtained in April, 1772, anl two pleas had been pleaded by tlie exccut<»i's, to-\vit, plcne administra- vit and non assiimpsit, and the jury gave their verdict upon the other plea only, and there was a sn^^^jestion on record that tliere were lands, &c. Tlie deed to Motitfort, when produced, described the land thus — " K.nown by the name of Hays, formerly given by James Carter to James Hays." Hayxvood, for the Plaintiff. — It is a rule of law well established, that in ejectment, the threat question always is, who hath the jus possessioiiis. It is this alone in the action of ejectment, that can entitle the Plaintiff to reco- ver ,' and by whatever means it can be shewn that the /jus pnssessionis is lost, by the same means you destroy the PiainlifT's right to recover. It is also a rule as well ('45") established, that wherever he wlio had the right of pos- session, hath lost it, he who hath tlie possession hatli gained it, and may make title tlirreby. It operates not only negatively as a bar to the Plaintiff, but also |)osi- tively by transferring the riglit of possession to him who hath maintained the possession. 1 liiirr. Rep. 119. — Sunn. 112, 14. 13, 105 Salk. 421, 685— L. Ray. 741. L. Eject. 71 — 2 Bl. Com. 196, 197.— Bull. 102, 103. In the present case, we have acquired this I'iglit of posses- sion three ways — Fii-st, by length of possession, namely Hays' possession, Dewey's possession, Long's ami Ba- ker's i>ossessii)n, altogether making a much greater length of possession than the statute requires; which when it begins once to run, cannot be suspended or im- jjeded by any ex post facto circumsiance, till it completes the bar intended by the act. Secondly, here is a regu- lar chain of conveyances from the original patentee to Blake Baker, the elder, except as to the conveyance from Carter to Hays ; which if it ever >lid exist, and is now lost, we may prove Hie rontenis nf — and this is dime by the recital of the Sheriff's deed to M«>ntfort, under which the present Defendant now claims. The rule as to this point is, that though in general a deed reciting another deed, is no evidence of the recited deed : yet if the re- Haywood's ukpouts. 57 citing ilccd be tli;it hy wliicli cillier PlaiiitiflT op Defend- Apr. ir94. ant claims title, it shall be cvitlence, as aj^aiust him of ^-''''^''^*^ the reality "f tlie leciled (iee session of the land in qnestion, previous to these pro- ceedings by means whereof it is pretended the Defendant liath obtained title, we may venture to conclude that the Plaintitriiad the ligiit of possessi()n until and at the time of the sale made by the Sheriff in the year 1773, and that he iMiw hath that right of possession, and is entitled to recover in this ejectment, uidess the Defendant's title, as proven in evidence, be valiil in law, and sullicient to su- persede the Plaintiff's. As to which we beg leave to premise, that lands upon ^ „> the death of tin' ancestor, immediately descend ujion and "^ ' become vested in tlie lieir, except only in the case of a de- vise to some other iierson, or of a judgment and execu- tion is.^ui'd in tlie lifetime of tlie ancestor. Co. Lit. 184, b. 6 Hep. 79, a. 10 Rep. 50, b. 51. Even in the case where lands are made chargeable by will witli the pay- ment of debts, the descent to the heir is not broken, but they descend u|ioii him noiwitiistanding. Co. Lit. 236, c. 265, 6. Office Ex. 295. Godolph. 211, 372, 376, 184, 199.201. QMod. 111. Q Mod. Cas. 271. Cowp. 468. 1 .^tk. 421. This we mention merely to shew liow tlie common law stood previous to the act of Geo. II. which will be observed u|ion by and by more at large ; and to prove that by the rules of common law as it was |)rovi- ous to that act, and as we insist it now is, these lands had descended upon Blake Baker, the lessor of the Plairi- I tiff, and were to all intents and purposes his property previous to the time of M'Neil's judgment and execution ; and then it will follow of necessary consequence, and 1 from the very words of the writ of execution by virtue of 58 Haywood's hepokts, Apr. I794.^vliirli it is pretended the SlierifTsold these lands, tliathe ^"^''^''^^^ had no autlmrity for scllin.af ini|iaried to him hy the wiit. It recitos a reroverj' of iiionirs against tlic executors of Blake Baker, derfascd, and commands the Slieiitrto le- vy them of. the goods and chattels, lands and tenements of Blake Baker, deceased, in the iiands of his executors. This cannot extend so far as to iiuthorise the Sheriff to sell lands t'lat ne»ei- were in the hands of the executor, and to the possession wiiereof the executor had no jire- tensions ; and iti all cases wiiere the law entrusts any man, and more especially an officer concerned in th.e ad- ministration of jn»ifice, with a power or authority, it re- quires that aiithoriiy to he precisely and literally folluw- ed, mid no discretion is loft to him of oxteudin.i^ that au- thority, lest under the colr)ur of aclinsj accoi-din.^ to the spirit of his commission, he miqUf do some act of injus- tice or oppression. L. Nay 713. Co /Jf<. 49, 6. 52. a. 258. n. 'iliac. M. 352. Co. Litt. 113,265,6. Salk. 563. 2 ,^6. 519. The jihiin inference, resulting from which rule is. tiiat tiie Sln'riflT having taken and sold lands it) tiie hunils of the heir, uhen lie had not any au- thority given to him by the writ of execution to sell his lands, but only lands in the Icinds of the executor, such sale is exactly in the same situation. We suppose it will hardly he ( ontendcd such a sale could be supported.— f.y,\ But (|uitting this oiijection for a moment, let us consider *• ' the title of the Defendant in another point of view. The lands in the present case, tlescended to the heir, have been taken from him and sold hy a Judgment (d)tained against the executors ; and although it would be sufficient to say, that the law of tiiis or of any other country can never be so absurd as to establish, that upon a Judgment against one man no way interested in preventing that judgment, the propt-rty of another should be taken to sa- tisfy it, without any opportunity given of defending him- self. Y( t as it is to be contended lor on the other side, that in this country the lands of heirs are liable to be sold for the debts of their ancestors, upon a judgment ob- tained against the executors only of tlirir ancestors — it will become necessary to enquii-e what the common law directed in case of thedeatli of an indebted ancestor, and whether the common law u|ion this head hatii been in any respect altered. For if it shall be found that the coin- inon law required notice to the heir, and an opportunity to defend himself, before it would [lennit the lands dp- uatavood's reports. 59 scendcd to liinTto be charged, tliis beinjsj so consonant to Apr. 179% tin* liictates of natural justire, must impose a ned'ssity >«-''^''^*»' upon the DcCi ndaiit of shewing smnp ^"^''^*»' something to allege in his defence, surely suvli a caution is much more necessary where lands are to lie atlci led in the hands of the heir, upon a judgment obtained a- gainst an executor, in the case wbire the scL fa. is to is- sue against the executor or administrator — hi.s testator, or intestate was at the time of the jndgnuMit (lie princi- pal, and indeed the onl}' person who was inteiesttd in defeating and preventing the entering up of such judg- ment —liis pi'operty was to be subject to it — his person was liable to it — he best kin^w every defence tliat cuuld be made, havitig been personally concerned in (M'igioating the contract or cause of action upon wiiicii tiie jiaigment was obtained ; yet because the executor may liave by jiossihility obtained a I'elease, or may not have sufficient property of tiie deceased, and so may be in danger to he subjected for want of projier pleading de bonis prnpriis, he must have notice. In the case of tiie executor and heir, it is most generally the interest of the i-xtcuti)r to throw the burthen of the debts upon the laid of the heir. He is m>ist generally a [lerson beneficially concerned in ■point of interest in the iiersonal estate, which if In- can save at the expense of tlie real propert}, he and tlie other legatees become so much gainers ; and tlie case now be- fore the Court exhibits an examjdc of the grent facility with which an executor might ruin the heir, if the heir was not to be made a paiiy before his land ct)uld be sold, if tiiP executor was so minded. In this case, the execu- tor pleaded plene ailminislravit ami non assumpsit, but only the latter issue was siihniitted to the jur), the for- mer being confessed by the i'laintiff McNeil. If such a confession be siifiicient evicL-nce of the personal assets f50) being exhausted, so as to enable the creditor without more ceremony to lay luild of the land, every executor by procuring a confession of the jilea of plene adminis- ; travit, by the creditor, whose inierest it would most ge- nerally be, for tiie sake of liaving a speedy recovery, to accommodate the cxecutoi- \vith such a confession, would . have it in his jiower to charge the I'cal property with all the debts of the testator; and thus tlie Inir be stripped of his freehold, though there miglit he in possession of the executor personal propeity to a inuili greater ainoiiiit than would satisfy all the debts ; it might, for ought wc know, have been the case in the inescnt instance. Why 62 uaywood's kepouts. Apr. ire*. J i,) „Qf ^im creditor and executor submit to tlic jiiry to ^'^'^''^^^ enquire of tlie plea tA' jilcne adminislravit, as well hs that of nan assumpsit? It is evident tlit-re was some utider> standing between tbem ; but all we contend foi- is, that such a consbination is possible, and that ilie cfTrcIs rni,a;ht be veiy prejudicial, if not ruinous, to the brir; and that a rule from whicf^ so many evils flow, and so murli in- justice s[)riiiss, cannot be fouiuled in law. It places Iho lands of the heir completely in the poAer of the execu- tor, whose ititerest it is to biirtiien the land in exonera- tion of the personal estate. It is commiltere agnum hipo, and to deprive the heir of iiis freeliold untried and un- heard, when perhaps he is able to shew, if he had an op- portunity, that the [lersonal assets were not exhausted, or collusion between the creditor and exrctilur in de- manding and allowing, or in respect of the (juantuin thereof. 'I'iie executor may frequently be exjiosed to the temptation of siilTcrins juds^ments that might be |)rc- vented by a proper defence. There are circumstances which would render such a conduct profitable, not only to the creditor, but to himself. Shall not the heir be al- lowed to defend himself against such attempts ? Shall his freehold, so much respected by the law, be taken from him at the will and pleasure of the executor, or by his neglect and cai'elessncss ? Sui-cly no person can be more jm|iroperly trusted with the Inir's interest than the exe- cutor, who in so many instances has an interest so di- rectly o[)p()Scd to that of the heir. But without reason- ing about the policy or jn-opriety of the thing, as it is certain that the common law i-equired notice to the heir, let us now demand by what statute, act or other law, this jnivilege, so essential to justice, has been taken from him. There is no express law for this purpose — but it will be urged, that this alteration is operated by /•gj-v implication and construction of the act of 5 Geo. II. ch. 7, which enacts, "That from and after the 29th day of September, in the year 1732, the houses, lands, negioes anil other hereditaments and real estates, situate or be- ing in any of the said plantaticnis, belonging to any per- son indebted, shall be liable to, and chargeable with all Just debts, duties and demands of what nature or kind soever, owing by any such jierson to bis Majesty, or any of his subjects, and shall and may be assets for the sa- tisfaction thereof, in like tnaniirr as real estates arc bj' tlie law of England liable to the satislactioii of debts due HAYWOOn's REPORTS. 68 by bond or otiior sppiialty ; and sli-all be. subject to the Apr. 1794. like i-einodips, proceed mp;s and process in au) Cotii-t of >^~^''^*^ Law or Equity, in any of tiie said [tlantations respect- ively, foi' seizing, extending, selling or disposing of any surli houses, lands, negroes and other liei-editameiits and real estate, towards the satisfaction nf siicli debts, duties and demands, and in like manner as jxrsonal estates in anj of liie said plantations rtspectixelv are seiz<'d, ex- tended, sold or disposed of, for the satisfaction of debts." If the alteration contended for in icspect of notice to the heir, is not to tic inferred IVotn this act, it lias never been affe( ted at all, and the cominon law remains as it was — then for want of notice (o the lessor of the Plain- tiflTin the present case, either by sci.fa. original action, or some other process, the sale of his lands, and tiie pro- cceilings that arc sujiposed tu juo'i it, arc wlioliy void as to bim. In (nder to get at the true rneaningof this act, and by tliat means to discover whether it lias really intended to take from the heir, tins privilege of being previously called ujioii to defend himself before his lands could be seized — it will be proper to consider what was the occa- sion of introducing the act, and what the mischiefs it meant to remedy ; for if there were miscliicfs, and it re- medies them without the aid of the coiistrtictiun that the other side will contend for, we apjirehend tlierc can be no reason for extending it further than will reach these mischiefs, and more especially as such a cosistructiuii i.s against the princi[des of natural justice, and against that j'ule of reason and the common law, which at ail former periods bath most carefully been adhered to as tiie onlyr sure means of obtaining justice. In the times when the feinlal system prevailed, lands could not be sold, lest an improper tenant should be substituted ; and where a debt was recovered, there lay no other process for the credi- tor but Afi.fa. or lev. fa. 3 Rep. IS. Thus the law con- /go- tiiiued until the 13th Edward !. when the Parliament, finding how beneficial it was to that country to extend credit, by making creditors as secure as possible of their debts, passsd two acts, making lands liable for the satis- faction of Ie. A sale in either case was not allowed. And in respect to the deht of an ancestor, if he dii'd hi-fore any judginent recovered a,s;aiiist liiin, the heir was only lialde to such debts as were due by the oblii^atiou of the ancestor, and in whicli the heir was expressly bound : as to all spe- cially debts in which he \Nas not named, and all debts dui' liy simple contract, where no judgment hail bi-en ob- tained a,qaiiist the ancestor in liis lifetime, tlie heir was not cliars^eable «ith them. 2 Bl. Cum. 377. 378. 244 1 P. mi. 777.-2 A^els. 66, 924.— Fern. 180.— 3 Levintz. 189. — Plow. 440. Thus stood tlie law at the time of the first selilemeiii of fliis country. The inapplicability of it here, and its unfitness for the circumstances of this country, soon became evident. The ijreater part of the property of this country consisted, thuu(;-h in fertile, yet in uncleared lands, not of very !!;reat value, ami yielding no annual profit. As the acquisition of a tract of laud was within tiie compass of every iiiaii's atchievement, every man chose to employ his labour in the cleariiiij; and culti^atinii; his own land rattier than anotlier's, whicli when cleared and improved, and rendered fit for tilla.t^e, would advance only the interest of the own ■!■, and tend very little to his own : hence ri'siilied the iiucomjietency and inutility of the writ of elet^it. K'cperiencc .soon i evinced that few or none would ctiiseut to hold lands by .such a tenure as was offeivd by tlie writ; hence real jiropeity gave no credit to its owner — it could not in practice he made answerable f o" his debts. Tliis was oin- of the inconveniences the act meant to remedy, , and to that end it has made lands liable to be seized, extend- ed, sold or disposed of, in like manner as personal es- tates, in any of the said plantations respectively, are seized, exti'iidrd, sold or disposed of, for the satisfaction of di'bts. By this branch of the act. Ian now be exp'ised to sale, and 'iiis iiicoiivenieiici' is com- , pletf'ly redressed. Anotiier of the ioccnivenieoces result- ing from the law as it stood before tiie passing of that « uaywood's reports. 66 act, was, that IkikIs in the hands of thp heir, were not AP"" l^Q*. liable to any but spei'ialty debts, madeoblii^atory on iiim ^•'"^''"Nm* by express words : this inronvenlence is also cotn|)letely remedied by tlic art — it ordiuits for the future, tliat all real estates shall t>e liable to, and chai-,£;eable with, ali just debts, duties and deinantls, of what nature or kind soever, owin^ liy any snrli person to his Majesty, or any of his snlijerls. and sliall and may l)e assets (or tlie satist faction thereof, in like manner as real estates are Ity the Jaw of England liahlc to the satisfarfion of debts due by bond 01' other s|)eciaity — tliis is a most copious provision against the latter misriiief. By this branch, lands in the hands of an i)eii'. arc subjected to sale for all kinds of debt-i. These two branches of the act are ail the opera- tive parts of it, and are manifestly aimed af^ainst the two evils before mentioned : it contemplated the remo>al of these and of these only. B'-fore the passinj; of this act lands could not be sold for the payment of debts, and tlio heir was not liable to the simple contr^act, or other debts of the ancestor in whir!) hr was not named : since the jiassing of tiiis act they are lialile to be sold, and in tlie hands of the heir are lialile to all debts justly owinp; from the ancestor. By tlie removal of these inconveniences the purposes of the act are fully effected, and we contend there is no projiiieiy in extending it to any other case, which probably tin' Liegislatnre had not in view, as that would be to make, not to construe, the act. It will bo nrged, that b) the words, '• Shall be subject to the like remedies and procevdings, in any Co^irt of law or equi- ty, in any of the said plantations respec lively, for seiz- ing, extending, selling or disposing of any such houses^ lands, negroes, or other hereditaments and real estate, towards the satisfaction of such debts, duties and de- mands, and in like manner as personal estates in any ol' the said plantatiiuis res|(ectively, are extended, sohl or disposed of, for the satisfaction of deb's," the Parliament intended, as to all purposis of execution of judgments, to have lands considered as personal property ; and of course that it is immaterial whether the executor had personal assets sufficient or not, as the creditor had his 0|itioii to take the real or personal first, at his pleasure ; and that the real estate, as to tiiis purpose being to be considered as personal estat<', is properly in the hands of (54^; the executor, although as to all persons hut creditors, it is ts be considered as real estate descending to tb« hefr 9 66 Haywood's reports. Apr. 1?94. jjg |,p}'o,.g (hp passinc; of the act, and consequently tliat ^-^"^^^"^^ there was no necessity for any other person th in the ex- ecutor to be made a party to the Jiidafraent by force whereof the lands were soUI. This is the doctrine that will he attempted to he establishcl for the Defendant — but by the Ijiw of England, np to the time of passinj; the act of Gen. II. »m] of course by the law of this country np to the R;ime time, the porsonal estate iiath always been considered as the proper fund for the payment of debts, even in cases where lands or real estate have been made chatgeable by will or judgment to the payment of debts. Yet so great hath been tlie regard which the law had for fieehold property, that it would never suffer it to be touched hot where it became manifest the personal es- tate was exhausted. Z Inst. 595. 4 Bac.M. 419. Can- ning, verb assets. 2 E. C. M. 493. s. 5. 494, s. 8. 496. s 13. 500, s. 30. 31. 502, s. 38, 89. 2 C/». Cas. 84. 1 Vern. 36. 2 Vent. 349. 1 E. C. M. 270, s. 10. This rule is not any rclick of tlic ancient feudal system. It is founded in tlie soundest |)olicy, equally apjdicahle to the condition of tliis country as to that of En.i^land, and accordingly has been cherislied and supported here, both before and sinre we emerged from regal govern- ment. That |)ro|)erly which is deemed tlie most sacred, ar^d is tjie best secured by law, becomes more than any other the object of attention, because it is the most per- manent, and it is good policy to make that property most the object of attention, whicii the most effectually attach- es its proprietor to the country he lives in, and real pro- perty possesses this quality mure than any otiier. An industrious man, who liy his labour has collected where- withal to purchase liim a little property, uiiturally fixes his attention upon that which in all probability will con- tinue the longest «ith his posterity, and which the law has rendered the most difiicult to be taken from him — a freehold b'-comes his object, as well for the reasons be- fore mentioned, as because (he Constitution of the coun- try Iras annexed to it certain privileges that advance him in the rank of citizenship ; and as the freehold, when ac- quired, is incapable of being moved away like personal pr<(perty when danger tlireatens or the State has occa- sion to call f.ir per>'onal or pecuniary aid, he is always ready to be called on, and to snjqily the emergencies of I the commonwealth ; when at the same lime the holder ufj (55) personal property, apprised of the services whicli the UAYWeOD'S REPORTS. bi atate needs, hath withdrawn both himself and his offcrts Apr. 1794. from the country, and pn^sibly may throw them into ilie ^-"'^''^ scale of the enemy. The more freeholders there are, therefore, the greater is tlic |iiililic strencjth and res|»ect- ability — anil the method the law has taken to encrease their ninnher, is by (daring freehold property as fir out of the reach of creditors as was consistent with that # other maxim of justice and good policy, that all just debts ought to be paid wlien the debtoi' has any pro()erty wherewith to pay them. Tlifse we think are sufficient reasons for the jiroference ihe law has given real over persniiril property ; and notwithstanding tiie construction conteniled for, I believe it has always heeu understood since the passing of this act, that the rule of law is so. In the case now before us, and in se\erul other ca- ses that have been before this Court, in which the present Plaintiflf was conceined, there was the plea of plene ad- ministravit pleaded and confessed ; from whence it may be inferred to iiave been tM(^ opinimi of tiiese times that without such plea the lands couM not be made liable, and in the same cases it is observable there is a sugges- tion entered on the record, that there are lands, intima- ting that the plea of plciie aduduistravit, confessed or found, was tlie only circumstance tliat could warrant such suggestion ^ and that in theKc times the lands were not considered as assets in the hands of ixecutors for the payment of debts; for had they been assets in the hands of the executor, the suggestion of lands, where it was confessed that the executor had legally disjiosed of all Ills assets, would have bci'U absurd : and since the Revo- lution, this same rule of law has been carefully attended to and preserved. JV. C. Laws, 303, s. 29. 530. 531. These instances serve to evince the constant opinion which has been entertaJTied of the existence and the pro- priety of the rule, that real pr()perty cannot be affected where there is personal estate to answer the dpm.iud, both before and since the passing of the act of Geo IT. and constant opinion and experience, we arc told, a-'c. good interpreleis of an act of Parliament ; and to all those instances I woidd add tlie weight of the solemn ad- judication in 1771, before stated. These examples all prove that the construction the De- fendant would put upon this jiarr of tlie act of Geo. IL blending real with personal property, and placing n in the same degree of liability with personal property f«f 68 HAYWOOn's REPORTS. Apr. i?94 4),e satisfwrtion of debts, niilitiitcs b"tli with (he policy ^■^y^^^ of our laws in general, and witli tlie true s|iiiit of the act in question in particular, and provcH also t1i:it uo .should (65) look out for some other mcatiii^e; more consonant to both ; and the true mcanina; srem'4 to he, tliat the real e»tate, like the pei'tonaK shall he liiiblo to be sold by the writ of Ji. fa. and to be conveyed to the vendee ff real, had been seized, extended, sold or disposed of, for the satisfaction of the debt, and he had be( (ime (he purchaser. Surely it cannot be inferred from iluse words, that the ancient well established rule of preferiing the real to personal property, is broken down, and together witii it this other rule, that every man ought to have the defence of liis own property, and warning given him to defend, before it shall be taken from him. when they are so capable of another meanitig, and such an one too without which the law would not l)e perfect, nor could be made to accom- plish its end. is it not enough that lands are made lia- ble to sale, vviien before they could only be extended ?— ^ Must we go furtlier, and imply what the law lias not said, that they may be taken from the heir and sold with- out making liim a party ? For this is the direct conse- jquence of sayitig they shall be assets for the |iayment of debts in the hands of the executor. Wliy say the execu- tor shall Lave it in his power to aff ct the real estate by confession of judgment, or not defending the claim, or defending it but faintly, or by colluding with the credi- tor, when this law has not said it? Why say the credi- tor may make the land first liable if lie will, when this act expresses no such sanction ; and when the ancient rule, framed with wisdoio and grounded upon the sound- est reasons, has manifestly and undeniably drawn a jdain line of distinction between the real and personal estate of the debtor, making the former an auxiliary fund, only 11 ben the other fails ? Why break down so many mate- rial kuuu.^~v'*>-' validity whatsoever, to do away the title of tiie Plaintiff. It will be ui2;ed for the DcfendHnt in rase of exiiemi- ty, that these proceedins^s at worst are only erroneous, and will remain in foicc till leverseil by a writ of ei-ror — to wiiich we say, if they are erroneous only, and not absolutely void, as we contend ihey aie, yet the adjudi- cation, and the award of execution, heina; the acts of titc Superior Court, could not at the time they tmdi place, /^g-v iior can they now, l)e rcvei'sed by tiie Superior Court in a writ of error — (or the same Court that hath rendered an erroneous judgment, is never entrusted with tlie power of correcting it. To lodge such a power with, the Court who hath committed the error, with an expectation that that Coui't would correct it, would be absurd : and be- side, who is to grant ti.e writ of error? There is no other Court in this country but tiie Superior Court who can giant it — so tliat the Superior Court must direct a writ to itself, therein giving a comniission to itself, to correct an error in judgment which that Court had for- merly committed. This cannot be perionsly insisted on: it is a doctrine too tender to bear tiie light. The true rule is, where a Superior Court hath committed an en or in a matter of fact, the same Court may correct tiie er- ror ; not where tiie error is the act of the Court i:i a matter of law. In England they have a writ, or com- mission, diicctfd to tliem from the Chancery for this jnirpose — in tliis conntiy I do not know liow tiiey will proceed, perhaps by filing an assignment of errors, and noticing the adverse party to answer them. 1 Rnll. 746, 747, pi. 12. 2 Bac. Jib. 215, 190. F. JV". B. 50, 51. LilL Ent. 490. It is also a rule of law, that where a party who is injured by an erroneous judgmi-nt, is so situated that he cannot have relief by a writ of error, or otiicr means ; that then he may be relieved by plea, entry, ejectment, &c. or other means best suited to his case. 2 Mo. 308. 219. 11 Rep. 44. b. 2 Bac. M. 229. 6 Rep. 14. fl. 9 Rep. 119. ft. 5 Bac. M. 153. 8 Rep. 76. b. Cro. El. 489. And accordingly there are many cases to be found in the books, where a man may take advantage of an erroneous proceeding in assize. 2 Bac. M. 347. Wf. Ab. 304, 305. Cro.'jac. 85. pL 10. 3 Bac. 153. Soil. M. 140. F. JV. B. 648. Roll. M. 140, pi. 6. And if in an assize, certainly alio in an ejectment, both be- 72 Haywood's reports. Apr, 1794. in ^ arfionsoFa similar naturo, that is to say. both linini; pos'sessoi-y actions. 1 Burr. 110, 111. And inil(>e(i there are express authorities that such error m;iy he ta- ken aflvantaja;'' of, upon eviderice in ejectnftent. 2 Bac. M, 369. in a note 1 Lev. l60. Carth. 453. So tl)at we ap- prehend, notwitlistandina; this objection, for these rea- sons and aiithoi'itii's, it will he thoii!<;ht we have adojited the proper method of avoiding these ille!;ai proceedings in the present case, and we hope to have the opinion of 4he Court in our favour. I cannot give any thins; like a complete representation of Col. Daviess argument, some of the most striking parts of it I noted at the time, and those only I am able to give — though his argument was a very ingpniiuis one, and C°") contained mueh law, and cited many authorities. Davie, for the Defendant — As to the title of tiie pre- sent Plaintiff, as attemptiMl to be deiluced from tlie origi- nal patentee, there is a chasm — the deed from Carte)- to Hays is wanting. I take the rule of evidence to be this — when a deed once actually existed, and has bei-n des- troyed by fire or the like, (Bull- 254,) then a copy, and for want of a copy, parol evidence of the contents may be given ; but in the present case no one is introduced to prove, he ever saw a deed from Carter to Hays ; no one pretends to swear it was lost, and consequently no |)roof is made of its having ever actually existed. In the case of Few and .Slves at Hillsborough, we produced the pro- bate of the deed (m the minutes of the County Court; even the sworn copy of the Register's book is not evi- dence. As to the recital of t!ie deed from Uays to Dew- ey, that is no evidence of the recited deed ; we were no parties to it : and as to the recital of the deed from the Sheriff to Monlfort, that deed is under the seal of the Stieriff only, and he who hath noi sealed a deed, cannot be estopped by it. This deed contains only the words of one parly, neitln r is the confession of Carter, that he had conveyed to Hays, of any avail. He raiglit have leased for a term of years, or haveconvey'~'^">^ of title, and if lie liad ijo.sscssioii lor seven years or uinrc, for want of a ndnur of title to accompany it, he acquired no title thereby : but iu fact he liad no such possession as tiie law takes nolice of, so as to ripen into title ; tiiat must be an actual possession, Qiirtsi positas pedis, an ac- tual settin.!;' down upon iheland. ' It must be sucli a pos- session as will make a notoriety in ihe country, and in- form him wlio has title that the land is adversely claim- ed : othei'wise a man might lose his title by a secret us- ing of the land, which he might not know of till it was too late — cutting timber off another's land, at different times, tiiroiigh a course of seven years, will not do — it , must be an actual continued |»ossession. Dewey had ne- ^"■'Jf ver any possession of (he land, he lived ujicni another tract adjoining ; wiiich other tract was purchased of ano* ther person ; and although flays's tract, as it is called, might adjoin it, yet his possession of tlic other tract, could make no notoriety of his claiming Haijs's tract ad- versely to the claims of all other persons. He miglit have purchased it so secreitly from Ilays, tiiat Curler might not have known it in seven years — and siiall the mere circumstance of bis continuing the pnsscssiim of another tract adjoining tliat, oust Carter (d" his title ? — Dewey conveyed both tract-;, by one . HAYAVOOD'S REPORTS. '» \ remarked that by our construction, tlie process wlicreby'^f"'"^ the creditor is lo coino at his debt, is mucli siiorfci- ; the whole is done I)}' makins the whole projierty of the tes- tator, a pledge as' it were in tiie lisiiids of the executor, for tlie satisiactiou of his just dehts : the creditor has no- tliins; to do, hut to subsfauliHle his cliarge against tlie executor, and to receive payment; this comports nitli the preanihle of ihe act, which is made for the purpose of extending the credit of the plautalious, by putting it in the power of creditors, more easily to obtain I'ecove- rics ami satisfaction of liieir debts. It is true indeed, the fd'cgoitig part of this act sajs that lands sliall be assets, for the salisfaciioii of all just debts in like mautier as real estates are by tl:c law of Eiiglaud ; but this is only descriptive csf the debts to which lands sliall be lia- ble, not of the manner of proceeding against them ; and is tantamount to saying, that the lands of Carolina shall he liahh- to all kii0UTS. 79 ilie proper exociition to be issued tinder it. A writ cal--^P''- ^J'^^s culiited only lor the sale of personal rliattils, and always *-''~^'''*^ used at the roinmon lawassuch. This is a circumstance that proves tlie contemporary exposition of this act to have been, that land was considered as chattel pro))erty, as far as related to the debts of iis owner. Upon what other principle could it be supposed, this chatiel writ would ever answer the purpose, it lands were still to be view- ed in tiie li_a;iit of real pr-operly ? Could a writ com- manding the Sheritf, that lie bonis et catalUs debitoris, he should ujake. the debt, &c. empower liini to sell the lands of the debtor, if by some law these l.mds were, not to be considered as the bona etcatalla dcbiloris. This writ has been constantly used, and no oilier, for the sale of lands, ever since the act of Geo. 77. and in my opinion there cannot be a stronger proof than this, of the meaning which the latter clause of this act has been constantly deemed to have. Much has been said, and whole volumes of au- thorities read, to prove the necessity of a set. /a. ag.iiiist the heir: we will not deny, but that before the act of Geo. II. a aci.fa. was necessary, but that was a case ex- tremely diiroreiit from this before the court, and is fully answered by staling the dift'erence only betweceti the nature of real estates in England and here, since the passing of the act of Geo. 77. all tiic authorities cited, are of easei* where the |)arty against whom the original judg- ment or proceeding w'as, ilied since the Judgment, so that there is no person left against whom to takeout execution, who was (larty to the judgment ; hut the counsel for the lilainliff cannot sliew one precedent, where the scJ./«. lias ever been deemed necessary, the jiarty against whom the (07) judgment was, remaining the same, and in the same con- dition, without any ciirumstaiiGe to vary his case, as when the judgment was obtained. Tlie party to be called in, must be the representativeof the jjerson against whom the judgment was ; the sci._/a. is always founded upon a record, to which the jiersiMi to be served with the sci fa. was a party.or [ni\y. Our act of 1784, fier.c. 204 is the first instance where the heir could be call''d inliy sci. fa. li|)oii a judgimnt, after the death of the ancestor; and without the aid uf that act, the sci. /a. grounded upon the record of a judgment against the ex^'cutor, would never bave Inin against the heir, because to that record he was neither party uor privy. The.9ct./«. is nat » comihoii 80 Haywood's repouts. Apr. 1794'law writ; It was introduced by tlie statute of Wpstiniu- ^^f-r^sm^ ster, the 2d. Car. 45, and lay only upon the fonnddtiou of a record, to which the defendant was (larty. It in very incorrect therefoi-e to say, tliat the sci.fa. lay in the case now bcfoi-e the court, against the heir ; where tlio act of Geo. II. provides no sucli |iror.es-?, and where it is apparent the statute of Westminster does ilot authorize the use of it in such a case as the present, wiioi-e tiiere is a complete defendant in being, and the circumstance of his case not altered, from what they were at the time of the Judgment by tlie intervention of time or otherwise. And indeed, if the sd.fci. would lit^ in such a case before, what was the use of passing tlie act of 178 4, Rev. c. 204? The great number of authorities read by the plaintiflf's counsel arc good law in England, but very inapplicable here, and can have no weiglit in tlie jticsent cause. Here the sci.fa. is not necessary, nor could it be used upon the same principles as in Englan.l, i mean in this case of a judgment against the executor, to whom tlie heir is no representative; and when tlie executor himself is a- live. 4 Bac. Ah. 411. Our Legislature hath been care- ful, to avoid the inconveniences attending the recovery of debts, which 1 have befoi'e |)ointed out, lest tlie act of Geo. II. might not be deemed sufficient to eradicate them, an act hath been passed for that purpose almost ■uerJaiint from the act of 3 and 4 JV. and J/. Tiiis proves how great these inconveniences were considered to be, and also that the act of /F. and .V. was not in force in this country. I must therefore conclude for the defendant, that the lands of the heir might have been sold u|)oii a judgment against the executor, and that there was not any necessity for a sci. fa. to have issued against tiic iieir, that indeed it could not have been used in the pre- (68") ^^"^ case, and that the lands wliicli arc tlie subject of this controversy, were well sold by the Shi-riff to Mont- fort, under whom the defendant claims. Counsel for the Plaintiff in reply — Though a deed be not destroyed by fire or water, but by otlur means, tiie party who vvishes lo use it ma), by proving its existence formerly, and its contents, avail himself of it ; and where lie is not entitled to the custody ot the deed, less proof will be required of its loss. Di'struction by fire or wa- ter in the cases, citid, are put by way of examples only. JSitfi. 254. 2 fi. C. ,J6r. title evidence. Uere we have made HU( h proof liotli of it-> existence and contcnt^t as if proper to be auuinitted to a jury. HAYWOOU's REPORTS. 81 The recital in the SIicrifT's deed is good, against A^pr.i794. person claiming utide)' the the deed. Ld. Evid. 100. — *-^'"^''>«»' Where a deed is accepted by a party named in tlie body «f (he deed, but ^^ho (lid not seal it, and wliere tlie inden- tnre is made in tlie third person atid accepted, it will estop as nmch as if the party had executed it. Co. Litl. 230, 23], 352. Tlie second section of the art of limitations was made to validate titles irregularly, though honestly obtained, before the jiassing of the act, and has long since had its effect. Indeed from the passing of tlie act, ail such titles as are therein described, were confirmed by it. The third section was made togi\e title to a possession for seven years,and it o[;erates at tlicsamc lime both for thepnssesor and against i!ic owner. It was made to fjoict men's ti- tles, and to prevent law snits after a great length of time when evidences and witsiesses migiit be lost. It is tliis third section, and no other, in tiiat act which can maturi; possession into title. It is a mistake to say, t!ie second section has any operation of that kind. Possession ad • versely kept, and tliat known to the former owner, is surely a sntnricnt possession to make title. There, by the confession of Carter iiimst-lf. ILiijs was in possession foi- himself, exclusive of any r England 11. ' 82 Haywood's ukvorts. Apr. 1/94. were the saino — Imlli free atid common socage ; so thai ^'^'-''^"^ at tlie titnt' of pnssiiis; tlie act of Geo. II. (he owner of land in Eria;l'^ii(I, was asmiichtltc absolute proprietor as the ovvni'r of land here. As to tite additional inconveni- ences, which it is said the ait intended to remedy, name- ly, alienatii.n by (he heir before action brought, anved. The act of Geo. II. by itsu reference to the law of England, demonstrates the inten- tion olthe Parliament to iiave been, that the heii- or de- 1' visee should first have notice, by some kind of suit, audi)' this plain and oloioiis meaning of the act, overturns the whole system of argumentation founded upon the suppo-^» sed iiicoTMenience, which the act must be made by cotW strnction to remove. It is true, all, or almost all thK? cases of sci.fa. which we have siiewn, were cases wlicrrf the Defendant was dead, and no person left who had been a party against whom execution could be taken out ; but Haywood's reports.' 83 ail those aiithorilies shew the i(iinci|)le, *hat Ihcheirran- Apr 1794 not be affected but by proress isHued a.^aiiist himself. — ^-^"^"^^ What \vc contend foe is only ihis. tli;it the hiii-'s jiropertj' cannot be taken away but l>y a pi-oceediii?,- to which he is a party. We are not anxidiis it should he by a sd. fa. or any other [lartiriilar mode — we say we slioiild liave. been called into court by some j)rnces-^ or oihcr. and have had an opportunity to delend iii:r rrceintld ; hut it is a mistake to say. the statule of Jycstminsier the 9.nd, introduced tlie sci.fd. it was substituted by the statute (o (he orii^inal action, which at common law it was neces- sary to ctinimence on a jiidj^nirnt that had been dormant for a year and a day. All the auilxnifies on the subject of a sci. fa. against tiie hrir, are inools of this ; lor none of (hem ai'C grounded upon ihi' aulliorii_v ot" thestatulc of Jrcstminstcv, but upon the common law, and that maxim of universal justice that no mm ought to he condemned iiuheai'd. Our act of 17S4, Tiev.c. 204 was indeed the first that ex- pressly directed the scf./«. against the lieii- upon ajudg- Mient against the rxecutor ; but tiie preamble of that act expresses the doubt that had been entertained respecting the projier method of arriving at a sale of the lanse were the words" lanils and tenements" added ? It is clear', it was apprehended the lands could not be s(dd under (he words of the old 84 UAVWOODS KEPOIMS. Apr. 1794 xvr'it, '•'goods and chattels of the debtor ;" and this seems *~^'"^'™^^ to be one, ainfljigst (lie many sti-ong reasons there are, foi' I'cjecting theconstriiciion which thisargnnient. drawn IVoni the nature of the writ ol'T'-/;'- ''> '"lP"dcd to sup- port. Judge Jilacay — 'I'he whtdc wiiglit of this labored case, seeing lechicible to ibis <|ups'i'ii!, what is the true con- struction of the 5//( Geo. II- ch. 7.? And 1 am of ojii- Jiion this act meant i'\ i)ro\iilo for two things, the sale of lands foi- di'bts, and the inaking tliem liable to all just •lebts in the hanrls of the hcii- : and I am of opinion, lliat since the act of Geo. II. the .same distinctions be- tween real and personal propcrtv is to itr kejit up as be- fore — and that lands, np(m ihe death' of an ancestor, de- scend to the heir, and pei'sonal chattels go (o the execu- tor as before ; and lands in tiie hands of an lnir, are no nioie to be affecttd hy an aciion or judgment against tlic executor, tliaii the personal estate in the bands of an ex- ecutor, are to aftected by aj(!! Wade's heirs, 2 Murph. 295, and Tremble v Jones's heirs, 3 Miirph. 579, which :iie constructions upon the two first intiilioned Acts. — The design of all tliese cnactmi nts is, that alter it has been judicially ascertained tl]:ii the personal represeniativos have no assets, or not sufficient to satisfy tlie Plaintiff's drmand, the heir or devisee shall have notice by sci. fa. to come in and contest the fact of lands de- scended, or may make up a collateral issue with tlie personal repre- sentatives and have the question of assets aKain enquired into. The heirs nr devisees, if they sell the land before action hrought or pro- ces.«i sued out against tliem, become personcdiy liable for the value of the lands : but if the lands continue in the hands of the heirs or devi- sets, or are fraudulently Sold, ihe lands themselves only are liable to the execution. The lands, ifioiid /: In liie month of Febi-nary, in tlie j-ear 17S0, and for a long time precediiig, William Masscij was seisi'd in fee, in the connt.v of Franklin, of llie premises in ques- tion ; and in that month the AdminiMtralor of Thomas Bell, dec. hrou.:;ht suii in the Count} Court of FraidiMn foi- the recovery of a sam of money due fro.-n the said William Massey ti> tlie stiid Thomas Bdl in his lifetime ; and in the said term had a judgment by default; whicli was continued from term to term, till June term 1783: at which term they obtained a final jngnieiit ; but before tlie issuing of any writ of execution, in the month of August, 1783, the Defendant, Jilassey, olitaiind an injunction a- gainst the judgment and execution, whicli was dissolved on the 18tli April, 1789; and afU'vwanh a venditioni ex- ponas v\as issued the 24th July 1789, upon which the Sheriff sold the land to the lessor of the I'laintiff, and executed a deed to him, dated the 5tli Februaiy, 1790. — On the other side it appeared, that in June term, 1783, in the same County Court, one Devaiu} brought suit a- gainst the same William Massey, npim a bond for five thou- sand pounds weight of tobacco, and had jiidginent by de- 86 >lAY\VOOU's KEl'OKTS. Apr. 1794. fault; and in Si-pt.mhcr term, 17S3, lie oblaineil a flnal '^^'"^''^^ Juilginpnt : wlifrpiijioii cNoculioii issued, and on tiie C'2iid June, 1784, tiie SliciilTsold to Green Hill, lie liavinj^ ex- pres.s nolice, at (lie tinn' of the purchase, of the Jiidsmenl obtained by BeWs Adniinisti-ators, and heiiig warned by the Administrator not to purchase; and the Stici iff exe- cuted a deed to him, dated the 22iid of Se|»tember. 1784. The Di'I'endant also made title anntlier way : on the Cnd of July, i7S2Jf"iliimn Jlnsseif conveyed to hi.s son Jo mes Jilasscij, and he in the mouth of Jnne,-17S4, to Hill; and in June, 1784, the deed fnwn J\[(issc>i to his son was re- gistered : but Jilassetj, the falhei-, contimu'd iu possession iinlii after tin' sale to Hill, and then moved away — 'I'his James Masset/ was not a person of any substantial pro- , ,^ perty at that time; sometimes he had, and sometimes he *- ' liad not property ; what he had was hrou,a;ht frniii fo- reign places, and it was freqin-iuly claimed and recover- ed by better owners. In September or October, 1784, lie oflereif lo buy land of one of the witnesses and offered Hill's bond in payment, upon which tliere was an in- dorsement of two hundred pounds paid to n'iUlam Mas- seij ; and twelve months before that lime, the witness said it was talked of that William Massey had sold to his son; and another witness saiil, that smnc time in 1784, James Massey drove beef from HilVs, ami delivered them to the old man ; and late in 1784, or in 1785, let him have a horse ; and that in 1784, James hati several ne- groes. 'I'he original di'eir tliat will bring us back to September or October, 1783, when Vevanifs jmlginent was obtained, and when of course it became necessary to devise some method to get rid of jBe/i's judgment, obtained in tlie June |ireceding. — Another mark of fraud mentioned in Twi/iie's case is, if tho conveyance be made pending the writ. Ilei-e BeWs Admin- istratorsbad sued, theirsuit was dcpending&Judgment by delault, obtained in February, 1780, was continued till June, 1783 ; and in the interim, July, 178-2, tho deed ap- jiears to bear date — can a conveyance like this, immedi- ately and directly tending to frustrate the suit of a cie- ditor for a just debt, receive the sanction of a court of justice ? Does it not appear plainly, tliattbernntracting parties had this debt of Bell's Administrators in view, at "tiie time the conveyance was made in July, 1782, if in fact it was cxi^cuted at that time ? Had the injuncli(m beeu dissolved at any time before Hill's purchase, surely Bell's execution would have prevailed over such a conveyance ; ^75^ and the circumstance of Hill's becoming a piirciiaser, and making a payment to old JIassctj, cannot make that a va- lid transaction, which at tlie time of his purchase, and before, was totally void as to Bell's Administrators Here then we have almost every circumstance of fi-aud mentioned in Twyne's case, and several tliat are not mentioned in it — here is an indebted father conveying to Lis Son, who pays no valuable consideration ; which con- veyance is made pending a writ against him, and in se- cret ; the grantor com inncs in possession, and uses the premises as his own — to my appreheu!»ion, if Twyne's case is law, both according to tlie principles of tiiat case, , &thecomraonsense of mankind, there cannot be a case of r more ajjparent fraud than the prisent. I will now there- fore dismiss this partoftlic case, without further consi- deration, little doubting but that that part of the Defend- ant's tit!e,wbicli rests upon this convey ance, w ill be deem- ed fraudulent and void. As to the other part of his title, the facts are briefly these — After the judgment of Bell's Administrators, and while the writ of execution is suspended by injunction, Devant/'s judgment is obtained, and the land sold under it to ilie Defendant ; afterwards the injunction is dis- solved, execution upon the lirst judgment issues, the land is sold under that also, and the Piaintilf becomes ihe purchaser. Upon which stateiucni I bt-g leave to ul»- Haywood's ueports. 89 Fjci've, tliat \n England, tlie elegit is tlio only cxrculion Apr. 379*. that aflbcted the lands of tlie di-btor. It was intfodnced ^•^■"^''^«*-' when the advantas^es of commerce be_u;an to be perceived, and the extension of credit became necessaey. in tiie 13th oiExvd.I. All tliat tiiis statute says, is : " Tiiat v.heu a debt sliall be recovered oe acknowlcdtred in the kin(i;'s conrt, 01' damages a(ijiid,c;ed, it shall he hereaftce in, the election of him who sues Ibe snch debt or dama,^-es, to sue out a writ, that llie Shei-iff sliall cause lo he niadc of the lands and cliatlels of tlie debtor, or that the SlicrifT shall deliver to hitn all the chattels of the debtor, cxcejit ing oxen and beasts of (he pioiipih, and tlic half of his land until the debt slnill he leviec!, by a roasnnabje ap- jiraisenient and extent," &c. Not a wo/d is said oC bimling tlie lainis by elegit, from the time of the judg- ment; hut as this was a remedial law, made for the be- Tiefii of creditors, it was proper to advance the remedy by construction as far as was consistent witli t!ie princi- ples of justice, a!)d to makeeacii spi'cies of property liable to the execution, as far back, for the benefit of crcdilors, as the nature of that piopeily would admit. In the caso of personal |)ropcrly it was already liable from tlie teste ('-^i\ of (he writ, and it mi,:rlit have been productive of injus- ~ ' tice lo liave stretched tlie relation any further: it was going a good way in favour of the creditor, to say his cxeculion should reach llie goods in the hands of a bomt fide purchaser, who had acquired them after lire teste of tlie writ of execution. These goods might not have been purchased in the neighbourhoo lawyer will deny it. But it is imjioi tani in this part of our progress, to prove ihiit the rr .sion the form of the elegit still continues the same, if ig an evidence, that the law remains the same also ; and that the writ of erroi-, by its intervention, nnikes no al- teration in the lien wliatever. It is furllier demonstrated by this circumstance, that when a judgment is obtained against an ancestor, the lieir is procceilod against by sd.J'u. which treats him as tei'i'c-tenant not as heir. 3 Rep. 12, IS, ^T. and no action of debt will lie upon the Judgment against him as heir ; and he must be proceeded against only as teri-e-tenant, for this reason — that the land is bound by tiie Judgment, and is in custodia legis, ._, for tlie benefit of the creditoi-, and does not descend to V°) him as heir, but upon condition, till the debt be satisHed. All this is performed by the mere opcrj^tion of the judg- ment itself, by iis attaching upon the land the moment it is pronouured : whence it may be inferred, that if a sus- pension by writ of error, certiorari, and other suspending process at law, is incajiahle to give a |)refcren(C j and that in the jncsent case the lien of the Plaiiiliff's judg- ment during Ihe continuance of the injunction, and after its dissolution, continued as unimpaired as it would have done had the injunction been a writ of error only : in ~»hich case it is evident (as the law was up to the time of the act of Geo. II.J the Plaintiff, after the determina- tion thereof, would have been entitled to satisfaction out of the land, even though another subsequent Judgment creditor, as Devany was in the present case, had caused it tu be extended and delivered by an intermediate exe- cution. Indeed it would be very preposterous, if the Defendant should have it in his power by procuring ui- HAYWOOD'S nEPORTS. S3 not procuring a writ of crnir or injunrlioii, to ^ive'^P'-^''^^* preference to, or |)ost|ione tlie first judtjiiiftit creditor to "■^""'^^^ a second, according to his vvliiui or caprice : it would open a wide door to fraud, and in a great iiieasuro put ail creditors in tiie power of a del)(or who was not able to pay all — he might say if you will agree to allow me sucit and such advantages, you shall have the henrfit of your judgment, otherwise yon siiall have nothing; I will procure a writ oferrtir, oi- injunction, and in theinieritn • confess judgment to another, or suffer him to obtain judg- ment for want of a di-fence, and to have his execution sa- tisfierl out of tlie property I have. Were die law so, it would speak in contradictions : your exicution is entitled to preference, but tiie Defendant may defeat you of that jireference if lie pleases. Again, it would be in many instances to put it in the power of tiie ofticer, to give preference to whom he picascs. If in this case the She- riff, after having notice of tlr lien of Bell's judgment, had desisted from selling to Hill, then BcWs execution Would have iuid the preference, and would have been sa- tisfied after the dissolution of the injunction ; and tlie Sheriff would not have been punishable for not selling, for he might have returned the truth of the case, that the land was bound by a prior judgment : but if he proceeds to sell, according to the doctrine insisted on for the De- fendant, the sale is good, and there is nothing left to sa- tisfy the judgment of Bell's Administrators: and I do not know, noi- do I believe the Sheriff can be made an- swerable to SeZ/'s Administrators : because in the case tif lands, lie only sells such right as the Defendant hath, (SO") and the purchaser takes it with its circumstances; that is to say, in the present case, liable to such prior lien as JieU's Administiators had on it by means of their judg- ment : so either *vay the Sheiilfis safe, and has it more- over in his jiower, according to what is insisted upon for Defendant, to give pi-elerence to the one or tiie other at Ills elrction. The grounds of such a conclusion cannot be solid. There is no rule of law better cstaidished than this, that the act of the Dt fendant, of law, or of the otficer, shall nevir affect or diininish tlic right of a third person, the Plaintiff. 5 Hep. 87. 1 Eep. lb-.2. a. 105. b. 106. h. ' So that it is clear, neither the act of the Defendant in procuring the injunction, nor of tUe law' in permitting it to issue, nor of ilif Sheriff in selling the land to Hill when he did, could place the, Plaintiffs, wifli respect to 94 HAYWOOD'S KEPOUTS. Apr. 1/94. t],pj,. jjp,,^ j„ a„y worse situation than if tUesc several '*''"*"^^ acts had never takpti plare : and if those acts do not vary this case from common cases, I think we arc warranted in drawing this conclusion, that had tlie case now hcforc the court occurred before the act of Geo. //. the Plaintiff's execution tliou.£;li last issued and exerutetl, would have given the best title to tiic land in ([uestion. This brings us to the act of Qeo. II. It will he argued, that since the ])assing of that act. and the act of As^icnihly of 1777. ch. 2. sec, 29. the execution upon a Judgment, is by Ji. fu- not by elegit; and that tUeJi. fa. against lands, operates precisely in tiie same manner as liie_^./'«. against perso- nal chatteU ; which it will be urged, gives a preference to the first vendee, even though he purchase under an execution of a later judgment. It is true, the rase of Smatkomh and liuckingham, reported in Salk. 20. in L. Ray. and other books, tends that way : in Salkeld. Ilic court arc represented to have said, at common law, if two writs had been of the same teste, the Sheriff was bcnind to execute that first, which was first delivered ; hy tlie same reason, if two writs nifi.Ja. come to the Sheriff in one day, he ouglit to execute that first that came first to hand, for he has no election ; and in this case there is a jirins and posterius in the same day, in conseqneticc tiie, Shei'iff makes himself liable for executing the writ first that came last. Upon this case I would beg leave to re- mark, there are two things said that are strongly in fa- vour of the Plaintiff — he ought to execute that first, that first came to hand : by the act of frauds and perjury in ^England, the delivery of the writ to the Sheriff created the lien on the goods — is not this then precisely the same (81) thintj as to say, ihc execution of the first lien shall be first satisfied, else why execute that fiist, that first came tu hand i The second is, that the Sheriff has no election — this is tantamount to saying, tliat the Sheriff has no power by acting or omitting to act, to give preference to which he pleases. I would further remark upon the con- clusion, but indeed I do it with great diffidence, as it is a conclusion of Lord Holt's — in consequence the Sheriff makes himself liable, &c. It seems to be repugnant to the t«o former branches ; for if the |)ower of the Sheriff extei'ds not so fai' as to sell under which he pleases first, but he (uii^ht to sell under the execution of the prior lien, can his doing that uliicli he ought not to do, validate the transaction, und give a title tu (he purchaser who kiiovvs . Haywood's heports. 95 of tlie prior lien, and consequently of tlie wrong doing of Apr. 1794. tlie Slieiiff ? Ami tliis conclusion, in fact, is in opposi- ^■^"^'">-' tion In many iiutliorities — the statute nf frauds in Eng- land altered tlio cotninonlaw uliit li i^ave a lien from the teste — iliat act ajives it only from the delivery of (he writ to (he Sheriff, ll is laid down in 2 E.G. M k in L. Rmj. 252. that tills ac( was made (o assist a (lurchaser in mar- ket ovei-t. It was thought hard, that a 6(3Ha^(Ze purciia- ser ill market overt, should be liable to a seizure of tlie goods, only because there was an unknown execution, of a teste prior to the purchase ; therefore the act malies the biniiing the goods to relate to the time of the deliveiy of tlie writ, not to the time of the teste of the writ, as at the common law ; as to all otiier |tersons the common law remains ; that is to say, , as between creditor and debtor, and as between creditor and creditor, tlie^. fa. binds from the teste of the writ ; and in Term Rep. 731, 732, Jlsliursf, Justice, says, hut the Lrgislature saw the inconvenience and hardsliip wliicli v\ould fall upon inno- cent purchasers, ifthe vendee under tiie second writ.were liable to be dispossessed of ihegoods which he bad bonajide bought ; and ihercfore they guai-d against it by tiie sta- tute of frauds : this, s'ajs he, I understand was the sole, object of the act. 'i'his is a plain declaration, that if tlie statute of fi'ands had not been passed, the vendee under the secomlji.fa. by the rule of the common law, might have been dispossessed by the vendee under the first; this is confoimable with the two sentences I liave advert • cd to in the case of SmaUcomh and Buckingham, as re ported by iSViiA-eW, though in direct opposition to the con- clusion of that case. Justice Ml lur St further says, the act jf frauds was only iniendid to protect the p<»ssession of j)urchascrs under an execution — how was this effected ? — (^ ■^; Not by saying that a vendee under an execution of a sub- sequent lien, slionld hold against the vi-ndee under an ex- ecution of a prior lien ; but by lemoving the lien itself, to the time of delivery of the wiit to the Sheriff, an act of some notoriety, that might serve to give notice to purchasers, «ho might search the Sheriff's ollice be- fore they purchased ; but as well since that act as be- fore in England, a vendee under an execution of a subse- quent lien, must give way to a vendee under an execu- tion of a prior lien, even in the case of personal chattels. Forproof of this position, I rely upon the cases last cited; all of tthlcl) prove, that purchasers in market overt, and <)6 UAVWOODS KEPORTS. Apr. li'94. under executions of tlic common Liw^ wci'c liable to be *'*^~"'^^ evicted by subsequent purclnisers, unfler executions of a prior teste ; and tbat tlic Parliament relievfd tliein f>f this inconvenience in part, by saying tlie goods of a debt- 01' should not be bound, but ffimi the delivery of the writ; the consequence of wiiich will he, th.it there will be few- er persons who purchase in the lace of an execution of a prior lieu since that act, than bt'l'ore ; bc^cause the means of obtaining knowledge of this priority, is rendered more easy by the act, than it was by the common law : and let it be further remarked, upon the case of Smallcomb and Buckingham, that it was determined with much hesitation, and seeming uncertainty — In Sdlkeld if is subjoined, that tiie bearer of tlie^./cj. said to tlie SheriflT, he was not in baste, 80 took out no warrant, nor left any fee ; and this inclined the opinion of the court more strongly ag.iinst him. This leaves it in doubt upon what principle tlie court decided, wheilipr njjon what they took to be the rule of law, independent of the fraud, or whether upon the circumstances of its being an aitemjit, on the pai't of tlic Plaintiff to protect tlic giiods against the second execu- tion; or whether tiiey dicided upon both these considera- tions Jointly. I take the triilli to he, tlie court proceeded ujion the princi|)Ie of the Plaintiff's attempling to co\er the goods by means of his execution, and so prevent the other creditor from liaviiig any satisfaction at all, even out of the goods whicli would liave remained unexhaNsted by bis execution. Tliis is a circumstance that undoubted- ly ought, and by all the authorities would have postponed him. I inl'er this to haxe been ilie ground of the decision, not only because it is so intimated by SalkeUl, but also because in a report of the same case, 5 J^o. 377. Holth rcjiiesented to say, it is fit the law should be settled — (83) here w as an honrst s.ile, yf the >'(>urt to have hei-n founded in thr neglect or fraud of the Plaintiffin the first execution. Tills case, iherefure, can have but liitle, if any, N\eigbt! as an authority in one, wlicre the plaintiffin the execu- tion of the first lieu, has not hreii guil'y of any fraud ori ncgli'cl ; and supposing xUv fi. Ja. against lands, is noxvl Upon the same looting in all lespects, as lUvJl.fn. against''' goods and chattels j yet it dues nut prove that the veiideo HAYWOOU's KEP0ttT3. &7 under tlie execution is^siied upon llic second judgment, has ^P''-*''^^. preference to the xciidee under the first. But tlie com- *— "'""''"^w' tnoti law ^vs established by tlie otiier casis, that tlie ven- dee nudei- the exccuiion of the first, will have tho iirel'er- enee. Vide Comb. 123. 4 Term Rep. 412. where tliis jioirit is estahli^hed by the auiiioiity of Holt himself, and the opiniitii vindicated by the Jiidgea of the King's Bi-nch. This suppiisitioti however that the Ji fa. .ijyainst lands, is in all resiiects like tlie^'./«. agai'ist personals, thoii.c;li we have assumed it in argument for the purpose of shewing that the Defendant upon the strongest ground he can take must give way to the i'lainiifr — in nr)t by any means tenable, nor founded on any principle of law. Lands are still bontid by the judgment as befnre I lie passing the act of Geo. II. and in tlie same manner, whether they be proceeded against by elcipt, or Ji. fa. under the act of Geo. IT. The ISl/iEdu'd. 1 c. 18. that gave (he elcgii, because it was eiiiicied for the benefit of creditors, ami was a rcmidial act. was construed by way of advancing the remedy and I'nrtlici ing the security of creditors, so that the elegit snbjicted lands from (he time of the judg- ment rendered ; and suiviy a snhsetjueiit act, intending to bem'fit creditors in a still greater degree, ought to be construed by siicli lules as will promote, extend and en- large the advantages of creditois — .to construi' it so as to tak«^ from a creditor any advimtage he had before, un- less there be express words for that purpose in the act itself, would offer un open violence to the designs and ■ viev\s of the Legislature, to the spirit of the act itself, and to the deductions of common sense ; which, without any artificial rules of constiuction, would always sug'- gest the propiiety of promoting, rather than ofrepressinc; the intention of the law-giver, wliere a general intention was manifest. These oliservations apply diret'tly to the 5//i Geo. II. c. 7. which by its title is exjiressed to be, and evidently was designed to give, more amjile security to creditors for their debts, than they jiosscssed under the /-g^- act of I Sill Edwd. I. Our act of 1777 was made with the same view, and is bottomed on the same piinciples as the act of Geo. II. They are both in pari materia, and to the same effect and purpose ; and as we ap|>reliend, are subject to the same rules of construction : and as there are noexpress wortls in any of theseacts, signifying any in- tent of tlie Legislature to naiinvv the security of a credi- tor ill any instance, or to i-cstrict the lien he Imd before 1,0 9S Haywood's reports. Apr. 1794 by liis jmlgiiicnt, to tlie timo i>f issuin.^ tlic execution, it '-''''"^'^^ would 1)0 absurd, anil coiitradictoi-y to all rules of con- struction, fo say, tiiat eithci- of tliem should iiave any such operation, merely because by thein a fi./a. at^ainst land may be used, as well as (he elegit, op say, instead of it. It is not the sinind of a word that can make such an altecation of tlip law. In a part so material, such an alteration can only be effected by the expcess words of an act of I'ailiament, oi- by a sound intei()!'etati'>n. colbct- ing tin- intents of tin- Lesi'-latufc in thint^s not expressed, from wiiat Ihi-y have expcesscd on tliinj5S similac, atid which are j^overnable by the same reasons. Construc- tive alterations of the law, in its material |)arts, are not to he .idinitti'd but where some valuable jiurpMse is to lie ofiected, of more importance in the scale of Justice or policy than the rule to be altered — but what valuable purpose can it answer to change tite law in the mannci liiry contend for ? Is tliere any Just reason, why the creditor now, should not have as much security for his debt, as before the act of Geo. II. yet if the lainis are to be bound from the teste of the execution, the issuing of v,'hicii may be delayed by various means, by accidents, as well as contrivances of the Defendant, t'le creditor may be defeated of bis remedy entirely ? Would it not have been better for the creditor then, that the old law should have remained, whereby bis Judgn)ent would make liim sure of his debt, as a,t>'ainst the lands of the debtot, tlian to be sulject to tlie act of Geo. //. to run the risk of tlic total loss of it ? If thiir's is the proper con- struction, has not the act of Geo. II. made jnol'tssedly for tlie benefit of the ci-editor. by receiving such a co;: struction. most clearly done him an injury ? If \\w Ji.j'ii . against lands under this act, does not bind as frimi thi tinn^ of the judgment, as the elegit did, but only from the teste, may not ihi' Defendant, after- jiulgment, in evcrv instance, iirocure an injunciion, writ of error, certiorari, or the like, and cause the fesie of tiie execution, when ... peiinitted to issue, to be suhseqiu'iit to a sale made l»y ,,''^ *- "'' himself, or at the instance of another creditoriii tlie mean time ? Is not the security he had before by means of his ^a judgment entirely done away, and all this by a i onstruc-o;j tion of the act of Geo. //. which goes upon the notion,:'';' that he was not well enough provided for hcforr, and, proposes to ameliorate his situation ? May not the De-,- I'endaiit suspend the execution by some of the means be-t- fore mentioned., ur contract debts afterwards, mid by a ' Haywood's tjeports. 99 confession of jiidgmfiit pi'cfei' (his expost facto creditor, ^P'" '•''94 to the creditor by judj^ment slioiiid such a construction '-^'^*'^*^ prevail ? From this view of thiii,s;s, I Ciiiiiiot but ho firmly perstiHiled, that it is dianieti-ically opposite to tiic spirit -.irid niciuiing nf the act of Geo. II. and of oiii' act of 1777, to 'i'.xy, they have operated a cliaii.a;c so detri- mental to the creditor, as that lands shoulti be bound, not from judgment rendered, but from tlie time of the teste nf tiie execution only. I cannot but believe tliat lands arc yet liable, as they •were befoi'e the passing these acts, frtnn tlie time of tiic jndt:;ment. This is the osiiclusion I infer from consider- in.!^ tl]e case as detached fi-om any expicss provisions in tlie act, and upon Ihe supposition tliat (liere are none such ; but it seems to me Ihe vv()pds nf t!ie act of Geo. II. are clear to shew, that lands are liabl'- as fiom the lime of the judgnii'nt. Speaking of the manner in which lands shall be liable, it says, "shall be liable as assets for the satisfaction thereof, in like mannei-as real estates are by the law of England liable to tiie satisfaction of debts, due by bond oi- otiicr specialty ;" it then proceeds to direct that the lands m,\y be sold — Tliese words pro- duce this question, How are lands liable in England to the satisfaction of debts due by bond or otiier specialty ? The indisputable answer is, Ihey are liable in England, and by tlie law of England, froin the time of Ihe judg- ment rendered against the obligor himself; and finin the time of the suit commenced against the heir, when in his hands by descent : and in either casi? are h^iund to that creditor who first obtains his lien iqum tlicm, in prefer- ence to, and to the exclusion ol, evei'y other creditor whatsoever, until his blo!' : and there is an act of our Legislature, lately jtassed, which shews that the_^. fa 100 HAYWOOn's REPORTS. Apr. 1794 introilured by tliis statufe for tlic sale of lands, does not ^-^"""^^ bind lilio the cliattrl Ji. fa. from tlio trslr only ; for if tbe Ji. fa. introduced by this act took upon itself the properties of the ciialtcl ^. /«. it does so ihrougli- out and in every instance, not in some onl> ; and of course if there ran bean instance >^he\vn, wiiere it binds as tlie elegit did, (he inference will be, that it binds in that manner and to that de_!;;ree, because the act of Geo. II. has not altered the liability of the land, or the lien of tlie judgment from what it was — now can any such instance he shewn? It is well known, and will not be disputed, that at the time the act of Geo. was pass- etliei' creditor wlio has a posterr- ^■^""''''^^or Jtidgiiieiir : hikI that lie carmol be deprived of this be- nefit by the executing a writ of exeeiitioti upon such subsequent judgment. But let it i)e admitted tliat the fi. fa. a,£i;aiii>it lancls hath the same operation asihe /i./«. a- gainst pei'sonals ; yet «till tlie Defendant in the pirnent case, purchased, knowingof the prior lien ofthe I'laintitt's claim upon tiie land ; and weighing his case in the scale of reason and im|)ariialily, it comes plainly to this — that lie who hath pliing'd himself into tliis t he deemed final nntila « ritofenquiiy isexeculed; and that the lien, if any, tliCncoiTimences on thejiidicmeiit being given lliereon; but tiiat Ilie jnilgment in Dcvann's case was alisolule and final : and if lands are bound from the time that judgment is Mgiieil as awarded, then the lands of .1/(2ss£;/ were boinid by the juiigment of /Jfraiij/, as well as b^ the judi;nient of Bell's administrators. — He also said that if Massc]! Inid died between the sessioa of June and Septouibci', tiie acii(ni of Devanif would not have abated, owing fo (he nature and effect of the judg- ment : that tliis point had cdten been deternMued, and ujion the |M'inciple that such a judgment was in its tia- tui'o final and conclusive as to the Plaintiff's demand. As to t!ie doctrine that lands are bound from the tin»e of the judgment — he said, be admitted in the fullest mari- ner, that tiie law had been so settled in England ever since tiic statute of l!ie iSth Edwd. I in all cases where tiie paity tonk nut an elegit, the only execution wdiich in that country affected the lands of the debtor : but wiie- tlier the lands are hIso bound in ibis country, when satis- faction is levied by iiji.fa. deserves some consideration —and we contend they are not. Isl. He observed that by tlie common law, the goods and chattels of the debtor, and the animal profits of his laud, were alone liable to exectition, a few cases except- ed — ns a judgment at the ^^"^""^^ rally speaking:, until tlie statute of 13tli Edw. /. save the writ, since called an elegit. The dDCtririe of lands being bound fnim the time of tlie judgment, niusttiien arise cither from tlic letter and direct operation of this .statute, or the construction whicii the English Judges have thougiit (90) proper to put on it. The statute is very short, in titese words — "That when a debt sliail be recovered or ark- iiowledged in the King'.s court, or damages adjudged, it shall be hereafter in the election of iiim who sues for such debt or damages, to sue out a writ, that the Shcriil" shall cause to be made of tlic lands and chattels uf tlio debtor; or that the SlieiifT shall deliver to him all Hk chattels of the debtor, excepting oxen and beasts of tlic plough, and the half of his land, until tiic debt .shall be levied by a reasonable appraisement and extent," &c. — In this laconic statute, there is not one woi'd enacting that the lands shall be bound from the time of the judg- ment rendered ; nor in that part of the act directory to the Sheriff, is (here any expressinn used from svliirh such a doctrine can be reasonably inferred. It is therefore apjtarent, that the Judges in England, added this con- struction to advance the remedy given by the writcalled an elegit. Neither the statute, nor tliis extraordinary construction of the Judges, altered the nature or o|)era- tion of the" judgment — the judgment remained precisely the same as befure tlie statute was passed, but the statute U gave a new execution or remedy : and the ciioice of this 'i statute writ gave the Plaintiff a lien upon tlie lands from the time of the judgment renilered, according to thecon- atruction of the courts. — Thus, it was not the rendering of the judgment that bound the lands, but the suing out this new writ, and making tlie entry — quod elegit sibi acecutiononem fieri omnibus catallis et medietate terrct ; and if the party had made his election to sue imt -dfi. fa. or a capias ad satisfaciendum, the lands would have been, in all respects, precisely siiuHt'd as if the statute of the 13tli Edw. I. had never been iiassed— saying, it was therefore clear, that it was not the rendering the judg- ment, but election of tiie remedy given by this particular otalute, which created the lien upon the lands. The law being thus correctly stated as it stands in England under the 1 3th Edw. I. it was now necessary tu examine the history and doctrine of executions in this country — Tlie ■ enmmon law chattel writ oifi.fa. wfis'aulburised to is- HAYWOOD^S REPOHThs. 105 sue aa^ainst lands and tonenionts, by tho statute of 5tli ^P'- '79*« Gen. II. enacting i-xpt'essly, that lands anil oilier ival es- -^'^''^^^ tate should bo sulijcct to tlie saino pmcrss, and sold in the same mannei- as jjci'sonal estates. In the year 1777, an act of As'-ombly was passed, enarting that all prnccsa wliich issued hfrctifore against goods and cliattels, lands (91) and tenements, or against goods and chattels only, siuinid thereafter issue against gotxls and chalttds, lands and tenements ; only diirnting that the SheriflT should levy on tlie goods and chattels in tin- first instance, and if there VI as not sutlicient to satisfy the execution, it was then his duty to levy also upon the lands : so that ever since the year 17Si2, the writ of^. fa. has issued in North Carolina against lands and tcneineuts as well as goods and chattels — (he art of Geo. II. declaring Ihcy should be subject to the same proceedings and process, and be sold in the same manner as personal estate. It is therefore only necessary to asccrtaiti in what manner pro- perty is bound by awarding a^ fa. This writ stands upon the same fo'.ting in tliis country, that it did in Eng- land biforo the 29ih Cka. II. thcrcfoie the pro|)erty of the debtor is bound from the teste of the writ, 2 Bac. 352. Sulk. 022. 8 Co. 71. It is unnecessary to mul- tiply authorities on iliis point. If a Plaintiff should sue out a capias ad salisf. the goods of the debtoi- are not in any manner hound ; but if &fi.fa. is awarded, then the goods are bound from the tesie of tiiat wi'it, although it should not be (hiivercd to the Shorifif for months afier- wai-ds — so, in like manner in England, if the I'lainiiff chose an elegit, the lands were bound Jrom the lime the judgment was rendered — not by the judgment, but /ro;n the lime the judgment was entered. The fi. fa. has a rc- trospectiie operation to the time of the teste '-f the writ, the elegit to the time of remlering the judgment. The law ttien is clear tlie_yi. /a. can only ojierate apon the property of the debtor from the teste of the writ. There in no act of Assembly which alters this plain and |>j>si- tive law, nor any determination even of the most loose authority, which supports the doctrine advanced by the Counsel for the Plaintiff. Thousands of authorities may be easily cited, supporting the construction of the statute of Edw. I. as it resjiects the elegit, but not one can be produced, even in this country which transfers the quali- ty of retrospective operatimi of 'he elegit !o the writ of fi.fa, Theji./a. issued in Devuny's judgment Jrom 14 106 UAY wood's reports, Apr. 1794, Marcli sessions, 1784, and was leviod upon the premises ^■^""''"^^ in qiipslinn ; at the sale tin- Defendant became the pur- chaser of the rie;ht of William Masieij, and the SherifT «o»\eyed accnrdin,a;l\. 'Vm-Ji.fa. und.T whirh the lessor of the Plaintiff |)tiichascd, hears teste the 18th May, 1789— if therefrn-c it is the prior teste tliat gives the execution % preferable lien upon tlie property, the lands in question could not he affected by the execution issued upun Bell's judg- ment. There is also another i>hjectii>n to llie PI lintilf 's title fna\ ^^ derived under this sale — If the execution issued on the ^ ■' judgment "htained l»y Bell's administrators, had actually borne teste before that of Z)£Taui/,& had even been delivered first to the Sheiiflf ; yet, if the SiierilT executed Dcvuny's writ first, the secmid levying and sule would be void ; and the vendee under tiie fiist, or Devany^s sale, would keep the land. 2 Bac. 356. Cartli. 419, 420, 1 Salk. 320. The reasons upon wliirh tliis law is grounded, are evident. The elegit never altered the property, but the ji.fa. transfers the wlioie property to the vendee — and no man would be safe under a Sheriff's sale, if a conti'a- ry doctrine should prevail ; and policy and justice are concerned in quieting the purchaser imder a sale made by execution. Ii is also to be observed, that In England, when land" are delivered by elegit, upon the leversal of thejudgmetr. by a writ of error, the lands themselves are restored to the Defendant : but this can never he the case when p, sale is made by virtue otafi.fa. then the money only can be restored — and sucii is the judgment of the court. T!ie execution was valid at the time, and tlie property is completely changed and transferied. There is nothing in the origin, operation, or consequences of the elegit. that can be assimilated in any manner to the old com mon law writ of Ji.fa. 2 Bac. 370. 8 Co. 19, 143. C'ro. Jac. 246. Cro. Eliz. 278. He then concluded tliat the title of tiie Defendant was good, made under the sale on Devamfs execution, in both points, whether it depended on the teste of the writ, or the priority of levying and sale. He then proceeded to state, what he called, tlic fir.st title of the Defendant, derived under the purchabc from Jamgs Missey — observing that as to the points, that vo- luntary or fraudulent C(niveyances are void as tn credi- tors, and that executions may be postjwned by fraud—, tbese were general positions wliicb no man would ques> Haywood's reports. 107 iioii — and made some lengthy remaiks on the James Massey, on the ground of fraud, and concluded for the Defendanl. In reply i' was said — The judgment hy default docs not bind llie lan{ elegit, speakrug of the lands to be seized and extended, disrribes the lands he had die quo redditum fuit judicium ; and Morg. PI. 341, 345. and 11 Rep. 40, 38. 6. explains redditxim sit, to be intended of a final judgment. If a suit in the circum- stances of Deranj/'s in June term, 1783, could not have abated by death, what would have been the situation of the Plaintiff — he could not proceed by sci. fa. to make new parties — this was a proceeding inti oducid by a late statute. He would at the common law then be so cir- cumstanced, that he could neiiher piociid ami get judg^ ment for want of a Difendant, nor be dismissed tlie court by an abatement of the suit, and he must have lost the benefit of his tobacco bond forever. It vi'as not fi om the mere circumstance of the act's introducing the elegit, i08 HAVWOOD's KEPORTb. Apr. 1794 tliat tlie lands wprc b'>und— wliy should this or any other '^^■"'"'^ circumstance, independent of reason and |ir(i|iriei3, af- fect any thing? The land was coiistrned to be aflferti'd by tlie judiiinent, tbe better to answer the spirit of tbe act, vliich was made for tfie bencfil of creditors — it was a construction mi'de to fonform to tlie will of tlie Le,^isla- ture, ill a thing they had omitted to ex|irrss — which will, tbe Judj^es discovered from the occasion and the reason of introducing the act, and from the provi- sions of it in cases expressed by the Legislature. It is true the Legislature, by tbe act of Geo. II- did mean to put lands io the situation of personal estate, .villi res|)ect to execution ; but it was in one particular only, and in no other — to-wit: to make them transferalile forever to a purchaser, by tbe sale and deed of tbe Sheriff. It did l'94^ not intend to alter the legal properties of land, nor tbe measure of their liability to judgments. Tbe lien upon lands by judgment remains the same as before. There is no ground for saying the Parliamont intended a bene- fit botii to creditor and debtor. Does the act intimate that the debtor laboured under any inconvenience ? Does it not solely respect tbe better security of creditois ?— . It can easily be shewn, that thcji/fa, against lands hath many of tbe qualities of tbe elegit — it affects lands in the liands of the heir from the time of the coniinenceinent of the suit against him — tiiis is proven by the act of 1789 — so does the elegit — and so does not any chattel writ of Ji- fa- — when a recognizance is given to tiie state anil for- feiied, the Ji./a. issues, and it affects tbe lands the re- cognizer had the day of the recognition made, according to tbe words of it : here the^. fa. like the elegit, re- lates to a time long prior to its teste, which a chattel writ offi.fa. ever did. And there has been, as I am in- formed, a decision in the court of Morgan, that lands sold under »f..fn. shall be restored upon tlie reversal of a judgment — I think it was in the case of Wliitbread — If this be correcct, then it is another instance where tbe^. fa. against lands has the quality oitin elegit. It is true, many authorities can be shewn to prove, that goods are only bound from the teste of a writ uYfi.fa. but this ar- gument proves nothing. Can it be shewn, that at any time since the passing of the act of Oeo. II. it has even been held that \\\cf\.fa. against lands did not bind from the time of tbe judgment, but from the teste only? It appeara to me froiu erer^ point of view in which I can "HAYWOOD'S REPORTS. 109 place -*-n'>«/ and in England at the lime of pas'iing the act of Geo. 11. and that ihiit act hath made no alteration but this — that the lands are to be sold instead of beinjr extend" d as be- fore, and cons('f|wenllj that the Plaiiiliff in the case now before us, is entitled to recovei-. Judj^c Ashe had retired fi-om the bench before the ar- guments were closed. Judge JUacay — This is a dispute ofgreat conseqnenre, and it is jiropcr it should be well scitled, ai:d I \ery much regret the necessity 1 find myself under of di-ciding alone — liowe\er. Judge Jshe who hath just left the beiK h, coiiiei-red with me before he went a\^aJ', ai'd accords in the opinion I am about to deliver. He tiien stated tIsQ Case, and proceeded thus : — As lotlie deed fmni Old Mas- sey to James, w hich is argued to be Iraudnlent, and tiure- (95) fore void — Fraud will certHinly vitiate anj transaction into which it enters — but it is a rule of l.w, that fraud must be proven — it will not be sufficient to suggest.it only. Fop my |)art, I cannot perceive anj fraud in that transaction, hut the Jurj have Ijeard the exidence, and \iill draw their own conclusions. Wiih respect to wliat is argued by liic Counsel for the DetVndant, that the judgment by default upon the to'u:icco bond, in June teim, 1783, binds equally with the final judgment of Seif's administratoi'S — the taiiing a judgment for want of a defence on such a botifl. is not a final judgment — it is an interlocutory proceeding only — before any execution can issue, a jury must be called in to assess the value, and then there must be another judgment entered to complete it. We are also agreed that a judgment hinds the lands from the time it is pronounced, but in this wise onlj — it liinders the debtor from disposing of the land himself; but if a^.y«. issues upon a subsequent jiidgnnent, and comes to the band iumed prima facie, that the lu-operty is given abso- /Qg^ iutely in advancement of bis daughter ; and when the' property is permitted to remain in the possession of tlic son-in-law lor a considiiahle length of time, as in tliis case, it will be necessary to prove very clearly, liiat the property was only lent by tbe father. and that it was ex- pi'cssly and notoriously iniderstond no- to bi- a gift at tlic . time. Tbe peace of familirs ami tin- security of creditors, arc greatly concerned in the law being tlui^ settled. — Every transaction in luitnan life ought to be (onsi'n. This property was given in the n-iual manner — that is, sent with them on llieir going to honse-keepiiig, as it ia Called, or sent to tlieni as soon as the parent could make the necessary arrangements in his lai in or family for tliat purpose. Under this charge, there was a verdict and judgment for the Defendant. SoTi. — Tide Note to Farrel v. Perri), ante - 15 112 Haywood's keports. Apr. i794.p,jjs dflj-m/icontiniianci' — that lie had recovered in an ac- ^■^"*''^^ tioii agaiiiMt another Dt'feridaiit, wl»o was a party to the same ti-e.s|)Hss, and had jiidi^merit at^ainst him : and nei- thrr Plaintiff nor Defendant had witnesses now ready to prove the tresjiass, or that it was the same trespass fot' which damages had before been recovered. Haywood lor the Plaintiff — Tlie plea puis darrein con- tinuance, is a waiver of all former pleas, aiid amounts to an admission of the faits stated in the declai-ation : and he cited 3 Bl. Com. 317. who cites Cro. El. 49. and he also cited a case lately decided at Salisbury, between the adrainisirators of Hillary Butts, Plaintiffs, and Defendant, where it was pleaded since the last continuance, that the Defendant has obtained a release from the administratrix, who was a married woman : whereupon it was insisted by the Plainiiff's Counsel, (975 anil so ruled by the Court, that this plea is a waiver of all former ones, and an admission uf the truth of the de- claration. Davie e contra — 'I'he act of 1777, ch. 2 sec 34. allows thr Defendant to plead as many several matters as may b<- necessary for his defence, so that he be not admitted to plead and demur to the whole ; when therefore any pleas necessary for his defence are put in, they are each to be presumed to be material, and not one a waiver of the ()tlier which happens to be prior to it. Per Curiam, Judge .Ashe and Judge Macay — A. pica puis durrien continuance, is a wai\er of all form'-r pleas, and an admission of tin- declaration ; and the Defendant not being ready to jnove his plea, Plaintiff had a verdict and judgment for one penny. Note. — Vidi- McDaniel v. Tate, in a note to Smith v. Potoel, poi/i 4S3. 1 Chitty's Plead. 636. Carter's Executors r. Rutland. -Negroes sent with a duighter upon her marriage, or with a sonin-Iaw and daujjhter, is pnina fatne i-vidence of a gift; and if the prop rty rem tins any leiigtii of lime with tlicm, very strong proof will be re- quired to show thut only a loan, and not :i gift, was intended. The following facts were stated in this case by the par- ties as a case agreed, and submitted to a jury on the issue turn detiuet, under the direction of the court as to the law. Fi>CL- ^.ifie ".! ' . in the case of Lazarus Carter, Exe- cutor of Isaac Curler, v. /Shadrael^ Hulland. IIAYWOOU'S REPORTS. 113 Shadrach Rutland i\ni\ Partliena Carter, daughter of Apr. 1794. Isaac Carter, of Hertl'ord Cdimty, were iiiarried tlie 12th ~^^~''"*~' day of November,, irrs. About llie iniddl<' of the year 1776, a negro woinaii, JManji, with a yoiuig cliild, Saul, was seiif by Jlr. Carter, to said Shadrach ani\v, the debt is also extinct: but in cases where an in- terest passes and vests in the grantee by tlie operation of ' the ileed, though (hat deed be afterwards destroyed, tiiat will :l not revest the interest thin* passed. It wtnild be of tlie most ' alurining consequence, it' in every case where a di'cd of bar- gain &sale was ilestioyed by tearing off the seal, the bar- gainee or grantee sliKuld lose his lands. He cited L. Evid. l»r, 108. Bull. JVm IViiis 267. 268. Besides, if this pajier cannot be read as the grant irself, it surtly may be read as a ropy or paper containing the woi d-i in which the real deed was conceived. The rule is, when (99) a deed is lost, a registered cojiy, or a sworn copy, may be- given in evidence j or for want of such an abstract, the contents may be given in evidence. In taking these copies however, ilicie in-iy be a inisake and variance from the original, but here there can be no such mistake, and therefore this paper is beit-r than a registered copy, as being less liable to deceive us, and therefore on tliis ground it cniglit to be read. Judge H'iUiams cited 2 Bl. Com. 295. and thought Ihar in every case where the seal was lorn off, t'le deed was destroyed, and ini lined to be of ojiinioii that the paper Oifered could not be read as the grant j (lut Judge ^«/(e was Haywood's reports, 115 clearly of the conti-ai'v opinion, lie said, vvlipre an inter- Sep, 1794. est otice passed and vested in the ajrantee, the destrnc- ^>^">^>»i<' tion of llie deed afiecwards could not affect the interest before passed by it ; and that this was nit like the case of a bond, where the dt-bt must he presuineil to be ex-- tinct where the instrument which evidenced it, ap|ieared to want one of its most I'ssential constituents: (or when the seal is torn from a bond, the conclusiuti of law is, that the bonfl was meant thereby to lie cancelled. They agreed to reserve it as a point for further discussion, but the jury found for the Defendant upon other grounila. State V. Magniss. Uacoffnizances bind lands from the time at which they are entered in. to, but a_^. fct. only from its teste. In this case the Defendant, who had been bail for his son, ai)plied to the court u[niii an iiffitlsiv it filed, to be re- lieved from the forfeiture of his recogoizanre, upon which judgniiMit final had been entered under the act of 1788, ch. 3-. sec. 2. and to be permitted to enter into new re- cognizance to attentl as a witness at the next term : but it was sail! he was about to move out of the State. — Whereupon the Attorney-General opposed this a|)|dica- cation. He said his former recogniziince ought not to be remitted, for in that case tlic State would have no hold at all upon him ; for though he now had lands he might sell them and move away, and they were not lia- ble to the recognizance but onlj from the time t\n\fi.fa. issued againt them : and f(»r this he cited the case of Bell V. Hill, determined at Halifax Sui)crior Court. He further said, it t\u-Ji..fa. conlil have no retrospect in a case where it issued upon a judgment, it could have none ■where it issued upon a I'ecogniz.mce forfeited ; and that a recogiiiz.iiice had no greater force (o bind the land than a judgment iiad, for that each were mentioned iit the same manner in the statute 13lh Edw. I.ch. 18 which introduced tlie ele;^it. , Judge Afihe inaile no observations. t'""^ Judge WilliamH — The decision at Halifax was a pro- per one. In Eogiainl, where the lands are bound from the judgment, there judgments are entered in the King's Be.tich or Common Fleas only ; thither all persons may resort with a certainty of finding whether or not such a judgment as would affect lands;, had been entered up : •116 HAVWOOU'S llEPOUTS. j Sep. 1794. ij„t in tlii.'? country, judgnienta are not capable ol creatiiig *'^~'^"^^ siirli iiotnripty — no man knows where to siarcli for a iiulgment tluit he. siisperls may be probably taken — the Superior Courts — the County Courts — and Justices of the Peace out ol Court — may pass jiidgmenls to affect land, and no one knows where to seanh for them. It is very |)roper therefore in this country, that lands should , be bound in case of judgments, but from tlic time of the ] teste of the fi. fa. only ; but recogjiizances remain as they were, because tlie liind is made liable expressly by the words of the recognizance — "to be levied of my ^oods and chattels, lands and tenements, upon condi- tion," &c. Now, when this condition is not complied with, it is the same thing as if he had expressly bound his land to |)ay that sum absolutely and uucouditionally , on the day of tlie recognizance niadi\ Judge ^she assented. Note Vide Sell \. Hilly and note thereto, ante 72. Builonv. M-urplie< State ; litit it does not state tlic felonious taking to be continued into thi-i St:-i'e, and therefore wc cannot say that the taking spoken of by the jury was a felonious taking, and without a felonious taking the pri- soner cannot be guilty of the crime laid in the indict- ment. Judge Williams — I do not remember the case cited by Mr. Avery, if there was such a rase it was so adjudged on account of some peculiar circumstances now forgot- ten : but at present I concur in omnibus with Judge Ashe. So there was judgment for the prisoner, and he was discharged. State V. Allen Twitty. If an out-house be so near tlie Jwe'liiiK'-l'ouse, that it is used with t)ie dwelling house, as appurtenant to it, biiiglary m:iy be commilted in it. Ill this case, tlit out-houae was seventeen and a half feet from the dwelling-house. Indictment for a burglary in the mansion-house of the prosicutor, one Ilaslip, and taking from thence a cask containing twenty gallons of biandy, &c. Upon evidence it appeared, that Twitty broke open, in the night time, a Intle out-lionse, abunt seventeen and a half feet from the dwelling house, and took out the bran- dy, &c. and it was insisted on the part of the pjisoner, that this was not burglary. The indictment lay.s it to be a mansion-house, but it has been determined, that where the jury find the hotise to be separated from the dwelling-house only eight feet, and that the breaking and entering was in that bouse, it is not burglary ; and cited an Huthorify from Leach, who has a case to that <'flect. E coiitrn, it was urged, that if the out-hoosf be so near th« dweiliiig-liuuse, that it is uaed together with tlie'^ I Haywood's uiiPouTS. 119 dwelling-house as appni tenant tn il, tliat it is burglary Sep. 17'94. to break it in tlie iiiglit time witli intent t() nimuiit a fe- '■^'"'^"^^ loiiy ; and it is not necessary for tliis purpose that it should be inclosed wiili the dnelliiig-h"nse in flic same indosure — if it stands within the cnr'ilageit is sullicient — the meaning of which term in law is, a piece of gioimd cither inclosed or not, that is commonly nsed with the dwelling-house. Jacob, verb. Curtilage. 6 Itep. G4. And to jirove tiiat if the house stands within the curtilage, it is the subject of burglary, he cited Bl. Com. 225. 1 //. H p. C. 558, 55y. II. P. C. 104. As to the case cited from Leach, he said it was so adjudged on account of the (^03) special finding. It must of necessity he stated in every indictment of burglary, tiiat it was committed in a man- sion house ; and oul-Iiouses included witliiit the curti- lage, according to the definition of that word just given, may be consith red by tlie jiiiy upon e>ideiice given to them, to be parts and parcels of he mansion-house ; and may conclude aiKl say upon such evidence, that the offence was committed within liie mansion-house as laid in the indictment — like as in trover, when it appears in evi- dence, the Defendant was possessed of thf goods declnr- ed lor, and th.it there was a demand by tlie I'laintiff, and a refusal on the part of the Di-i'endant, the jury are war- ranied in concluding and finding there was a conversion ; but in the one case, if tliey do not expressly find it was a dwelling-house, but an init-house only ; and in the othei', if they do tlot expn-ssiy find a conversion, but ])Osses- sion, (iemand and refusal only — the Court cannot con- clude in the one case, that it whs a d wtlling-linu^e : nor in the other, that there was a conversi.^ii — ttie Court are not em|(0vvered to draw any conclusion from fads spe- cially proved or stated in a special \erdict — that solely belongs to the pro\iiice of the jui-y. Therefore the case cited from Leach, where the juiy find i: to he an out- house, separated from the (Iwelling-housi-, and donutex- ju'essly Say, as they ought, that it was a mansio,i-|iouse, the Court must take it, as the jury ha\e st.ited it. to be an out-house only, and not a mansion-lionse as stated iti the indictment 5 and of course they cannot say it was burglary,for that must be committed in a mansion house. [This is the reas(m why that case w.ts so adjudged, and not because to steal out of such an hmise is not burgla- jry ; and so that case is not at all re|)ognant to what is laid down in tho authors I have ciicd. hnt is perfectly I2tt Haywood's reports. Sep. 1794. (-onsislpnt with what they have stated — and of this opt- ■^"^"^''"^^ niim Wire the Cnurt ; and both Judge JsAc and Judge Williams charged the jury arcordiugly ; but yet they found him not guilty of the burglary, but guilty of tlie lai'ceny only — and he was burnt in the hand and dis- charged. TioTi;.— Slate V. TVibon, post 242. State \. Langford, 1 Dev. Rep 253. State V. Webb. Depositions taken in the absence of a criminal, shall not be rea.' a,i;ainst him. Pleasant Webb was indirt^d for liorse-stealing, and upon the trial the Attorney -General oflTered to gi\c in evidence the deposition of one Young, t» whom he had sold the hoise in South-Carolina, but a very short time alter the horse wan stolrn ; and riled in suppoit of tl>is attempt, 2 H. H. P. C. 284. H. P. C. 429. Bull. 25C. La. Evid. 140, 142. 5 Term Rep. 713. (104) But per citriaiii, Judge .4s/te and J udge WUliams — These authorities do not say that depositions taken in the ab- sence of the prisoner shall be read, and our act of' As- sembly 1715, ch. 16, clearly implies the depositions to be read, must be taken in his presence : it is a rule of tiic i common law, founded on natural Jusiice, that no man shall be prejudiced by evidenci- which lie had not tl>e li- berty ro cross examine; and th'iugli it be insisted that the act intended to make an exception in this instance, ^ to the ruli- of the common law. yet the act has not ex- * pressly said so, and we will not, hv imjilication, derogate i from tiie salutary rule esiablished by ti>e cu:nmon law. j So the deposition was rejected. Note, — Vide Philips on Evidence, 299, and see whether the Eng lish pritctice upon ihis subject is founded upon principles tliat oujjlit' to be adopted in this country. SALISBURY, SEPTEMBER TERM, 1794. Saaiuel Bailey's Adm'rs. r. Robt. Cochran's Adin'r. Former administrator'i removed, and another uppointt-d, but noi made a party to this suit. Tlir litter administrator will not be allow, d lu] plead ':ny tijing to tins suit ; and the former administrators c .n- nut plead the repeal of their lettt- rs, :.fter tlie first term .sincr- tht-iv' repol. An account Si ttltd and signed by one administrator is buid-;, iD){ upon all, and vi'M bear iii'e.cst from ilic time it wms sij^ned. ^ In this ia^~*''*^ ran, for a sum wliicli was tnni the estates of the deceased : but now all .his is effected by suint; them both together. Besides when the debt is first contracted, it is joint, and now it does not become several upon one by tlie death of the other; but as a joint debt lies upon the representatives : inime< diately upon the death of the deceased, they instantly step into his place, sustaining the same burthen that lie did — then how does the debt become several ? Not by any part of tliis law ; and surely the Plaintiff cannot by suing severally upon a joint cause of action, make it to become several by tliat means. Moreover, it was the (111) relief of the survivor, not the benefit of the obligee, that -^i this act soiigut for — but it is not an equitable relief to * ' P"ii it in the power of the Plaintiff to exonerate him en- tirely, and throw the whole burthen upon the estate of t'i the deceased, or vice versa. No just reason can be as- ,J signed why ir should lie upon the estate of the deceased ^ wliolly, any more than upon the survivor, or the reverse. :^ As to the difficulty suggested, that no judgment can be entered up in any regular form, the court is always bound to give their ju.lgmeut according to law; and if there is no p:ei.edent to he found conlormable to the new law 'le foorl must form one that will be so.—Et per curium, the action is well enuui^h brought. Note. — Vidi- Davis's ex'ra. v. Wilkinson and others, post 33i, se%a the act f 1797, Hev. ch 475, us to liow the juil(,'meiit in such case in[ to br filtered. An action may be brouglit against drawer and endor*J| sers of ^ iiioiested bill of exchange jointly, or ag/inst either ofthetn^n an ii 1796, Rev. ch. 464, Suits may be brotight ag:3ia$t the makerv of 1 j>roniiiiSory noti-, single bill, bond, &c. and endorsers juinlly, opj. aj. .'list any one or more of tbtm, act of 1817, Rev ch. 937. Such* siii'- y ih;'t other, but must be sued for by tSll UAYWOOD's JIEPORTS. 429 The casp was, a writ was taken out against ^U/sok, Sep. 1794. i'etiii'iiable ti» tlic County Court of Rowan, and lie was ^-*^*'''"'*^ arrested '.iiidii ir, and in oidor to procure Turhorough to become iiis bail, lie deposited in jiis liainls a very consi- derable sum of money, and took a r.ote in writiiicj from Varborougli, in wliirii lie iM-omiscd to pay tlie money to G(»v. Blount, upon tlic event oi Farborough's releasement tVoni his suretyship for ^iWisijii. This writin;; acktiosvied^^-ed tiie money (o have bioii received oi' JlUisou. The Plain- tiif in the suit was nonsuited for want of a declaration iit the Cimiity Court, and inimcdiiitcly commented his suit again by way of original attadimeiit, in «hich I'arbo- rough was summoned as* gainishce; and upon his oath of garnislimcnt, stated tlie foregoing fads. This lallei- action was brought lo trial in the County Court, and apjiealed fmrn this Court : and now tlie cause coming on, it was objected for JilUsoii, liiat by tlie tenure of the writing subscribed by Yurhorough, the money in hiy hands on tlie event tliai had taken place, belonged to Gov. Blount; and tliat Yarborough was liable to ])?.y to hiio, not to Allison; and should it now be conilemiied as ^illi- Sdu's, Governor Blount, being no party to this suit, nor bound by any deiisioii made upon it, might sue Yarbo- ?'oi/^/t afid I'ecover notwithstanding. E contra, for the Plaintiff, it was argued that whoever is in tiie posses- sion of money, is liie proprietor, and especially if he claim to be lite proprietor for his own purjiose.s — that as to the writing making it to be Governoi' Blount's, there was nothing in it — that writing is a jiromise to Allison, upon a consideration proceeding from him (namely his depositing tiie money) to pay to Governor Blount; ai ri if tlie [iromise be broken, the action for the breach must be hrouglit by Jlllisou — that bifore the passing of tiie act (\\o^ of Q. Jinn, stat. 3 and 4 c. 9, and our own act of Assem- ~ "'' hiy 1762, c. 9. the Plainiitf could not declare upon a pi'omissory note; and these acts only enable the holder to declare upon such notes as are rendered negotiable by ihcm, not njion notes not negotiable; as a note at this day for the delivery of a specific article of tobacco, pork, *cc. and no notes are negotiable by these acts, but sncli as are independent of any contingency ; but here at the time of making this note, it dejiended upon a contingency whether the money mentioned in it would ever become pajablc to Governor Blount, and if it is not a negotiable 17 ISU haywoob's reports. Sep. ir94. „o(e at tlie time of its makinj^, it can never after become ^~*"'''^'*^ so li_v iiny ex post facto circumstance. Et per curiam, .^//tso)i was posspssed of this money and used it as Ills own, and therefore he must be taken to have been the pro(»iietor — whoever is in possession of money and un- dertakes to dispose of it, is inlaw (he jji-oprietor. Et j;er Judge Williams, this »eiy point came in contro- versy at tlie last term of H?1Kbi>roMgh court in the case of ^iiinton v. Courtney, or Quintock v. Courtney, anil was directed as we are now deciding this question. Et per curium, |ierha|)s it would he very diflicult for Governor Blount to support an action u|)on the promise contained in this writing, for want of beiil^ able to shew a consi- deration So the Plaititift' recovered. Note. — As to (lie first point, vide Qiiinto?i v. Courtney, atile iO. — Upon the other poiflt,_fee Comyna on Contrucls, 1 voL 27. State r. Irwin. Malice aroretliouglit is express or to be implied from circumstances; intent to m:iim or disri;;iire, may likewise be implied from circum- stances ; and it is n(jt necessary to prove antecedent Rrudg-es, threatnings or an express design. IJonftssions before a Justice of the Peace, may be admitted in evidence, aUliougli not reduced into writing. He was imlicied, tor tliatlie, on such a day and place, madi' an assult on one Joshua Cojfce, and of iiis malice aforethought, strtick and ptit out his right eye with an intent to maim and disfigure, against the Ibiin of the act of Assembly, which is in these words. fo-ivit : "If any person or persons siiall of malice aforel bought, unlaw- fuljy rut out or disable the tongue, or put out the eye, of any iicrson, with inteitt to maim or disfigure; the per- son or poi-sons so otfending, their counsellors, abetters and aiders, knowing of and privy to the offence, shall for the first oRl-nce," &c. and thi'ii directs the )iuiiishmeiit, niaki:ig the second oiriiice felony u ilhoiit benefit of clergy. The second clause is in these words : "If an}' person or persons sliall on purpose unlawfully cut or slit the nose, bite or cut off a nose or lip, bite or cut oft' an ear, or dis- able any limb or tmrnbcr of any other person, with intent to minder, or to maim, or disfigure such person ; in every such Case the person or persons so offending, being tliei'cof lawfully convicted, shall be imprisoned for (he spa( e of six months, and fined at the discretion of the Court be- (IIS; fore whom such offence shall be tried." 1791, c. 8, srf. Haywood's reports. 131 1 and 2. Et per curiavi, malice aforethought is express Sep. 1794. or implied, and it may be implied from tlieciicunistrtnce ^-^">''"*»^ of the Defendant's striking with such an iimti'iintcnt as is likely topi'oduce gfeat bodily harm to tire pei'.son stricken, and from its being done, witiiout snfficient piovoration. — Also tiie intention to maim oi" dlsfigtii'e, may be implied from ciicnmstances J and it is by no means necessary to prove antecedent grudges or llireatnings, or an express design. — In this rase upon tlie trial, the Attorney-Gene- ral called upon a witness to sware to a conCcssion made* before him by the Defendant, when he came before him to be examined : and J\Ir. Moore, of cmnisil lor the De- 'feinlant, insisted that such confession ronid not he given in evidence ; he said a confession before a private indi- vidual may be given in evidence, hut when it is made be- fore a Justice of the Peace, as in the present case, it is his duty whether it be for felony, or a misdemeanor, to take the examination in writing; and that ttiis is intetnled as well for the benefit of liie pi'ismier, as the Stat-, to t lie end that his confession b«ing reduced to writing, when it is made by an officer entrusted by the public in whom confidence is reposed, may not afterwards be liable to misrepresentation in the giving parol testimony of it;, and he cited Leach, the last case, and the case of the R'i'ig V. Jacohs in the same book. E contra, it was in- sisted for tiie State, tliat the practice botli here and in England a long time previous to these cited cases, hath been not to admit parol testimony where the examina- tions of the pi isonei were re dnced into writing ; for then acconling to the rule of evidence in all cases, that would not be the best testimony the party iiad it in liis power to produce ; and it was an absurdity to say, as the cases cited did, that a cooCession made in the pre- sence of an individual not engaged by duly to be atten- tive, miglit be given in evidence, and yet the same con- fession made before a Justice, whose business it was to / examine carefully, shall not. El Fer Curiam — The practice in this roiindy always hath been to leceive such evidence, and we see no good reason to break through it. There is certainly an im- propriety in saying, that evidence may be received of .1 confession made before a private man, and that the same confes.sion made before a Justice shall not, because he hath omitted to perform his duty. This would put 1-' PlaintifF — but next day he {^ranted a new tiial, that the Plaintiff might obtain a rule to ann-nd so as to bring on the arijumeiit again at the ensuing term, when tiiere would be more Judges pi-esent, bef (I'l- whom tlie point might undergo a tliorougli exaniinatioii ai.d become set- tled : and now at this term, tlie counsel for the l^laintiff informed the Court, he was leady on the pmt of the Pliun- tiff ro |uOi:eed to the trialof this cause, huf ,is an olijeciion had been tviken to tlie declaration, wbii h if valid, and not to be g^itten over either by amendment or by some oilier means, would render it useless lor the PlaiiiiifTto (115) proceed any farther, he desiii d to have the opinion of the Court, upon it; whereupon they directed it to be argued — and the counsel for tlie FlaintiB' insisted that the de- mise was well laid in the declaration, and commenced on the fifteenih day of Se|item!)ei', in the year one ihou- sand seven hundred and ninety-one — the words from rlr.; fifteenth day of September, or from the day of the date, were inclusive or exclusive according to the subject matter, and would be interjireted either one or the other as wduld best answer the intent of tlie parties — ut res mdgis valeat qnam pereat; and this pnlnt was so settled in the case of Pugh (J- wife, against tke Dnkc of Leeds, reported by Cowper, and recognized by Runn'uigton, 85 ; and though formerly, as many of the old cases will prove, these woi'ds in leases were held to be exclusive of the day, yet the rule has been established of hue as be- ing incompatible with reason and good seiiie. In the present case should the old rule prevail, it cannot answer any valuable purpose, but the contrary ; and the lease here is entitled to a more favorable exposition than al- most in any other case — it is fictitious, not real, for the purpose of trying a title to lands ; and to nonsuit the Plaintiff for so trifling a slip, supposing it to be one, would be rather a n-proach to the law, than any thing else. If tlie intent of the parties is t!ie true rule of ma- king these words to be inclusive, or exclusive, as in the case cited it is decided to be, then surely (he lessor of the Plaintiff and his lessee, must be supposed to have inten- ded such a lease as would try the title upon an ouster committed on the fifteenth of September! and consequent- Ty a lease commencing on that day. 184 uaywood's UKPOurs. Sep. 1794. E contra, it wa.s argued that the case of P«g'/t ^ wi/le ^^^"""^'—^ V. the Duke of Leeds, WAH an cxrrption to the j»i'tiopal rule of law. foiincd by tlic Court in that inRi'anrc to got ovri- (lie piece of manifest injiislici' thai would have been operated by adhering strictly to the old rule. 'I'iiat was a lease made under a piuver. as a provision, for an only daughter, and had it been adjudged to have been a lease in rever.sion (^as it would have been, had the words from the day of the date been h>ld to he exriusive) it would have been wholly void under the power; but here it may be consti'upd to romiuence after the 15th, and yet be a good lease. It is made jiursiianl to a power which says it shall be void if made in reversion, and though the Court in that case, cited and examined all the old authorities, and seemed tpteniher, in the year afu'esaid ; nnd foi- Hlis were cilid Bull. Nisi Privs J 06. [Cro Jac. 96.] and sorne ca»es ii-on-. E?//i;iaf.?c;; and also that omissions in a declaration in ejecinneut, are amendable — anil authovtics were C'ted to this point ; bnX the .<^','«"t f^^injc of opinion for llie first poii.t m;ide in the ar^^ument, they gave no opin- .ion on these. Note.— A'ide Mams on Ejectment, note to page TJ)§, where the case of Piigli V. Dulce of Leeds, Cot.to subsequent suit for ^^~'<^^^ the same cause ; and it ought to be certain inatter, wliicli in law will 8ii|>|)ort the action — to diarge a man with false sweMii'ia:, dues not necessarily imply that he was per- jured, & for that reason has been held always not actiona- ble; as to say of a man that he is foresworn, which may be in common conversation, or not in a Court of record) in which case the fulse swearing cannot amount to per- jury — tlie same thing is it to say he is foi-esworn in Court, meaning a Court which had no jurisdiction to administer an oath. He cited 4 Bac. M. 483, 484. 4 Pep. 15. Cro. El. 4?9, 788. 905. Velvertou S. C. Danver's M. •'Your brotlier took a false oath," held not actionable. As to the seconil count, if that be bad, thougli the first bo a g'lod count, as damages are assessed generally, and tlie Court cannot know whether they were assessed upon the good or the bad count, the whole is vitiated and no judg- ment can be given ; and this second count states nosucli matter as is sufficient to suj)poi't an action ; it states words spoken without saying they were spoken mali- cionsly, witliout which cii-cumstance they arc not action- able. 3 Bl. Com. 124, 125. 4 Bar.. Ab. 515. 4 Rep. \7. Cro. Car. 443. Cro. El. 334. Cro. Jac. 126. Cro. El. 496.497. 10 Rep. 139. 2 Bl. Hep. 750. The words laid in the secmtd count may be true, and yet not amount ^ to a charge of perjury. A Bl. Com. 130. \ Uaxvk. P.J C. 172. 3 E contra, it was argued, that the rule as to actions for^ slander is considerably changed at this day from what it ., (118") was formerly. In antient times tlu-re were two rules,! which principall} governed these actions, namely, that , words were to be taken in meliori sensu ; and secondly, ■ that they must be such as if true tiie I'laintiff was liable to be punished criminally. As to tiie fust of these rules, it is now exploded ; and as to the second, if the words are such as accoi-ding to common acceptation, are expres- sive of a charge that would render a man liable to pun-,, ishment, the action will now lie: and even where the woi-ds are defamatory, tlioiigh not containing a criminal charge, an action hath been held to lie. It was anticnt- iy the policy of the law to discourage actions for slan- j der, ad obviendum malUice Itomimnn, as the old books ex- pressed it ; but in modern times, the action has been en- couraged to prevent breaches of the peace. But eve« HAV wood's uepokts. 187 accordin.:;^ to tlie anciptit autliorili.'s, this action would Sep, ir94. Ijp for siich as words arc stated in iht- decl/iratioii, inucli ^-^"""''^^ iimre will it lie bj' the iiii)di'rii auihorilies. AccoiMJing to the old cases, to say a man vvas fniswurn in a Court, iiii|)lyiii,q; such a Court as had a li.i^ht to adiniiiisicr mi oath in a judicial |ii'oci'cdiu.s^, w;is actionable, lie cited Cro. El. 185, 135, 29r.6O9,304. Cro. Cur. 28S. 322, 387, 378, .^09. Lufer. 538. The rule at tliis day is, that words intended to det'amc, and calculated to efTect that pui-po'^e, are artionabh', couti'ary to the i-iiie laid down in 4 Rep. 15, b. and lie cited L. Raij. 960, Coiv.ZTS. Sulk. 69J. Moreover the declaration states that by means of speaking tlie words, the I'iiiiutift" could Hot be elected a i'ei)rcseiitalive in the House of Commons tor the county of Guilford, as he had been before for several years; and the jury liave found this alletjalioii as will as every other part of the declaration to be true. As to this, the rule is, that though the words spoken be not of themselves actionable, yet if they are followed by special damage, the action will lie. The loss of his election, which would have been honorable to the Plainllft", is a special damage. He cited Cro. Jac. 323. 4 Rep. 1", Cro. EL 340. Sulk. 693. Bull. 6 and 7. 'VVhiU is called tin; second count in this declaration, is not ho ; it is only a laying the words another way in Ihe-same count, and liie whole declaration is hut one count ; and if in the same count, some words be actionable, and some not, and da- mages be entirely assessed, after the verdict they sliatl be intcnd.ed (o have been assessed for the actionable words. He cited hull. 8. Cro. EL 237. 10 Rep. 130 to Osborne's case 131. Cru. Jac. 630. Cro. El. 329, 788. Cro. Cqj, 328. 1 Nalk. 119. 2 Cro. 598. But granting that this is a second count, as the Delendanl's counsel insists ni9'\ it is, yet the word maliciously, is not of nece.-sity to be inserted. 1 Term. Rep. 11, or Duriiford and East 11. The lule is, where the words themsilves are such as im- ply malice, there it need not be staled they were mali- ciously spoken ; but where they are such as may lea- soiiably lie suj. posed to have been spoken without malice, as if sjiokcn on a necessary occasion, or in a confidential way intended lor the benefit of the hearer only, there ' they must be laid to he sp(>ken maliciously. As if a man enquire of the character of a servant of hia former master, and he gives him a bad character ; here the bad <''iarac tcr may be rcftsonably supposed to be given with 18 168 HAYWOOD S «i:i'OUTS. Sep. 1794. i,|i(,,|t („)iy to inform tlic ciiquiicr truly of the I'laiiitiff's y^"*"^*^ citaiv.ctcr, to answer Iiis reijiicst, and williout any mali- cious motive towards the I'lainliflT; ami in sucii case it is (he spcakiiip: the words with malice, tiint only will make him liable to tiic action, and it ought to be laid that lie spoke them maliciously. So of every other case \\liere it may reasonably be supposed from the occasion, tliey v\eic spoken willi no ill intent to the PlainlifT, tlio malice of the speaker is tlie only circumstance that can turn (he scale aj^ainst him, and it must be expressly sta- ted in the declaration and found hy the jury. But it is equally true, that this circumstance need not be alledged in any case W'hei-c tlie woi'ds themselves manifestly shew the evil desii^n of the s|>pakei'. But suppose that wtn d necessai-y, yet now since the jury have found a vcnlict against the Dcfr'iidant, it must be jiresumed they were spoken maliciously, as otherwise under the direction of the Court they could not have found foi- the Flaintiir; and the defect in the declaration, supposing it to he inie, is irmedied by the verdict. Bull. J\'isi I'riu^ S'2l, 220. Salk 9. L. Uaij. 109, 811, 1214. 4 liurr. 2020. Z. .Mod. 213. 3 Mod. lt»2. 258. He concluded with praying judg- ment for the I'liiinlifT. Mr. jMoore in reply — The .Judges have not the power to declare any thing to be law, but that which is so de- clared by the Legislature, or established as the common law as found in the books of repoits — to say thev are not bound down by foruier decisions establishing, or ra- ther ascertaining what is the common law, is to place the propeity of ail the citizens in the arbitiaiy and ca- pricious dispositions of the Judges. 'I'liese old cases were undoubtedly considered to he the common law. and the Judges in England had no power to alter it by t'leir miidern decisions — some of which say there is no rule to be observed in such cases, but tlie undeistaniiitig of the Judges — establishing a doctrine dangerous to liberty in flQO') *'" *'^''^'"*'* According to this piiiici|)le, no man knows ^ ^ nor can know until he hears the sentence of the Judge, what words lie may speak with siilVty — one set of Judg- es may entertain one o|)iniou, another set of them a quite dilTeii nt o))inion. There sliould be some certain lulc in this as wtll ais enlei'ed accordingly. Note.— Vidf Brorf'C v. Siila, 3 Jtlur/.!,. 5'i. Jfolt v. Scholefield, 6 Term Rep. 691. James Conncrx'. Gwin'sEx'rs. A case in Equity. A negro, whose life was f'orftitcd to ttie public for murder, was solJ , under exeeutioii, without tli:tt fact bcinff then known. A bill in Equity b) the purchaser praying to stand in ihe place of the judg- ment ciediiiiis, for the amount of tlie purchase money was sust:iined by the Court. The hill stated, that two executions being writs of Ji. fa. issued from the County Courts of Mecklenburg and Iredell, at the itistancc of different Plaintifls, and were levied by the Sheriff on the property of the testator in his lifetime, and particularly on a negro fellow named ; and that the projierty was advertised for sale — that before the day of sale, this negro privately murder- ed the testator, and that on the day of sale the perpetra- tor of the murder had not been discovered. That this negro was sold on that day, and purciiased by the Plain- tiff for a sum of mmiey amouniing to the judgments, which he paid in discharge of them. That afterwards it was discovered this negro had committed the murder, whereupon he was tiied, condemned and executed ; and the bill prajed that as the life of the negro was in fact forfeited to the public, at and before the day of sale j and that as an action at law could not be supported by the Plaintiff against the executors, that this Court would deciee him to stand in the place of the judgment credi- tors, and to be considered in the li.ght of ptirchaser of the benefit of their judgments, so as to have the estate of the testator, as to the amount thereof, subject in the same manner it was at the lime when the money was advanc- ed by him. The Defendants demurred to this bill for want of equity, but agreed that if tlie opinion of the (t2S) Court should be against them on this point, they would HAYWOOD'S HET'OUTS, l4l uot flirt lier contpnd against the PlaintiR; as (he facts o^:*' l'^''- stated in t"P bill wn-e true, but would submit to such dc- ^■^'"^^"*-' cree as th»- Court thought proper to make. And now this rauic came on to be tried, and the de- murrrr being argued : Per curiam. Jiulge Ashk and Judge Wu^liams, \vc are ch arly of o|iiniiin llial tiie facts stated arc projier for the jurisdictioh of this Court, and if true, thai the Plaiu- tift' is entitled to relief agreeably to the prayer of this bill. Whereupon a decree was entered accordirrgly. HILLSBOROUGH, OCTOBER TERM, 1794. Flowers V. Glasgow. On demand, previous to bringing detinue. Defendant acknowledged, that the negrocrs were in liis possession. Proof, tbr.t he had given one (if the negroes to his son in-law, who wns in possession of him at tlie time of the demand, shuU not prevent the Defendant's liabi- lity 10 the action. Detinue. This cause now came on (o be tried uiion the general issue, and tiie proof of the demand made by the PlaiiitiflT previous to the institution ■■ 392, is to he decideil as to tin; amount for which the suit is brought^ only by the writ a^d ileclaration. Prl)t. Tlio bond was fi)r o>io liiimliril pounds, but re- duced by payments, as the Def ndant allcdsed. to about tliirly iioiinds ; lie jdeadcd to the juiisdiciion of tlie. Conit accoi'din.e; lo the act of 1793. r. 19. wliirli directs that from and after the passing; of this act, no suit shall be originally commenced in any of tlie Siipeiior Courts ri23) '" ''''s State for any debtor demand of less value ilian one linndrcd poumh. where the Plaintiff and Difendant lived in the same district ; or fni" less than fifty pounds, where tlie parties lived in dilfeient districts; and if any suit shall be coininciiced contrary to the true intent and mcanin,:^ hereof, oi- if any person shall demand a .(greater sum than is due, on piii'|iose to evade tiiis act; in eithei- case, the I'laiatili" shall he non-suited and pay costs : and the Defendant set forth in his plea, tliat tin- real and true demand of the Plaintirt' was of less value than fifty pounds ; to which plea there was a rejilicatioii and issue. Etper curiam, Judi;e A^hk and ■Tuda;e Willivms — 'I'liis is an issue to be determined by the Court, and that the writ an"d declaration was proof of the ainonnt of the Plaintiff's demand, and as the sum demanded in the writ and declaraiion was above the sum of fifty pounds, they ordered a rcspondeas ouster, ((uere dc hoc. Note — Vide Stir. Part, of McA'au^'lon & Co. v. Hunter, post 454. Bell V. Bell, 1 Mur. 95. McGhcc v. Uraus'im &. Jordan, 2 Car. Law Hep. 260. Christmas and others v. Campbell and olhers. An affid;ivitof an agent, not a parly in the fuil, cannot lie annexed to an answer to disbidve an ininnclion. Itulaii order niiiy be n adeto have the fact, which the affidavit vvus inieiitled to show, fried by a jury at the ntxt term. Catlell Campbell and his partners, merchants iii Pe- tersburg;, recovert'd a jutlgmeni on delit in the Superior Court here last term, a.i^iinst Christmas and his part- ners ; and since the last term, the OclVndants filed their bill in equity, and obtained an injunction. 'I'hey stated in the bill that when they s^ave the bond, Campbell pro- mised not to sue them upon it, and that they were indu- ced to confess the judgment by Mr. Tatom, tie agent for , Campbell <^ Company ; wku prutniseU tlicio, that if they UAYWOOn'S liEPORTS. 143 ■would Ciirli |>;»y llirir pioii'iitiaii of five liimdreil dollars, 0<=** ^''^'*' on or Ixfiiic Fol)r(;aty il;eii next, cxpcution should be ^•^'^'"^'^ stayed (or the icsidiic till Ihey could sue and recover the aniouut froui tlr ir debtors. Campbell by his answer, de- nied iliat he li:ul promised not to sue. upon tlie bond as tliey liad slated ; and as to the promise o liable to be pios. c i1 (1 if he swears nntiuly. Injuncti'ins may be planted iiiioii alhda- vita'aken ex par/e. I Eq. Ca. M. S285. s. 6. 2 /•;(/. Ca. M. 522. s 2. 14. s. 2. It may be also continued upon alii- davits ajtainst the answer, thoufili that be full and deny all the ecpiily of the bill. 3 Will. Z.jT>. In some rases, ,ni injunction ma} be granted upon affidavit only witbour ^ bill, or before it is tiled. 2 Vcrn. 401, .G Ba. Jib. 175. 144 Haywood's uepouts. Oct. 1794. in whirli case it was granted b Haywood's heports. Oct. 1794. ^yg,,g „„{ marked. He had also a second tract adjoining ^-^""^^^ (liis, be/^inninj^ at tlie stake, tlic tliird corner of the first tract, being tiic termination of the second line ; from . theticc the course of the said second line of the first ti-act was continued. The deed called for a mai-ked coi-ner as its termination, nhich was found ; but at a distance from tlie stake much greater than tliat called for in the deed. The deed next called for a line of the same course with the third line of the first tract, but only half the distance of the said tiiird line ; thence by a line parallel to the first line of tlie second tract, calling for a cornei- at the intersection of the third line of the first tract. Sears had obtained a state grant for the land adjoining the o- ♦hcr half of the third line of the fii-st tract, but the sur- veyors appointed to run those tracts of McCnlloch, previ- ous to their being sold as confiscated land, had begun at the second corner of the second tract, and had run it by courses and distances; they then extended the second line of the first tract to the third line (as they surveyed it^ <>f the second tract, being the fourth or concluding line from the beginning stake mentioned in the deed. This made the distance of the second line of the first tract much greater than the distance called for in the deed, and of course the thii-d line of the first tract drawn from thence, would include the land taken by Sears ; but if the sec- ond line of the first tract should terminate at the comple- tion of the distance mentioned in the deed, and the third line of the first had been run by its course and distance (127) from thence, then it would leave out the land taken by Sears. B C represents the course and distance of the second line of the first tract. B D represents the second line of the first tract, as run by the surveyor to make it adjoin , to the line D G, being the third line of the second tract, i , as run by the surveyor by courses and distances fromtheSl Haywood's reports. 147 corner I. Should the tliird line of the first tract be run Oct. 1794. from the point C, tlie distance and course caUcd for in '-^"■''^^ the deed, it would form the line CHE, and leave out Senrs's laud, l^ina; between the lines E H and FG; but if the distance of the second line be disregarded, and that be extended to tlie line of G D as laid <)ff hy the survey- or, and the third line of (he first tract he run from the first point D, then Senrs's land is included. The'e two tracts were sold as confiscated projierty, and were des- cribed in the deeds granted to the purchasers as run by the surveyors, that is to say — the first tract was bounded by (he line D F, and so included Senrs's l»nd. The Counsel for Sears insisted, tijat where a deed calls fiir a course and distance, and (here be neither a marked corner nor a iia(ural boundary called for, that the line must of necessity sto|) where the distance called for in the deed is completed; and in (he present case, that is at tlie point C, nnci that is the beginning corner also of the second tract ; consequently the line C E is (he third boundary of the first tract, and not the line D F, and consequently also Seurs's land is not includid cither in the first or second tract oi McCuUoch. E contra — It was argued by Mr. Moore for the Defen dant, tliat old surveys ouglit to have a reasmiable allow- ance made, since in almost all of them the lines arc too long ; tlie first line of the first tract iti tlie case now be- fore us, is a marked line, and too long ; if we allow the same measuieiuent in the second line, that proportion will carry the second line beyond the point C and even to D, and then the land entered by Scars and granted to hitn (liJ8) by the State, was not vacant land at (he time of bis en- try. Secondly, he argued, that the deed granted by (lie State to the purchaser of (his confiscated property, ex- pressly included (he land now contended for by Sears; and supposing it to liave been vacant land, not included in either of McCuUocli's tracts, yet having been granted by the Sta(e (o (he purchaser of (he confiscated lands, prior to Sears's entiy and gian(, the Sta(e could not af- terwards grant it to him, and so quacunque via data, Se- ars is not entitled (o recover. Counsel for Scars in reply — The deed to the purciia- scr of the confiscated lands, expressly states that this land was sold as tiic land and estate of Hennj Eustace .M'CiUloeh confiscated by tlie Legislature ; which makes it evident that no more was intended to be conveyed 148 ' UAVWUOU's lllil'OUTS. Oct. iTCi. (|,a„ jjn; ],j„j vvhicli had been the property of Henr^ '■'^'^^"'^-^ Eustace .M'CuUnch; and iC by mistake or de8i,9;n the boiiiidarios liad bci-ii exietr.Icd boyniul what his grant covpi-ed, that mistaive was to be leclified by the expiess woids of the State s<"'>'>N sayin}^ the State conveyed it as his land ; lor wlietber it was his land or not was to be ascertained only by his gi'ant, not by the description of the State i^tant to the puiThaser ; and upon inspection o\' JPCulloch's deed, and by running tlie land described thi'fein by course and distance, where there is no mark- ed line, we are ascertained that the land now riainicd by Sears, is not any part of the lands formerly j^ranted to Jil'CnUoch, and as his to the ptircliaser f letters patent i$ limited, and directed Ity the Keltleei- yet been vested, by any act of the Le- gislature in our Couit of equity. It has no power therefore to proceed by sci. fa. to repeal the grants of the Slate, as the Court of Chancery in England hat|>. The name reasons w hich lendcrd it proper there, that the Chancery should exercise that power, do not by any r^Q.\ means apjdy here. The Chancellor has the possession j^ ^ 'of the great seal, which is necessary to give validity to v^ these grants, and the records of them are preserved in his custody, and he lor the n)ost part knowing the sue; geslionsn|)on which the grants issued, he is the proper offi- cer (h. lefore to be entrusted with the charge of detecting mistakes and rectil^iug them — he can perform this task with more efToct than any other, and he can vacate the record of the grants improperly issued, these records HAYWOOD S KEI'OUrS. 151 being witliin liis iminciliate power; butwiuit would be tlic^^'' ^''5''- consequence of an attempt on tlie. part of one Court of *-*'~''''**^ equity to exercise t!iis power? Can this Court jjovern it- self by the rules of the. Court of Chancci'y in Eiit^land, when [)roceecliiij; wilh (he same, object in view? If their I niles will not apply here, then our Court must either frame new ones, which 1 apprehend it has no authority to do, or must relinquish its jurisdiction entiiely. The Chancellor in England issues his sci.Ja. returnable ci- I ther hefoie him in his Court of Chancery, or into the King's Bench ; when returnable before himself, the par- ty eitiier snfliVrs judgment by default, or demurs, or takes issue; in the two lorracr case.';, the Chancellor gives judgment; in the latter, he sends the issue into the King's Bench to be tried. Dyer 197. 1 Jlod. 27. Latch. S. 3 Lev. 220. Cro. Jac. 12. 6 JIo. Hep. 229. 4 //is/. 72. 80. There is no bill filed against the Defendant, he is not re- quired to answer on oath and discover; the issue is tried upon evidence as other common law issues are. How- will our Court of equity proceed — will it issue a set. fa. ', and send the issue to thcniseUes, to be tried before them- selves as common law Judges by a jury ? What need of all this circuity? Or will they proceed by bill, answer and deposition, leaving the chancery course of proceed- ^ iiig and mode of trial altogether? Tiiis will be entirely new, and the first [necedent either here, or in England, I from whence our laws are borrowed. If we proceed by pleading to the sci.J'u. and making up an issue, canmit a jury upon the trial of an ejectment, under the direction of tiie Court, do thesame law and justice as if ;hcy tried it up- on an issue made up in the pleadings to a sci.Ja? And after all, will not the evidence upon this issue be parol evidence, to shew the mistake, misrepresentation or deception in the same manner precisely as upon the trial of an eject - raent? Where is the evil avoided then, or the advantage attained, by trying it upon a sd. fa. that may not be equally avoided oV attained by trial in eject- ment ? The usual and oidinaiy mclhoil observed in England, is for the party injured to apply by jietition to the King, for leave to use his name for repealing the letters patent. 3 Bl. Com. 261. This perhaps may not be ab- solutely necessarj', but if it be, who is to give that leave here? Has tin- State thought jnoper to vest that power any where? If the injured party can institute process without any leave, then why not institute an ejectment as well as a bill in equity? Where is the law *d' the (132) 152 UAY wood's ueports. Oct. 1794. country, or any sriiitilla of Ie,e;al rPARon, to tletermine to '-^~'''^*^ the latter rather than tlio former ? The foiin ofilie judg- mrnt on a sci./a. in England is. ^iwd predicta; litcrce pa- tentcs dkli Domini Re.^s ri'vocentur, cnvcellentnr, evncuen- tur, adtmilentur, et vacuce et invalidce pro nnllo pcnUiis Iiabeantur, et teneantur, ac etiam quod irrotulamenhim eor- nndem cancelletur, aisselur et adnikiletur,^'c. and tiien the Chancellor damns tiie enrolment tlierenf, by drawiiii; strokes tlirnii.a;li it like a lailice, 4 Inst. 88, and f>r this l)Uipose tiie letters patent themselves are recalled into the place from vv hence they issued, that is, into the chan- cery, that they may be cancelled. 1 Sim. 151, 8 Rep. 31, 55. The judgment in the ejectment will indeed only be, that the Plaintiff recover, svithout saying that the patent shall be recalled, and that together vviili the enrolment in the Secretary's otlice, cancelled. But can the Court of equity say this in their decree? I believe tlierc is no precedent of such a decree having ever been pronounced by any Court of equity or chancery tiiat ever set in tliiK country; if there has been any such, \vc have a riglit to challenge tlie production of it. Indeed cases may exist, where a Court of equity, proceeding by bill and answer. uoulroceeding by this mode, ra- ther than lliat of an ejectment ? Nay, more — if he is not compellable to answer, the Plaintiff's bill must be dis- missed. This Cr)urt will find itself incompetent to af ford redress, in the most gross and tl: in assize of nui- sance, quod pcrmiliaf. information in the nature cil intru- sion, trespass, ejectnieni ; for whicli I beg leave to cite 5 Itep. 94, 6 Rep. 5G. 1 Rep. 52, 10 Rep. G", b. and par- ticularly 2 Re;). 17. 33, 54, ^,0 Rep. 109, which, are cases in ejectment, in which the invalidity of tiie King's srants ■were expressly decided ; and prove beyond contradiction that the effects of an invalid grant may be avoided by proof of the circumstances that i-ender them invalid upon the trial of the issue joined in tliat action. In the last of them it was decided that the grantee shall not he permit- ted to claim by any other title, than that e.\pressed in tlie graut itself; and that if the King grants the manor ofj I), expressing in (he patent that the said manor camci to his hands by escheat, and iu truth it did not come hyi escheat, the grant is void, because of the falsity of tbej suggestion, which shews him to Inne been deceived at the time. Tliese cases are fully up to both points we wi.shj to establish, namely, that the invalidity of the grant may be shewn in the (jectment, and also that a public oflici^tl granting land as tiie agent of the (Mimn)unity, bclieviuj^ the title of the community to have come l;y one means, by means of confiscation for instance, when in irutli rl came by another, which if he had been apprized of, hi (135) would not and ought not to have executed the grant, doifl not thereby convey any property to the grantee ; and iqi therefore hope, that the objection taken on the other sMi Haywood's reports. ^ 1S5 v» ill not prevail. One other argument Iiiiited at in the Oct 1794. course of the debate, and perhaps it fell from the Court, '-'"""^^ seems pcoper to be attended to — that tlie State having grante<), if it weie imposed upon in the ,s;rant, only has the right to institute process for its repeal. If\\e[)ro- ceed by analogy to the sci.fa. in England, tliis is not so. The King in his own name, or any private person using liis name, may institute this process to remove out of the way, a giant |)rejudicial to his interest. 4 Bac.M. 41Q, 3 Bl. Com. 261, 6 Mo. Rep. 2^9. So that altho' ilie State may never think proper to procceil in this case, yet Sears may institute the sci.fa. if it will lie in our Courts, and by the same reason may take advantage of tiic invalidity - obliquely in this trial vviiliout any sci.fa. Per curiam, Judge Ashe and Judge Williams — We have often decided, and we are now of opinion, that the Stale having granted varant lands, the first patentee will be entitled to hold them, rnttvvithstanding any attendant circumstances that render it voidable, until it be actually avoided in the Court of equity; and that it cannot he avoided by any parol evidence given to a Jury on a trial in ejectment, but the jury may find a special verdict if they please, subject as to this point to the opinion of the Court. — But the jury did not agree, atid one of them was withdrawn. Afterwards, at a subsequent term, tlie Court holding the same doctrine, there was a verdict and judgment for the Defendant. NoTE.-Vide Jieynoldsv. Flinn, k. tlie references in ttie note a«/elO0. HALIFAX, OCTOBER TERM, 1794. Wilson Carter v. John Branch. A dcclaiation in ejectment served on a tenant in possession, cannot be amended, so as to comprise more lands than those already de- scribed. — TtTe Defendant in an ejectment will not be allowed to de- fend only as to so much as the I'laintilFcan piuve him in possession of. Ejectment, The Plaintiff by* his attorney, moved to I amend the declaration, so as to comprehend more lands than were described in the declaration served on tiie ten- ant in possession. The tenant in possession moved iat the same time, to be admitted to defend only as to so |mucli of the premises as the Plaintiff could prove him to ibe in possession of, alledgiug that the locality of a line 15^ Haywood's keports. on. 1794.^3^ the maUi'i- (if roiilroversy ; whicli if it ran wlieio '''*'~*''"**^ he, the Dtfiiiil;uit, (Oiiloiidcil it did, he was not in pos- session of any |>iut of llie |iieiiiises; if wliere tlic Fluin- tlfTconlendid, lu- was (Ijimi in possession of a small part only : but if lie eritei'i-d inio tlio coinnion rule generally, that would be claimitii; upon i|e lands de- (136) scribed in the declaration, lo any pail ol which he had no claim: and if he entered iiiiiise-lf Defendant for such of the premises as lay bttwcen the line claimed by tlie Plaintiff, and that whicli lie contendrd lo be the true line, this would be an admission that the lands so defen- ded for, were a part of liiose described in tlic declai-atlon, which he by no means meant lo admit. — Aj^ainst tiie Plaintiff's motion, llic Coniisol foi- the Defendant argued, that no original process could be amended, there being nothing to amend by ; and Ihat a declaration in eject- ment had always been considered as an original |)rocess, and tliercfore not amendable; and ho cited 2 Stra. 121. Cartli. ITS. 2 Burnes 13, 17, 154. Carlli. 401.^ 5 Mo. 332, and ili(uigh a case had occnied, where the Court had jieiinitted tlie time laid in the demise to be extended, as ie)iorted in 4 Burr. 2448, 2449, yet that was matter (if form only, and allowed to avoid tlie total bar of the Plaintiff's title by the statute of fine and non claim, vhich would ha\e attached u|iuii it had liie amendment not been made, and Ihi- Plaintiff non-suited and put to commence a new action — but no case had ever happened, where an anicndnient in the description of the thing de- manded, had ever been allowed in a declaration in eject- ment, but the same had been expressly denied in the case of Thompsun v. Leach, cited in 5 Mo. 334. Judge Macay — The amendment moved for cannot be allowed, for that would be lo make a new declaration. The other motion was then urged by the Counsel for the Defmdanl, and Judge jNIacay asked if there were any precedent, to justify an admission to defend in that manner, when the Counsel for the Defendant cited the case stated in Bull. 97. and 2 Bac. M. 162. Barn. Snpp. 24, 25. 2 Bam. 148. Where in case of several tenants, the rule may be draw n generally, tiial I. II. who claims title to Ihe premises in (juestion in his possession, shall be admitted Defendant for sucii messuages ; and then Plainiiff must prove what lands are in his posstssion— or specially, that I. 11. who claims title to sue h lunds^ expressing them particularly, should be udmitled Defen* Haywood's ueports. 157 tiaiit, iind then the Plaintiff need not make such proof. Oot. I79i. And he insisted, that in the present case, there was as ^-'^^''^'^ much reason for admiitilig the Defendant in the iiiannei* first stated, as in llie rase wheic tlierc are several tc^n- • ants, since the tenant in the present case, cnnld not de- fend Kiherwise, without makinij an admission of the fact lie |)i-inci|ially intended to controvert. Judge Macay — There is no precedent for such a nio- (137) tion as this, and tiierefore I caiimit consent to it. Tlic Defendant must enter his defence as he thinks proper; but I think tiie j)ro|>()sal made by tiic Plaintiff's Counsel a fair one, and fit to be accecded to, namely, tliat when the lands sliall be run out by the snrveyoi-, if the survey should include tlie lands claimed bs the Defiinhuii, that then he shall be at lilK'rty to enter himself Defendant for as much of the lands claimed by him as sliouid he inclu- ded in the survey, particularizing them — and 1 would re- commend the adop'ion of it. This apjiearcd to the DefendaMt's Counsel, to be stiM an admissiiin that these lands were a part of the premises described in the Plaintiff's declaration, us he must still enter himself Defendant for a pai'l of the said premises in the declaration menti(Mied, to wit, that part to be so described — wherCrtS liis objection was not that the lands described in the declaration were not.lhe Plaintiff's, for lie admitted them to be so, but that the boundaries in the declarati(Mi did not comprise ihe lands whii h thi' Defen- dant claimed. — Bnt the opinion of the Coui-t being against him, he was obliged to accejitof the proposal re- commended to him. Note. — As to tlie amemlment vide Troxier v. Qihsnn, post 465 — But see note to Cawper v. ICdwurtls, ante 19, and ^dams on ejectment 205. —Upon tlie other points see Jidama on ejictnient 2.)4, 2j5. Brickell v. Bass. Tlie neglect of bringing up an appeal nnder tlie act of 1777, liev. cJi, 115i s- 77, in proper time, is not r.:lievable by certiorari, although occa.sioned by the neglect of the Clerk; and the appellee may move for the afllrniance of the judgment with ilouble costs, either at the first or any other term, :.ft(r the appeal. This was an appeal in an ejcctuicnt cause from the County Court of Nash. The. jury below had found for the Defenilant — and tlic appeal was returnable to this Court in October term, 1793. It was not tiien transmit- ted to the Clerk of this Court, hut in April, 1794. The 158 iiaywood's beforts. Oct. ir94 Counsel fin- Hie Defendant havint^ a ca|>y of tlie record ""*^'*''^^ in Ills liiiiid, moved to have it entered of record in tliii? Coiiit, ami till' judgment iiffirniid with double rosts, iigreiably to tin- act of 1777, ch, Z, sec. 84. The Coun- sel for the IMaintilT then ninvcd fir time to procure an !>ffida»if for rem()viMg tlic cause by certiorari, alledgin;; the ritglect of the Clerk of the County Court, who had been applied lo in time and failed io give a transrriiit of the record : and imw' at this term, the mo- tion for affirming tlie judgment was renewed and the affidavit fnr the certiorari |irodiirtd. It stated that this cause was ti'ied in May, 1793 ; and tliat in August, 1793. JBrickell's attorney had declined practi'c in that Court; hut had applied by .Vr. //«//, the attorney left t> finish his b<;sincss, to the Clerk for a transerijit of tlie record, to be brought up and lodged with the Clerk ol' this Court. J\Ir. Hall intending, could he have inociiieil it, to have brought it up himself — but was infoi med by the Ch-rk. that he hiul not then time to make it oot, but that he (138) wiuild lianil it in lime lo the office of tlie Superior Court Clerk. Upon this affidavit the PlaintiflT's Counsel con- tended, that the act of Assembly only contemplated the affirmance of judgment and double Cfisis, in cases where the appellant craved the appeal fur the purpose of gain- ing time, and delaying the other party ; hut many cases had occurred, where the appellant having been hindered by accident, or the default of the Clerk, from bringing up his appeal in time, had been helped by certioj-nri: and that he understood the rule in sucii cases to be this, where it was not owing to the default or neglect of the appellant, but to some other cause not under his coiitroul, that the appeal was nut brought up in time, he sliould be relieved by certiorari; for it frequently happens that thf appellant has good cause for his appeal, and may intend to pro>^ecute it, but owing lo the ilefault of the Clerk of tiie County Court, or to some other cause not imputable to the appellatit. he may bo ineventcd from having it re- moved ill time; and then surely it would be great injus- tice, and not within the true meaning ^ jJiMbablc meaning of tlie Lesislalurc. If Oct. 1791. the Clerk lias done amiss, he is liabli', to pay a fine to the >.i^"v^««»' party ejiieved. and to answer liini in dainages j as also to be pi.>siTulcd for a niisflpnieaiior in oirii o ; -and that must be the reimdy which the I'hiintiir must pursue; of coiir> b-'fore, and said he would submit whether it was not now too late to mine for an aflirmance ol' tlie Jud_^ment — ilie a}>- pcal was I'eturnable to Oitober term, l"9o, and the first day of that term was the day in Court given to both par- ties ; in like manner as if a writ or any oihcr process had been returnable to that fcriii, that would have been the day piven to both parties lo a[ipear ; if in such case, the I'laintiR" had not caused the writ or olhtr process tn be returned, and Ihe D^ fendatit should not bo calidi up- on, and the cattsc continuid in Court to another day j^^i- ve«i to the parties, it would be clearly a disrontinnaiice fiagA of (hat cause, and a dismihsion of the Dt-lcuiiant fnnn all ^ lurthcr attendance on it. So here, the a[ipvliaiit and ap- pellee being both to appear rii Ocloiier term, 1793, tho appellee lo answer to the apjieal if brouglit up. or t'» move for affirmance of judgment if not brought up, and the time having passed without any thing done, or any motion made on eillier side, or any fuitbi c day given, they were after the expiration of that teriti both out of Court, and could not be again broiiglit in but by some new jM-oress : otherwise this iudin^ciiience «ouid result, that ten yeais afterwards the appellee might come into Court, and move for the aftiiinancc of the judgment, and double cost's, when per-haps in the mean time, tiie appel- lant might have satisfud the appellee, or obtained his iclease or other discharge from the demand or cause of action, and he would have no opportunity to sliew this against the motion for the affirmance of the judgment. If the appellee may move for the affirmance at the second term, he may mine by the same reason at the fouilli op fortieth teiin after — he may wait until the e\idenre of the release or discharge be destroyed, or till the appel- lant has moved away to another State or cotintry, and then subject his bail here, or such property perhaps as was bound by the judgment in the County Cuci t. though in the hands of a honajiile purchaser. 160 Haywood's keports. Oct. 1794. Judge Maoay — It might have been proper perhaps, in '*'~''''^*' formine; the first decisions upon this clause of the act. f(ir the Courts to have held it necessary to move for the affirmance of judgment at the first term of the Superior Court after the appeal prayed ; hut the uniform practice huth been to move for the affii-mance at any term after; and riiod some adjudications in tliis circuit at Newbern to that elfert; and therefore notwithstanding this latter objection, lip ordered the judgment to lie affirmed wltli „vi.^ v. Miirn/m/l & Rms'H, 2 Hawks, 59, Mera\. Scales & McCain, tlid- 364. Tin' propriety ot tlie other part of the decision was dtnied by Hatwood Judge, in an anonymous case, post 171. Hamilton v. Mary Williams. Macit Judge inclined to think tliat tlie htmdwriting of a subscribing witness, who hail voluntarily become nit rested in tlie bond could not be proved. Sed adjournaiur. Debt upon bond, and non est factum plcadcil. Thcal- lestitig witness was one Cordall J^trflext, and there was an indorsement on the bond, Iransfi'rring it and its con- tents to him. The bond itself bote date prior to the time when bonds were first rendered negotiable in tliis State. It was argiieit for the Plaintiff, and insisted upon, that thehiMid writing s are liof like tlie pfcseiit, if '-'''^^'^^^ tlio e\i(leiice ailmittcil in this nisc slioiikl be nllowalilc* n wide e agreed by all the bar, and Judge MiCAT, that if the jury bad found for the Defendant on his plea of " tender and refusal at the day and place," where he was bound by a sealed writing to deliver a certain parcel of ca'tle, that the Plaintiff would have been forever barred of aiiy recovery on the covenant. This was an action of covenant upon a sealed writing, for the delivery of a certain number of cattle, of a cer- tain description, on a day stipulated and stated in the •greement. The Defendant pleaded a tender and refusal «t the day and place, and upon this the IMnintiff joined (143) ^^4 Haywood's KjiPORTfe. "^'^•i'ssiip. And now on (he trial it appnarrd in pvideiMC. t' at 'he Dcfrndjiiit on 'ho diy and a' tlio plarp appoint- ed, tcnilci-ed ii e;reii!pi' >iiimi)pr of ratlli- tlian the wiilinu; doinandcd — siiiup of tNem ilns^v(■^ill^2: the d<'sri-ipiion, otliers not; so that the cliief matter of dispnio upon ilic cvidenre was, whi-tlier tlietc were a« many cattle of the descripiioi) as (lie contrari reqniri'd. It appeared fur- ther upon the evidonre, that al'tei- the teiiih-r made, and refii'-al to af(e))t the rattle on the part of t)ie I'laimiff, the Defendant killed p;irt of tlie r;ittle, and sohl otliers. Tiiejury could not a.!;ree, and a juror was \vithdrav^n. NoTK. — Ntitnitlistaiiilinp (lie circiims'anrc rf ib<- Defendant linv!)i:; killn! pari of the ciittl", an J ilisijosed ot'otlurs of hen, il spirncil t > be apreeil bv the at'iunies on bolli sid' s, and indeed io lip admitted by all Ih' I'ar, and by .Iiit rp Mac t, that it 'his isiiir- sho'ild be found apairist llic HlaiitifT, be would thereby he iilter'yl arr. d of his recove- ry upon Ihe rovenaiit. This seetr.s to be amoiijTst 'h' apices ttrlcH ju- »■/» I bat are rot very con'ormablf- to the common idia<; of justice — Shall the Defeiidiit be allowed to retain the value receivi-d f< r the cattle, by kiliinp; and dispn-.ui!,'- of th- m, and be discliarpred at the same lime, hy his tender, frim n deht of the vanie vulue due to 'he Plain'ifT ? Shall he ht- discli.-.ri^. d of bis debt when it is appaient the refusal on tin part ef the Pbiii'tilf. biis not hc-n attended with any loss to himself? The opinio;i that Imlds tlir afliriative of thi- propo- sition, stem« to be foun.b d on a p issiire in Cn. Lit 2>7- " If a mun be bound in two hundred quarters of wheat for delive'V "f inehun- dr d, it the oblipor tend r ai the d:iy om hundred, ]v shall not pkad nncure prisi, becmse albeit It be parrel of the condition, yel they be bona peritura, and it is a ch irge for the obHi^or to keep lliem " This passage is (nund'-d on the report i>f Peijton'.i case, 9 Jlrp. 79. where this was not the point in ques'ion, hut iiieiit oned arguendo only — ;mdonlysajs, " If he oblipor in sucli case tciuler at the day, and the other refuse, he f.h dl plead it, without sayinp he is yet read\ , be- cause the corn if become y^fn'/int/m, and it is a charge to il'e oblijjor to keep it." The author of 5 Jiuc M, speakinff of such a tender, says, ' "But if the ihinp tendcreil be so hi-a\y that it cunnot be well carri'd, -^ it is not necessary lo plrud a tindf r of this with a profort in curiam." He cites lira, and 2 lioll'i M 524. Mav not a mistake have aijseu from the (quivocal u»e of term uncnre prist ' When the debt or duty is discbarfjed by a tend^ r (as it is In some cases where it depemis sol 'ly on a con Vet perhaps this is tioi a ne- •fSiiry consequence s it is possible the no' heinc bound to plead un- core prist, may be for another ri a«on in some cues, namely, where it would he charjjeable to the party to keep the goods tendered, or to hire a warehou'e 'o preserve them, or to buy provinder tor the cat- tle ; which, and the hk' r<-»sons, may be justb sufficient 'o exempt the party from the necessity of plead in|;f uncore print, and yet be no sufficient cause to discharge him from the debt or duty entirely. Ip. deed, in tiich cases, juaticc seems to require that he should not b* compelled \« keep the expensive article always by him, so as to be HAYWOOD'S KEPOKTS. 165 able at all limes to plcatl ;il\> ly* readv ; as in tlie case oFmonev, "liich Mar. ir95. m«y be kept withoiM .'Hy expence, tlioiiph nut wltl.ocit sirrn* disnd- ^^^v"^^ vant.'pe and risk. Thesi- snpirts-iima aim (.i.!y at the exciiing au en- quiry into a pc:sitioi', which under the citcuoistimct-s of the case at Morgantcin appears li.-.rdly compilible witli jiist^re. Note. — Or, (h? snme page of Co. Lift, to which ffavu'riod refers in , his note to this cise, is to be ffiiuid this p^iss.i^e : " If m obhjjation of an hui'drfii round be made with • condition for ih payment of fifty pou' d at a day, tnd at the day the nbliRor tenilcr tlie moii-y, >indihe obli^'ee lefti-ctli the i-ame, yet in !r tion of debt upon the uhlipalion, if the UefendHnt plead the tender and refiis;d, he must rd-o plead that he is y^ t re;idv to pay. Ilie money, and iend>T ihe same m Court, lint if the Phiintiff wid not thcri r>ceive it, but takes^sue upon the temler. and thi- same br fiund against him, he hatlt lost the money forever." This pa:.sap;e is contrasted « itii that "efevred to in the Re- porter's note, and the reason assifsn^d for the diflercnce is, that al- t)i"iigh the 100 quarters Ilonser ; ami alter lull age, to Eeynolds; but after com- ing; of a.e;e, ami before he ccniveyed to Beynnlds, he said to Hoiistr, '' I will never lake advaiita.a;e of my having been an infant at the time of executing the deed, and it is my wish that you should keep the land ;" and upon tlie au- thority of some cases cited by Mr. fFhyte, from Bac. M. Verb. Infant, where such or the like words, hat! been held to be a coniiimation of the deed. Judge Macat di- (144) reefed thi* jury to find for the Plaintiff; and ihey did so. There wen; many other points made by the Counsel in the argument of this case, but the whole cause seemed at leiigtii to turn upon this only, and therefore the others are omitted. Anonymous. Under the act of 1762, litv. c- 69, s 20, which directs the bonds taken on binding^ oiu or|)haiis, to be made with the Cliairman of the Court and his successni,«, tl'e bond is good although Ihe eucceasor be not namrd ; ami a suit may be sustained in the name of the xiccessor. After the |)lca of conditions performed, no advantage can be taken of any iucimsi tcucy ;n the indentures of apprenticeship, 19 where, in a part of the instrument, tfic name of the apprentice is put for tliil of the Charmaii. A verdict finding, anions other things, »n is- sue not submitted to the jury is void as to such finding. This was an action of covenant in the name of the Chairman or presiding Justice of the County Court, a- gainst the Defendant, to whom the real Plaintiff had been bound as an orphan child; and he declared upon the in- dentures, taken under the act of 1762, c. 5, s. 20, and stated as a breath, that the Defendant had not taught him the trade he agreed to teach him, that he had not taught hiiu to read and write, *tr. The Defendant plead- ed, tliat he hail pci formed his covenants, &c. Upon the trial, the Plaintiff's Counsel produced the indentures, and read them to the jury ; whereby it appeared that the covenants were introdured in the former part of the in- strument, as between the Chairman of the Court, but not with his successors, of the one part, and the Defendant of the, other; and in a suhsequpnt part, the name of the apprentice was put fur tiio name of the Chairman, which rendered the whole writing insensible. Haywood's kepouts. 167 It was oI)jccteil on the part ofllie Defccidatit, that tliis M«r.i795. t)oiid is not made pursuant to 17G2, c. 5, s. 20, wliicli di- '-^'^''''^^ rects it to he with the Chairman atid his succi'ssors, and therefore it was not such a writiiip; as could hn |irosrcii- (cd ill the name of the successors of (he ptTsidiuji.Jusiicc. named in the indentures; and tliat this ariiuii biing in Uie name of tiie successor, the prfsont Cliairtnati, could not be s'jpj)orted ; siiid moreover, (hat the covenants be- ing iiisensihle. Iiv I lie mistake in the sub-^ecpieiit part of it, was tlieref'iiro wliolly vitiated, and that no action vhatever could be supported on it. It bej^ins as a cove- nant intended to be made with the presidius^ Justice, and then recites an agreement with the apprentice. These objections were reserved for furtiier consideration after tlie verdict should be taken, which was agreed to be made subject to the ojiinion of the Court upon them ; ac- cordingly the jury gave a verdict, that liie covenants were not performed, and assessed damages ; and after- wards on a subsequent day in this same term, the objec- tions were argued, and the Court gave their opinion. Per curiam — The first objection here is, that tiie cove- nants are not made with (he successors of the presid- ing Justice as well as with himself, and fir tiiat reason (1455 it is argued tiie successor cannot maintain this action as he migiit have done iiad tiiese words been inserted. — The second is, that the covenant produced is insensible, through the mistake of inscribing the name of tlie appren- tice in tlic subsequent part iuld be improper iherefoi-e for the Court, to tjive a ready ear to this ohjertion. The ind<'niures are either made under tlie aulliorilv of the act 1762, or they are void, for if not made under tliat act, then what pow^ r harl the presiding Cl46) Justice to make any covenant relative to the orphan, or to bind him at all? Or how can the Delendant justify Ills taking the orphan at all into his service? It will ly^ iinl^roper to pronounce the covenani to be void, for that will defeat the plain intent of ihe |iat'lies and the enils of justice; and tlie Court will supitoi-t it if possible. It is a rule, that whatsoever is sulKciently implied, need not be expressed ; and the act hath directed t!ie covenant to be witli the presiding Jos ice and his succc'-soi s, princi- pally with a view of pointig out the party who was to bring the action, in case of a breacli of ihe covenant, and the death of the presiding Justice. Had the word suc- sessors been omitted in the aci, duubls might have arisen for v\ant>.^">'"^«' which is to be iieipeiually coiuinned, hucU rotitrart be- longs to him only in his public chaiiicter ; and whenev- er he becomes divested of that, will belong to the same character though sustained by anothei- individual. It is true there are some cases in the books, where the law will not allow of the succession of a personal chat- tel at all ; as anciently in the case of Abliots, Bisiiops, and others from policy and mistrust of these characters, lest uniler the pn'tence of advanciug the interests of re- ligion, I hey might draw from the people more we.ilth than was consistent eilhi-r with the circumstances of in- dividuals, or that modi'ratc degree of p'lwr and influ- ence flowing from wealth, in which it was prudent to keep the ecclesiastics & other sole coi-|)orations: but in al- most every case, where the official characrpi- is conferr- ed with a view to its being exercised for the benefit of others, a persona! ch I'tel, or the right to sue upon a personal contract, devohes to the successor upon the r the time being, if the president sue and re- cover, the successor ami not the executor, shall sue out the set. /a. for the character or office of president still contitjucs, Cro.,1nc, lij9. 4 Bac Ah, 411, Here the l*?^ Haywood's REroRTS. Mir. 1795. gf^difp f,jjj,i notliin.a: of siirrpssors, but fhfy wore impliod ^*'~''''**^ ill the rmmi' of tli<- offire. If an oipliaii bond b« man, renioxal and other occtirrenfes — some offices are but of annual duration, and ihi nfficri- must nece.s- sarily bi renio\ed hi for«' a suit could be carried tbriiu_«:li'R. all its diflTcniit Ht;t.a;e-- — were his soins; out of office t« ''♦ op' r,i(e an ab itemrnt of the suit iustiiuted for the side benefit td' anoiber, Juslice might be greatly hindered, and, in some instances b'' rend' red wholly im|ii)ssible to be obtained. The Governor of this State is an in- stanie — almost all bonds for money due, or to be- come rloe to the public, at*' takin ill his name as Go*' Vcrnoi — there ran be no doulit. that either he of his suC' ce.-sors must bring the suit ; ihe law will not tiusi hi.4 execiitois. ^^ ere suits insti'iiti'd by biin to be abated by his going oui ofoffite. how many of tbe public de- mands Would he loKt f His election is Hiiniial as to liiii^ his ofliie is but of a year's duration, and it gineiallj tnkca up a lunger time than that, at least in many ifi" ■I Haywood's uepobts. 171 afanres. bpfnre a suit ran be tlptprniineil. It wnuM beWar. 1795» nioiistiDUs III s ly, that suits shouM aliate in sudi ca-^es •^"""'^^^ ■ — >et if Ills <:iii'(-e< the declaration, it is noi to bi' regarded ; for they cannot give a verdict upon any point, except that contained in the issue with wliicb they are charged ; and then the i finding by them what tlie covenant really was, as well as that the covenants were not performed, is void as to that part of the verdict stating the covenant, and not to be proceeded upon or attended to as a part of the verdict at all. 2 Roll's M. 691. 2 Mo. 5. L. Ray. 390, 864, 1521. 2 Rep. 4. 2 Stra. 873. 5 Ba. M. 310. The court must proceed upon tlic legal parts of the verdict only, that is to say, that the covenant stated in the de- claration has not been perfornii-d, and the assessment of damages for the non-performance — of course the second ]( objection must also he overruled, and tlie Plaintiff must f, have judgment. — And he had judgmeut accordingly. j (150) Lewis r. Williams. •'] Detinue. For two resolutions of the General Assem- • bly directing certain sums to be paid to Lewis and Cnj/- ton, for services performed as ofBcers in tlie State le- gion — that which belonged to Crafton, had been sold by him to Lewis and delivered to him — tliey came after- wards into the liaridH of Lanier, who died possessed uf them, leaving the Defendant one of his executors, who ' by that means also came into possession. JVb« delinet ' was pleaded, and a verdict found for the Plainuff, and ap entire value and damages assessed. The Defendant Haywood's reports. 473 moved an arrest of jud^mpitt. assi<;iiing various reasons, *'="' ^79s. and these aiiioiie;st otiiei-s, to wit. T «t in tlie writ "he -■^~^^^^ resolutions are described in |iart by ih'^ d.iy of their date, and in the declaraiion also; but tlic d,iy stated in the dpclarntion, was not tlit? same as that stated in the writ ; and so there is a variance between the writ and m;ig<-s for Ihem, and Ihe Plaintiff by iliat mf a' s obtain - the value ; yet should he aftersvards sue f^r part of the same nrproes again, desriibing- them by numb.-r^ only, ii wouUI be im|ins he oui;bt to receive for these ar- ticles, the value of « hich Wr-re not assessed ; but it is doubtful » heth- J er upon the elislrimras, the >heiiffcan receive the v.alue ; for tlie ob- i \ jtet i>f the distrinffis is to enlorce the didvrry of 'h<" thing itself, 'he J judirmen' being tnr tliat, it to be had in the first instance, and if notM to be had, then lor the value .nd dania'res ; anciently for the things anil I'amages ; and if not to be had, then ill in damages. Accoi-dinj'fj to what is said in some bonks, the ass ssm. nt ot the value seems toji be of little or no use ; for although it be assessed, if the Sh'-rffre-J turn upon the distringas, that the thing recovered is not to be had,'; then the execu'ion seems not to issue for the value already ass'.'ssed but another jury istohe called in foasst'ssdamasiestn — ind in the s» cond tlier« isadimuirer, the declaration beini fi r Several iliii gs of adifferentkind, upon which 'he juilgment is, tlia the Plainiiffi'o rerovrr ihe goods and chaitels, &r. or their value// and a distringas issued to compel the delivery of them, and directin|r^^ the ^hc lift' t judgment aO cnrdi gly. If this .lisiincliiin be granted lobe well drawn the resttl" will be lint the distringiis upon verdict assessing the value, is in l|l di-juiiriive, to C' nipti the Urli nd itit to deliver the gooiU or the Talud ot -II mmh in lieu ol ihcm. Morgan's Pleader 328; l.ut where (M ju- omit ti. find the v.diie, and the jiiil(;inent is rendi red upon that'; iJindiiijj ur upon dcmurrtr, that the ditlringca tlieii is, for the deliveigr •t Haywood's kepouts. 175 (jr the poods or their value, without siyini» without what vilue ; and Mar. 1795. n the l.it'er rase with h firther (lip.ction to the Sher-ifF, that if goods s^-v-^^ are not dt-hvevel, th.it he enquire of the value damaires for detent on, cost's, Uc MMu then if it apnens upon the Siieriff's r' uni, that tlie poods !U'e not delivered iii r-' issues :i stj fa or ca. au or it' in the forni-r whv-re th- di.ilrin^ai issues witliout tli •( cl.tus', Hie saiie t ling apnc' rs upon the shriff''s return, tlion a jury in couit is c dl 'd up'm, K)|)ly the omission .'t'the former jury, and to u'isess d images in lolo- Tli'S'' disti ictions will reconcile all tiu- cases to be found in tlie books, and are therefore very probably the true on-s, thou^li it roust he conf.ssed in one iiislince ptrhups, owing' to a want ofatten. tion to these difi'-rcnces, ron'rirv practice hah been :id'ptrd In our courts ill the e:rs' of jWi?n'i7( V. Warmouth. There the jury assessed a Viilue considerably above the veil va' le of the nepro, imt thi- De- fi- 11 Unt before the aci ion bi'ouafht, hail r-'-delivered ihe n"i;ro to M'aHr-r, who had iiired liie nPiTio to him ; ind wh^-n the dialringaa v.i'iit out, he riiuld not dflivet him to the Sh'-rifl', ind upon his re- tti-n to this effVct, and 'i complaint made thait le a^SrSSnioni was too hi''!i; itwiss'id ly the counsel for the I'laiiit (T, and admitted by the court, hat there inusi now tt i new assi'ssm<.nt of damages in into Defer" -Ajt-fi. or a ci/. oa could issue ; and accir;'din;;ly a jnij were euipanneled in court to assess tbe daniag'f s, and did asS' ss them, aiil the execution for !li',- money ir dimages was issued accordiiit;Iy. Hiiliftix Oduber. 1792. If however tli': distinctions beloie mentioned irc jisi, then it would seemto follovf, that every article demanded, capable in its nature ot a distinct s.-nsible description, and not making a put of ilie wbole thing demanded, as the sails of a ship or other ai)i>urtcnance, should have a separate value atBsed lo it by the jury who ii'ied the iiisuc ; to the end that should til' Defendant be dis- posed lo piy the valiii- of ."Oine article uhich he cannot deliver, he might know what lo pay, and tlie Sheriff what to receive fb' that ai*- tide. Although the s.me precision may not be necessary when a jury are called to assess the valu ■, alter the r turn of a iltsirlnji^af issued in consequence of a Judgm-iiit upon demurrer j tur lii re, if some things are delivered ^nd c hers not, it will appear upon the return what articles still remain undelivered ; and as it ulso appears by the return, that the Defend.int cannot or will not deliver any of thuse, there will no longer be the same reason for assessing a sepa- raie value upon each ; and an entire assessment for the remaini g ar- ticles will be wi 11 en lUgh, according to what was praciis d in tlie lase of Grarjsbrook and Fnx in Plow. 283 The same may be sai 1 in egard to llie cas wli>livioii, and left the subject Uarmant until 176 HAYWOOD- S ItEPOHTS. Mar. 1795. tlie same reasons should be again filed, which may not be for some Note. — The practice now used in oiir'conrls, in consequence of a deci- sis) some years ;>^'0 itRdent in.admand pri-viiiiis to the institution of th'- action of delimit is required, but for wh:it purpose is not clearly u' dfrstnod among-it the practitioners. H cannot be to entitle the Plaintiff ti) his act! n; for there hive been severiil decisions that the act of limiiatio'is will run from the time that the I'hiniiff knows the subj'Ct of controversy to be in the possession of the Defendant, and to he adversely claimed b\ him. Vide Ifilhborough, Al>nl 1792, Ber- rii'n .ifiminis'ratort v. Ptillam, and Hillsborough, Auril 1794, Elvich't JExecutorsv. Rush. And this proves th.il » present right of action may be in the Plaintiff before the demand ( fur the act of limitations can only run from the time of the action ii'criiinsj. To siv th -refore, that the net run from the time tliat the Defendant has an adverse posses- sion known to the Plaintiff, is to say; thai the aclloii accrues to the Plaintiff from that time ; it can tlierefore be of no o'her use than to entitle the Pliiiitiff to liis damages for the detention and costs. And in ec lUsetliere wasnodem muI proven, and tlureby bar tiie Plaintiff firever. li the want i;f such proof could niitjus'ify them in spying non detinet, tiien it is not m .t-rial su far as reh.tes tn the issue with which they nre charged, for them to consider whtlier the evid- nee offered amount- to the proof of the fact intended to be proven h\ it or n"t; and .s it bi longs nut to them to sav, whethirtlie Plaintiff shad be noiisU't^d or not, if he is non- suited .'t all, it must be under the opinion ol the c iirt formed upon conclusions drawn IVoin the evidence given, and tliat not material to the issue. So that so far as respects a nonsuit, the evidence is given necessarily to the court, to be juilgi d of ;.s t ■ its an.uu t only by them i which, whether it be more convenient and ptop.r than the ancieni mode, or more consonant to con.^titlltion.ll principles, may be a matKr of some speculation. But if given in evidence only in place of the olil plea and replication, and the jury are to dit rmine upop liejirini; it, whether in fact there was a d' mand and a reCusiil on the part of tiie Defendniit. and according to their conclusions upon that (154^ head, to proceed ornot to assesss damuges for the detention, then UAYVVOOn's REPOUTS. 177 ^ Uiere woul3 be Jess cause perhaps for impeachinfr our rule of prac- Apr. 1795. '- tice ; bm this woiiU! effectii:il!y ovevihrow tlie practice of nonsuiting s^^-v^** the Plaintiff, upon tillier a real or suppoised (U ficieiicv in llie pruot' , of tlie demand. Siinpose the Plaintiff' refusts lo suffer a nonsuit, and requires a vcrdid nnlwillisandinf; a deficiency of rironf of tlie de- mand, liavini; q-iven lull prooftif his property, and (lie DelV-nd.iut's de- tention — will the court direct the jury to find nnn detinet ? If in suppnrt of the cinirl's opiniim. the D^fendint should demur to the evidence, and thorehy ;idniil the facts to be true as svvorn — would the court say. they were proper evidence of a non ilctinet, or a. dis- proof of the detinue laid in the declaraiinn, and adjudge the cause .■igainst the PlainlifJ', although there was other competent proof fully and completely adequate to the proof af liie contrary in all rsspects? And besides what julginent could ihe court give upon such a de- murrer ? Could lliey siy that tlie evidence was incMinpeteiit to the inaintonance of the issue he had undertaken to support, and that he uhould he therefore nonsuited? This is stating tlie matter in the most favorable point of view of which it is susceplible in suppoil of the practice, perhaps more favourable than the rules of law will ' permit ; for it is generally laid d'uvn. tha' tlie person deinuiring to evidence must :i(lmit that the circumsfinces offered in evidence, do amount to proof of the fact intendrd to he proven by them, and insist only thai tlie f.icl when proven, is in law incompt t jiit ; and then the Hcfendant could no! demur, but by admitting ti:c deinaud and re- fus I ; upon which admission, the couit cmdd not nonsuit for want of demand and refusal ; but if the I'luntiff would nut agree to a non- suit, and thai could not be pnnMired by means of a demurrer to evi- ence, then it would seem thai the court have no (lOwer of nonsuiting, nd of course that ihey oiiglit noi to heav evidence with that view, undertake to judge of its amount for that iiurpose ; and that thfl vidence .vhicli is the subject of this investigation, wlien givi n, must e for the purpose of enabling the jury to decide upon the justice of llowing or disallowing damages for the detention. Ideoquxre. Not.';. — A variance between the writ and declaration Is iiit.il in ihii State even alter verdict. Stamps w Grurc.^, i ffawks 102. Gliatonv Jtmriircr, 2 /hv. Hep. i Sr.. HlLLSliOilOUGH, APRIL TERM, 1795. State T. Bionifield Long. Haywood and Wir.r.iAMS, .lodges, were of opinion that the taking which is to constilule a 'eloiiy, must be a lrespa^s. Ashe and Ma- cat, Judges, thounht u borrowing with a fraudulent intent, might be the ground of a felonious act. At tliis term the Defendant was indicted in the com- non lorin, fur stijiiliii!^; a mare of one Samuel Parks, in lie county of Randolph. It appears upon evidence on the trial, that the Defen- laiit was a stranger to I'arks, hut came to \m house onie time about the sixtli ul December last, oH'ering limscUtobo employed as an oversew; and aft«r rt- 178 MAYWOOD'S TlEPOnTS. ^P""' '^^^•maiiiinj? on Pa?/is's plantation three or fniir days. It« ^•^'"'^'^^ hnrmwid ttii" mare in question nf Parks, to ride to llio Iiousp of one Candles, vvlm lived «b lut fmir mijoq rrmn Furks's, in tlie same rf Linndn, at tlie disfanre of i.-iijliiy miles fi-.iin Caudles''s. Upon this state of the evidence, it was insisted l»\ Jones. Sidiritor General, that tlie De- fendant WHS ernilty of lelonj — he aliened," tliat ihn' there. . ^^ Mere seinn- dicta in the old honks, atitl even someadjmlg- -' ed rases, which nuike a taking; tiiat would anioiMtt at least to a tiespasK, lo be an essential ins^Tedient in the constitntiiin of leluny, \e\ tliat the snoee modern author-' ities lia\e deciib'tl in many in-tances, and nniforinly, tliat a hotrowing or liiriiif; «ith a fiandoient intent not tn retiiin the pi'opprl_\ to the owner, hot to ronvej-t it to his ' own use, and a stihsequi'iit going off with the pro|>erly. aitd sriiing it or imt eeinenint; it to the owner, will a- liiount to lelony ; and thnt in such ca^cs tlie Court will cliarge the jury, to enquire, whether the hurt "Wing or hiring was «ith Mich Irainlulent intention ; and if they foiitnl it to be so, then to find the prisoner guilty. In support of this position, lie cited 1 H. P. C 90, s. f, 91,^. 10. Kelyng 24. 81, 3S, Leach O.i, 231, 2G6. 335, 213. Jtfr. Potter, for the prisoner, e contra, insisted, tliat a felony could not he gi-nunded on a delivery by iho ow nei- to the liorro\\er. hut it must be a taking wiiliout the consent ol' t!ie nvxner. He cited 4 Bl. Com. 230, I H. H. P. C. f>n4, jOG, 50r. And with respect to ihi»^ poii't, tliere was some difTerence ijC npinion in the Court and in their charges, .lodge Malay seemed to iiulim that it was f.'luny. Judge Haywooii, that it was not.' And the Jury luu'id a special \ertlicl as lollows : " "I'hc . juior.s iiovN Kore sworn, Ujion liieir oath say. that (kti lhU| sixih day ot !)• leoiher. in the >eaf of our Lord, iTOi^ in the county if Uanilolph, in this district, Samuel Parln sen. Was in possi -^-.lon of the mate in the indicinienl mciif' tioiied, as of his proper goods and ch.ittel.s ; and that'ot^'' that day the aloiesaid Brnnjield Long, in the s:)i(l indict*^; iiioiit mentioii''il,,di(l hoiiuw the aloresaid mare of ili^ said Hamucl Parks, to ride to the house of Ju//n CaiidL Jiving in tlie aforesaid comity of Uandoljiii. alnoif loij miles from the house of the said Parks, :u d ilial he. SMii Jirojiifield Long, was toJiavu returned (he mare tl HAYWOOD'S REPOWTS. irs tlio said Samuel Purks, aftrr riding lier tliitliei-; and the Apr. 1795. juro's aforesaid fiittlier flii(i, that the said BromJieUl ^■-''^'"^^ Long did ^it tlie said mare into his possesi-ion hy the meatis .ifmesaid, and did lide her tc» Ihi- house nf ihesaid Candles, and that he di the' sail! Parks, but to sell and dispose of iier as aforesaid ; Luf wliethtr upon the facts aforesaid found, tlie said Bromfcld Long he guilty of the felony stated in tlie in- dictment, the jurors aforesaid now here swoi'ii arc alto- getiier ignorant, and pray ihe achice of the ('oui't here tiiei'enp(Mi ; and if the Court shall he of opinion, upon llie facts above stated, tliat the said liruinjield Long is guilty of the said felony, then the said jurors do find him guilty ill the mannei- and form as stated in the indict- ment ; hut if upon the aforesaid fads above stated, thi; Court liere shall be of opinion that he is not guilty, thcM the jury say that he is not guilty." This special verdict afterwards in this term Was ar- gued by J\Jr. Jones, for the Stale, and Jtlr. Potter, for the prisoner. Jlr Jones cited the same cases as before. — lie observed, that one of the Caiirt in giving.the ciiarge, had. stated to the jury, that the atiiliorilii s wliirh went to implicate the prisoner in the guilt of felony, were mo— dcrii cases ; that the eldest of them w.m in 1775, and that many of them were since the revolution in tiiisroiui- ti;y ; that all tlie ca^'s previous to thr.se cited from Leach, were the other way ; and that in these cases the Court liad gradually dcjiarted irom the ancieni law, and the law itst If had thcrehy gradually become more and more severe, and this was owing to the circumstances of the cunntry in which tliey were adjudged, the lower classes of the people iliere having none, or but litile jiroperty, nd being numerous; the higher orders on the other hand being rich, baving preponderating influence ii5 th** 180 haywood's heports. Apr. IWS.govei'iimont, and rcgaidlciss of the oflicr ordrip, liad pix- ^"'"''"'^^ vailed in extending ilic sec urity of tlie law fir (lie pro- tection of proppity ; fliat pi'iliaps also, property in that country being of rnoie dilUculi proti'rtion, in proporiion (o tiiP poverty and the nunibei- of the pour, was one rea- son that liad its influence in efTiTtinc: these changes ; and that as the same circumstances do not exist here, there is no necessity Yor the sanie rigour; and that tlie old law, as laid down in Hale and tiie other books cited for the prisoner, ouglit to he adhered to — as to which re- marks, he said he wouhl obsei-ve, that these new cases arc not intr'oductive of any new law, or atiy altei'alion of tlic old, tiiey only ascertain with more precision v\hat the old law really was, and that one of the cases atiduced to establisli the doctrine he contended for on the part of (i^'^) the Stale, was cited from ICdtjng, in the time of Charles the second, 81, and was founded on a decision in the time of Edward the third; and as to the conclusions drawn . from the comparative ciicnnistanci's of England and this country, if there were (ewer temptations to commit fi'ands here than Iher-c wei'c tjierc, iher<' was more turpi- tude in committing thi'in hci'e than ther'c, and of course the crime siiould he treated with more severity here. — He concluded with praying judgment of death against the prisoner. The Court thought, as there was a division in the opinion of the Judges now present, it was proper that this special verdict should undergo the considii'atiou of all the Judges : tjiey lh(^re(■^)re ordered the prisoner to be recommitted, and that the Clerk of this Couit trans- Hiit a copy of the special verdi( t to each of tlie Judges ) of this State ; and that they be rt-quesied to relurn their | opinions to this Court at the next tei ni. At the next term, October, 1795, tlie opinion of alltlio. Judges was had on this special verdict ; the Judges Ashe and Macay were of opinion it was felony ; Wit- XIAM9 and Haywood that it was not ; and the prisoner was recommended to mercy, and obtained his pardon. NoTK. — The criminal codr above all otIierB sliouM U-ave iiotliiri(r to ihe discretion of the Court or jury, but should be reRulated «3 fur us the nature of things will adniii, by certain and fixed nil-:, nut dilli- cult to be understood, ami incaoai)le of belnp constmed b\V:iy. The rule laid down in C'Jce, Hale, Hawkins, and Blucksionc, that th. re mu«t be a taking invito domino; and thai tlurc can be no felony wilhoul a trespass, is a (iljin rule cumprehcnsibli by every capacit), and in its nature not easy to be misconstrued — it leaves no latitude t.i the Judge, nor any to the jury. The plain enquiry is, n 'ortions tskinjf — bnt Haywood's ueports. 181 should the question be, did he borrow or hire with an inient to slcal } Apr. ]"95. That being- an act of the mind, and to be d'scnv* red by rirciiin>l:ir'. s,.«<~y~^> ces onlv, I'-aves Ihc f:ite of the pris(inei' en'irely in the discretion of the (;ourt and jury. I'l ihe case of n n):in of g-ood chiiiMcter, or one they wen- inclined to (Kvor, a boiro'.vinff and sellin.i^ afterwards as his own, might easily be di-em^d innoc-nt, or at least exciis.ible — he might b. siipposeil to do it, with a (ksijjn lo n ake a trood b .r;rain for the owner, and to defiver tlie money to hini; or from ronfiilence of his assent to the art when made arqiiainted,i r were he acrjnanitecl with the CTCumstances which d.iermined tie co:iduct of the borrow- er ;nd the like; when before the V^ain." Court and jnry, another of i but indifti-rent character, or where lliey were not disposed to favor, for borrowintr anrl then sellini;, <:r (or brrrowlnp; and not reluinin.c:, mipht be sentenced to d. alb ; whi'-li difTen^nce of decision would be owinij 1(1 no uliier circuir.siance, but t'i:.l of the discrttion exercised .by thr; Cour; and .jnry. IJnt this diserition drawintf tlie hvi-s if men into its voitcN, can never liave pbni- if the old rule le adiicrod to. The I'ldc contended for on the part of the Stati.-, v. :,ts an arbitrary power over the lives of tin; ci'i/.ens in the C'.url and jurv-^-. power that ou:.;lit not to be vesli^d any where — which it m Hi: the honor of the Court t> disown ; and v. hirji, in wii.il' ver fovm or sliape it may ft-o\ endeavour to insimi.-rte itself, sh-uld forever I'C rejirted W'th manly V.^''°J firmness by the Jildt^es of a free country. The disjr. t on of the Court is the ninrtal ei.emy of all satVty ind security to individuils.— It is t' e engine that all p^nvernmei.ts protcs \\g to he regulated by laws, have u-.s, and the dif- ficulty theie is in prevesiiinjj them ; but v/it)i rcsonable care in the owner, an oflence of this V;iiid can never happm — let him iii4 lend his proper!) to a man he doe;', nut know, or in whom he c tmot s:if;ly confide, itnd he will never be deceived in this nianiirr ; but if he will lend il to a stranffer he does rot know, and tl at strnn^er deceives liim, he should blame his own iinpnidence — he has contributed toli'ie deception himself, and he has no rij^lit ta expect t!.e liw to animad- vert with the same severity on the conduct of tiie dccelvei', as If him- self Inad beenperfectly passive. The man who has not trii>ted his prop' riy into precirious hands, and who i.]i)C:i what is usual to secure it, and yet has it invaded by a takin.i; awny without bis consent, is surely more to be rejjarded, than (iie man who has lent it. In the one case the owner contributes in no shape to the oilence, in Ihe other it could never have been committed had not ilie owner put it in the power of the prisoner lo commit il ; and .surely in point ot reason and Rood sense, there is amply uiillcieiit to warrant tlie distinctior\ made in the old cases. 1 did s.iy to Hie jury, and [ believe still, that the mi'dern cases cited on (lie p.Hit ot tlie State, have jirown gradual- ly into still greater and griatcr severity, owinj^ lo the circunist-tnceti •if England and the British people at the tiines when they look place. Ill every coiintry as wealth accumulate^ poveily a!s,> increases, si, II forming a wider separation and (jrealer distance between the difleriiil classes ; and (he natural consequence of this evt.ry where is, that ilie hand of government clinches the sword of ven..;eance against the vio. Itttion of the rii^his of projierly W:tli the strunijer. grasp, and .stiikes with the less compassion ; and it isob\ioiislj rciiiarki.ble, that e.aclt of the succeeding cases of those cited, has jjone still furllier and wi» der of the ol.i rule than the former i so much so, that if the latter of llrem should be presented as a proposition, wil'!';':t tiic fVrmer, to fa. 482 ifAYWUOD's REPUlitS. Apr. ir95. miliarize (lie wiml and prepare it for the receplion of the luttvr, wo- >.^^v^»/ shonld bp stuiiK'il and l'*ject it without hesiLi'lnn— such fur instance ' as lii.it where a ift ui hirtU a pnst-cliaisr, and not relinninfj it. «:ii la. ken up a year afterwards, ami convicted I'f f'p'ony. This at fir?t view wonlrl appear hnrrihv — h(i\v mmy circinisinMccs mi|;ht havr ncciii'- ved to pr vent the return within ih;it time — the viry neijl'5''"ce aid idl. dsposilioi of lilt man mijjht have- caused hi- U. day. The d' - parHiri' tiom the old rule «hen lirst mtde, s: ■ mt-d to cnme sonearil, that tlie dc'parluro did not strilii- tlir- mind with much fiTce — the m-x' departure came so near tlie last precedent, that lliat was not nuu'li remarkable, until at lenjjth tl c old rule heconi' s < nlirely laid asiile, and I lie m idem authorities boldly iirmi'innc d t ihe atlrmpO of evil meii, .^1 d there is no helper at h iid to pritecf them -this is the priifjrtss (fa depariure fro n mcient wi !! istihlished nih s. The smullrsi reflection upon it is sufli'-ient to convince us In.w dan^^eroUH an experiment it is, either to abandon ihtm, or to extend i hem by ' construcl;on to cases not maniftstiv and obvoiisly within them. This is tile onK cperalion the cases cited have upon my mind, and they confirm nie in the opinion tiial tlio old rule s'lould be m st s.crcdiy reKard d. If «c once bepin to dep .rt IVoni it, «k- shall gradual!) in- clude in the definition of filon'ons slealin:,', acts that ari- at present deemtd very (iir from itscomiir.liension, until at length perhaps, tlic , » boundaries between fraud and felnny, sha'l be no loni.^er discernable ; l59J and the lives of many citiz ns sacriiiced inipro.^cily, bet'ine the law c;.n be again brou ht hack to it- ancient simpliciiv and certainty. It is true the case ii Ktluu^, p. 81, does i.ccud wi'.h the cases \nLrae.h; but tiie case in Kelvng is but his own exira jndici d opinion ; and that opinion loo apansi an adJM(:;;ed Ciis;- lepurt-d by liinis If in pat;' 21; in which litter case, he himself and two oHier Jud);es concurred — This opinion of his si en.s not at all to iiave ben ii'jticed as law, or as ore:ilinf; » dount with respect to ihe law in subsequent author- ; and therefore there is a 'Undant reason to Meal ii at this day, as tiie sidi- tiry efFusi.n of his imaginarnni ; he h-msclf in his judiri d ca|iacily has con'lradicled it, tmd all fullottinp aulhors of any celebri'v, have passed it by in sdence. Note. — Vide VoJJ v. Hamilton d Hamilion, ./V. C. Term Rep. 31. Riiberf.soti V. SliiHft. .\ slave wrongfully taken out of the pDSsession of A, and sold to 0, and while in the possi-ssion of B, sold ijy A to C, may be recovered by C, in a suit brought in Ins own name. TIlis was ail Hctiini bioiigiit fur the rerovory of a ne- gro btiy. It miiicaicd ii|h)|i cviili-nco. tliat olil Jf'illiam iitone Wiis llic owner ol tlii" buy. HtitJ fhiit bis si»ti Juhn Stone being iibiiiii to iiwive to Soiilb-Cirolinn, bud t;i>tti*ti till Uity jiiti) hi • |i'issi'S^iiiii ; nnd that be sold liiin us bis pioperty lo tin- lici'i nd.inl ; itiid thiit the Dt'lendaiit had rclainod the pnssi-.s.sion tif hint as bis (iwi» c\»t since: thai after the sale, and whilst Sliiarl had bim in jiosses- aLun, the old niHti demanded iiiiUi and (Jicii sold him by a IIAYWOOU'S REPORTS. 18tJ l)ill of sale oxcrtitpcl Ut Robei'lfton ; that tlien EnJcWsnn Apr. 1795. iIcdiuimIi'iI till- buy of the DcfiKlaiii, aiul siiuii afffi- '-^'"^'*«^ lji'ou_;;lit liiis sjiit ill his own iiiunc. Tin- cxri'ijt.lun tukcn at llic ifial, and lifierwai'dH i" aijcsi of Jiul.u;mi'iit, was ifiat tills iicqi-o whtii '•old l)j llic old man to tin- Plaiii- liflT, wa-i a cliLse in aciion, and noi Jfaiisfi'i'alMO ; and lliat tlic-rci'in- Ituherlxon cniM not i;iainiiiin (iiis action in liis o«n nami'. .Vc. WInjte citi'd for tlio Defendant Com. Di^. Virbo. Msignmeut, ami 1 Dae. Jib. 157. and (Jo. Lit. 211, a. SGG. a. General Davie, for the PUiniiiT, contt'odcd tiial Ui'" lu't^ro in (|iioH(ioti was tiol a I'liose, in action, for a cliosc in action iiirans oi;ly a thinu; or sub- ject of dis|)ii(r. so sittiad d iliat thr pcf-on enniled has no oilier means of olitiiiiiins^' the jiOsscs'-ion but by an action at law, and excludes ihe idea of rccjuition, or t»elting a lawful possession by liie mt of takinf; it \Mtii suit at law : this (iefniitioti will not apjily to cases of speeifu* jirojierly, in wliicli the owner is not abs>7ji/ie, %vas ado]>tcd in Knsilaiid in very ancient limes, when the Lords were rich :.i.d piiw- ei'ful, and the other orders of men pool' and indigent, be- fore the dilfusioii of |»i*opi'rtj introduced by cominercCt and at a time whrn it mighi leasonably be appnheiidcd, that the influence of a powerful Baron, being an as- 'sigiiee, might ho tis weighty fi^r a pour D«f«odaiit, »v«» 1S4 Haywood's kkvorts. Apr. 1795. tlioutjli he nil.«;)it li.ivc justice on tiis siflc; but since the ^^^'^--z circuinstiuircs I'f thi' people have been ampliorated by an iiifiii.x (iT wealtli, aiiii a r(iiiscr|iiciit i-quality i.f fortuiies ami (if \veic;lit in tlic (jiivprnnicnt. the iiitliifiic c of the no- bles liaili giatliially (Icciined in Eii};lancl, until it is liow no longer an object (if legal jeabnisy, and the rnle against !!ie assignment oi' rlmses in acli(ni hath been gradually I'elaxcd and fuund to be of lc;is use, until it has come to he tliouglit not only useless but inconvenient. In this couiitty, these ciicnnistances whicii gave biitli to the rule have never existed, miicji less can they be said to exist at this time, \viien tlieec is a jiei feet equality amongst , the citizens of tlie country in respect of their legal ad- vantages. There is even less reason for the rule here tiiaii in England at this day, and ihercf'ore beside (he point (hat the negi'o in dispute did not agree witli the (lefinilion rif a chose in aciion, he said it migiiT be very justly doubted wiiether the rule itself was surb an one as our law would [Tcognize. He argued further, that the circumstances of the ancient villains in gross in Eng- land, and of our slaves, were similar in most respects ; and tiiat in tliu limes of villainage in England, a man could not in law be disseised or dispossessed of bis vil- lain in gross. Co. Lit, 306, 307, Lit. s. 541. In those books it is laid down, that a man may be dispossessed of bis ward, but not of his villain in gioss. And the action lie nntivo habeiulo used for the recovery of villains, wa? very siniilar in its piinciples to the action of detiinie (161) that we use for the recovery (if slaves. And if in Eng- land a man could not be said to be dispossessed of bis villain, tlic same ought certainly to be th& case with a slave here. And the dwut-r cannot be legally said to be dispossessed of bis slaxe, then it will follow (hat al- tliougii at the time of this Siile to the plaiutif)', the' defen- dant had actually liic possession of the negro, yet tiie le- gal possession was in Stone, and so the negro rn)t a' chose in action, e\en according to the idea entertained' of it by the delcudant's counsel. Tiiis distinction i^ founded in nalurc, and the dinVrencc between tliis spt • cies of property, and every (ither kind know/i to the ava- rice of men. A flock of sheep or a limse is a passive aubject, the arbilr.iry will of ihe possessor designates il.s condition absolutely, eiiher as the properly of another, or his own. But aslaic is a ralinna! creature, posses- scil of a will capable of directing his actions, and the haywoou's reports. 185 law will not leave it in his power t'l chanaje the absolute Apr. 1795. pro|ieriy of lii'< owier iiKO a niBi'c lisht nf ai'tion wiieri- v^-v^^ ever lie j)! 'Hsfs, liy induing away an , p' Com. Di^, Slates a lease of Hlirc|) fur- two >e,ir>, and a Sale of the lessor du iiig these two yeu-s, and hild ill. In that case, ihc 'cndie of the sheej) nf'er I In W'> yars 'night ha»e (aken them, jet were they lield io b> chases in ac- tion Co. Lit. 2;4, a. states a rijjhi of entry into lands, and says ii cannot be assigned ; and io that case, the person having a rigit to enter need not firing his artioti, he may take |iossession when he pleases, withm? the im- nie.lia e assistance of c!ie law. Ah to the rule iis^ If. (he objrct of it is to repress litigionsness, and that is as »ie- cessary here as in Engiand. ur at'y where else. As to the anfhiirilies relative to ilie villein in gross, he was not appriz-d of iheir being inteniied lobe prodni'ed, and was therefore not prip:tred to answer flieni ; bnf it seemed to him, that the ras. s of lilleios in gro^s in Et«^l;!iid an- cieiiily, and of the slaves of this conntry. wrvt-^ widely diflVrent. A villein in gros was an inherit.iufe, and passed hy deed, and the action lo r'Cover him was a writ of right, or a vx i-it de nativo habeiido. And the rea- son why a man cnild not ehcr m - ippo-.e hini-.elf dis- seised of a villein in gros-.. perh .p-. might be oung to tliis, that he was not aliiwed to bi'iig an .issize or writ of entry for a villein in .-.r' ss ; hut must betake himself to the writ de nniivo habcndo, mid ni' le especirifl\ i^s in the case of a ward, viiei: uie Wrtrt .)i? d'Ssei--(l cr 'ii>ipos«es-ed of m incorporeal heredila...' m. Salk. 666. Co. LitI 32. And sucli wa<^ a villein in grog's Co Litt, 121 Gilh. on Ten. 74, 7S. Co. Lilt. 306, 6. But the naiivo liabendo ■■'T • 'e- iiihlancf lo the writ of detinut , though ii h( comesiibh' liv the vilUm him- self, by : 1- i.-MviM(r ii,s villein .ge. F. N. B. 190, 186. And the aim of the nallvo hdbendo is asfamst no one but the villein himself, not against any iln.il P' ^u , in whone serve, or actual possession he may b •. F. N. B. 191. Sa//ji'a«317, 319. For tuis latter purpose, other writs, coiibidenng the vilKin as an incorporeal hereditament, were used. Noxr. Vide Morgan \. Bradley, 3 ffawhs 559. Uttdmany liiddieh ^ Uuwka i9, which latter case seems contra. In Equity. The Court adopted this rule, where an injunction, bill and answei' ha\e been read, and the injiinciioii dissolved, and no reitlication nor commissions within two terms after, the bill shall be dismissed for want of prosecntiun j andariordiiigl}. many iiijunnion Uill'^ were dismissed at this term foi- waul of |iruserution upon the above rule. Also in a case before the (>onn. where ilie comidain- ^ ^ ant had died, ii was said li\ .Vr. .Moore, and conceded per curium, that since the act of 1786. if theconijilainant dies, the defendant is not thereby out of Court, oi the suit ab'ited ; but it is continued in Court for two terms next followitig, by the force of that act ; and at ciUier of these two III xt teiins, complainant's repriscniati.es may come into Court, and move to be mad" parlii s, and be ad- mitted parlies on record to cwry on tbesnit.: and within Haywood's ueports, 1S7 these two terms, tliere i- no ii«c-ssii.v for a bill of revi- Apr. 1795 •oor — but if the party applying is not the le^iil represen- ^-^"■^'^^^ talive entitled to carry on tho suit. Iiis .ippliijiiion may be contmverteil liy the other p;>r y. and drawn into tlie judgment (if the Court by plea, as well as il ''lete was a bill of re-ciro?-. And the Court seemi d to incline, that if the interest of the roniplainant had g'me bj devise or will, or other legal transfer, to any otlp . p i --on than to liim w ho is constituted by law, that then sm 1. person must state thnt circumstance to the Court in a bill to be brought for tlie purpnse. SoTz.— Vide Mery\.£ranclh post o69. Anonymous, post 4S1. DaU;.- xg,t V. 2 Hay. 296. Mann Patterson v. Mark Patterson, et. al. Tenant ill tail in remainder, is entitleft, unler the act of 178i, \-, the fee. Quere, by HayTuooJ. Complainant's grandfather, by deed duly executed and registered in proper time, conveyed to Complainant's fa- tiier, a tract of land of six hundred arid i'.irty acr^ s, tt>- him and tiie heirs of his b^idy. reserving lo hiinseif, the grandfather, a life-estate therein. He coutinueil in pos- session of tiie laml and ofthe dred till his deatli. which happened in 178G ; and the bill stated that Mark I'at- , terson, his executor, liad taken possession of this deed amongst the other papers found at the old man's death, and had suppresed it. The hill was take liim and the Leirs of his body. The act of 1784 declares, that all persons who, at the time uf p:issing this act, were seised or possessed in general or special tail, should he held and deemed to have a fee ; but in this (a«e, the donor -was seised of a life-estate in tin- lands at the time of pass- ing that act, and tlie doubt was, Mhethcr (he remainder man could be said to be seised ofthe estate tail at that time; this remainder was vested, and h.td it depended upon a particular estate fur years, the freehold would (lfl4} Itiive passed at the time of iivcry and seisin, or what in 188 «AYWOOD> REPORTS. Apr. 1795. this couHtry is eqiii\Hlitit HipppIo. mnde to thft tenner, •^^'""^ siiid fl'cii (he remiumler m.iii would have heeii sctHcd in tail ; hut in thi>4 rasf, the free hold liMviriir not been passed to him, but rcmainintr iii tiie ttnaiit for life, it seemed to some of the Co'ir', that the donee was not si'ived in tail as the art requires, and then thi' estate tail was not ron- veited into ^t fee by the operaiion of that art : but the other Jnd_e;e beinaj very rLar, not withsiandiii(» this doubt* that the ar lile, and the law allows of the same thing tor the ronvenieuce of families in execu- tory de\ises; antl the same roiitenience may justify such a construciion of the act — to thai de_^ree, that if in the case supposed, the first remainder man had died without issue, in the lifetime of tenant for life, the land micht have gone over aceording to the limitation of ihe donur, and the second remainder man have becnme seised in fee, by \Jrine of ilie art. Whether it \va« not the intention of the L> Ki^'i^t*"^ to leate such a power of disposal in the ownei - of fee-simple lands, iii perhaps worthy of some enquiry. NoTv. — In the above sl»temen' of this ca«i-, there seems lo be some circunitami! omitted, as the (!<•. <\ was rejii-tercd 'liere w u no :tbso. lute lie ' ssity lor « deer i . Tlit- r. porter li;i'ks 'lie met B it) fiir a dicr e »H>' rc'-:isil flu- Defendants, liii'l died, lea\ing Me, De- fendant, Srrivgton. I is exerntor ; that lie had gotten possession of tlie riejrro ai'd detained him ; that tlie Com- plainant, in 'lie name of ih' teiiie anei- hiisliand, liad brought detinue againt tln' Db • have recei\ed value, aiid tlie De- fendant who kni>ws the> have. This wmld be a fraud in the very fice of the rules of a Court of E'|uity on the subject of assignmeiits. The Coiirf tlieM-fire were ot . opii'iou, the hill was pi'0|ter, and ought to be ans. ered, and overiuied llietiemuiiet, and ordered the Defendants ■to answer i. "G 19U uaywood's rbpokts. Apr. 1795. 'flic Executors of t. SHmuel Oldliam. Wliere an executor declares as executor, tliere he nthkes f>ri>fert of his letters ti--.tamcntary, and they are (o :« "iijectcd lo in pleading upon oyer of I hem, or by demurrer, if any df.cl appears in the declxl-alion ; and ..tier th.- first t. rni, fSey net-il not be produced again. But, whir.- an cxecui'ii tliclftrts upon his own posse.ssion, the fact of executii'.sliip forms |):\it of h'Stnl , «nil nnist be proved upon the trial liy the production of the loiters irslameniary them- selves i unless they have been lost, when, perhsps, other prool of executorship will be admitted. Detinue for iipgrnes in the Plaititiff's own |)os>e»sion. Tiie PlrtiiitifTprtveil tlie wenrh I'roin whom tliese negroes were (Icscendeil, to have hern 'he |ir defen- dant pleads in cliief, or any plea p.isterior in point of or- der to ilicse, tlial question the plaintiff's right to sue— then the letters are admitted, and 4he Plaintiff at tbeepd havwood's reports. 491 of the term, may taki- tliem out of Court, and necH not Apr. 1795. produce tliein any njitrc. But wIumc tlic executnrtle.- ^•^'~-'''>»^ cliircs upoti liis ()v\n possession, and oot as exi-cutor, tlion lu- ilocs not make a prolcit of the Ict'crs tcslamen- > tary in his ilerlaration, and the DeiViiiIanf cannot ci-ave oyer and tai^c advanfaqc ol'lhi'in, or foi- the not pi-oduc- ing them hefore he pleads, as in the othei cases — and therefore, i;i this latter case, the I'l.iintifr in-ist shew his right to recover on the trial, and this he cannot (!■> hut by shewing 'he |iro|ierty to he in liinias executor ; proof of which nuist be made by shewing the lc!t<"s, and rheii the Defendant may cnntest them, not havi'ig li'-forc ad- niiitil them hy pl.-ndiii;;; wid for this 'he Coin*' cited Butler 48. ^246. i08. ZJ^els. M. 626. Hib 38,218. S^nf/x. 37, 38.— .Vr, miliams, for the Plaint tf, 'hen of- fered a cojiv of the testator's will, aftest"d b.v thi- Clerk of the proper county, and liis clerksliiji rciftilarly certi- fied by -tiie |)resiiling Justice, under the title of Chief Justice of that Court; and at ilie end of this cupy, it was also cenihed, that the PlaintitT had t;iven bond according to law, and taken t)ie oath, and dad a certificate for ob- taining the iirohaie in due form, but she had not any let- ters (estamentary to prodnce ; iind h'/ insisted he had sufficiently jiiovcn the executorship of ;'ie Plaintiff, the oo|»y of the will shewing slie was appointed executrix, and the Clerk's certificate shewing tihe had taken ui)On herself tiie execution thereof; and that it was not the practice eiliier in Virgitiia or in Ibis State, actually to take our letti-rs testaim-ntary ; and even in England, C''^^.' where they are taken out, the exi'cutorsliij) ma.> 'ir pra- \en by a copy of ttie will and piohate. Duller 247, or the probate in the Regi^iter's book. lhdlerQ.45, 246. But per curiam, it is a mistake to say. that letter- iestainen- tary arc not taken oni in this Slate and Virginia ; they arc often taken out wlu'o suits are to be commenced out of the state e intermediate acts., to lie (juesiioned, and all furtlicr progress slopped. If the executor could prove the letters to be lost, tlien per- haps iic might bu admitted to a proof of the execnturship t§2 haywood's REPoar^. Apr. 1795 by a probate or copy, or if the exerntorship were to be '"^"■'"^m' pro^^'n b> a iliiid imtsoii, thi-n |ierti;ips siifb praof ini,^bt be allow iltle ; or, under sune circiiinitanci's, evi'ii proof less Siitisfarropy. And this fcfoiirijes the cases cited froin BiiUer 245, 2+6, and is proven to be the true doc- trine by the pass vs^e in the saim- book 108, where he rites 1 Liv. 25. Cro. Eliz. 1 3, and the case of Lewis 4" Brag, Mich 1 6. Geo. 2. Theiefore the proof offt-red in the pre- sent case is nor sufficient, and she must produce tne let- ters, unless she ran prove tliem lost or de»troyed by ac- cident. Mr. IViUiams then saying be could not maks such proof, the Conct recommended ihc witlxlrawiiig a juror ; and a, juror was withdr.iwn b* consent. NoTB. — Vide Berry's adm'rs. v. Pultiam, ante 16. Patterson ef «i. lejjatees of Patterson, deceased v. Mark Patterson and Scllaes, Defendants. A person made h party defendant m :i bill, who is not coinpel'able to answer, and against whom no relief is sought, may have the bill dismissed as to liim, Tlie bill stated a will made by the deceased, contain- ing dispositions rif ih- testalof's proper-ty, which went to th' Defendant, Mark Pa'terson, or at^least a conside- rable pai-i thi-i'eof. in f; a criminal prosecution, and that he was therefore not hound to answer, and there was no relief prayed in the bill as lo him. ('jgg\ I was ae.nui'd at tin- i)ae. thou.sjii it miglit be true, that he was not compellab!" •© answer, toat was nrt peoof but that he mig'>t be continued in Court — for if ihe Ctiin- plainant C'lolii prove toe t harge, he mi.;;ht have a deci'ec agaiiisl Sellars, noiwitlistanling he was not obliged to answer ; and for this was citeti MUford 64, 65. 2 Ve&. i4(). E contra, it was argued, tint it w.is admiltid he conid not be compelled to answer, and that as tlie bill prated no relief against him, there could be no reason for ketping him any longer in Court. Per curiam. — It seems a little contradictttry, that this oian might he compelled in a Ginir^ '>f Law to answe;- Haywood's REPOKte. 193 this charge upon (latli, ns he ini,;^ht bf by 1777, c. 2, s. 62. Apr. 1795. and iliiii .» Court nf Equity sliDiild not Iihm- as lar.f;e a '-^"^''^"^ powi'i- for till' dincovi-i'y of siii'h a fraiid ; but svitli some reluctance the Court allowed the demuncr, and dis- missed the bill as to Sellars — foi' no relief being |irayed in the lilll against luoi, and he not being coni|)eliabIe to make a discovery, it was uselcs to keep him longer in Coni't. Cooke V. Little & another, sureties on ati aiipcal bond, for Wiiiiney. Suit in the County Court, and judgmput for Plnintiff ; appeal by De- fendant ti> liie Sup.-nor Court, with A, :.i>il B, secuiities to the ap- peal boiv'l ; iiefore judgment in the Superior Court, the hail below surreudiTLfl IIk Defendant, and he w:is coimiiited ; afn-r judgment in the Superior (;ouri, the Defendant iieing gone, set. /«. issued to the sureli-s in ihe appe I bond, uul it was iuM, thai the suirender by the bail did not discharge ihem. "" The Plaintiff had sncil JVIdtneij in the •County Court, where he had given hail. Upun the tiial o( the cause there, the Plaintiff obtained a ve.rdiet, and fFhitnetj up. penltMJ, and ga\e an appeal bond as tne law direrts, wiili the present Defindiinis liis securities. Th" cause Was removed to the Su(K'rioi Couri, aiid eniend upon the docket of that court; and in^nding the action herCj and befoie Judgment, the bail below surren.lei id fVhit- ney in this ctmrt, and he was cominitled to jail. After- Wards, the Plaintiff olitaiind'a xerdici and Judi^ment here also, and fVkitrxy being gone, the Plaintiff took out a sd.fu. against the UeleiKlaots, to suhjtct ihein to the payment of the moniy. The Uefendanis (jle;.ded iht sur- rentl r of Wliitney by the bail, and his coinmitment to jail then upon. The Plaintiff ileuiurred ; and now the demurrer was ars^u-d by Moore, for the Defendant, and Davie, for the Plaintiffs. The reason why this cause had been brought before the court by sci. fa. and plead- ing thereto. Was, bii anse a motion had been made at a former term in behalf of the PUmliff, for leave to enter up judgmen I, i»is<«/i/er, pursuant io the act of 1785. c. 2. s. 2, which directs that " bonds taken for iiro-eciiMonof apjieals with effd i, shall hereaftei make pari of the re- cords sent >'[) 'n the Superior Court; on w idijudgmcnt may be insluiiUr entered up against the app.'llrtiit and his setMiiiiies;" which motion was then refused, andihe (1^*) Plaintiff directed to take out a sd. fa. The cause was 35 194 Haywood's repohts, Apr. ir95. now vpi'y wcU aijjnpd on Jiolli sides ; the ar.fiftitaent is *"'''*''^^ lu-n- on)if'o(], lesi sorrip material part sliould br I'o'j^ot- trn, it Ix'iiij: <<••> ioii£fthy >,u l»'4h sides. Et jier curium. — The act of 1777, c. 2. s. 76, directs bail to be ,i;i\en at the coiniiienci'intint oF a suit in the Count) Court, and hIsii lii.tt sncli bail may surrender tiie ])i inripal in disciiargc nl" Iheinsfhcs at any time be- fore fiiiKl jnflsment obtained :i,fi;ainst tliein. s. 20. It al- lows eiihef p ii-t> an appeal to tbis contt. s. 82. but I'C- rjuires the ap|i<-ilant to Rive bond, willi sufficient sure- ties, tor tlx' |)riise(iiiion of suih appeal wilb liicli is a proof that the J><>(<;islHtnre did not intend that they should be discharge- able by means of a surrender. Had this been their ineaninj;, tliey certainly would have declared it, as Ihcy had (lie subject of vurrender under their consideration; and marie provision for it in certain cases in tliis very act. The act probabl} goes u|)oii this reason, that the I'iainlilf having h} a suit at law, and verdict in his fa- vor, ostabiisiied the probable justice of his demand, the Defendant ouulit tiien to be held tjrct«'il b) tli.>t aci to tiic Comitj ('oiiit jiii isM api)e.il hotida by the appellee, when it siionld be necessary to proceed upon them, whether by a new action of iettt, by sci.fa. by a motion in court for judgment, or ho»v otherwise; and of course doubts were entertained u(iom that point. The act of 1777 imiiosed no penally by way of restriction upon vexations and unjust appeals, priyed simietiinesfoi" the mere purpose of delay, at others for the purjiose of gratifying a litigious dis|iosition. All these omissions are supplied by the act of 1785, appeal bonds by that act arc to be a pai't of the record transmitted to the Supe- rior Coiii't; the appellee may enter jndgaii tit upon them instanler, by motion to the court ; and if tlie judgment below be aftirmed, the appellant shall pay interest at the 496 Haywood's reports. Apr l^SS. pj,(g of twelve and a half per cent, for his drlay. And if ^^""'^^^ tlip urt of 1785 i-i'lates lo a|i|)r-,ilH iienerally. flip -.irgu- 1.1^1) meiits biiilr upn'" tWr ronirtry piwifion mii ji.fa. asrainst tlie snrciirs after this. None nf these stutements are just — lie w as not, nor roiild Itc cnm- mittcd in exerutioti, bocanse at the time of the surreiider thei-e was no j(td_e;nieiit atjainst hini : but suppose liiinto have been romniittcd in exerutioti, it will not follow that that i.pcrates as a disrharj^e of his suiefies, nriy more thai, in the case where there ai'e llii'ee ohlijrors to a bond» and one is taken and iu'piisoned in px<'''ui-hail he in execution — f(n the Plain- tiff, e»en npcm a surrender after judgment, unless the Plaintiff rhuses Ihat he shill be so; which i lioice must be manifested by a prayer on record. And if he be im- prisoned n|)on a surrender, for instance to the Sheriff out "f court, the court will releuse him from his impri- sonment after Judgment, unless the Plaintiff, in a rea- sonablr time, apply to charge him in execution. But U|ion iiiis l^st p^tint, though the court seemed to be very clear, Mr. Moore still thought the law was otherwise, and ,'ie^sed {I'v furliier time t' argue it ; which was al- lowed hill) by the (ouri. and the argument did not again come on during this term. uavwood's heports. 197 Apr 179S Anonymous. >.-*~v>^ An tppellep may movp for an xffirmanceof the jndprnent with doiihle cos.s, tiUii I- at v|), firsi o am oilier Icvm .t't-i- Hie ;.|i[)i.'a1. Ptr Macay, liidgt" Uui Hatwdod, Judge. pre him-^elf foi' the trial, or if not filed, then to procure fniin the Clerk of the Countj Court a transcript of the record, and there- upon move for the affirmaiK <• ; but if the first term of the Superioi- Court passes without any such motion fop the affitmance, and without piit'ing the cause on the re- cords of this court, and continoitig it to the next term, the parties arc both tnit of court; and one of (iiwn can- not move againt the other, withoui britiL'iiig him into court again by s(Mne new process. 7 Rep. .'lO a. It tvould bepiuiluctive of great mischief, could the appellee (173) IDS HAYWOOD'S REPaUVS. \pr 1735. at any »li3tance of tinip, in the absence of tlu* iipprllant, -'"'^'^^ lip at librrty to take a jnd.qniont H£r-.iinst liiin npon a mere motion to the cdnrt. By such means a jti(l:;nient ini2;ht be entered against a man, (ip)n an old dormant County Court \erdii-t, after he had moved ciiit of the ronntry, and )»eriiaps HatisTnii the (h'inand; or wlieii the I'iaintifl" had disrovercd his evidence «eielo'i'evaiied, lliat it in reptignant to an nniiersal principle of Ihw and Justice, that no man shall be con- demned ex parte or nnheard, as well as to the true mean- ing of tliC act — theiefr>re I cannot yield my consent to. the motion; bnt I am willin,:^ \ou Khmild take a middle way — you may ,e;ive noti'-er to tlie appellaol of the in- tended morion for aflirmance to he made at the m-xt term ; and at the next term piovo ihf seivici- of 'his no- tice by affidavit fih-d in court, and thi-ii renew jtour mo- tion, and the court will then consider it — )ou may have a rule entered lor tliis |)urpose — so the rule was entered accordingly. Note. — Vide JJrickell v. Bass, ante 157. Cain V. Puilam. Action on the case for slanderous word.i. This cause was referred by mh- of <()uitto arbitrators, who awarded in favor of thr Plaintitf, ami returned their award into coun. 'I'hi se exnpiions were taki'u ihrrcto in wiitinpf, filed by Oen. Davie, tin principal of which were, that the arbitiiitors jiriiCieded without decl Jlr. Moore for the Fhiniiff, and on the api>ointed day wi-re briiiight b( tore the court. The exceptions of the I) Icml.iiit weir supporled hv aftidavii — they were conlradi' ted by ilie atliii liie suit was instiiiMC'l aicainst ihcsc Di'Ci'iidants. The proof of the partii('i,.>liip de|nMidcd upon the dcpo-ition of Mr. Uoopvr, wh'idi'iioscd, that :ibiintihe 'inn- of the pm-chase, there was such a conipMny as that i>( Jncks <^' Co. t!i it lie was a partner hini.self, and also Ihinbebbiu ^* Lrnidon, and another whose name iie tnenlitmed ; and that to the best of liis remembrance, some believed Jacks carried the letter and the •nont^y mentioned in it. and knew how the account in- i.'loaed Was slated, that would amount to an admission of liis h'ins a partner ;' and in (hat case, they should find for tin- Plai:.ti(r, Olherwfse for tlie Defendant — Tliejr found f'»i" llie riaiiitiff, and also, pursuant lo tiie charge of line of the court, f^iven a few (la>N befne, who slated the ride to be, tlial wherever the debtor kiK)Ws (irecis-ly what he is to pav. and "lien he i« to pay it. ih--* iSr (174) 200 haywood's reports. Apr 1795. ju,.y jnigiit give interest by way "f d'images. if tlicy ^^~^^>^ thoiigltt proper. Tliey did in this case allow damages to ilip amiiuiit of tlie iotnest on the principal smn, by wav of addition lo the principal damages, and it was not Complained of on the other side, and the Plaintiff had judgment. Note. — Vide Slate v. John G U Thtmas Blount, ante 4. Smith V. St. Lawrence. The negotiabiliiy of a bill or note may be restrained by indorsement, or by special words, in liic body ot the note. Iiidnrstr may sus- tain an miction in Ins own n ime, cither striking oiil i he indorsement, or with-.iui it ; posMSsiOH of ihc note baUig prima facie evidence of payment lo iiiilursee. This was an action ins'itiited npnn a note nnder seal, dated "ioi-e the year 1786, promi-iiog to pay tlie money to Flaiiiliff anil to liim only. It wuh itnlorsed by ee. Mr- Moore, for the Defendant, object' d that the I'laintiff ought not to reiOM-r, b<-canse it ajipeared by this iirdorsement that tlo- |)i p. rt> or iiit<'rt'st in this note, wan not in the Pl:.<-meiit of « note by speri.il winds, ina> Msirain it- fjiure neicotiability. 2 Dmig 638. — Ami liy p;irjt\ of rison, Ihe negoMability of atioiemay be rcsTained by spi-oial wohIm in tin- liod> of ilte note itmrif — if so, ilieii hiK' I*, the word only, meant no doubt to restrain iis ti.f'-ler, and 'lieo ii is not negotiable un- der 'he act of 1786. c. . which only says, that " all bills, bonds or noti-s fur money, as w»d| iliose with seal as thosi' wi h''Ui si a! : those which arc. not ••xpressed to be payable to oider. I'l- for \iilue received, as tho-se which are expressed to be payable to order, or for value re- cei>e(l. shall, aft4M Ihf p«ssing id' this act, be hi-ld and dienii'd (o lie neuiotiable ; and all intoi-est and pi'operty thfirin shall be transferable by indorsement, in tlie same manner, and nnder the same rules, regulations and re- SM'ii tions, as notes, cillid proniissmy or negotiable no'e-;, have lirretofae bipi .'" Iiiis clause compri-hends tlie case of noli s. in «liicli tliCre is lli'tliing expnssed towrtids iciuii-ring them negotiable; but it does not ex- tend to cases like the present^ where negotiability is ex Haywood's reports. 20l pressly guarded asainst ; aii*i' the note. One of the Judges Mieniioncd tin- rase of Dook ▼. Caswell, f .rmi riy d'-i idrd iei this court, wliert- the note WHS iii(h)r-ed to Benton, but tin- suit rommeiued in the name of Dook, and 'he court allowed the indorse- ment to he struik out, u|iou an ohjertioti similui- In the present beins; made. Ui.on tin- mentioning this ca'^e the record wa« voarclied and found lo hi' «n. Per Curiam — The negotiahilit} of a bill or tiote may be restrained h> indorsement, oi by -pecial words in the body of the note itself; aod if it could nor, yet the origi- nal pnyee, having the bill or ii"te in his possession,- is evidence of the note having been relui-ned to hi:n l)y the indorsee after the indorsenxnt ; and if a payee indorses by a general or special indoisement, and ilie ahsignee cannot obtain payment of iln- draper, or maker of tiie bill or note, he may call Uj)on the imloisii, ;ind lie is compellable to pay the money and take back the hill or note; and if in sucii case the indorser or ])aje.' could not sue thi> maker in his own name because of the in- dorsement, lie could not reccnee at all. He m.iy strike out the indorsement, or recover without stt iking ii i>ui — his possession of the bill or note b>ing evid. nee receipt tor llK- money paid iiinn the lusi ind .rsee— but the r.'iief-Justice Hnit thought proof of ;iie payment wciull liave bePii sufficient witliout ihe receipt. T!ie f^'t In the cited casi- was, that DaoA: i he payee, liul endorsid ut Benion, wh'i was an ittorney, that he might instituie the suit in liis own name, but lo the use nf Dook — Benton gave nothing tor the bill, and lieil befoi-e iiie com- mencemMit of the intended action, whereupun the bill was returned (XJ^") by the Kxccut.rs to Dook. Note. — Viile Drew v. ^acoeks's Adm'r. 2 Murplt. 138. Dook v. Cos- tueUa.\\iX Ih'i nne thereto, aide 18. State V. Roberts. Indictments containing three counts, the fir^t of which the Court had no cognizance of. To submit on the first count ;ilie others not lo be consi lered) would ou uist this court of Jurisdiction , and the D' fcndani cannot liyhis admission givf.loihe coui't cog- nizaiue of an ufTcncr wdicli by law they have no cogni- zance of. ;;ny nioie Mian a piisoiicr indicted for a capital felis adutissiou j^ive authority to a county court to pass sei'ieiici- upon him. N-'ither can there \^e a submission lur part oi the indictment only — he must submit as to ^11 'he coun's in the indictment if he submits at all. unless the Soli' itoi -General will enter anoli pro- sequi as to soni!-. Et per curiam, tiiis court arc not obli- "ged to iuifU'lhoii upon a coiiviction for ati assault with intent to kill — tlie^ may iiiQici imprisonment, the pillory and a fine, but ihcy may inflict some or one of them on- ly. 4 HI. CiWi. 217. means only that the coiipi liave a discretionary powei nf inflictins; the punishments there inenlioned, not ihat tiny are obliged to inflict all of them. He siihiiiitii il, and the «iiiies>-es for the State were cx- amiiP'd, and the court fined him only. Note — Tliat the coiiseni or ajmissions ot parties cannot give a Court jurisdiction. Jiee. Wag-^tner v. Grove, Conf, Jiep. 516. Haywood's reports. 303 Apr. 179^. FATETTEViLLE, APRIL PERM, 1795. v-*-vr>w Seekriglit, on tlie dfinise ol Wii_u;lit aiii Vt ifc, V. Patrick Bogaii. It is the fii'St patent ur grant, andii'it tlie first entry, in helimd office that gives tiie best 'ill<-. In tlie case of lapped patents wlure 'lOth are in pussessinn cf their respective Ir.icts, bin iieith' r ■■>■ tuHi'\ "-et- tledon tlie lipped i »rt, Hie oldest gr'ntee will be consid.ird ug haviiifj llie leg I pusse -ion of tliut part. Piaintifi' may prove the loss ol Ills deed by hi« own o^tli; but not !li:il ihe pi it offered iu suppor'. ot his title was puit of the deed lost. Ejectmi'iit for fifty-four acres of laod. The Pl.tintiffd fl.iiiiiiMl iiiidi>r DOC Thomas, wlin conveyed to Jlaroii Ba- ker, wlio died Keisod, leaving the feme his only r inld. — The grant to Thomas bore dale in tlie (iionlli of Dei em- ber, III the year 1770. The mesne conveyance to Baker, ills dyiiig seised, and the iieirsjiip of the Pjainiilf. v.ere (177; proven. The Defendant claimed title iiinler one Jl-JYaft, who conveyed to him. M'JVaft's patent hoie d I'e IS^lt April, 1771, and his couveyaiice to Bognu wa^ proven. Tlic land granted to Thomas, and I'y him to Baker, was a large tract of five hundred acres. The tract granted to M'JSTatt, and by him to Bogan, was a tract of twi: hundred acres, and it intersectivl tin- tract of five htiii- dred acres, so as to include the fifty-lour acres which were tiie subject of this dispute. Bogan took pos-essioit of hi^ tract of two hundred acr<-^, iis one wit!!e^s proved, ill 1775, as anot'icr said, in 1773, and coiuioned thaC posses.siou down lo the picsent day. Baker was proven to be in possession of bis tract of five luinilrci! aci-es in 1778, soon after tlie Briar-creek defeat; and his posses* sion lias also been continueil to ihe persent time, except as to tiiese fifty. four acres, which wer- ch^ared bv Lanier, the first husband of the feme, and culliialed for two years; he tlien dieil, and the feme intermarrying with n^righl, he cultivated it one yci.r; in the fnll of which, year 5o^an entered and took possession — whereupon ihifi action was instituted. M'J^aWs ent. v in the laiid-otlico was made in the year 176G, that of Thomas at a subse- quent period. This being the evidence.J/r. .Uoorpfor the PlainiifTs, was about to speak to thejniy; hut Judge Ma- cay called to Mr. fVitliams to hegin. lie insisterl that tiieir entry was prior — rliai M'JYatt hail tir-.t purchased, ittid was injustice entitled to it. Seeoiidly, tliat Bo^aa 304 Haywood's reports. Apr 1795. hn J possession ever sinre Hip yrar 1773, and Uiat more ''^"^^'^^ tliau >e< en ypai'S liaviiis; fl-tpsed, during all whirh time Bogav. WHS ill piisscssiciii, tliai the Plaintiflf had thneby lost lice rie;ht "f possessiiin. Per curiam, the question here is who has tlie best title to possess this fil"t> -f'i)iir acres — as to whirh the riii<' is, that the fii^.t patent <>f tyrant j^jves th'* best title, not flic first entry in the land-offire, unless the first patentee or grantee loses that title by siifieiing an adverse pns-essi- on of seven years witliout entry, claim or action made by him wi'iiin that time. Here the Defendant hath been in possession ever siiice the year 177S, hut the operation of The art of liniiiations hath been suspended by two sev- eral a( Is of the Leejislittiire, from the year 1773. to the firxf of June, 1784, thit is- to say. by the act of 177r, c. 2. sec. 54. and the act of 1783. c. 4, sec. 9 ; and this ac- tion was commenced after the fiist of June, 1784. and before seven years had elapsed from Opit period ; so that there is no bar forined under that statute by the pHssess- (^178) '"" which the deleinlant had. Besides, the rule nf law is, that vilii'rr two persons are in possession, claiming by different titles, the I.iw will adjndjsje the legal possession in hitn wlio hath the right. In the present case both Plaintiff and D fetidant were in possession of the fifty- four acres in dispute, from the yeai- 1778, when Baker is proved to have been in the occupation of his five hun- dred acre trad ^ and therefore from tha' peiiod he claim- in.g uiidi r the patent fiisi dated, the law v^ill adjudge the possession of this tract of fifty -four acres to have been in him; and then feom the year 1773, when Bogan first took possession of his two hundred acre trait, to the year 1778. there were hut five intervening years— Bogavi's possession of the fiftj-four acres was then de- feated hyUaker's entry into his five hundreil acre tiact—for either of these reasons, possession will not avail 'he Dfi- fcndani in the present case, and then 'he title must rest Ujion tlie priority of the patents. Wlierefore the Plain- tiffs ought to recover, and there was a verdict and judg- ment for the Plaintiffs accriidiii.gly. NoTK. — U|ion this irinl Williams for the Defendant, offered in evi- dence A plat and ceriificiitc ul ihi survey maiie lor M'J^'afl, iilleging it had been. inn. xed toilie orijfinai pat tit, which was distroytd. and thi- t'le only part of it tha lia b- en pri-s.Tved. He proved the de-* strurtiiin of th> patent by Moffan't afiiilavit and oft'ind lo prove tliie to be ilie plat forinrily anni-xerl lo ii by the same means : but per cu- nam, though the party oft'ering the copy of a deed, has been permit- jiaywood's repohts. 205 led to prove the loss an^l riiciron r.Ctlie deed by his own oath, Apr, 1795. he has ni ver been permitted lo prove a pir' "this title— t is wonlil v^*-v"^^ be to »llow him !•) prove i y h s own o th, that tli>- r a|>' r "\ qu s'lon was :in sp\iciKlaf;e -iftlie old fii-.d; wiiii p^iliaosit mi'iht not have been so, and by th;ti me ais hi- miiild be let in to proA'e by his uwn oath, a maleri:it i .t' of llie title perhaps tha' lie set up, at least a ve- ry materi.d tact in this c mlroversy. Tdis would be g'ling murh ftir- ther than the bure letting him into the e'ihibilron of:, copy efthe deu ' ; whicli when proiluceil, must lie proven by the certificate of an officer arting on oath, or the oith of a person who had compared it, to con ain the w rdsof the original paper which 0"Ce existeil — And tht' court refused th;- eviderc ■ ff ivrl ; saving further, tiiat there is a coiinterpar' of all tl.e old p.itents and pl:its lodged in the Secroti.ry'.s office, aud that mi.qht liave been pridnced by force of a ituces tecum, and would have ljei.-n more satisfactory evidence than the paper now ofieied. Up>n the first ai'd last points sef Dickey v. TVooilenpik post 358, nnd Blanton v. Miller, ante 4 The decision upon :b ■ poii t o* the lapped patents has been co firmed in several cases which li'dil fuithev that if "one of the i;ariics is 'Ciually set l^d f rs v n years toif':tber upon the part comprehenrled mi i.olli d rds, the po'^scssvn i'h s, and the other will be barred liie'i^liy". Bryant v Allen & others, 2 huy. 74. Barrels \. Tunier.ibifl lis. Sla>lev. Griffi,:, ibid.'lTS. Saw- yer V. ibid- 235- Oibisan v Morrison, 1 Havlis, if-7. Den on the deinise <>f Park, v. Cochran and others, A party who has been guilty of neglect, may, npon seeking a conti. nuance, be compelled to pay the costs .)f Uit term, as the conditi- on of the continuance ; and t'le^e ros s ire not to be re'itnded even though he should succeed in tlie cause In this country, no actual entry is necessary until an adverse possession commences. A pos- session to bar an entry must be a continued one. Ejectment The ronliiiuanre of this cause was moved for upon an affidavit, staiin.u; that the PlainfifT had al the last term procured an urder of •survey of the j>rfmises in dispute ; that he had .e;iveii iioficf that he VYOuld begin the survey fiur day< before tlie beo;iniiitiit of this term ,• that it had been bc;'-un accordinfrly, xnd that the survey was not yet comjileted, tiiou.^h it would be completed by (179) the emi of lliis day, the day on which the motion is made. It ai'pi'arcd on tlie other hand that this order had been first piocuretl about three years a_ajo, and liad been re- newed from term to term evei-sinit^ and that tlie survey had never y i-i been completrd. Per curiam, the Plaiirtiff has been enilly ofs^reat ne.iflect ; he iniicht have jtriicured a survey befttre thi-i time. This is distinguishable from the case of Sf. Lawrence last term, at Hillsboroiisjli, to which it Lhs been ((unpared — St. Lawrence hit i in de no preparations at all for the trial, for want of notice as he 206 uaywood's hepokt*. Apr. 1795. f.3J,]^„l'.j iievv trial liaAinf^bPon granted the term brline ; "■^'^^'^^ whereas lie iiiislit fiave known it. liad ho iriade the ()ro- [ler eiiqnii} , as lie oii^lit '<> h;a_v al! the costs Hcrriieil a' this term ; which are not to be lefmided to hiin even although he should r\en- tualiy jirevail. Ratlier titan submit to th-se rondiiions, ' tlie Plaintiff thoucjht proper to pi-oci-ed to trial ; and up- on the trial, it appeared that Dijer a>'hat they ronvcycd to the Plain'iff' s f. ith 'f. hy deed dati-d thi- iiiiiHi of May. 1763. I'^ exiHMiion hy Car- roll only had been proven, and if liad bt-rti iCtjistrrcii u- pon that proof; and the PlainilfT was proM-ed tliat the Plaiii- tift'niight lie called. He cii'il iiiiiiiy autiioiities fioiii the English b oks to prove thai unh'ss a man has entered viiihiii the time limited bv law, he can never enter after- (180) Haywood's keportsv 207 wards, but losps his li.ift.t' ori"ii!r>. That here was anApr.i795. advei'se iiosspKsion in Fanning bpiwoi'ii die yrars 1764 ^■^~^''^*^ ami iTGQ mid fl)p j) issi'ssi'iii ■»-' mice, if verified by nffidavii ; also 1 Sir. 492. 3 Term, (181) 554. Note Vide also Chit/y't Pleadings, Vol. \, p- 638. Pcale V. Folsome. At the pleadiu.i; term, the Defi-ndant pleaded iton tst factum, and coniiiiions pi rforined ; and afierxvards at a- iiother Iciin, the ins ilveot debtor's act. Mr. Hay insist- ed, that was intended as a plea puis darrein continuance, and iliat it was a waiver of the preoeding pleas. It was insisted on the other side, that it was not a plea puis daf' rein continuance, tiot havin,^ been so pleaded, nor entered on tlte rei Old as sucii. Per curiam, were it a plen puis darrein continuance, the plea of -non est factum wonld be lhei-eby vxaived, and you would ha\c no need to prove the execution of the bond ; but onl-ss the other side will concede it to be a plea puis darrein continuance, the court caninit take it to be so. It docs not purport in itself, nor by the entry of it on ilie record, to be a plea of some new tnatier arisen since the last continuance. -It might have been, and probably was a plea added to the others by motion to the court, or by consent of the opposite party, as an original pl;)ceKa, and iiis default recorded; whereupon a sci. fa. issued ag^iinst him, and now his defence was. that he ne\erwas summoned by any proper officer. The subpceua when produci d. appeared to have been served by tlie Dvpiity Siientf, aod retunnd by him in his owii name for iiie High Sheriff, and not in the name of the Higli Shei iff. as it sluiuld have heen— whereupon Mr. Spillar o'lpcted that the Deputy Sheriff was in>t a sworn officer, which was conceded in the present case, and (lint Haywood's ueports. 209 (lierrfore as the iiMmn was made by Iiim. and not in thn Apr. 1795. name (ifflie pri!Ki|ial,_ it wns no' h jjjood si'i-vice. Per '-^^^'"'^^ curiam, the letiirn hert- is fi>r tin- piinciiml by the Di'im- ty, winch is iir;irly the .same tliiii.a; as if thi^ return had been "cxe'iitfd," anil the nami- of the principal subscii- bed, and ihc wmils "by \. B. Di put* Sheriff" added, which is the usual course. This return is indeed a lit- tle irre?;uhir, but it cannot now he au;euded, the princi- pal being dead, and the De|iuiy removed out of the State. (182) Such leturns ho\ve\er, tliougii irregular, have prevailed very generally (hrongli the ciiuntr\ for a long time, and t!ic disallowing titeui. would he pr.duriive of terrible in- conveni''nce. Communis error J'licit jus, is a -.naxitn we do not approve of, but it inust -omitinies be submitted to for the saite of avoiding confusion. 'I'he course "f |>rac- tice fieipiently makes the law, and must he ^iven way to where a sudden disailnwHfii'P of it viouid be followed by a great public evil. In strictness however, there is no doubt, hut liiat all returns should be made in the name of the High Sheriff. Salk. 96. Bac. Mr. 427. 1777, c. 8. s. 5 So the objection was overinlcd, and the Plaintiff had judgment. ride Scute V. JoUitfton, posl 293. Itolding v. lloldin.y. 2 Cav. Lin: Rep. 440, Duncan M'llae v. the Administrators of J Moore. when " no assets" are plead, t le Pliinliff^iiiull have jiul.nment for the amount if tiie assets which li - ca.» show in :he hands of the Ad- ministiMtor, ancljujginr.it qnanilo for the balance ot'his 'lebt. Set off and no assets pleailed. The d^bt was one hun- dred aod fifty-four pounds two shillings, and Flaintiff proilured the inventoi-y, shewing ass>ts to the value of one huudied and t»ciity-four |iound-> eighteen shillings and SIX pi-nce ; and the jiny gave iheir verdict accord- ingly — whereupon the Plaintiff had jud;;Hient (or ime liundred and twenty-tour pnunds eighteen shillings and six-pcnc , to he levied of the goods of the deceased, in the hands of tiie administrators ; and for the residue he had judgment to be levied of 'he assets which should thereafter come to the hands of the administrators to be adnilnislered. Vide 8 Rep. ' 34. Stciiib. 392. Leon.fol 67. 1 Jlnd. ' 50. The Office of Executors, p. 191, says Plaintiff sliall .ave judgtnent for as much as Defendnnt hath assets to *1^ tlAYWOOD*S REPORTSi Apr|i795- pay, and an award that quando assets acciderint infuture, '-^^'^^ tliat tlicii hv shall have ji.dgtnent for th. residue, upon which award a sci. fa. lies Jo have judgment and execu- tion. Co. Ent. 151. 6. NoTB Vide 1 Sound. 336, note 10, for the form of the judgmen in such case. See al»o Oregory v. Uooker') odmr. 1 Dev. 442. Jamieson, assignee, v. Farr. A bond payable partly in money and partly in specific articles is not negotiable under the act of 1786, Jiev.c.2iS. Debt upon bund for fifty pnunds. dischargeable parf in moMoj, and part in specific articles. Afr<^ verdict it was ino\ed in anest orjiiiigmfnt, iliat (his bond is not assigiial)l<" so as lo enable thi; assigtiee to bring debt in his c»wn name; and it was argued that no bonds are ne- gotiable unless for immcy absolutely, nment pleaded. Tbere was uNo .uiother bond for seven linndrcd and ibirteen poui.ds, opoii wbich a suit bad bico instituted in tbe county court, and pay- ment pleaded lo tbat ; and the same ()ayments were tbere proven, as wei-e now pro\eri to tliis bond. But it wag alleged tiiat 'hese payments were large eiiou!;ii i<> dis- charge both bonds, and the Di lendant's rounsel off ted that the amount of the principal and interest of tbe small bond, might be deducted from tlic payments now about to be proven, and tiie balance of 'he payments only to be applied to tbe disriiarge of the present bond. To his tbe court assented — and be proxed one liiinilred and tea pounds sixteen shillings and eight pence, paid the 19lh day of January. 1777; nine hundred pounds, the 17th day of November, 1779 ; one thousand two hu^dl'ed and thirty-seven pounds ten siiilliugs, the 22il day of Jaiiua- (184"> ry, 1780; . nded payment"* innde in the time nF the w.ir, to be I'wliiced by tlie sciile to iliiir ical value ; lor 1783, c 4. s. 11. repeals the teudei- laws, so fir as tiny rela- ted to the payment of ilebl ; and by sec. 7tb, have ousted all pU'i'S of lender Aith (in always re.iil\, alleged to be made in 'he timeoltlie war, unless siicli pleas be aeiom- panied witli ;ifliilavits stating that the sum tender^ d, was . equal ar tlie time of the tender, to tlie debt or damag;e demanded, arroi-dina; to the tlicn fiepi-eriaiioo ; and aa no tender of the inxninal debt made in limes of depreci- ation is good, as by this an il rlearlv is not, hv Hie same reason no payment made in depi'eciated mone). ought to pass to the credit of a bond for more than its real value. Per curiam, it hath been tlie constant practice ever since ihr passing of this act, that payments made in the time of dipiecia'ion, should dischai-gc as much of the debt as such paynsents noniin.illy amounted to. A con- trary decision at this time-, would levive many of the old disputes liiat have been settled by tha^ rule, and p oiluce ' much liti(;ation. When pajnietits were made in depre- cialeil money in the time oi'toe \mm'. they were gein-rally undci'stoud to be e()ual to the same nominal sum in the bond — Itotli sums were ec|ually ito, acroiding to tlie iiuinerical sum ; and the acl ol 1783 did not in- tend to lay any new charge upon the di-htor to whirh he Was noi siilijecl befor-e, or from whicit he had been dis- charged under the operation of the lender laws, iuid |iay- ments ni'ide befoi-e lh;it tiun — nor i^ il clear th Legis- lature (onlil have thu- s-bjectid him. had lliey been so inclined. The art of 1783, meant only to rejieil ilir len- der laws, so that they should not ojierate for the future. U85) HAVWOOU'S UEPORTS. 213 not to destroy the effict and oppiRtion of tlie laws upon Apr. i795. transactiniis 'Iihi IikiI iilip:t(l^ hik^ti pliicr iindci tlirm. — ■«.^>'>»-' It tn'ist 111- /idiiiiitrd tli;it u prfjiM-nl ii'j.di' in III' time of till' wai n h hmid, is a logul dis< liaigc of tliHt botxi. aMi"ii_a;l! i|ii re I \;i!iie of the j»ii)'m»'rit was nnicli iiifcrioi- tn the leAl value ''the inoiii-y meiitiiMied ill ihc Ixnui aflhe re siirh p.:>itietit has been redti' f'.uiMJcd i»i Jnstire, thi.t the rre- di'iir shnll n■(e^^e the f- II valii" «( his nionej. ■am\ be ex- eitiped eiitiiel\ finlll sill loss l»\ deprcciiition, wln-ii the delitof. «h" pfiljaps priicuii'd the nnniey, nr senii Mies " fi)i- tiKiiii-y, at an e;irl\ period, when tin- i iirreiiey was but little, if iit all dei'sei iated. iiiniidiiij; ilu rewitii '"Jiay off liis debt, sliall br allnwed only th"- real valntf, when he rectiM'd f' om bis deliinr and jmid it to bis Cf. ditor, and vei-j lik'>!j did this at the request of liis creditor. — D' preei iti'iii was a cnnsi-quenre had been refused brcause of iis .^jient iiiadeqiiacy ill p'>!iit of value to the contract — his hardsliip was pre- vented by the clause in (piesttou. It says nothing of pajnients ai' ii'i< in t'ppi-s'ion fo Mio doc« trine conlci.ded for »u the part of the PlHiotifT. ihc ron- stani jirMrtiie of oui- (ouits hi»th been; and «eouslitnot to rendi'f the law unrertaio by a contrary decision. — The-PJaimiff .suflTered a nonsuit. Lury Lee v. William Ashley. Tre.'spass, quare clausum Jregit ; -noi j°;uilty. and lihC' rum tevementum pleH(l>d. It appeared in evjjlenre, that the I -Mid on >\i.irh ijie tiispiss is allejjed to ha^e heen Committed, was a tract of i«o liuni'reil and tliiiiy acres, which WiiM part (if a tract ■ f fittern hundred acres, of which Zuchariati Lee, the hnsitaud of the Flaintilf, died seised ; who at the time of his death. U It a son and heir at law, now of the age of thirty-one yeais. Tlii" son had soi(! all the land except the two huiidr.d and thirty act es, some cii'^iderable time a.2;o; then h-- sold the re. sidue to Jo/i?i Field, who sold to the present Defendant. The Plaintiff had kept possession fr<>ni fiie death <>l her hnsh.Mid until the conveyance to Field of the residue* whicii lately fool< plare. She *erlially assented to this latter conveyance. Field arid Mie sim on their parts a- greeiiii^ 'hat she shiinlil possess cue hundred acres du- ring her life. Upon these fact ■: the roiii^sel for- 'he De- feinlani, insisted lliat the plea <■{ liberum tenemenfam wa« supported. He argued, hat tl-ough i iie soineiinies laid down in the IrMiiks. (hut pnsHesslnii is of iiS'lf snfficient to support an action of trespass, quare clausum fregitt and thai the acfiim of Mespas.s is »t\ acti'oi for the viola- tion nf possession, the t ue distinction is, that posses- sion only is suffici'-nt 10 suppo't ihe aciiioi ag.iinst a mera trespasser, who h.^~*">^ 93, 94. Hci'o imlffd, the Pliiiiitiff liafli rDntiuueil ilio possession from the time of her hushaml's 'leath. but mj)- on ills dcitth ihe fee and fieehold descended to tlic son, who it is proven lived npoii the iand with liis motiier, and coiiseqniMitly had Ihe legal possession ; and he hut!* conveyed both the fee and freehold to the Detendiiit: his entry wah therefore r^sjiil ir, uidess it can be shewn, not- withstamliiig the Defendant's having Ihe frtehold, that she hath a rigiit to inainiain her possession a.a;ainst him. She liatli iM)I rcpli.-d Jier ha\ in.< any such interest by vvaj of axoidin.^ the ;)leH n{ liberum teuementum : iinlced the fact is, she liath no such interest to reply. It hatn been argued for her, that npoo »he death of lier intsband she had a right to cuntinne the possessiim, notwithstanding the heir's title nniil her dower sliouid be assigned ; and for this iier conn.sel citi-d 2 5(. Com- 135. Allowing the fullest extent to this doctrine, she > ould continue but for- ty days in (lossession, and after the expiration of that time, if her (l()\ver had not been assigned in the interim, she Was liable to be tni'ned out id' possession by the heir, and could have no other action but that of doWer to re- cover the possession of any part ; though ber)re the ex- piration of tin- forty days, Ihe old law provided her with .'» writ de quaranilna liabenda, i» he derided imtanfcr bj the Sheriff. Co. FAtt, St, b. Z Inst. 16, hut no such writ lying after the forty days, is a proof that she was no longer eniith'd to possession tliougli her dower were not assigned. Had the law inlended that her possessi- on should continue until the actual assignment of dower, it winild have pro\ idcd a remedy in case of disposses- sion previous thereto. As to the doubt suggested by one of the cotirt, relative to the estate in dower being considcied as a part of the estate of the deceased still continuing, so tiiat the law does not cast the freehold thereof, but only the reversion upon Ihe heir; fm- which were cited the autliorities of Co. Litt. 941. a 15, a 31, a and 6 327. 44, 45. (see also Qilbtrfs Ten. 23. Hawk. .Hbr. 23). The best atiswer to tliat is, 2 Bl. Com. 135, 1 36,' where it is said, the as- signment (ddo-vtr must be made by 'he heir or tiis guar- dian, to entitle the lord of the fee lo demand iiiswervices of llie heir, wiio by his entry to assign dower, becomes 316 haywood's rbpokts. Apr. ir95,t,^i, lint of tlio laml to tin- loi d, an I tin- "widow immediate ^•^"■''^^ UTi.iiit "> liiin. WU-iicc H f.>ll(nvH, that Hio heip Ims the (188j rtijlit Mf .iitry and fi-elidd, wliirli tin- Uw casts upon iiim fr'iiii tli<' iiioiniMit lit' tiic ancestor's deatti, and not a. I'eversioii only. Pit curiam ; we oniPi-tain snmi" do'il»t upon the facts stateu in cvidi'iioi' relative to this plea *){ liberum teneinen- tum — li^t till- jury .ujivo iheir verdict as tlicy shall liiinic prt>p' !■ ; and if eitiier party he dissatislied. he may move for a new trial, mid fhen the law vvi|| be ainie dt-liberalc- ly cmisidered. Th'jiiiy loniid for flic Defendant, and the cause was no more stirred. Note. — M'lien tlic plea ol' liberum tenemtnium is pleaded, which is calleil till- CDiTiinim har in tiif actum r.t tr.spa-if, if the DetVmlant has not given a iiamr to, or described rxacily, tue Ucus in 'jm>, in his de- clarair'M, it btcmnes neci-ssarv lor him tymake iinvt! a-signmenl, to vr'Hflllti.i DJl-mloil a^'ain pic .'Is j bie if th- Plaintift'dfacn >rs the locus in quo iM\us declar- .ti i .iteaded that tiie lociit m quo is hi> ficihoid, and that ihc f,o.ids wer. th :n damaije feasant, uien he must describe tlie place witli i-ertiiiniy — the llicalitv is a material part of his plea — anJ without It I he |)l- ■ is not go id. So il to iresp.iss the Ui-tuiidant pleaded sow assanft pvoof of an assault by the Plaintiff on the same day, or 'icfor iIk uctioii broug t. s.ipporis the pi a So th .t if in fact theie were two batierits, onr produced by the Plaintiff's own assault, till- other not, the Plaintiff must n>w assign and disiiaBuish the b.ttry not brought on by his own assault — but il .here are two counts s aiiiig the iwo batteries, and tivo justificalions or plea', ot son assault, ime of hem will be untrue, and upon that tlie Plaintiff may recover uithnul a new assignment. Mutter 92. Note, — It appears evident from the authorities cited on that head abovi- tiiiit the wife is deemed to continue the esiate and possession of tlu hiisb.uul aft. r his d atli ; the reason of uhicli piobaol) may be, that if she claimed under the heir and not paramuunt, her dower as being a pait of his estate, might be subject to hi> prmr charges and incunioraiici s, which is avoided by h^r claimint; above him. Also it shi; claimed under tlie heir and from him, and wasnotin, m continu- ance of her hiistjand's estate — ilien if the husband wa's tenant in tail, and he died witliont issue, in tiiai case there woul i be no heir nor any estate tad, and she would lose iier dower. Yrt by 1 '\v she is dowa.'l , ar.d of iieces.iitv ihe estate tail of the husband must have Continuance as to one third until her death, yide 8 Hep. 34. 6 Jie/>. 41. 3 Bcic. Jib. 127. .Ag;ain, were titc dower n part ol the heir's i s- uaywood's uepouts. 217 tate, then by the Oescent he might be reniitled to his ancient and Apr. 1795. better title, anil the estate descended tlitr 'by. Cease altogether, iin 1 v^^-v-N^^ the widow be defeated of dower. Tliis tlie law does not iilhiw. Her /noq-i dower itjerc-f >re is not deriveil out of the heir's estate, nor snpijorted V ' ' by it, but out of the f Slate of the luishaixl, continued liy fiction of law bfter his J.-ith ; which fiction is invi nted for the purpose of a- voidingthe inconveniences above sl;ited,and others that misht result were it not for this fiction. The sii! viviiig Partners of Aiiley M'Naiighton and Co. V. Jiilin M"K»re. J**- Haywood, Judge — Hitath of one partner dissolves the partner- ship, ind a clerk or agent, wh-> had been api>ointe'l by the com- pany, cannot, aflersuch dissolution, do any act to affect V\r inter- est of the company, as to receive payments &c. But the jury found otherwise. This was an action of debt, and payment ploadcd ; af- ter the death of ^'VvV«)£^/tto», Jl'Jiusiin iiTcived forty pounds, and indorsed it on tin' bond ; iv^i\ the qin'Stioii was, if this vvas a (ijooil imyinenr. It appeared in evi> dence, that M-JS'aughton and Ji£-Jlus!in, both lived in the same town b( fme t'le dcaih of 'he former. That M^- J\raught.on ippoinnd lln o iier one of iiis clerks, that lie opeti'Ml a store, and pot up a sign, pnipurtin}^ tiiat tlie store w'.tn M'Jlasiin^s, bnt tlie books wi'i'C kept in the name td' tlic tompany : that tliis bond was ft.r a debt contracled in iliat store, and was made (myrthle lo Jlsf'- jyaughton i^- Co. M'JS'aughlou wrote to his correspmid- eiits in Etiropt', inlunnine; tiiem thai he had appointed M'Jiuslin one of bis clerks, or agents, or assist.-. ot-* ; of which they ajipioveil by their letters in answer ; and a- bouL twelve montlis bef.ie the death of .)/'JV*aitif/iartnership. As thi'j . innnediatrly lieranie \e.sled in thi^ siirvixors; and a right lo a t be revoked, and mo?e especially where the death ot'one causes an alteration of the ptopcity, con- cerning which the authority was given — as where by deaOi of one, his share goes to executors or heirs, ^and the like, who might be nn • 'lling to l»e bound by the con- duct i>( tlie flgptit formerly appointed ; and thertfirc he tliuughl the p»ynient w.is n it a good one. Tlie jury however ^i<,i >d for tJie Uefeodani. NoTB.' A (ir.uiT is tliin d scribed ny Molloy, 46S. He Is a servant created by i murcliant's letters, and lakes a liind of provision called factorage: he is bound ''. answer the loss wliicti happens by exceed- ing his- C(>niini'-*ion, but a sinrijlc si-''vaiit or apprentice cm only in- eurhis ms.^i. i'-. disuleasure. Ertensive commerce renders M neces- s:iry for m» re hunts 10 Intrust the sale of their goods, particulnlv in foreign ci>uM lit*, or remote pans ol" the same couiUr), to i. lers vho do n t .cl undT their immcJi te inspeciion ; ami from ilience some rul.s iiave resu'tcd, wliicri milce the case of a firtnr very dif- ferent fruni iliat of a simple servant or clerk. The facior rccciTea his direetions by way of « commission, and ih bound like all otbf Haywood's keports. 21^- persons authorized to ici, by (he terms "f his commission, or to an- Apr. 1795. swer the loss himself 4 for beiiip :i( a dist:iiicf, if h' was not thus re- v^»-v~^/ sponsible, the merchan' wlmiiitrustihi-ii iiiif't h.- ijrif .il, rejudiCfd. Ifhe was erapowt-red to sell gl iiplv, he C'lnot "scli upon crc-d t. 1 JVels. M. 323. pi. 2. If empowered to sell upi.i credii at tilt- ri~k of the owner, ihf debts will he * loss to t^ie owntr ; but if he is t'l sell upon credit it his nw •■ ri^k, the liiss occasioned by bad debts falls upon himself. 2 Sir. 1182. When lie selU it 'us own rsic, the ac tion against the purchaser is m.inlaiuabl in his mn name. Bulltr IjO. When he acts in his own name beyond sea, heinfrauthnrizej so to do by his commission, he may maintain a suit in his mvi name, and receive payments, becanse he in the visible owner. S'lller 130, 156. But if he is not autlidiized til sell in his own name, bu. s.lls and keeps his boots in the name of the principd, there I apprehend all payments mus' be made and received in ih- name of the princi- pal, and all actions -.Iso, Thus there is a decid-d ditTfrcnre bet ween the case of the factor who sells in the name of thtf piincipal, and of him who sells aocorlinjf to his commission in his own name In tbe_ fjgj') one case the action must be commenced in the n ine )f the principal, ^ and his .leijt may be set off against it, when that of thi fac or's can- iiot ; ami ahhougli in both cases the properly of 'he debts remain in the principal, un'ess perhaps when the factor sells not only in his own name, but al his own risk also ; and upon notice given to the debtor not to pay th- factnr, it will inva'i late s>ich p ivmeiit as is af- terwards made, shoii'd it eventually appear that at the ti ne of pay- ment there was no b d -nee due to tlie factor from t-lie principal. The law gives to the factor for the lenefit of trad;, a 11. n for the balance due him for all his tiansar ions, as w. II (or his former servic s as those Uiion the ,^ >ods then on hand or laat roiisi^'neu !o him; and not only upon the goots themselves, but upon the price of liie^nalso when sold, and whilst it remains in the hands of the piirciias r. Cow. 256. And of course he must have a rijjht to receive until he has re- ceived 'o the am lunt of the balance due to him. And in c.se of a dispute be'.ween the principal and factor, pa-vments to the one or to the other may be mide to he at the jieiil of the denior, until ii shall be settled by agreeme«l between ih; m, or by a judicial decision. It being a rule of law, that no man shall have it in his power to vary the rights of third persons, or to prejudice th m by anv act of Ins. R. Bl Rep. 84. Cowp 255. Thia liglit tiftiie factor' to receive, how- eve;, i^ .>y vriue of his lien, which the I w gives for the secuiity of his balance, not by virtue of any |)ro;Hrty he has m the goods ordebts. 2 Mk 638 But yet when thi goods are sold ',y the fictor m his own name, the [lurchaser cannot set oft" a deb' due from 'lie princi- pal J for as the principal cai.iiot by my ac of his deO it t . : lieu, so neither can he by -ontracting debts >v th the i;(irchas.rs of th ■ goods. Coup. 256. There can be little doubt th refore, th.it a factoi hiving once g.iined the possession of the go. ds of liis principal, mn letain them till his b. dance be paid ; or having sold 'hem, may reci-ive the debts utitd payment of tliat balance, unle sth" purchaser be tstramed by notice trom the principal fooi p lying in.' factor, and even then the factor may receive th m, if upon the dispute between tlie princi- pal and him bemii a Ijnsted, a balance ippeas in his favoti-. Could JMcAuslin be considered in the pr«'en' case as a lacuir entrusted with the puss.'" sion of the g'.ods to bi sold 01 the ben< fit of the coinp iny, and there was a balance due to him fin the expemlitures and services, his receipts mi^ht be good until notice to the debtors not topay him. .and such receipts might be binding upon the surviving; partners : for 220 Haywood's reports. Apr.l79S they recognized him by the r answer to M' Naughton, & by addressing; v^»"V^fc^ letters to l^im as their aeeiit ; and thoiigit h powi r to sue might pos- sibly be coumeitnundpft hy the death ofJU'JVauehtoti, yot not his power to receive, ihiit bein;; derived f'rnm iniothir «oiirce. the lien h- had on theprire of" the g ods in the h:inls of the debtor; but this concUi- sion can onK (;o upon the supposition of his having been the com- pany's factor, and will only result when that point, and the other of liis bcinjj entitled !'• a balance, shidl be established. I' does not ap- pear he was ever designed by the company to act for tliem in that capacity; he had no commission or auihurity from them t' that ef- fect ; lie lived under the immediate and daily inspection of .WiVatij-A- ion ; his books wr re kept in the name nf the company This bond is made payable to them ; had any di-ht 'leen due from the comp -ny to the obl'gor, ihatmiglit have heen set off again'^t ti'is bond ; n.i'her is if prft tided th .t thrr- is a balance due u> l\1' Austin from the com. pany ; he seems in shnrl.to have 'leon notliinif more than a simple servant or cleric, « ho in case of a lo^s h«ppeniiig to the master, could not have been made liable to ii himself; (iir not pursuing his coinniission, \\f was a person from whom M' Nanghton might at any time have legally taken |iossession of the goods. \.s being only a clerk appoii.tfd to assist him in his business. He had not in the lifetime . » of JW'iVau^A/oH any legal posstssim of tlie ijoods, exclusive "f and (192^ distinct fri m him ; ht- had no power to sell but by and under his im- mediate direction and as his ins'nimemi ; and that power was every momeit liahle to be discontinued whenever M' Naugliton should be disposed to discontinue it ; the approb:ition giv n by the partners i^ Kurope to his appointment, miglit be founded par'ly upon the con- sideration that he Was rf-moveable at pleasure, and was under the im- mediate control of their ps.rtuer. If such a servant, who for misinan- agcmeni and bringing a loss upon his employer, can onl> ini-ur his displeasure, shfuld slill continue the parinei'ship dealing here after the death of Ihf appciinting partntr, it might he producnve of ex- tremely ill consequences. A factor is generally a man of somt- pro- perty, or security is iak> n from lim ; he is to account, and lOr mis- manijement his fortune, or th.it of his securities, is rr-ponsibit-. The clerk being not eplrustc il so hii, is no' called upon for aia security ; he is tiken into einploym-nt and cinlinued in it upon his good be- haviuir, ami is under the coniinual lon'rol and inspection of his mas- ter — that is all tlie security ihe eni|)loyer has in general. Should such 111 one aftir the- d. alli of the employer be permitted to sell his .goods, or collect his debts, he might nev< r be able to m.ke sntislac> lion to the survivors. If there is no authority expr<-ssl> in point, that ckcid-s a power dehgated to one by several, to be revoked by the death of one, t is d'ducble from the nature of this ki"d of busi- ness, and the evil consequences to tmde that would ensue, the doc- trine of allowmg a servant or rlerk to go on receiving tie nv.nii-s of the partnership after the death of the partner, that the Ihw cannot be as contended for in suppnrt of 'his payment. It is argued to be a lianship upon the Defendant if this payment was net allowed to be ^ood. Bui there is none — the bond is in the name o< M'Aauglilon & Co. Tilt death of the p tlner here was notorious. I' is a tin g in itsell capable of notoriety, and if a man will pay lo the clerk aft rthe death of the merchanl, lie acts in his own wrong. It is no more than the common case of deblors pa\ing into the wrong hand — in which case he is always compellable to pay over again t' the right one. This must be clear, that whatever authority was derived from - he deceased;, so ar hs coiicernedihis interest, was counteimanded l>y Haywood's nEPORTS. 221 liis death. The clerk appoint d b) him carniot receive his share of Apr 179o. the Jebts, so as to ninbi. himself ch'jr(.'rable for thai share to th.- cue- .^'V^/ cutors. Thi ir Hein ml will hi au.iii st the su vivor--, and it is unrea- sons: le ihat the apt-n' c.innot aff'i^ct the <--titf of th- person wh • ap. poim d h m, but at thi- s.mt- time shall aff.'Ct that of t .f partners in anot:;e' pari of the- world at too rest a distance lo g'lVi- any check to his Ciniiiict ; sii.l ;ifier ail whi n perli:t|is he has gieallv injured them by mismanajjeinent, thai he may be permittid to shelter him- self b) sayin); he acted as their servaii', and is not ha I-- to m:ike them luy satisfaction. .V sum receiveil '>' i sii'Aivinpr partner after the death ot tne other, is receivrd in firo/njo Juie, :ip il noi „i i part- ner— becaisi- ihe partnership is dissolved >•.■ 1 L. Ray. 393, the rase nf Harford and Jones, and 2 BL Rep. 1117. were citud. The court took time tn advise, and the next day gave jndginent for the Plaintiff, heing of opinion that th<' right he had to detain the boat nntil paid f>ir salvage, was in the nat'ire of a demand upon the Plaimilf, or a chose in ac'ion, lo be enforced by keening possession of the boat till tiie Plaintiff should satisfy him, whii h could not be transferred with the boat to another; and being founded on the possession, when he parted with that, he lost his lien, and could then only recover his salvagt- in his wd name against the Plaintiff. 1 Mk. -234. 235. I Burr. 494. BBacM.aTO Dong. 105. 4 flurr. 2214. And there was Judgment for the Plaintiff. John Ingram, Assignee, &c. v. John Hall. -^ A bond f'T payment of money withou* a subscribing witness, can only be d' claiecl upon as a sealed iostrumt-nt j and proof of the oblisrnr's bund-writiiig will be admitted us proof ut the seal: but pn.of of itie .nd sevcn'y-fire " pouridK, ton sliilliiigs currency. Witness my hand and seal, day " and d !■ fimt above wrillen. £ ns 10. JOHN HAI.L, (Seal ") , ,. "On iiie bai k ofs.iid paper writing, were the fullow- (194; j„j, endorsements, viz : " Piy th within t' Geo. ffouper, o: orAeT. Wm. CuTtAB." " Pay tlie wiUiiu to/ Jnffiam, Ksq. or order. G. HoonR." "It appc.\reil on insperiio'i of tliep'^per, that there was not a subsrribi-"j: wi'ness to it, hut thatthei-e was a seal ; ami "le Pliiiniifi's counsel olferid h witness to prove the hand-writing of the Defenduat, to support the action. To Haywood's keports. 223 this, the Defendant's counsel objected, as insuflScient iu Apr.l795. law (o support 'he acti'in. >.i^~v-^^ " The court tlierpfi)re directed the witness to he swun, and a veidn t t > lie laken, and resi rveil the quesliou of law, on the hIio^b ibjection, for furllier considei'alio'i. ** It WHS further olijectc! in the case, tlial an action of debt cannot he maintained on the writing produced j ■wiiereon ai-:o, the (■•i-ifi took tiinp to iidvise: and it is a- greed, in case the court shall be of opinion, that, on either of these objections, the Plaintiff ougiit not to recover, then a nonsuit shall be entered. " But if the court should be nf o|)inion, that both these objections are invalid in (loiot of law, then judgment to be entered for the I'laintiff." The witness not only proved the name subscribed, but also the word seal, wriften in the circumference of the seal and scratciiexl with a pen, to be in the liand-writing of the Defendant. At October term, 1795, the court gave tlteir opinion as follov^s : Judge Haywood — Before we proceed to the iniracdi- atc investigation of the first question — Whether, in the case of a sealed insirunient, onatti'sted by any subscri- bing witness, the hand-writing of the paf'y may be ad- mitli'd in evidence; it may be [iroper to tak- a view of the orii^iii of deeds, in our law ; and of the \a- io,is chan- ges and alterations the law has nndergone, wiJ- e^'Spect to that species of instruments, in order to bi uccommoda- ted to the different circninstances, which diffei eni peri- ods of time have produced. U'his may have a stionger tendency ti> place tlie present question in a true light, than pcrhips an> method of treating the subject that could be devised. Let us consider, tlierefore, 1st, tlie origin of reducing cenfracts to writing ,-— Silly, th.- origin of sealing, with the uses that have been inad« of it at different periods; — 3dly, the origin of delivery. We will then consider the only circumstance essential (lar' to the cotistitution of a deed at this day : and lastly, from ^ ^^ all these premises, we will draw conclusions applicable to the point now in cmtro>ersy. 1. All writers agree that the northern nations of En- ,rope, who spread themselves over the soulhern and wes- tern parts of it, were an illiterate people, who despised 224 llAYWOOU-S UKl'ORTS. Apr 1795. all arts but tliose of war. Tlie Saxons who founded the *"^''"'''^**^ hcpiatchy in England, and iirtfiNVards the Eiiglisli tno- nairliy, were part of thuse pi^ojili- — (hrj liwd. in a;cnei-al, ni) kiiowlcdt^e of li-itcrs — tiicir laws and customs, Uieir lei^Hl ceremonies, were presi rved and Iraiismittvd to others and to postrrity by tradition only. To keeji np a military spirit, and to lia^e u bund t>f warriors always ready at eominaud. it was the nnivcrsal practice of the conquering leaders of these nations to divide the conqner- ed ccnintiy into alloinn nts, whicli vsere parrelhd out to thcii- Ibllovsirs: — tiist. at the will of the lor .if them iniglit re- member tlii-in, and so. by the iiniied n inembrance ol all togellier. niiglil, in ihe end, ascertain llie ti-ue state of (196) facts. This, by tlie way, I su-pert Was the origin of ju- ries, and of Ihe unanimity required in ilieir decision. — Each Juror conii-ibiiicd the circum->l,ince.s lod.cd in his mind to the general stock of iidorma'iini wliicli formed the verdict : and by conference willi liis fellows, brought # Haywood's ueports. 225 fo their recwllection the cii-cunistances wliirli he remem- Apr.i795. bered. and tlie others, oi- some of (liom, had forgotten, tin- ''-^'^''^^if^ til at length ihe whole transaction was renovated in the minds nf all. This mode of conveyance answeied the pur|)08e sufficiently, when donations wore for the life of an individual only; for it would scldmn happen that he would survive all the otiier pares of ihc ^Md'^ conrt, who wei'e present at the investituic. But when donations weie made for life to a churchman, for the henefii of his Church, and it wanareceixed niaxim ihal the Churdi ne- ver died, this melhod no longrr aHSvvcred the pu!po**e as to them ; for the donation might have continuance, and the conditions upon which it was made, inigiit come in question, after every one of the ^ares present at the inves- titure were no more, and then the iillotnient might be ii- able to he resumed by the lord ; ail lands included in his territory or manor, not granted to one of iiis vassals, be- longing to him ; and, after the death of all the pares, no evidence remained of the investiture, much h-ss of the con- ditions annexid ihereti. It became nece saiy, therefore, when the Church was concerned, to have some other mode of perpctuaiii^; the Transu( titni liian mere livery of seisin ; and the Cler.ny being the learned part of the com- munity, devised the mode of reducing tlie terms of the do- nation to writing, iSuUiran 82. And «hen Ihe l men, and tlie laity, wisliing to be as secure ^ possible in their possessions, adopted by digrees the same me- thod : whi';!i afterwards, when these allotments woteav- !?9 S^d MAYWOOD's ItEPORTS. Apr 1794. teiiiled to (lie lieirs of the iwsscssor, became equally i)e- '^'^"""'^-^ ce^sai V for tin- laitv as tlie Cleri^y, and fiom iImI time, deeds of (eoft'rneiit, lo Hccoinjiaiiy ilie livery of seisiti, be- came geiH rally used, lli >ii!?li tlie livery of seisin, was good xvithoiit (hem ; and these (■iii \\lii
  • ti' liis peis >n. I'liisc sym- bols CHino to bi' ' ei-y much in use .if tiic linie "f ihc cru- sades to the Holy Laud, in the titne of Richard I. .md af- ter, and wei'f continued hy the kiii.a;hts i-nl othi'c pm-- soiis. who then used thmi) hy way of distinction in Micir families afte • their retin n home. The seal, therefore, of any distinguished person, could immediately ho known by inspccliini only. This rnrtiiod nf snalin;!;, however, was not introduced all at onci-, but by di'a;rees. It was , at first only used by such as were eniitlnd to those dis. tinafuishinj; symbols — by the nohijity and s!;entry only. For Lxicie, Chief Justice of Henrij II. reprimanded a com- inon man, who had made use of a seal, sayiii«:. that be- longed to the nobility only. Terms de ley, iibi siipni, and several otlicr books. But it is to be remarkeii, that a~ bout tiiiis period, and ff the King's coitr's. and obviated completely any future controversy respecting 'In- execu- tion of a deed. At length, however, the eyes of the na- tion began to be opened to their true interest ; tirade floU' rished; agriculture was encouraged ,• personal property 328 HAYW00D*8 REPORTS. Apr.1795. increased ; lands, or part of flietn at leasf, bep:an to be ^•'""'"^^ freely alienated; thry > were made liHble to aiisv\er the (199) debts of the merrhant, and as t" part of tliem, tlie debts of any oilier proprietor. Contracts, botli for real and personal property, berame frequent amona; all ranks of men. The necessity of antlientirating their written con- tracts became nrijfut ; tliey of conr^^e used the best jnndd then known. Tley broke tlironj°;li the privileges of the nobility and jycntry, and made seals wiih such impressU ons as each man's fancy suggested to be the jnoperest mark for distinguishing his contracts. By the time of Edward HI. seals were in general and common use.— « Terms de kij, ubi supra. Cunningham, Title deeds, who cites Perkins, 229, and sequentia. And it became a rule of law that a deed could not be constituted vsithout a seal ; and the method of signing with the sign of the cross, or some '>ther mark, had gone into total disuse. Thus it seems clear, that the seal was originally introduced in . the place of signing, as an evidence of the identity of the writing which contained the party's agreement, and af- forded a full proof thereof by the inspection of its imprcs- •'' sion only ; and signing by the party was held unnecessa- ry and useless. In reality it could contribute but little to the (iroof of the writing, as long as the illiteralcness of the people continued ; which was until sometime af- terthe introduction of printing into England, in the time of Edward IV. insomuch that as late as the lime of Hen- ry VII. the being able to read was held to be a legal proof of a man being a Clergyman, or clerk in orders, 4 Bl. Com. 360. This universal use of seals, however, produced its in- convenience, when every man who made a contract was obliged to use a seal to authenticate it. Many of those seals were not known to the jurors, and they could not determine in many instances, on the authenticity of the instrnmeiit upon the inspection of the seal only. They were under a necessity therefore, to call upon those who were supposed to know the seal whi< h the party used, to say whether that was the impression of his seal or not ; and upon this evidence they decided, and sometimes up- on the (omparison of the seal with the impressions upon other instruments "hich were pro\ed to be sealed by the paity. But still, in contemplatirtn of law, these seals were beld to contain an intrinsic evidence in tberaselvea HAYWOOD'S REPORTS. 229 of the contract to wliirli tliey were affixed ; and therefore, Api l79o as well as for the purpose of lieins^ n iiipaicd, flie rule of -^^^*« law was, tjr.tt iliey sliniild be carried out by the Jury.— 6iU). Law of Evid. 20. But with respect to those seals winch still retained sufficient distinction in themselves as (200) the p;reat seal, the seals of the courts of justice, the seals of corpiirations, a?ul some others, no proof as to them was recjuired <)r perhaps was allowed. They still con- Tmued to answer the f!;enuine purposes of seals iit their first introduction, and were full evidence of iliemselvcs. The peo|)le began at lenijtii, to forget tiie ori.s;inal use of (his institution, and to seal with any impression they could j°;et ; and the law, rather tlum invalidate the whole trairsiictioM. left it to the jury to decide whether that was the seal of ihi- party or not. In thig country the jieoplc ha\e depaited siiil furtiicr from the true use of seals, by not m;ikin.ii; any impression at all, scrat hing aoniefiritig like a seal upon ihe margin of the paper, and muking that pass for « seal. To the fit st of these abuses the law has conformed, and will now deem the sealing tobesufti- cient, if found by the jury to be t'ie seal of the party. — For fear of ilestroying some rontracts improperly made at first, it lias r elaxi d from strict propriety, and the prac- , tice of sealing with any imju'C'-sion lias bocome general; and is now from tn^cessity, allowed to he good in every instance. Cunn. verba Deeds, cites Perkins, 129, 34.^ — Cro. Car. 149. Glib. Law of Evid. 20, but still thecni- templatiiitt of law is in conformity to the anrien' use of seals. They are deemed the signs of authenticity, are supposed to liave an intrinsic e\ idence in thrmselvis, and for that reason are cai ried out by the jury. Gilb. Laiv of Evid. 17, 20, cites Sid. 145, Hard.Ds, PU'icd. Com. 411, and Sir Edivard Coke, sp<-aking nf deeds, ;K/^e 6 h, says, "also Ihe deed may receive credit per collalionem sigitlorum, script%ircE,Sfc." and Baron Gilbert, in his note upon 2 Bac. M 494, says, "the seal appearing-, it must be presumed to he put there by the parlies to the deed ;" and cites Leo. 25, Uxven, 23, and Bend. 1. In tlie reign of Ilcnrij Vll. and Henry VIII learning, and the art of writing, had becom.^ miicli less general than in former times, and i»y this lime also seals had be- come much less a mark of distinction, and pioof of tlie indi\idual contract made by the parties, than in former reigns : but (he v\i\t, that the deeil ninst beantlienticated *^. 230 haywood's reports. Apr. 1795. (,y tiij. party's seal, lind passed into settled law. In or« ^-^""'^^^ (Icr, tlxMC'forc. to sjivo. a siiir' proof uf the sral which jiro- ved the wi'iiiiijs; that rodiaitioil the aiiifcment i)f tJic par- ty, subsrrihiiie: his name ;it thf fo' it of the instriiniciit, iitimctlialely after- ils runcliisidii and prefis'-d lo the seal, in the same place ant) in 111"- (lai'ty's own handwritin.s;, be- (SOl) e;an to be used. JVoij. 163. And iiltlioii.!!;h it was lield in ronlorrnity to th<' i nle then estahlisheii. and which has ever .sin'e cnniiiiiied, that stirh a sit;naturr was not ne- cessary to th«' essence of the deed ; yet wiiei-e the jtiry conid not decid • with rcsjiect to thi' deed, upnti inspecti- on of the seal neiely, ni>r be sati'-fied by a witness who knev^ the impression, nor by a comparison of the seal in dispute, wilh other se^ls made use of liy the same jtarty, they were allowed to f nin tiieir jndgrmenf npon (he hand- writiti!? of tlie party prrfixfd to the seiil ; and that was {he seripturcB intendetl by Sir Edward Cohc, in the pass- age above cited, where speakincj of the doctrine of deeds and of piesiimption, he say-, »• also the deed may receive credit, per collatvmem sigUlorum. scripliirw. ^'c- et super fidem carturum : mortuis testibus erit af the witnesses; but Ibis is not his meaninsf, for he says expressly, in the ve- ry next pHgr, that the clause of /i/js testibus is not es- sential lo the deed ; and in page G a, be says, "very ne- cessary it is." by which he me;ins advisable or prudent, "tliat \vitru"-ses should hi- nod ■ewritten or endoi'sed for the better sirfins^thcning of deeils," ( not that it is abso- lutely necessary to make them valid) "aiidtlieir names, if they can write, written with their own hands," not that they must nccessar ily bf subscribed with their own hands. Even at this day, tliere were many witnesses who could not write their own names, and tjieir names were to be endorsed ; and when these witnesses, namely, witnesses who had not subscribed (heir names in their own haiidwritint>;, could not he found or were dead, then the deed was to recei\e credit per collalioncm sigillorum et scnplurit. coupled toajether. Tiiis pntves the imsition, tliat the signature of the |)arty was used as a proof of the seal. If it was not evidence of the seal, then it was in vai'i to pidve the handwriting at all : for that of itself was totally unessential to (he deed, and mailc no part of its essence, as tliu same author had said in the page last 1 uaywood's reports. 231 preceding, ami as is held tit bn law at this day. Salk. 4fl2, Apr.i79J. pi. 2. And, tliMt IliK prool'of the sigiiatiirf of the party, >-^~*'^'*' whfii admitted, is used as a proof of ilie seal, is avowed ill terms Hlnmst iiiicqiiivocal, by Huron Gilbert, in liis la7V of evidence, 99, 103, where he says, "fur ihoiij^h tiio deed hi' pnidiiced under iiand and seal, and ilie band of the part) tliaf exerntes the deed be j)riueil, yet this is not full proof of the deed, for the deiixeiy is iieccssury to the esseiife." Does not this nmuife-tly iinjiiy, that the proof of the haiiilwiitiiii; proves every thiiijs;, vvliicli is ol'the es- f202) seiice of the deed, but delivery only : and of course, that it piovcs the seal? With res[iect loan attesteii sealed instrunienl, it is the roininon practice in the English ccnirts, where the witnesses are not to he found, to prove botli the liaiidwiiiina; of the witnesses and iff (he party. Bl. llcj). 5o'2, Forbes, executors, ^'c- v. fVale, sucii (iroof adiniiied before Lord Mansfield, to be given. 2 Brtrwv^s Ch. Rep. -tSG, 538. The sanie proof admitt 'd before the Lord Chancellor, and stated by the counsel opposed to the fact it meant to establisii, to be e>.'id' iice in the common form. Tlfe same pi'oof must also have been iidtnitted in the case of Gould and Junes, lepinted in BL Hep. 384, as may he seen by haling r.'coiirse to the case itself; and the same kind of proof was dearly admitted in the case of Co^lUun and Ifilliamsou, iej)orted in 1 Doug. 93 But why in all those rases is tlie proof of the party's signa- ture held neci'ssury, if proof of the witnesses' handwri- ting proves both sealing and delivery, and tmt the delive- ry only ? From the reason of (he thing itself, and nior9 especially fi-' ion in the case of Lindcd contracts ; and also, from the same solemnity, to excite in the i)arty a reflpction upon the stibji'Ct he was cnijaged in, it was continued in other contracts; and, like Ihe seal, was considered an essenti- al ingredient to tlie constitnlion of the deed. Here, it maj not be improper to remark ujion the excellence of this institution vvhen once established, though introduced gradually and for other pniposes, in pn-venting all man- ner of surprize uj)0n the pai'ty. It was first to be writ- ten; tliis necessarily employed some time; he had the in- (^203; tecval for reflection ; it was to he read over to him if he requested it : then the wax was to be preiiared and melt- ed ; next a seal to he procured ; then an impression to be made; thus gradually approaching to Ihe final act, still giving time for reflection, and exciting by each new act still greater apprehensions ; and last of all, lest the former precautions might not be suflicient to put him up- on reflection, he was called to go before the pares of the neighborhood, and make a solemn delivery of the instru- ment. After all these ceremonies were complied with, it was scan ely possible to believe, that the party was cir- cumvented by fraud, or surprised .nto what he had dune. After the pares were disused, and the autliority of the county and iiundri-d cour>s diniinished, I a|)pr(-l)eud a de- livery before the pares went out of use, b'lt that a delive- ry of the contract was still used as a sigrt of the party's ^ assent to the contract contained in the deed, and has ever since been deemed necessary to give it its final validity. Such seems to be tlie origin and progress of the seve- ral circumstances of writing, sealing anil deliveiy of deeds, winch came into use, not all at once, but at differ- ent periods of time ; and were used fur perpetuating, au- thenticating and proving the complete and final assent of the party to his contract. Any other concomitant cir- cumstances, besides those, ihongli tiiey have been some- times used, and said to be incident to deeds, as signing by the party, subscription by witnesses, and many other, as may be seen in Co. Lilt. 7, a, yet they have never at any pcrmd of time, beeti lielil material to the essence of the deed ; unless perliaps in some instances, where such oircumslances have been required by statute: and that these an- 1 lie only necessary circumstances is proved b}' all law writers both ancient aod modern. Go. Litf. 7 «. HAYWOOD'S UEPOKTS. 233 says, " I Iiavc lernird the said [)ar(s •(' (he deed formal Apr.17'95. or ordi't ly |)aits, for tiiat tlicy be ii'»' of the cfisonce of a '^"'^'"'^^ deed I'f fcoftmcnt. For if sni ii :• died be Avithout premi- ses, habendum, icnemlum, rcddevium- ihf claiis'' nf war-' ranty, thr chiisc of i?; aijns rei testiuionhm, ih*" diiJe and llie chiiiso of hiis tesiibus ; yii ihf rc H;i_>in,i^, Jhi.s is !i;oiid, if h«' put Iih «f.il, deliver it, and make ii\ery acmrilin^ly." IFood in his Insli- tutes. »dds "where livery of seism is neossaiy," import- ing as Lord Coke clearly did also, th;ii if it were not a deed of feoffirn ut, but a deed of some other kind, then j)iiltiojj !lie se^l and d'.liverin;:; the writing, would make it a t^ood derd. The same defiiiitioo is given, ai'd the same rircuaiNi.inres mly mentioned as necess.\rv, in 2 Rep. A, 5 10 Rep. 92. 3 Bac. .Sh, 393. 2 Bac. M, -93, (20'*) wiio files 2 Roll's M. 21. I JNTs/s. M. 623. Ttrms rfc ley. xerbo Fait. Co. Lilt. 171, b. Gilb. Law Evid. 78. Shepperd's Touchstone of commnn .Sssnrunccs, and many otlniH. After the jsroductiim of tills concurrent testimony of so many aulhurs, it seems Hc;ircply necessary to say ttiatthe subscri|iliiiii of witnesses io their own hanilwritin.i; to a deed, was never lield ne( essary to its con-titiition. The reasons olreatiy assigned for the iii'st introduction of seals and their cofitinuaiicc for a long time afterwards, namely, tlic illitrraturf of the I.tity, proves also that the snbs-rip- lion of v^ itiifss»'s was not used dnriitg that long (it-iwid, ' which Commenced soon after the coi'qres' juid re-itiiuied to the time oi Hcnrij VH. and Iknrtj VIII. Even the Magna Charta of King Jit/iji, givro at Ruoningmead in the year 1215, mentions the An ii'ui'-hiips, Bi-liojw, Ba- rons, &c. tmt piirticulaily ntimiiig them ; ;}• s.i'ifeacfed from the forio of the writing, he thei'eto piii his seal. — Bl. Laxv Truds. J5. 36. in 1216, tiie (irst charter of Jlcnry III. is a; tested thus, testibus omnibus prennminntiS) et multis aliis. I infer from Ihif, that in a matter of so niucn moment, they tertainly used the best metho ot at- testation then known or used, and as thi'> jlidin- siib- sciibe llnir names, it is an evidence thai the sobscription of witiitssesiii iheir own liainlw iting was tlien not prac- tised. The attest. ition of piivate deeds was i.> 'he .same Mianner — the names of the witnesses were underwritten 50 234 Haywood's reports. Apr. 1795 OP endorsed, and this was used only :is a memorandum "^""^"'^^ to show who of ihe pares were present, to the end they mi^ht be cftlled iiprm and associated to tlie jury, upon the trial of the issue, wfn-n ilic deed was detiieil. Vide Co. Liu. 6, a inid b, and soineiimcs it was said, teste comitntu, hundredo. ^-c. 2 Bl. Com. 307. I apprehend tiie practice of subsniUirig b) the witnesses fame into use at the same time with the sidjscrihing l>y the party — at a time \' hen the law resp' ctintr deeds was already firmly established, and wlien both these riicumstances were held unessenti- al, thoiis;h perhaps both of tliein at the time might be use- ful — the signature of the party to pfo\e his seal and that of the witiii'sses, when tliey roiild not be found to prove the delivt ry of the deed. Foi- when it was pi o\en by his own signature tobc the seal of the party, there arose a very strong presiimptitm from the proof of tlie handwri- ting of the witness, that they tiad been present at the de- (205) li\ery. But tliis kitnl of proof was only resorted to when positive testimony could not be procured, and was nut in the party's jiower to prodiire. To proceed a little fur- tl»€r.the statutes of 2 Edw. II. and 9 Edw. III. speaking of the trial upon the issue non est factum, sa>, " tlie wit- nesses shall be sunimoiied where there are witnesses na- med in the deed, but if they do not appear at the day ap- pointed, the trial shall proceed notvsithstanding their ab- sence." Hei.re the conclusion follows, that in those days there wfi'i' some deeds without witnesses naineil in the deed, and as to tliem, there was \\» delay of trial. Se- condly, that there were otiier deeds wheiTiu witnesses were nami d, and that as to them, the trial could not be in their absence, for they were to be summoned and make part of the Jury. Thirdly, this statute directs liiat they shall be summoiied as usual, but in case of their non ap- pearance, the trial shall nevertheless, go on l)y the juty that are present. Fourthly, that there was some other method then used of ptoxing a deed, than by the wilnes- scs named In the dted, or else this slalute opei aled injiih- tice by ordering the trial to proceed upon the first default of the witnesses (who perhaps ntight lie convened at ano- ther daj) and by so doing rendered the deed invalid and void ; and this it is unfair to presume. 'I'hat it could be proved by otiier means, is held by Lord Coke 121, h, wheie he assigns reasons why the law requires the pro. fort of a deed in pleading to the court, vix,. that it may UAYWOOD's REPOllTS. 235 i>e proved by llic witncssps, or otiipr proof, if denied. — Apr. ir9j. Tills opinion is stnridjly confirnit-d by some modern de- ^■^■^''"'*^ cisions, wlicii- Die rule of !;•« is licld t(t be, thut a witness shall ni>r lie perniittfd lo deny his own iUtestiilion. The true nieaiiinj^ of whiihrule is, Ihar if In- di.ci di n> it up- on the Irial, the died may be pioved b.\ otliers "ho were not altcsliiie; v\itnesses, and wliosi- name>- were neither subscribed nor endorsed. Doug, 216. 4 Burr. 2226. — This piovcs beyond all possibilifj of dntibt, that the at- testation of witnesses is not neci'ssaiy : lor if the delive- ry may be jiroved by persons who did not attfst, in case of an attested deed, can there be any solid reason asigu- cd why tiiey may not prove the delivery in rase of an un- atlested deed, where there are no witnesses to deny their atlestalion, iind by that means biing a tjuspirinn on the instrument 1 Upon this point I think it may be aSii'med in perfect consonance with the roles of law. tliat at this day the aitestalinn of witnesses, either by endorsing or underwritincj Iheir names in the liandu'ritinj; oi'tlie draw- er of (he deed, or by a subscription of iheir names in their own hanilwriting. is in no wise essential to the va- (9,Qt^. lidiiy of the deed : and from all those premises we may also infer some other conclusions. If writing, sealing and delivery, be the only essential parts of a deed, and the law deems it valid v\itliout the further ceremony of a subscriptitni by witnesses, then there must be some other competent means of proving the fleed otherwise tlian by subscribing witnesses. It would be absurd to attribute validity to an instrument that had these essential parts, and yet say it siionld not be read t(» benefit the jiarty producing it, unless proved by subscribing or endorsed witnesses. — But what other means are competent? To form a decided opinion upon this head, we must remember, that there is but one general rule in relation to evidence, and that is, that the law requiies the best evidence. But this rule is always relaxed upon two grounds, either from absolute necessity, or a necessity presumed from the common occurrences amongst man- kind. The lule is not so stubborn, hut that it will bend to the necessities of mankind, and to circumstances not under their control. The rule is adopted only to obvi- ate the fraud of mankind. One sliall not deceive the ■jury by offering a less convincing testimony to establish 286 HAYWOOD'S HEPORIS, Apr. 1795. dig point, \v)icii it apppitrH llici'c is a proof niOre eluci- ^■•*~*'^^ dative of tlip |iiiiiit in ccinlrover.sv in liis own possrssion' or |iiiv\ei-, wliidi perliiips In- does imt nHt-i- liccmsp. it would bf ilrcisivc :i,!;aiiisi liini. It was iicxpt iiic;iiit to exi huU tlic partj fiDin JufMce. nieiply bicaiisp lie iiad not, tliroiit;h igJOiaiicc, piii\id;-d hiiiisclf orit^inallv vvitli tlie best ovidciirp It was possilili' foi- him lo providr : for then two witiie-'sea ^^llllld he hotter than onr ; ahinidied bctliT than two ; and so on prnf^irssively. A wilting would he bi'ttpf tlian a parol lontrart, a deed beiliT tlian eilher. and a rcroid berifj' Ihim all. Neither was it in- tended ti> depiive any mie ofjusiice, when, \\itliout any default in hiinsrlf, he h^d lost ibf bi'ifer evideiKe which he li;id prn\jdi'd urigiiially. It first deprives hiin c)!' the pow.r of iiuposiiit^ opin u.s, and then liiys itself ojten to be relaxed, as liiTuinstanre.s shall in justice I'eqiiirc. Tliesc cirromst.tnces, ks I bei^an hefoie to mention, are of two kinds ; tlmse foiii.d< il on absolute iicci ssily, and th^se fmndrd on a necessity ocrasioned by those occur- rences which are couiinon amongst mankind. We will touch upon the first class only. In the case of deeds; if there he siibscrihijij? wititesses to them (see I Jltkius 49, the argument oi' Lord JIurdivicke, in the celebrated case , N Ormichund anil Bake^\ and mark the implication) they ^ ' nu'si he (>r'i\en by these witnesses. Because, it is pre- sumed ih.it these witnesses can gi\e a more distinct and salisf.icfory relation than any others, having been called upon originally for that jiurpose; but if the witnesses be dead, or nol to be found, and that he proved to the court, then the liandwriling of the suhscrihing witness may be proxed: that raising a violent jiresumption in favour of the dfid. If the deed be lost, and that ajipoar to the court, tlien the cripy 'ludl be read, as affording a pre- sumpti III But if there he nocopv, then an abstract may be aduiitted, that alfordinga prc snllicien!, tlian adhere to tiie rule vjheii.iiicy can- not be had, iind so, at any rate, destroy tlie deed ; thus, if the oliligce I'etnovcs.the witness, liis arlviH'«(((lc;>t,ent tiuit he exeoiifed the deed, is proof. //. Bl. Hep. 623. — In all cui^es, therefore, wliere it is apparent to the (diirt, ihat t'liPtc is no jiositive testimony to be had, tiiece niiist he a recurienei to testimony funndod on. presiiinptions, , or cirnimstatitial proof as it is railed. Ticrein refjuir- ing first the hesi pcesiitiiplivc proof that is to he li.'.d, and in defaull of th-ii. t!ic next 4iest. iiritsi we |)a,te4>ji£ii«L = through all tlie sever;il grades rtf (■iiruiii:.tai»ces that raise prcsoniplion, tVoii) that niiicli Lord Cake terms tlie violent, iimil we arrive at that which excites the ligiit presiniiption that moveili not at trll. If tills be the tiiie theory of evidence, and if an unat- tested iV'cA, being valid, may some way or other Uf. proved, as it rertainty ir^ay ; then in the first place tiic party must produce witnesses who wcr(^ present at the execution, tliongh not eiidi>rsed noi- suhscrii>id ; as in /o/.qn the case wheiT snbsrrihing witKCSses to an attested dcct! *■ ■' deny it, and if there ai e no such witnesses, llien there niiisf. he a recurrence to presiiinplive testimony. And '-.ete, as ill the case of an attested deed, when ilie wiiiiisses were not to be liad, proof of the party's signatuie would be admitted as a prnof of his seal j so in the casH of an unattested deed, I cwn '.ee no reason why the s.iinc spe- cies ol proof should not be atiioiited. where no bettei" is obtaineil. Tliere also, Lord Coke's doctrine, so often he- fore it he aliowpd to prtno. siicli cir(Mini--tanits as uiii iriiiucc the jury to find a dt'livcr\. In ilicsc" tuo r:isc's last ritcti, it i.s siiiciy ntuie n.iii))ati- tible Willi justice, and ilie rule «( eviclenre in siiniiai' cases, tn admit, tliati ^u oiire to destroy the deed by r< - jectin/:^ sucli ('iicninstanecs which the Juiy irii.i;iil dech) (iufficieiit to r(nivince ihcir initidn, to!;ether wiih oilier circ 1111 .lances tiny might tlietnsches be acquainted w iili. SuitI} tlicie are a great vaiieiy of (■ircninstaiiccs fioin wliicli a delivery niigiit very innpcil} he iiilei-ird. Sup- ])()Se a lUed ol feoftiuerit proililced. and the hanil-writing of the party j)!tive(l, ami also posses^iioii according to the deed. Co. Litt. 6, h. Gilb. Law Evid. 100. Su|t|tose part of (he iirincijial bi paid upon a bond by llie Defen- dant, or interest : or sii|i|iose the bond should be shewn fo him. and he requested the paiiy not to bring suit upon it : suppow the band suffi'ii-nlly desciibed in a letter and ackiiowleiiged. 2 J^'eLs. 762, pt. 45. 2 Eq. Ca. M. 413. pi. 9. Suppose u|ion tlie back of tlic ijoiid he enter an endorsement taking iiolice of it as his bond. BMer2b4. C. IC. B. 500. Suppose he state it in a bill or answer in Chancery. BuLler 236. Supimse In- has madea parol confession of it. Dong. 92, 216, in which last case, the proof evidently would have been deemed siifticieni had (209) tiiere been no subscribing witness. Or, by likeparilv of reason, suppose any other possible ciiTumstance from which a jury might justly and (airly infer a delivery, surely it ought to be received. Even the possession of the obligee, where the other |)art\ could not shew the illegal commencement of that |iossessio>i, might afford a pi'esumption in favor of the deed. But. as there is no case to Warrant me in g intended theic was some otiier circumstance t^'ivon tbeui in evidence suflir:iently evincing the delivery : and tlierefore as toihe fust objection stated ill tliis special case, there ous^bt (o be judgment for the Plaintiff iiotwitiistanding. It seemed (o be insisted mi at tlie trial, tliat ibe clause "In witness wberenf, I liave hereunto set my hand anil seal," iniglit be received as an evideiice of the seal ; and as some case may bereafter occur, in which that clause may have only the u'li-ds " In witness whereof, I have hereuiii'i set my hand:" when in I'art flier;^ may be a seal affixed, I will remark npoii tliis clause a little ; more (jspecialiy. as it is set dov.ii in this s-iecial case, and the opinion of Ibe coui-t is expected upon it. 1 would fibsw-vo then in tfie first place, that this clause contains a part of the words of the deed, and ili/^.deed ilself. or any pai-t of it, raiinot be read, until the sealinej and ilclivery of it be tirst proved ; and of C"iisequence. this clatiss cannot be read to prove the seal until after the seal has proved the clause itself: and then as to t!ie purpose of its proving or disproviiiij the seal, it is totally useless ; aiul, that such a clause is not only unnecessary in itself, but that the words of it have always been disregarded, is proved by Bucli ao abuiHlaine of authorities, that the bare cita- tion of them will fully establisji the position that the omission nf this clause or the addition of it, or the words of it, can have no influence whatever upon the writing (210) itself. Some oftheui are tbe following: Co. Lilt. 7, a. Sttlk. 714.. 2 Rep. 5. The deed is good, though tliis clause be omitted. 2 A^els. 623, pi, 7, who cites Moor o. U is not a cooclusion i>f the deed : lor that which is writ- leii after if, is as much part of tlie deed, as that which is written before. Also 2 ,/VeiS. 621. j)/. 13. who cites S liuhlrode 300. '• In witness whereof, I have hereunto set my band :" the deed is good, if there be a seal, ihougli ibeclaiisc do not mention the seal. Cannivg. Dict.verhu J)ceds, cites IMlij 75, and by tli'- like reason, if it men- tion bund and seal, still it can operate nothing. 2 Str. S14, 815. L. Rail. i541. For the sea! is not' establish- ed by ilie words of the writing, but e couverso : the words ■ 'iTitained in tji' >.v riling ai'c proved to lie the word* of 24U HAVWOOU'S REPORTS. Apr ir95. (|,p |iai'ty by his seal, Ai'd. iftlie words roiil.iincd in *'^'^^""**^ this ilaiisp wen- allmved ti> (h-hvp any thing, tlif iiarly to lii- lieneiitcd b\ the doi'd wimld luivi- iiotliiitg to do Inii to iiiscri thi>i cliuisp, ••In wiiiiCH-s vvliiM'«'i>f I liavi- scaled and dclivOKil," and the i\ i'lincL' iif tlin (Ifd WDuld be com- jileic. Snii|>iise in ihe juisiMit clause Mia! tiip woril seal had luii ')M'n in the liuusc and yi'f "ic seal should ap- l)eui, ^^illl ihe word se:il .vitliin it, in the liandwriting at the obligor, as wan the tai.t iiei e : wouM it n such acceleration of payment had been attempted. , } Term Rep. 520. Now then to apply these rules to the 'ase iti hand, if the .seal was not affixed to the instrument at til- time of its execution, and tlie addition of the seal afterwards be an immaterial alteration only ; then the in- strument being in possession of the linlder or obligee, the presumption will be that it was added by him, and will turn it H|»on him to prove how it came there, like the case where the seal was torn off by a cliild — this raised a pre- sumption of the deed being cancelled, atid turned it upon ;lie Plainiiffto show how the seal came to be torn from thp wriiing. Cro. Eli%. 120. Pulm. 403. Lntch 226. In the case of the bill of exchange. Lord Kenyoii, speak- ing of liie blot which made the alteration, said, if it had been done by accident, that sliould have been found (o excuse the party. He thctuarht the alteration having been made after the instrument came to the possession of the payee, raised so strong a presumption of his guilt, tliat in point of law, the instrument should be deemed void, unless he could show the blot happened without his pri- vity: and so I am induced to tliink in the present case, that if the addition can be considered as an immaterial ad- '213) dition only, yet to make men careful to preserve their written instruments free from alteration or addition, it is good policy in law to suppvse the al'cration or additioi/ made by the tiolder or obligee himself; therefore the mo- ment he shows a sealed instrument, and says tlie seal wa*; not originally affixed to the wi iting, the wlndc iiistru raent must be deemed void, unless he can show that \\\^ Haywood's reports. 243 aea) was affixcil to it without any inivity of his. But I Apr.i79j. take it, the a'ldition of a seal is not an immafeiial alt^r- *'^'^''^*^ ation only. 1' avoids the art of liinitafiims — it excludes the giving; 1 if ;)arol testimony to explnin or control the writing i-i any 'ihape — it makes the party liable to ano- ther kind of action than that he at first stiimlated — it de- prives him of that latitude of evidence he mijcht have had in the action on the case ; and before the act for the amendment of the law, would h-avc him, in the cas<- of a single bill as this is, no method r)f discharging himself, but by a release or acquittance under seal. In every i point of view therefore, the nddition of the seal is a most material alteration ; and if it be material, tlien no mat- ter how it happened, or by whom tiie alteration was made> the whole insti-nment is totally void, and no anion what- ever can be supported upon it, no m make way lor proof of tlic writiag as a simple contract. The law requires that tlie con- tract shall remain unaltered — that tiie party m.iy not he subjected in any other shape or manner than tbaf which he has consented to. Besides, if when the signature of the party is proved, that stands as presumptive evidence of his seal; then an unat'ested instruitient being produ- ced, and the handwriting of the party proved, tlie ]»re- suinption instantly arises and will stand for truth, until the party Plaintiff shall overturn it by evidi ncc, account- ing for the affixing of the seal, and that it was done with- out the knowledge of the Plaintift', or any criminal intent in him — and so qnacunqiie via data, the seal a|ipcaring, it must be accounted for, to say the least, by the Plaintiff himself — and therefore I am of opinion, upon the last point reserved in this special case, that debt is the proper ac- tion to be brought upon such an instrument as is therein slated ; and that the action on the case can, in no in- stance, nor in any possible case wiiatever, be supported upon it — and this opinion receives credit from the arga- ment of Justice Heath, in the case of Gibson ^ Johnstoik V, Minor dj- Foster, reported in H. Bl. Rep. 622, w here, arguendo, lie lays it down as clear law, that if the delive- ry of a bond cannot be proveti, it cannot be concluded (214) that it may be given in evidence as a note should — be- cause the creditor havitig taken his secuiity in a deter- mined form, he cannot at his pleasure alter it against tl>£ stipulation of the debtor ; and yet says he, llw obligation includes a promise to pay money. 244 HAYW00D*8 REPORTS. Apr.irss. Judge Macat "38 of i>piiiion the instrument must be ^^""'^'^^ declared ii:". as .< sealed instrument. Judi^e Williams was of opinion that the instrument could not l>p pnived as a sealed instrument, fur want of attestation ; and therefore ought fo be declared upon as a writini; only. Judge Ashe seemed to di derided at Hillsborough ; ihe bond being in the possession of the endorser, is evidence prima facie, that lie has paid the endorsee for it. Endorsers I reqncnlly bring suit upon bills endorsed by them, when the en> dorsee is i-efused payment, or cannot obtain it and re- turns the bill, leceiving payment ofthe endorser himself. The Case in Show. 164, of Dickens v. Harriott, is very similar to the present — there a bill was drawn upon a person in Dublin, the payee endorsed to Dickens, .md he toanottier, who demanded payment, and po'c-^wd for non payment — Dickens then sued, and it was annrngst '>ther things objected, that the interest was vested in Uie HAYWOOIJ'S REPORTS. 245 last endorsee, as apjieared by tin- trulorsemeiit — then Apr 1795. raercli-mts v, ore exainiticd, wlm .said, whtifxcr (lie bill ■^-^'^^ wa.s letiirru'd info the pos^icssioti of the last eiidii-ser. he might maii)taiii an artiKri. The court n-cired this rase npori ineiiioiy onlv. tiie bonk not hein.e; in court — and judfiiment in tlie pn-sent rase was siven to tlie, Plaiirtiff. Note. — Some of the har seeme 1 dissatisfied witli this decision, as they wire witli tlvi of iSmiVA and St. Lawrence a' HilIsboriigh he had endorse ' to 7). :h'- bill being returned in'o liis p< ssession ; but then the indnrscmiir; ii- tli.i' case was^, pay to D. value on tny ac- (215) count :" perl.ap:, this made JO. onlv his servant or agent, in the same monii'-r as if ■! had bien p-.iy tc JJ. form) use. See 2 £urr. 1227. — Doug. 117, G59. The c.ise of Sin'th and St. Lnivrence was f. uuded upon the case in Sir. 1103. Where the court permit;ed ihe PlainlHF to strike out the endorsement, but but was a blank i ndorsi im nt only. It was also founded in part upon 1 Lul. 885, where the second en- dorser suppotted an action tliough tilt re were two subsequent en- dorsements to his own appearing on the bill ; but there he statf'd iu his declaration, that the last rndorste not belnjr able to pr cure pay- meiit from the acceptor, b'^ the I'laintifT, who \v:is the second en- dorser, paid it to the last indorsee, and iiecame again entitled lo the bill. The payment was actii.illy ht'edjieil ard not denied. And in Claxton and Sn.ii'i, 3 ifo. 86. 2 .V/ioiu. 441, 494, the payment seems to be relied on, as that wliic'i i nttlcd the endorser to the action. Kiitil. 73. Also the case in L. Hay. 742, 743, where the hut endorsee sued the second endmser, and recovered; whereupon the S' cond endorser sued the acceptor, and upon the trial prodnceeiiiy fixe pound.s, with coiidi- tioti to p.iy (iiT iKilfof that snni. The «rit was for the smn incntinncd in ihe rondition. and of course the dccla- 246 HAYWOOD'S REPOKT'4), Apr.irss. ration was supposed to bi' fot tlic same sum. Et per ^•^"""^^ curiam. Hie condition ; no pnrt of ttie obligation, it is in- sefted fur tlie bi-nefit <>f the obliefor, to exempt liim from the payment of the penalty if lie chiisus to comply there- with ; hui he has his option not to perform ilic rondition, and to forfeit the bond if he is so disposed — consequently the bond produced, which is for six hundred and twenty- five pounds, does not agree with the bond set forth in the declaration — but as it, has been a practice agreed upon by the bur, to suffer an alteration in the writ wlieii issued by the Clerk as this was, where heliascomtnitled a mistake, we will now recommend to the opposite at- torney to consent to tiie alteration. Howeve he would not consent to tlie alteration at present, but agreed it should ho made at any lime after tiiis day. — Whereupon by consent a juror was witlidraw'ti, XoTE. — Vide , Anonymous, post iOl, and the note to Cowpery.Et- ■cards' Adm'r. ante 19. f"16^ Surviving Partners of Auley MrNaughtou and Co- v. ^^ William Norris, Surviving Partner, &c. Assumpsit for goods, wares and merchandize sold and delivered. General issue and statute of limitations pleaded; and the piincijial questi()n of law was, whether the act of limifiitions runs fiom the date of each article in tlio account, or from the date of the last article only. Et per curiam, the act runs from the dale of the iast^ article in 'he account only, where the account has been running on from its first cummencemeut ; but where it is once deserted or ended between the parties, then from that time. Verdict was found accordingly, and the PlaintilT had judgment. tiorn.— Vide JCimboUy. Person's Adm'rs. 2 flay. 394. 2 Sound. 127, note 6 & 7. Administrators of Hostler. Assignee, v. Patterson and others. Sureties of Mclvcr, late Sheriff. The Sheriff had returned to an execution, that be had levied monies thereupon to the amount of j£l57, 8s. 4d. and now the q.iestion was hou judgment should be taken — wliethei' ffir the penally of tht Sheriff's bond, to be discharged by tJie j^ayioent of the^l57; »s, 4d, andcosts. Haywood's repokts. 347 or simply for tliat sum not ip,a;anii- j» the penalty ; and Apr.i795. at length it was entered up Cuv £15", 8s. 4(1. — o tie of the "■■^"^"'~'*^ .Tudgcs ag^recinjy thereto, relnclanter. See 1777, c. 8. s. ". NoTK. — Tlie practice now is to enter ii|i judgment fur the penalty of the bond, to be discharged by the pay mcnt of the real damages ai- sessed by the jury. V. Administrators of Richard Kcnon. The objection that a joint obligor is not sued, must be made by pleii in abatement at tin; pcoper lime : it caniiol he made at the trial of the cause. Such a plea cannot be made at all since ihp act of 1789, Jlev. c. 314, s. 4. Debt, noil est factum, payment and set off pleaded ; and upon the prodiicli-.in ot ilii. bond, it was objected that tiie' other obli,a;of t^tincd in the lioi;(l, i." alive and nut sued. Per curiam, ti, Defend iiC oiii^ht to have pleaded that in abatement, 'f lie supposed it would have been of any ad- vantai^e lo him ; for by pleadini^ over to the acli'in, he iias admitted himself to be a lawful Defendant Where- cver a plea is ple^tdcd, which according to the order of pleading, is stibseqtient toatiother wliicti might have been of advantage had it been pleaded at tke proper time, he thereby wpives the inatler that Wiis proper to ht exhibi- ted in tiiat former plea, otherwise, tiiere would lie the greatest confusion in triai.'^ at law. The PlaintilF would constantly be turned lound upon objections he did not ex- pect, and of course not pitpared to combHt. It would also be prodiiciive of a gnat waste ol time, wen-. the court and jury to take up every ohjection which might be made throtigirevety stage of the proceeiling, and endea- vor til ascertain its reality — the ruhs <>f pleading have (21f ) been formed with great wisdom, and with a view to the prevention of tliese inisiliiifs, and if observed the parties will never sulfer injustice, at the same time that the weight of the whohi (tausc will be redncid to one or two poinis. of which both parties are apprized by the plead ings. This obj"ciion therefore cannot be taken upon these isKiies. GUb- Law Evid. 168. Co. Lett, 283 a.~ I Rep. tl9. Al.o, this ob jet (ion is not go'id for another reason. 1789. c. 5T, directs thiit in all cases of jnint ob- ligations or assiiitip ions ol co pii-ineis e,iit. Note. Upon the first point see 1 Sound. 291, not; s. As lo the olli r i)Oini st-e note to Brown, Cainjibell U Co. v. Clari/ ii Craig', .idm'rs. ante 107. John Winslow r. Lewis Biuom. In an action of covenant for a certain sum in silver or Spanisli milled dutUrs, the jury art at liuerly to give (he real valuff in our currency as damages, notwiilist&nding the act of 1783, I{ev. e. 187. Covenant — and covenants performed iileaded. The covenant was for the payment of foiir hundred and fiflj- tWD dollars (^sii\er or Spanish milled) on or before the fii-st of Ainil, 1794. Evidence was oUen-d of the value of the.ie dollars, when exchangtd into current money of tiiis Statti. Tliis was strongly objected to, on the otlier side, who insisted that the value of Spanish dollars was already settled by 1783, c. +, s. 2. Per curiam, the evi- dence is proper, and ought to be received. This is an action of covenant — the jury are at liberty to give such damages as will do complete justice between the parties. Note.— Tlje act of 1783 declares at wbat rate tlie foreign coins there menlioned, shall be eslimated m our currency — a currency at tlut time only imagi'^ary ; we had no circulating medium of any kind: since ihut lime h pn|)ei- money hath been emitted, which also refers as to its value to this imai^inary cunvncy, ttie value ol wliich lsfixcd> but only ubcertiinable by a comparison with the coined money «t other nations. Oar bills of credit, whc n issued, w re inteu ^ed kenly shillings in tiie curreiicv of North-Caroima, or two and a half dollars, the credi- tor must eillii i ri.ceive i», if the tender be made with all proper cir- . cunuitances, or forego his ipterests and costs. This is :in injustice (.218) which rtsuils from the positive directions of tlic act, though it was not foreseen at the time when the act p>ssed— but tbeiu is no part of the act that say& the court in giving judgment may nut take notice Haywood's reports. 34.9 of the depreciation, and that the judgment is to be discharged in a Apr, 1795. currency degrided below its intended v:due — neillier is there any s^^'V^y law which says, the court shall not increase ihe quantum of this de- graded currency in tlie judgment they give, till it l)econies t-qual to that value whicli is represenled by those four liumlri'd nnd fifty-two dollirg. And where the court is not tied down by the express and positive directions of the Legislature, the inesuniption is, that the Legislature intemled they shoulil act so as to alialp. tlie real justice of the case before them. 'I'he true meaning of the act was, hat one Spanisli milled dollar should not He deemed to be of gr. atcr valae than eight shillings of our currency as estimated iih'-ii ami l)efore the act passed; not that it shall be equal to eight siiilliiigs of paper money afterwards to be issued, and which would depreciate below its intended Value. The many disputes that hav ■ arisen relative to the ■ paper money now circulating, seem to have originated from part of an act of tlie same session, declaring twenty snillings of this money t-o be equal to two and an half Sp mish dollars, ami that it sliould be a tender after that rate — hence it hath been interred, ihat a- twenty shillings of this muney, is equal to two an. I an half dollars, and these equd to twenty shillings of the currency o( Norili-Carolina, -s esli- iDHied at and before the session of 1~83, that therefore each of them is equal to the otnir; and that is mathematically true, vet if two things are only equal to a third in some respects, and not in others, it cannot be affirmed that they are equal generally, 20s. of V'e currencj' of Hor'h Carolina, were it in silver,, coined by authority, would be a tender in dischaige of a debt of 2 & ^ Spanish dollars, and as a bill of 20s. of the paper money now circul tng, would also he a tender in dischaige of 2 & 4 Spanish dollars — it follows, th n as to tlie purposes of atri y the act to any positive rule with respect to tie assessment of damages, they should always be careful that the creililor shall have so much jf the paper monev as represents the real value .it tlie contract sued U|ioii. This answers the true meaning of the Legislature, which in former instances being misunderstood, hath exposed tUem to the imputation of enticing the citizens to the di»ciiarge of tbeirdebts with a legs value than they engaged to pay ; tiian which nothing was ev4T more untrue, nor any imputation more unmerited. NoTB. — Vide Anonymous, past 3S4. 250 lIArWOOD's REPORTS'. AJjr. 1795. -^"^■''^-^ Parker t». Stepliens. When an executor omits to plead " no assets," it is an admission of assets which he can nevtr «fterwanls cnntrovert: and in siicli case, the pio[.. r jiulirment is, thai ilie principal sum rec. vered bp levied de boms tfstatons in the hands of the executor, and the ci sts (k bonit propriis : itni\ upon the relun of the SherifTihat there arc n'. K'""'* of the deceased in the hands of the executor, then a set. fa. issues to the exi'cutir to shew canse why the execution for the principal should not be levied de bonia p< opriis. Videpoat The Phiintiff had broiiglit an action a^Hinst tlip Dcfen- •298. darit, as adtniiiisti-ator of Charles Stephens, deceased : to wliicli tlip Defendaiif ap|>eai-rd and pleaded flie genera! issue, art of ruDit^itiotis', a foriner recovery, and set off. (219) AH wliidi plejts were fmind against him, and damages asses-.rd to ninety pmiiKls f:>iir sliiliings, and costs to six- pence: and there was a judgment against him, to be le- vied de bonis tesfatoris ; AJi, fa. issued, and tlic Sheriff returned then upon, that there was not any property of the intestate's to be fonnd — and ujion this ri'tiiin, the Plaintiff took out a sd fa. for liie Defendant, n him who hath occasioned them, and not on the estate of the intestate : and therefoic in such case the true method of entering the jnd.a;ment is this, the princi- pal to be levied de bonis lestatoris, and the costs amount- ing to so much, to be levied de bonis propriis. And, tlie judgment to have execution de bonis propriis for the priii- ci|)al, is always a subsequent juilginent, f'oundoil upon the scifu. This judgment was tiierefoie well cnleied, a>id this scLfa. well brought upon tlie return the SheritFlialh (220) made, and the Plainliff must have judgment accoiding to the sci. fa. — And he had judgment accoiditigly. Vide Office Exec. 165 to 172. NoTK. — In several cases like the prcst-iit, after llie return of a fiulUi hanahy tlie Slier'ift', tin- cuiirt permi'ied a special /i fa. to issue (^Hogg's Ex'rs. V. White's .idm'ra. post 298. Buruside v Greenaide. 2 Hay. 112. Mston v. Harris's Ex'rs. Ibid 125 ) but tlie case of Hun- ter V. Hunter's Jldni'rs. N- C Term Htp. 122, i!i-ci'les tl.at llie special Ji.fa. is improper, and thai a sci. fa. or Jiii/t (ora devastavit is the only projier course. See 1 Sound. 219, note 8. Toller's Law of Ex'rs. 469. James Ritchie v. Duncan McAiislin. Administration granted when tlie next of kin sre out of tlie rounlrv should be durante absentia .• if otherwise it is er, or.tous. Tlie next of kin in another country may appoint a person lo lake .the iidiiiin. i3tr:ition here. The court should not grant Utters to a person not designate 1 in the act, before the persons designated have r fused. The Supir.or Court will repeal the letters wlieu imptoper!) gran'ed, and make an order for the County Court to grant th*m tci the propei- person. Quere whether it should not have been a mandamus. Petition, to rescind letters of atlministration, jjranted by tlie County Court of Cumberlaml to the D< f'-'tlant, of the estate and effects i)( JJulcy JMcJ^aui^htou, (hreitsed, in July Term. 1792. The next nf kii> be)"'"' ^*"'- since that time, h.i\e appointeti Hie petiti.mer tn :t(i|il> (••<■ fhe adniinistf \tion us their agent ami trustee. H'' exiibited this peti'inn lo tlie contity coiiri, who ret'useil to lepeal the former letters; and thereupon th'- peliiinmr appeal- ed to tiiis court. He had a similar appointment also from 252 Haywood's reports, Apr. 1795. ff^iiiie Ervin McClay, trustee of the sequestrated eitatc of" '"^'^'^^^^ the survivine; partners n( ^uUy JUcJVaughton and Co. in Scotland. Per curiam, Adminisfiatitm wlieii gianted, if (lip next of kin are infants, should be jjraiited durante minoritale ; if beyond sea, or oui of the cooniry, durante absentia ; and if otherwise jjrnnted, it is eironeous. Whpie ti»c next 'if kin reside in a foreign country, and ratinol per- sonally attend to take the administration themselves, they may sippnini a person in wliom they have confidence to take it tor them ; and the roint oiiglit to grant the ad- ministration to th»ir appointee. Tlie court ha»e not ex- ecuted the power the law .cjives them, when they have .e:ranted li-ltprsto a person not de>.i.irnated in that act, be- fore thepi'rs'ins designated have refused : hut only where they have granted letteis to the proper persons : when they have granted letters to inipro|iei persons, they may repeal them, and ought to d"> so, a' the application of the persons properly entitled. 1 Cro. 469. ' Rep. 18.— The coMseqiience i«, that the letters in the present case, having been improperly granted to the Defi ndiuit, to the prejudice of the next of kin in Europe, should he repeal- ed, and granted tt» 'heir ap|)ointce. H. Bl. Itep. 152.— This was ordered accordingly, and an oiderof this court was made for the County court to grant letters accord- ingly. Huoere, if it should nut have been a mandamus — for if they II fuse to comply with this ordi r, how arc they to be brought under the penalty of a contemjit committed to- wards this coui't. The court further said, that they did not regard the appointment of the trustee of the sequestrated estate of the survivors, because the survivors were entitled to all the joint stock in trade, until the net balance was ascertain- ed ; and as to that, the power of the administrator com- (QZi) nje'ifcd. after the business of the survivr>rs was finished ; ^ and besides the administration would extend to such of the effects of the deceaseil, as were not a pnrt of the joint stock, and the survivors ( ould have nothing to do with that, and the trustee stands only in their place. Note.— rt«fe Cflfttey v. fVebb, 1 Car. Law. Bep. 247. S. C. 2 Murph. 268, havwood's report^. 253 Apr. 1793- Ini^ratn v. Lanier. , v,-^-v->»' Where a person concf rned in interest is st;iled in the bill to be moved away and not since heard of for many y and jus- ticc enough in ihe sovereign legislative body of the coun- try, to (111 voluntarily what justice required. Per Curiam, we cannot j)ass any effectual order or judgment against the Slate — neither is tliere any in- stance of a court sayieg to a sovereign body, they ought to do thus or tlitis : for us to pass an order wiihoiit hiij prerediiit, and which it would be opiional in them upon vhoni it was intended to operate, either to comply with iIA.YWOOD's KEPOnTS. 255 or not, would Ito (o place ourselves in a r'iiliciilous pninf of Ap:"- 1'^?- view. Wo have no [kiwci- to make sucli an order. Et'-''''''^*^ per one of flic Jud'^cs — I was suipi'ized iif tiie adjudica- tion at liilisborougli, which has been cited at the bar, when it took place. I nrj^iied titat cause on (lie part of the Slate, and I could recollec t no case like it that I ever had read or heard of. I have tlioii:;ht mu(h of it since, and lo:!k( i! much into the anllioritics. Tlie practice of set-ofTn is founded upon a statute, and were it not for tiiat, a sri-o(f could not he allovvable : it therefore can ex- tend no further than tlie true spirit of the act will ad- /-of,-., iiiit — that was to diminish the number of law stiits and ^ '^^^ cxpencc ro the parties. It int'ended, where two jjartics had ieci|)roc;tI di-maiid>;, that the Defendant instead of suin.!^. mit^hl plead iiis demand of equal or greater value ill liar ; if of less value. mi,s;litset it c)frnpoti notice given. Dy this means he had justice more easily done, and at much less expence than when boili parties were to sue reciprocally. Paynter v. Walker. C. B. Easter 4 Geo. III. nnUcr 179. 1 Tf'ils. 155. Cowp.-\35, 135. It follows from het.ce, that a Defend int cannot set off, but in a case where he might sue the PI. lintiff if he thought proper. This was certainly the true meaning of the act of 1756. c. 4, s. 7, and as the case cited was hmught on suddenH, on a motion on the part of the State for judg- ment, and determined suddenly, without time taken to considei-, and as it was against the current of authoi'i- ties, it was in>proper perhajis to cite it as a precedent, before it should be corrohoiated by some concurrent de- cision, or by some case adjudged upon consideration. — One of ih<' reasons given for the decision in that case was, that the Defendant could not sue the S'ate ; and that was tlie strongest reason that coulil be offered, to prt)ve he should he allosved to set off his desnand. 'J'ho rircumstame i.f the j)raiiice of set-"tfs being introduced by, and beinsr ilependant on an art of Assembly, was not at all attended to. But the practice was treated as an erpiitabli^ practice founded on the common low, or in reason and propriety only : l)esides, it dues i»ot follow, that be- cause the paity cannot set off, he cannot obtain justice from the public — tlie Legislatuie will sui N have mag- * nanimit) and jusfirc enough to pay tiic parly his just demand, upon a proper application. Tba. case cited •herefore is to be doid)ted of. i5t> JIAYWOOU'S UBPOBTS,' Apr. 1795- ^'^'''<'^*-/ Ueii, on tlie demise of Wilcocks, v. There were several e.j<'Ctment siiiti brought against tiie inhabitHiits of a pait (if the town of Fayrtteville. for rc- covei-in:;; tin- re-^pi-rtive lots of land on which they were respectively scttlid ; and the issue of tlif miitesi depend- ed solely upon Oic asrertainincnt of an old line of a tract of land oC one thousand acres which lay adjuining to the town, the Fiainliff alleging that tliese lots were within that line, and the Defendanls that they were wilhuut. — A surveyor atid Jury were appointed t<» survey and v,iew the land — and the wered foi- all. The court took time to advise until Judge AI\cay could searcli the record at Sa- lisbury in the suit of PuceLy and others, where tlie same question had been decided. NoTB. — It si'ems as if each Defendant, in caseaverJict went against liini, should |)ay ilie whole Costs nf the '■urveyor. . I'he lini- niii-.t be platted tor each, in the survey return* I for liia cause : also, e.ich De- fendant's \«'. mu t l>e viewed tni plaut:'! (o aliew its siluaiion relative to th ling line. Won respeci to the jurors lln-ir tiiiour is over when llie lines are oiic>- run and vi'W d When thi\ an vk wing the loni; line, that is a scrvcc for tlie Defendmiis jointly ; bui when ihey are viewing the lo's, thit is for e.,cli Dvteiidant singly; i his bail, and (■ini'iiiiicd, as the I'laiiitiff alh'!?ed. lo tin- Shi-rift". tlie |)icsi'mi Dffendant — Tlicie was tio lec-oid (if ihis cornniiinietit, and it was <»b- jfcied il could bf-pnivi-ii nnoiher way, the sm-n'iidi-r ba- \ihg been made in court. It was also objocted, thi-it tlio' an acticiii for an escape on mesne |»roce>;8 will lie in Eug- hmd. i! will not in this SuU'. By ihe act of 1777. c 2, S. I6 and 76, liie SiiciitV arresting, is deemed ■.» bi' \he. bail iiiii'.self. wlieie he does notceiurn bail ; and by s. 20^ upon a surrender made by tlie bail, llie Sheritfis to re- ceive the body and bold the Delendinf in custotiy. as if hail had neNer been giviMij now, if bail had never been gi\en, the Slieiiirmigbt liH\e tliscbarged liie D feodarit without bail, and ihrroby lia\e beeouie bail hiniseif, or (225) he inigiii have coininitied liini tn prison. I'lie ciicuiii- btance of cooiniiiting tin- Delendani to prison, canimt place the Sliei-iirin any worse siiuaiion than he was in, after ha* ing him in custody and bef u-e actually commit- ting bill! — tlie Difendrtiil is his pisoneias w. II in the one ^•,ase as in tlic other j if tbeiefire, bis dis( barging llie prisoner out of his costody beloie an actual inipiisiin-, inent, will only make lh>' Slniid liable as bail, by parity of reason, his discliargill!; tlie Defendant from an actu- al iinprisomnent will h.ive the same operation : the PI in- lifl'iii the action is not inoee injuieil in the (oie chs< tlian ill the oilier — for if the Sheriff is liehl to be the bail in both cases, then, the Delentlanl is in the p^wer ol ihe CMuri, and the Plainlilf may proi red in liie ai tion — iieii if the Slieritf be bail as well in tlie one case a« in tie- mliei', he miglit not to be liable to an action for an e^cap'- oa mesne process, because in this action the SlierifTcan on- ly'discbargc himsell, by a lecapii.-n b'fore (lie actum bronght against him ; w hcreati, if he be proceeded against 258 " HAYWoon's rkpouts. Sep.1795 as bail by a sc'i.fa, lie may, by s. 20. rotako his prisorf- ^''^~^'''>^ e\; ;iii(l siiriTii'ior bim to tbo roui' in (lischars:!- '■• liim- si'lf, ill iinj time bi'fiiie (itial jiid^iniMit ■■fgainst Ivi'ii — ;itnl ill f.irt tbc DcfoiHUnt in tlic |»ri'siMit rase did retiilcf Lin- ton H> d put him in in-ison. and bad biin in con't to aii- 3\vii' tJK- Plainiift's artioti, if he would have proceeded against liini. Per curiam, Ashe and Williams — Upon th*" last point. «f HIT of o|iitii(>ii, thai tlic acii^in for an t'siMpe upon tiK'siiP process, will iioi lir H,e;ainst the Sboi'if)', in tliih rasoj bi' oiis^lii to be proceeded asjaiiist, as b.iil— to pioreed against him in ibis inanner/is to deprive bini of inaiij advantages. And, there was jud/djiucm for the DefcHdaiit. — Ex relatione. Note. — But if the SlifiifT, to i writ of capias ad respondendum, rc- tiirn- I escape, this neirativc s tlie siipiosiimi if liis li ivei.f ■ me bai , oil', (.n action for th. rscape will lie. Tutun v Shaviffof Wake. post iSS. Inderd in iichcise, it seems the only proper remeJy. — //art V. Lunier, 3 Hawha, 244. NEWBERN, SEPTEMBER TERM, 1795. Cleary v. Coor and Hawks. An entry " referreii in A, B & C," means a general reference gf the cause, nil noi merely lo audit ..nds'aie the accoiinls. The awaril of ar itrator'i iuikIU nut to be st t asiile, unless in case where their deeision Is plainly :ind t^prnssly agaiust law ; not wliere the point decided might be doubtful. This was a suit in Equity, to which (he Defendant pleaded ; and afierw^d-ds. there was an entry in ihesc Words, «' Referred to A, (J & C." Upon tins the re-, ferces met, and returned an award — e.xreprions were fij d on the pail of ibe i'l issin'. mid nil (I. Indeed by 'lie last enhy. lhis'>e»-(n,s -^""'"^^ to ii.t'f lieeii <(»iisi Cfwr, no^v preM'rt in r-niri. th.l is to say. he a-linit ed llicy :illnw.d 'en penceiit. m 'h jear 1779. upon the v.ihie of tlic j^onds in 1776, wliich ciiiie to aln)iii afi half pgr cent, or ten shi|liii.cs on the real value) and he rited Bl. Rep 363. 3 dik 494. The conrt took 'ime ii cmi-ide-, and having- had befoie thciii, 1 ^tk. 'M. Jacob. V'-rho Jrbitraturs. 2 Broivn70\. I Brown 271. 1 SI ra. COl. Sulk- 7 \. pi. 4 — 83. pi. 1. ih' } next n» i|-nin;i derided, tlmt llic a\v ;id of ai'liiieatiit's oui^lit. not t' be set aside, unless iii c ises vvb( i-e their deci^iinii is |diiinly and jcro'^sh agains law — iioi where the pnint deeided might lie doiibil'iil. In tiie prtsent case, altliotigh no snrb alliwanrr oiighf to he made hy tlie strict i uies of law, tli.it is a point not uni- versally known and clear; hut the conlrMry ispractised in -.ilninst ail the County Courts in this State, ih.i' is to \ say. the Conniy C"urts generally make such allowance.a. Let the award be confirmed. Note. — Fide Jones v, Frazi'r, 1 Hawks .^79. Aiiniiynious. The action of account will n)t lie for a lejjatee ^ig-aiiistan execu'or, o- the executor of such ex cutor. AcriiuBt. The jury had found a verdict for the I'lairi- tiflf. suhj<'Cl to the oninii"! of the court, opue, who as execntop took the giods of the tes'ator int.i his possession, and hiied oui the negioes. &c. This suit was couinienced by one of several legatees. In ihe ^argiiiuent of iliis case, were . iied 5 BI.Com.^G*^ Reeves's En:;. Law 391. 2 Reeves 1G8, 16'J. 3 Dyer 277. Per curirtm, this action will not lie in the presini case. The wiii of account lie'h against a man as guardian, bailiff or lecciver ; an of an> fiperial lega- leo. Thi-re is no prixitj- lietwi-en the lejjaire and execu- tor, which is esspiiiiHlly necessary to tin- sn|i))ort of tliig action, Co. Lift. 172. The cx'cntor does not acti)j the aiipoinlMicnt ()'• choice of the legatee, as is the casi* with thf arnardian : hut by the xppointnient of ilu- ie»tator; th'insrii the guardian shull liavc an allowance of all his rcHSiiiiable costs and expences. Co. Litt 89. And so it ma) he thoMjfhi no incon«enirnre ir) tin- executor to be chaisji'd that way, it is roiivenicnt in tliis. that he" is charj!jenble therehy by each legatee; whereas in the mi'des anciently picscrilied in the cases of executors, they most all join. Ii would not only he a perversion of teini>i, bnt a Rreat wrong to the executor to charge him as bailiff, vsho is liable to account not only for tliQ profits he actually made, but for all such as he might hnvt- made by indnsli-y and care ; and as a receiver he ought not to he charged in this action, becau'-e the re- ceiver is not to be allowed any expences or rhatges which an ixecntor ma) he by 1715, c. 48, s. 7. — So there was judgment for the Defendant. r. Bi-own's Executors. The indisposition of » witness, whose deposition lias been tuken de btne esse and was now off'^icd to be rsad, cannot lie proved by the oath of the party producing it. The Plaintiff brought his action against the Defendant, for a sum of money \yhich lie alle^'ed he lent to BroivUj in his lifoliine, when going to the Convention and Assem- bly in 1789. The Defendant prodined \ery strong cir- cumstances to show, that the instiiiment purporiirig to be signed by Broivn, in acknowledgment of the leicipt of this inoeey, was loiged. In order to rebut this testimo- ny, the I'laintiff moved to read the deposilioiMif a woniaii, who had lived at the house of Ho- Plaimilf about the linie whi'ii ihi^ ■•loiii \ was siiid to b<' lent, and who as it vvas alleged, heard Brown's (icknuwiedginent of the debt — HAYWOOD'S rvEl'OUTS. 261 this ilepnsition !iad licoii fHken de I/ene esse, ami General^'^V-^^°^- Davie t'i:f (lie PJaintilF. siiiiiii (if liie vMiiDHii, by ihc <»atli, > f i!n- PlHiiitiff; anil saiil, i|i-urt— I caiinii' sa\ , because ! not crnii inliec how ho prac- tici" liatli b('<'ii. but siiirly upon .pi'inci|)Ie. m* niad't-ial a fact as tin- in(iis|in>iiiinn nf the wiii.«vss. upon v bich de- _ peiids till' readings; ib«- di'|M>siiii)i>, and iiei'baps npun that, the fate of tlieraiisi', sbmild be proven by sonic niher pei'- son than Jbe I'lainiift'. \\\ii> may be gi-eatly ititi-reiested (228") in bavinej Ibe drposition read, ralbif (Ir.ui the witness examined anil ciuss examined in court. 'I'hat Ilit- indis- piisitlon or dfatb of Ibe witness, is to be pro* en by ytbers, is sli-ont;!) ini|iti<'d in the rtord? iisrd in tbe case u( Fry and Wood. 1 .9tL: 445, and in 1 Mo. -'82. 283, Hie fall- int!; silk of the witness was proved by an iiid-i-fli'teul-iJHr— - son. In the present case, there w.is no one in coiiri wlm conid prnve tin' indisposition of the witness, and the de- position «as i-ejrcted — though it wuh afterwards read by consent of parties. XoTE. — Vide ^iiwnymoita, 2 Hrj. "!. Abner Nasb i". Administs-ators of Abiier Nash. A devise 'o Itje PlalDiiffiifcasI) sufficient in the opinion nf the c\< cutors noi ixxeedinj* £ (lOO to pnroliaee a tract of Ihi"! ; in a Col- lowiiip clause, tlie follown g' devise, " I !;ive to my wile all tlit ne- grois J olMaintd in ni.irri .g wiili li.r, and 'Ii.'ir increase, also one- xliird of stork, &c mil tli ■ residue, I ffive to my cliiUlren by my present wife." The est.it< is fihansted except the ntgrpes, con- tainid in the residuiir\ clause to il>e wife nnd children, anct ciebts lo a larpe «mount remain unpaid. Plaintiff claims liis £ 10/0. Oe- cided that the Plaintiff's l.g-^.cv is g'. neral, but st;41 cntithd to bd paid outof tlic rcsidiiaiy pavt devised ti' the wife and children, which, as a rrHdtiinn c n never be specific: — that the children's part is 'o b« first iipnlied, as the wile's pavt, 'liouph g<.-neial and residuirv as lo the Plaintiff, is specific, in jefer.'iice to theirs: — that as tho tJstator, 111 mentioning the sum of £1000 for the PUintifF, contemplaied a lull enjoyment by the hg.tt>.es of their respective legacii s of slaves ; theiel.i-e, unil^r the discretionary power ifiven to the executors of fi\i;ig t'e amount to be paid to the Plaintiff, his ' ItJjracy shall be abated from £1000 in proportion to the value of the negroes that shall be required to pay the debts. In this Case, liiere was a devise lo (lie Plaintift'. atnongsl iiliee tilings, of I a.sli sufficient in the opininn of ihe r.KC- iitois, not ixceciiing one tlioiisand [ioimkIs, to purchase, ■rt tract of land '111 '(".'.f 'ivi'i-. In ;■. stihsequent clause 262 UAYWOon'f! reports. Sep. 1795. affpr S'^'Hic: spvci rtl l<'gri«'« fo hi-^ rliiltlivn by Iiis fust ^•^"^""^^ vile lies\s. all I'li' nsi oC my eptiiti-, I jji^e .iiiil lio qi path lis f bi-i>\ iiiairi«frp >\itli lici". uid tlicir iiirivasc : hI^-khih ."liitd nf all mv itlaiilatinii ~tiick, Iioiisp; old -.iiiil kit(h'(l tb'' if-i'lm- 1 ajive i(iHtt~iif 'in firniiiirp, aiiid iIippp yet ro- niiiiiis dcl)tK to lie pHid, to thp aiiioiiiit of four iiv!.'vtid pounds and iipv ards. The PUiiitilf riaiiiw liis th"'"-^ind pounds leji^iry. . This rjisp \va« now .iiijiird t)> Taylor for ilip PlHiii'iflT, ;tiHl Tiaric f<>i- the Defri'daiit — ihcii-ar- j^unionts arc s|iO't1> rtd'erttd to and statfd ii' ilie Col- lowii'c: ojHoioii After the artrument, ihe court, conijiHsed er the judj^iiMiii was not entered till the next icrm. A' whtrh time, by the consent ol the aiioriiies on lioth sides, it « as enterei! iurordin.!!; to tlie opinion of Judge Hatwood — Ju-jcre Stonk assi'ntinj2:. Judge Haywood — Tlii;) legncy to (he PlwiniiflT, is' a money legary. uot-A i'hsiaudiog 1 F.f-yil. 197, for bi'ing a bei|iirst of inoniy, if ii hr i»oi a ^pe(!fic ligacy, itmdst of 'onseipo-nce Stand in the i-aiik of a pi ciiniiiry one, A legacy of uioiiej \^ -^pi'cifie only in sucli ras.'.s where I he money is ideutifi' d and dslingiiished from all niber money ; as miiii<-> in such a liai;, or in such a bond, or. (_229) to he paid on> 'if such a seciiriiy, or in such hands \. Jtk. .''OS. nm il is no) a htst htjacy, as coniendeil for by thr D'l'enda I's counsel ; for it is not made payable out ol ;>i y particular fund. Had it been, and the fund had (.tiled, it would ha\e been lost as he contended. 2 Brown Chan. "25. Here, il is not saidnnhof what part of ihc esiati' it sbidl he paid, and of course by the rule of law, nmst bi fea;iK'^ — >i resi- (liiiiin is tlio uilcuninf^s of ;tM estii'c leinninint^ ;»rtei- debts ai.o li'jjHciosp.ii.l. 2 S/. Com. 514. , 1 Jilk. 418. .3 P; Wil. 3«5. 2 Ves. 563. 1 P. IVil. 4 04. In ea( h of these cas'S. it is adiuilu-il on ali hanils, ihiitil' tiR>l(<^acy Avas s|ie(i(ic. it was lost ; hut if a li-sacy of qiiaiiiiiy oiil). it was fo be inaiie a;iMid oil' of the fesidouiii. The I'est of inv estate cann lejcacies to which it iTlines. tfs" quaniity must depend npon llir (|uan(ity of the p.irticulae lej;acii S to he raised ont of tlie testalor'^ estate. It diwiin- ishes 01- incceases in propot tion to the lai'ii^eness oi- stoall- MCs of the paiiictilai- !c:5a( ies which insist first he taken fioiu the net istate ; and tiie qnestinn alniut conii'ihniinn never arises, hut v\ln re vvTai was to form the resi'lnuni is txhausied. 2 Ves. 562. Whilst there remains any of the estate whii'li foVni-i the residuum,' it is liabh- to be resorted to hy tlie particular let;.ttees, unk'ss their lej^a- cirs are specific. (»!• otit of a particular fund. It is ar- gued hy the D-fenl. os 264 Haywood's repuhis. Sep. l"95. iic ouijlit to Iiaxp (liiu\ shall iititlici' pcijndirc iiiin, nor ^^"'''^'^^ bi'iiffii til'' persiiiKil rcjUTMi'iitative. Hi-it tlie cmirt will 8i(_\ >\liatllie rxeciitoc oiij^li' t<» Uaw iloiip previous to ihe dca'li of the Irijati-e, shall bi- coiisiileicil as liaviii:; been (lone — by force o! \Nhir.h liciiuii, the inoney will now go into Ihe same haoil-i, as ^hc laiiil lo be |iiiirkaseil witli it Ntoiild have (lone ; and ihiis no one uill he injured by tin- di-lay of ilii- ti-uslee. 'I'he misapplication ot this fiile, caused the mistake in F. WiL 127. noiiced in I P. Wil. 539. and would occasion the same mist. ike now, weie it not atteiid>(l to. 'I'lii.s is the only poin! estab- lished l)y the Cases cited lor the l'laintifr.'ri».- 1 P. »'i/. ISr! 1 Vern. 52. 471. 2 Vcrn. 5.;6, 58!'. 679. I P. Wit. 172. 3 Jlk. 2j4. 3 P. mi. 212, hut there is no disjMiie in 'he pres^ent c.ise, itelwcen thi' heirs and per- sonal rep esentatircs of the li'jjatce, ami therefore all those auilioi-iti<-s are lo be laid oui of the case. But if it were not (In- rule of law, that the re^idiiuni were to be diniinishrd by Uie particular li'jjjacies, in pro- (lortiun to ilieir aiuonnt, tliQi'i- is enou,i;li in this will to show it lo have Ineii the te«itator's iiitiniion, thai the debts ai li vist should he paid out of the residuary pari; and then it will fdlow, that the p.irticular legacies are not to he affected by the debts. After ifiving all the residue of his estate to his yotin.;er children, he gi»es power to his exeintors to sell any p ii t of the laud included in this re- siduum when they shall see occasion ; and he adds in the next sentence, that tin-} ^liall collect and pay his debts as fast as possible; and p:iy the surplus of the ninnies into his wife's liaiid-i for the benelii of liis sai.se; but it is equally tiin, he suppn- 8eil bis p.irticular Irgacie^ would imt bi- li.iUle to those debts, and then, the rule of law more strongly applies.— HAYWOOU'S REPORTS, 265 It is the strong hent (if my iucliriittioii lo make this lega- Sep. 1795. cy contribute, because tlic testator stippiiseil his nej^io part ^■^"^''^"^ of tlie resiiiuuni at least, would be left for his wife and younger children, and ijossibly a sur|)lus out of his lands to be sold. He did not foresee the great deficiency that would happen, and that it would become necessai-y to fall u|ion the negroes intended for his youugei- children; but yet I cannot persuade myself to depart from a i ule of law so well established, and say, that these negroes being a part of the residuum, shall only abate in proportion with the particular legatees. , It is argued, that although tliis he a specific legacy, the residuary legatees are not bound to contribute ; because these legacies are of a different species of property, name- ly of negroes, and of money ; and where there are two specific legatees of (\vu different subjects, the one shall not contribute to malie good the other. 2 Ves. i)6i. I take the law to be thus, where specific legacies are given to several persons, of several parcels of a particular sub- ject ; and that subject fails in quantity to sup|)ly all, thei'C each legatee must abate in proportion ; vyhen at the same time, other specific legatees of a different subject, shall not contribute at all, or be at all al!'ected by the defici- ency. For ill such case wlio shall say, which one of the legatees stiall be totally (lis:ip{iointed f And yet one, or more, must be totally disa|)|)ointed, unless an abatement should talxc place ; hut when all tlie legacies, which were j)ecuniary, or unspecific legacies, are exhausted in the payment of debts ; and thei-e still lemain debts to be paid, then all the specific legacies shall abate in propoition — For who shall saj, whi( h of these specific legatees shall be disajipointeit of his legacy? They are all equally ob- jects of the testator's bounty. 1 F. IHl. 404. 3 Bac. .^6.483. In the present case, there is no dispute between specific legatees cd" llie same subject, insufficient for the payment of all, nor yet lictween specific legatees, where all other parts of tin; estate are exhausted— there yet re- mains a large residuum. 1 P. fVil. 404. But the truth is, neither of these legacies are specific ; neither the r^ggN Plaintiff's, nor that of the residuary legatee; and there- *■ fore this argument is without foundation. It follows then, that the adminiairator de bonis ^on, must pay the legacy claimed by the Plaintifl", out of the residue bequeathed to the younger children ; and if that 266 UAYWOOD*S REPORTS. Sep. 1795. is not siiffiricnt. tluMi out of tliat part of the residue be- -^'"'^^^ qiiea'hed t> JUrs. JWis/j— for her legacy, thoiigli e;eneral aiul residuary as to the first tiiildren, is particular in rcs» pect of the younger children. The only question then remaining is, what shall the Plaintiff r«>covpi-? The tesiatoi- after bequeathing a num- ber of negroes to tiie Plaintiff, partic^ilarly naming tlicm, adds, "and cash sufHcient in the opinion of my executors hereaftei- to be named, not exceeding one thousand pounds, to pnichasi? a tract nfland on Tar river." Tliequanti- ty of money is left uncertain, and the extent and quality t)f the fund also. It is ai gued by the counsel, that this was left in the discretion of the executors ; that they \ tnight be at liberty to judge of the price of the tract to be purchased, from the circumstances in which they might afterwards find the estate; and that as the executors were to have regulated their discretion by these circumstances, so will the court, now the matter is brought before them. No authorities were cited in support of this position, and there are but few to be found. There is one passage in Swin. 496, and another in God. 424, s. 16, which favor it. In the latter of these books, it is said from the civil law, that the ordinary shall moderate the sum, with res- pect to tlie testator's estate. In the former of them it is said, that if such an uncertain legacy be given for the per- formance of some act or otiier consideration, &c. &c. so much is understood to be disposed, as may satisfy or an- swer tlie purpose nhcreunto it is appointed ; and as the ordinary, considering tlie necessity of the thing, and the ability of the testator, and the continuance <»r the gift, shall deem expedient. These hooks it must be admitted, are not of the best authority ; they contain collections, taken partly from cases adju^'^''''^' ter asrei'tain liie value of nil that part of 'heii- i-c-idiie iliat yet remains unsold, except negrors, atui drdurt that va- lue from the debts remaining^ iiti|)aiil — let him ascertain the value of the £1000 legacy, dollars biing now estima- ted at ten shillings, and at twelve sliillirigs wlieo tlie will was made — let him then ascertain ihe value of tin- slaves contained in the residue, and what pioporlion the said le- gacy beareih to the value of the slaves ; and deduct that j)ro|iortion of the balance of tlebts, and also, the £250 paid in part by the Defendant, from Ihe said legacy, and report the balance to this court. This repor' was made, and a decree made for the balance with inteiest. Note. — As to legacies, general or specific, see Toller's Lnu> of Ex- ebutors, 301. As to ab:itement of legacies, see ibid. 339 A residua- ry legatee may, by ihe particular words of 'be v. ill, be aspecitic lega- tee instead of a general one. Cook v. Oukly, 1 P. Wil- 302. Glasgow V. Flowers. Where the law can give complete redress Equity will not interfere. — Equity cannot change established rules of law, nor act as a court of errors, to correct eri'oneous decisions of law. When slaves are givei\ to one for life, remainder over, the increase born durii.g the life interest, will go with the principal (o the remainder man. This was a bill in Equity, the object of which was to be relieved against a jirdgment given by tiic Superior Court at Hillsborough, during the last term, whereby Flowers the now Defendant, as the executor of Flowers deceased, had recovered two negroes of Glasgow, which were tiie descendants of a negro woman, given by the will of the deceased to his wife during lier life ; which two negroes had been born during the continuance of her estate. A title to these two negroes had been regularly deduced from the widow to Glasgow. Per curiam — Where a case i« so circumstanced that a Court of Law can give as complete redress as a Court of Equity can, a Court of Equity should not interfere with it — now the circumstances stated here, are such as are properly cognizable in a Court of Law, and with respect to which a Court of Law can give as complete redress to Ihe party injured, as a Court of Equity could. The court decided in this case according to the case of Timtns and Potter, which must now be taken and is taken, as a 2W haywood's reports, Sep. 1795. (lecision estab1i.sliin,&^ the rule of law on tliis siibjcctr It ^"^""'"^^ is a very great mistake to siipposp, a Court of Equity can deride against the rules of property established by judicial decisions. The Court of Equity is as much bound to observe them as a Court of Law is. If the de- cision was wrong the Court of Law might have granted a new ti'ial : and if ever a court for correcting errors should be establiHhed, the wrong decision, if any there (234) l>c» •"*y 1*6 H subject for the jurisdiction of that court ; but the Cour't of Equity must not undertake to act as a court for correcting ei-roncnuf judgments. — So the bill was dismissed for want of Equity. Note. — The case of Timms and Potter, so often cited in actions for ihe increase of slaves, was decided at Hillsborough three or four.years after the war. It is a leadinj; cuse, and governs a vast deal of the properly of this country ; and therefore it msy not be improper to subjoin the substance of it in this place. Glover gavi- a negro woman to his dmigliter, hut re- served I lie use of the negro during his life. There was afterwards a judgment against Glover, and an execution, and the wencli sold to satisfy it — Potter becoming the purchaser. Timms, the husband of the daughter, after the death of Glover, sued for tlie wench and her children. The Plaimift'had a verdict, and a special case was made as to the children born in the lifetime of Glovei: This special case was several times argued, the De- fendant's counsel citing and relying upon the cases that decide the interest of money accruing during Ihe parti- ^ cular estate, to belong to the owner for that time or cestui que use; and also 2 Bl. Com. 396. Puff. lib. 2, c. 4, p.l 1. After time taken to consider from one term to another, the court decided and gave their opinion at length — Spencer and Ashe being only jiresent, Judge Wii- xiAMs being absent, but of a different opitiion. They said the remainder carried with it the increase, and vested the property of the wench in the I'emainder man ; and there was left in the owner for life, only the use and possession, which use entitled him to the labour of the wench and nothing more. The increase went to the remainder man, to compensate for the deterioration of the wench, by age, labour and breeding, whilst in the serticf «if tlie owner for life. This rule, ihey said,' had prevailed ever since the first settlement of the country. It had been constantly understood to he the law. The HAYWOOD S UF.FOltrS. 269 practice of the country liHtl bcPti fotiformable to it. It Sep. 1795. was a coiiv'iiii'tit nile, us it cnal»lc(l owners of sudi pro- ^^'*^'"*^ perty more easily to jirovidc for liicir fiiinilies, in ilic ilislribiitioii of it, and for tlifwe rtasoiis ii should not , now be broken in upon. So there was judgment lor the I'laintifTs, as to the children also. Since this decision, when the case of Glasgow and Flowers on iirred. the counsel lor Glasgow, re slavery has . been introduced. It is the settled law of Mai y land", that negro children born of a mother given to A. for life, and after his death to B. in the iifetime of A. do belonpto A. unless the increase nre also given over by expre.ss words. Vide Deputy Commissary Guid>-. published by Valetle, p. 91. That lliis is the law of Maryland is confirmed by the opinion of a lawyer of that State of the first emi- nence, taken on tlic occasion of this suit of Glasgow aod Flowers, who says it is a rule of the greatest notoriety , t''C''^» that the increase in the case above stated, beioiigs (.286; In the owner for life or usufructuary ; and tliat the deci- sions in Maryland have been so uniformly to tiiat effect, that the question would not now bear an argument thire. It is of no re^l use to in\es'igatc the oric^in of the rule adopted and confirmed by th«' case of Timms ami Potter, as such an investigation (onid only tend to gratify in- quisitive and periiaps idle curiosity ; but it would not be a matter of diffiruliy to trace its origin with some de- gree of probability. This country, though it began to be settled as early as the year 1668, it is "to be presumed had not come utidei- an established governmeat, having courts for the regular and constant administration of the laws, till about the hrginning of the present century. Tin- first acts of tlie Lrgisjatnre that appear in our sta- tute tiook, were made in the latter part of the year 1715, though there are judicial records purporting to proceed upr)ii actspas.sed in the year 171'i. It is probable, and in- deed it is a fart very generally admitted, that this country in its infancy, was ibr the most part settled by emigrants from Virginia, who, as all other emigrants do, brought with them the customs and legal notions of the country they hft. Every one who has practised in North-Carolina, will he immediately satisfied with this ob.servation, if he will but recollect how many legal notions, borrowed Morn the laws ofViiginia, are yet current amongst the inhabitants of this ci.untry. The law of Virginia of the year 1705, made slaves in many respects real property, annexed them to the lands of the owners, thereby placing them in the condiiioii of the ancient villains in England, wh.i were adr.criptitia ^Ubm, :nd went, as also did" their posterity, to the absolute proprietor of the land. The Haywood's reports. 271 act of 1705 expi'cs-ly considered the increase as a part Oct. 179^. of the inlieiitunrc ilint belonged to the lieii, and pmvidi d^-^"^*''*-' tliat llic tenant in dower, oi- iisutVnctuarj owner, slionld not remove them ont of the counti-y. 1705, c. 23, s. 10. Salk. 666, pi. 1. Hence, it is not iin|)roh:ible. arose tlie idea first entertained in this country, that the increase of slaves belonged to the absohite proprietor, ex( Jusive of the claim of teinoorary owners or nsufrnctuaries ; and that idea, for want of exaniinin_^ its I'onndation, having once become general, the inhabitants of liic country began to act under it, in maliing their contracts, wills and set- tlements as |)rovisions for their families ; and jn'obably continned to do «o, nntil at length, it became dangerous and fraught with mischievous and unjust consequences to attempt the establishment of a different rnle, or the true (237^ one — and the courts were necessitated, as they liave been in some other- instances, to permit common error to make the law. Thus, what at first was but a crude opinion, without any legal foundation, hath in process of time and by long usage, been adopted into tlie body of our laws, as a fixed and settled rule of property. This seems to be a more rational mode of accounting for the rule laid down in Timms and Potter, than that which seeks to su])port it upon principles of the common law" — all of which, so far as they can be traced, { Gee's patent ; but if the river is deemed t*» be the boundary, the land descri- bed in the Di-fendant's grant will then be included in Gee's patent, and of course, be also included in Bridger's deed. Per cnrium, Williams and Haywood, after argu- ment — the river in this case, must br considered as the boundary of Gee's patent — it has always been thus uni- fiirmly decided in our courts. Tlie jury found accordingly, and there was judgment accoidingly — Baker for Plaintiff, Keys for Defendant. ^OTE.— Vide ffarts/ield v. IVtstbrooh, post -258— note to Bradford v . Hill, ante 22. (2Sfi) Thomas Jones's Administrators v. Joscpii Blount's Executors. ■When tlie subscribing witness to a bond is dead, and his handwriting c:innot be proved, proot of tnie handwriting of tht obligor may be rec-iived. « Debt upon a bond for five hundred and twenty-six (tounds. The Defendant pleaded a set off, and produced two old bonds, one dated in 1760, the other in 1768, both attested ; but the witness who attested one of them, was a lady wlio had lived some time ago in Edenton, and was now dead ; and her handwriting could not be proved bj any one that the Defendant could procure. It was objected by Mr. Hamilton for the Plaintiff, that when the liandwriiing of a deceased witness cannot be proved, it is iiTegtilar to prove the handwriting of the ob- UAYWOOli's utrouTs. ~'-'' ligor himself, that beins not essi'iitial to tlie deed, and not «Jct.ir95. anioiintiiis to any proof of tlic delivery of it. / rer mrium. Williams and Hvywoou — The law only iTqtiiiTS the best ovideti(,-e the party lias in liis power. — The subscrihiiia; witness musi be produced wiicii there is one ; if he he dead, proof of his h;iitdu riiiii.a; may be ad- milted ; and if the haiidwritiiij; of tiie witness cannot be proven, then proof «»ii-?s:ry.= Marked lines and corners may he establislied as the true one, al- ihou.v,h variant from tlie coui!ji.-s and distances men'.ioni d in thf; •Ued'. Trespass, quarc clausum f regit. Not guilty, Uberum ienenientum, ^-c. pleaded. I'he PlaintilT claimed under JlrkiU, wiio patented a tract of land in the year 1 741;. ex- tending, as he alleged, to a line distingtiislied in (he jiiat, by tlie name of the, (lotl( d line. The courses and ilistaii- ces mentioned in the pat;eiit extended not so far; !)utoii- ly to a line distingiii-,heil in the plat by the name of the black line. The D-fenditnt eniered iliis intermediate tract ill the year 1784, and took possession — whereii()oii, the Plaintiff bibuglit his action. The court jjermitted evidence to he given, tli.it the dotted line, which was a marked one, iiad for- a lotig tinw since 'he year 1740 been reputed the line of ,4rfci/r.s tract — the patent called for a gum standing in Robert line; this gum was found at the termination of the dotted line. It next called for two lines of yJoter^'j' tract, the dotted line was upon these two lines. It. next called for Unsldii's corner : the dotted line went to that corner, asid there was nothing to prove the black line to be the true oin-, but course and distance. (239) Theie was no witness who could prove positively, that the dotted line was the line of .3W-;t/r.s tract. Per airiam, tlie mistake of a surveyor in describing or laying ilovvn the boundaries of the land patented, should not prejudice the jmtcntee, if the jury are satisfnd that ' ■ marked lintj was the true one, Although the distances 374 uaywood's uepouts. Oct. 1795. thereof will not crirrespoiKl with the distances in the pa- ^•^■v^w (p„t — ilicieforp in th<' itiTsent rase, the jury inaj cdnsider wlicthcf iheic is Hutiirieiit evidence t" satisfy them, that this dittlcd line was the real l)oundary, thou.e;h not truly des( I ibed in the patent ; and it' they think so, ihen to find for the Plaintiff. The ronrt then recapitnlatrd the rir- cuntsiancfS above mentioned, as affonling a proof of this heinjc; the true line, raihrr- than the othei-. and the jury under their dirertinn fonndfor liie FlKiiitiff. NoTK. — Vide note to Bradford v. Hill, ante 22. Ferguson v. Fitt. When ttie vessfl is losi, the goods tliat ar"" saved are not liable to ave- rage — thi- muster does nut lose his wages by ilie loss of the vessel. These wonls, in a leUer from a Def.ndant to the Plaintifti ■ I would rathe.- come to a .settlement, alihough I sliouli! illow the accouni as insis ed on by you, than Wail the event of a law suit," are sufficient to take the case out of the statute of limitations. Case.. For- wages due to the Plaintiff as Ma^tei- of a vessel, which he had navigated for the Defendant to St. Ensi^tia ; and upon an account set'l-d. and a s|)i'Cta! ~ Case made, stating in substance, that tliesi' services were ppifoi ined in 1788, m- beginning of 1789, and that tha Defendant wrote to the Plaintiff vvihin three years, say- ing. " he would rather cmne to a seltlement, althongii he shonid allow the wcconnt as insisted on by the PlaintiHT, tlian v\ait the event of a law suii ;" and tlte doubt stated (HI lliis point was, whethi'r the act of liinitatioos barred the Plaintiff in this case. The special case further sta- ted, that when the vessel left Fostatia, laden with mm and oiher articles, there Were on board six pnintheons of mm 'hat behniged to the Plaintiff, and tliat the vessel Wits lost, after it had passed the bai-, on the homeward bound voyage; and thit these six hogsheads of rum, to- gether with about twenty two hogsheafis of other rum, the property of the Di fenilant, were saved ; and the whole including the six hogsheads, came to the Defendant's (los- s'essitni ; and the doiiht stated foi' the o|)ini-^~"'''^*^ are saxid sliall be suhj^rt to averaj^e; but if the vi-ssel sliould not conic safely into (lorl. then avmge shall not take place ; fui- the only reason of average is, because the (140) goods preserved, were sa\ed by the los'^ of the [iiopeiiy thrown overboard ; and then it is reasonable ihat llie ow- ners of the saved goods, sliould make a just corniieii'-ation to the owners of the goods thrown oxerboard — but this does not take place, whtie the casting of ihe goods into the sea, is no' the cause of I he salvation of the goods pi-e- served : and tliey relied upon Beawes. With resi)e(t to the wages, sailors lose them where the vessel is lost, from the time of their sailing from the last port of deli- very. This rule is founded in pcdicy, 'o make sailors Caiifill of the vtssci, and alert in the preservation of it, when ill danger. They relied upon 3 Bac. Mr. 593 — Cojiim. rerfco Navigaiion. S Burr. 148^. Dniig. 5!M — But, the Master is not subject to this rule — there is no case which says he is — he must therefore have jud;^ment. As lo tiie act of limitatiotis, the words used in these let- ters, will take the case out of it. So there was judgment for the PlaintiflT. Note — Vide Ferguson ii Wife v. Taylor, and the note lliereto, an- te 20, for the uckiiowledgmem requisite to take a c;ise out of the sta- tute of limitations. Collins V. Dickinson and Allen. A partition, in a partnership concern, is matter of riglil, and may be called for at any time. Bill in Equity, stating a partnership entered into by the Complainant and Defendants in the year 1784, for the purpose of entering, securing and impnn in«:lhr lands in Lake Phelps, and the lands adjoining thereto, and for the purpose of draining and preparing them for cultiva- tion. The bill stales many tracts of land secured, the lake drained, houses and mills built, and that the Complain- ant has advanced much beyond his proportion — th^ bill prays a partition of the lands, and that the DelemUnts be decreed to account for and pay to him the overplus of hi-^ disbursements. yi'liey pleaded generally, that the iiurpo e- fur which tbc company associated were not yet completed, anti 276 II.VYWOOU'S REPORTS. Sep.1795. ,!,.,( f^mi, 3 division as Hiat jiiayed for, will he ruinous ^^~'^''*^ to tiMMii sliould it taki! plare. as oacli of llieni soj);\i ately, would iii)t l)P able to manatee the htivincss so as lo derive any profit from it. 'J'lie account was referied to the Master, and lie hail made his r<'port lo the present term. On the plea, it was argued hy UamUton, for the Coin- ])lainant. that a parttnr may rail for a partition whene- ver he thinks propr-p ; that lie is not obliged to continue liis property in the Joint conrern longer than he is satis- fied »\itli the procceilings of the Company, ami that the difficulty of making a partition, or the inconveniences it produce lo any of the parlies, is not of any ronside- (241) ration with the court. He cited 1789, c. 24, .«. 1. JImUer 23f;, 590. a Eq. Cas. M. 629. 630. 1 L. Hay. 536. Hob. 179. 16 Vin. Jib. 219, 240. 221. 2 Ch. Tff.s.' 237 On the otiier side were cited, Watson's Law of Pnrtn. 398, 399. Moll 460. /,f .r Jlicrc. 3 1 . And it was insi.sted thei'e inust he tiic consent of all to dissolve a partner- ship, if (me wishes to withdraw hel'ore the exiiiration of the time appointed for the company's coiitiiiiiance ; and that when a jiartner does withdraw' that should be done bonajide, not wiiere it may occasion a damage to the ])arfnei shiji, as it would do in the present case ; nor should it he done with any sinister view. Per curiam — A partition is matter of right, therefore let ii be decreed : and let the Complainant have a decree for mrmies reported due to him ; and let commissioners be apppinled to make (he partition, and return their pro- ^v ceedings to next term, with maps or plats of (he same. A decree was entered accordingly for these purposes. HALIFAX, OCTOBER TERM, 1795. State V. Job Garrigues. If the jury, in a capital case, sepHraie williout returninj»aTerdict, the prisoner shall not be tried again for that oficiice. He had been indicted for murder, and put on his trial the last day of last term, and the jury, after (he court had gone from (he bench, bu( without adjouitiing, sepa- ra(ed without giving any verdlcl ; and now it^\agmo\ed by the Attorney-Genei'di that hcinight he again put upon Haywood's kepouxs. 278 his trial, and he citi d RVyng 42, 52. Foster 27, 29, 76. Oct.l795. //. H. 1\ C. 294. 295.: E covtra were ( ited // P. C. ^^'^'^-^ verbo verdict, c. 47. s. ),p. 439. wlicro it is said to have hern held lor law e\)( tiie prisonei- ; as if (942) the prisoner be a woman and bo laken in labour ; or if the prisoner after the juiy are charged with him, be fonn«l to be insane, and ilie like ; or if at the prisoner's request, a Jury be withdrawn to let him in to take the. benefit of an exception, which otherwise he would have lost, as in the case of Foster. In the present case, the Jury were suffered by the couit's officer to separate witli- out giving a verdict; as tiiey could not agree to convict, it is strong evidence of the parly's innocence ; and per- haps he could not be tried again with the same advan- tage to himself as then. Perhaps his witnesses are dead, or gone away, or their attendance not to be pi-ocured. or some accident may |)revcnt their attendance. We will not again put his life in jeoparily, more especially as it is very improbable wc sliall be able to possess him of the same advantages — So he was iliscbarged. NoTS. — Vide Slate v. Spur, 1 Oct. Hep. 191, in which this rasp is recognized and confirmeil. HAYWOOD'S KEPOKTS. State V. Alexandpr Wilson. A burglary may he coinmittcd in .•> store house standing iwenty-lbur yards trom the dwi-liing house, ;ind separatrd therrfrom by » fence, if the owner or his servsnta sometrnus sleep therein. Ho was iiidicted for biirglarioii«ly bfi-Mkiiier ami cntcr- in,e: 'lie dwellint; lioiise of one Lnwrence Smith, in Ilic iil,ti;lit time, and stealitie; from tlipiicp a niimbpr of picrcs of hard innnoy. &(;. Upi>n Hit- evidenre. it app'^an-d that the house whirli was brnkeri open, was a siort' house, standing at (he distanre of twenty-fmii- yards Iroin the dwelling house of Smith, separateil thert'from by a fence, anti that it tlid not stand in his yufd. The oihor facts necessary to support tiie indictment, were well enough proven. Per curiam. With rcsprct to the term dwelling house, as n--e(l in :in indicinient f'>r Imrglary, it hatli a technical meaning, not that meaning which is annexed to it in com- mon aceptation. All out hotises stairding in the same yaid wiih the dxselling house, and used by the owner of the dwelling house as appurtenant thereto, whether 'he yard be open or em losed, are in the eye of the law parts of the dwelling house ; and will satisfy that word used in an inilicttnent of burglary. So if a store house stand out of the yard and ciirlilage, and be separated theri'froin, but the owner or his seriants sotnetinies sleep iherein. it is in law a dwilling hotise. 1 H. H. P. C. 557. And here it being proved bv Solomon Smith, that he acted as the store keeper of Lawrence Smith, and as his ser»aiit, wnd that he had frequently slept in this house tliroiith the fall in which the breaking was coniinilted, if the jury believe the prisoner is the person who broke tin house, and stole {Jt43) fl'P money as laid in the bill of indictment, they on^ht to find him guilty of the burglary. He was found guilty accordingly, and had judgment of death ; but the Gov- ernor panloned hitn. Note.— ride Utatc v. TwitU, ante 102. State v. Langford, 1 Dn. /?e/.. 253. •' Anonymous. The words of « will, directing all just debU to be paid, will prevent the bur of the statute of limitations. One of the questions in this^case was, whether the Plaintiff was barred by the act of limitations. The note HAYWOOD'S KEPOUTS. 280 of hand was given in the year 1783. in Ihe month ofO<=t.l~95. Ocl'hcr or November. An action was biouglit seven '^'"'^^^ 01* eight years attei , iiut in the mean time Deteiuliitit died, not long bcloie liie coninieiicenient of ibis suit, and by his . ^ \\ill ill one |iait thereof said, aftei- Jiayineiit of all my jus! dt bts, ihfii I give, &c. Per curiam — Tiie act of lirniiatioiis was made to (ii-event tlie inconvenience of stale deinaiiil.s, and to hinder tbcin after a leasonable length (if time from rising iip to charge him. 'I'his law thioigh very generally reprobaied, is foniuied upon |irin- ciples of jnsiice, and ought to be adhered to ; and had the act never received an interpretation wliif h might go- vern the presHiit rase, the court Would now be of opinion, that the using of sucii vvoriis in a man's will, ought not to pri'vent the operation of that act, for that they arc wonis common in almost all wills : but these words by former dei isions, have been lield to have that ctfect, for the executor without such words is bound to pay ail re- coverable debts ; but these words are supposed to bind liiin 10 something fiiitlii-r — the payment of all just debts, 2 P. H'il. 373. Sulk. 154. 2 Vern. 141. whether recover- able ai law or not, and are deemed to mean more than the law lays upon the exfcutor without any such words used. The Plainiifriiad a verdict and judgment. Baker for Plaintiff, and Davie for Defendant. Note. — Quere, wln-tlicr tliis case is not overruled by the case of Walker's Ex'rs. v. Campbell iJ others, 1 Hawks. 304, in wliich it was held, that a ikbl banvd li) tlic si.itiite ol liniiiations Is not revived by a direction in the ilebin's *il:, ihut certain slaves be sold " and witli the iH7ic«riD(;w pufcli'.tsed. The qiirntion is. as ilir ims- haiid died hiiice ir84, whether tlie Plaiiititr is iiililled tu {J2.44) (i„^c,., Thia spocial case was iiiade nii account of a diflFei'cnce ill .ipinion hctwecn Jiid.s;c Williams and Jnd^c Hav- woon. Tlif latter beini( clearly of "niiiiun she was oof. entitled to her dowir ; the other being very clear tiial she was cnlitlerl. The following is tlie opinion of .lodge Haywoou, transinitK'd to the court — Judge Williams sent none. The two questions here. are. whetlnr a widow be en- titled to dower, in lands of v\ hich her husband died seised or pOHSfSsed only ; e possession. — The actual corporal possession may siill he held by the debtor, but the sale passes the fee and all the interest that (aA7\ the debtor hath. If it is the sale, or the levying either, "^ •' that works a legal dispossession, tin n the law no hniger governs property in these cases, but (he Sheriffs in the different counties ; for the Slieriff l»y d-'layitig to Ic^y and sell, or by forwarding the levy 'iiid sale, v\ill iiKike the •widow to he entitled or not to dower, and the creditor to lose part of his debt or not. Suppose in the present case it had pleased the Sheriff to sell oti the day he levied, then she would not have been entitled to thiwer ; but as he has sold after the dea'h of the husband, slic is entitled. This involves such an absurdity as cannot be enduted. — Most clearly, the rights of the widow «lo not depetid op- en the good pleasure of the officer ; the law un dly hath fixed them upon a better' foundation ; the law makes the lien of an execution against latids, to comment e from the teste of the wi-it : and were it not for the case of Bell and HilL I should think Irutn the judgment ; ami to that all subsequent acts have relatioti ; so tliat the pur- chaser is in as from that time, and of courSe, has all the interest that the debtor had as from a lime prior to his death. Like the case, where a testator by his will em- powers his executors to sell his land, and after his death the executor sells accordingly, the vendee is in by the tes- tator. The law deems it a sale by the devisor himself, for the purpose of over reaching (he descent to the heir. Plow. Com. 475. The possession of the heir in that case, after (he death of (he devisor and before tlie sale, is just such a kind of possession as that of the husband in the case now before us was, alter the teste of the execution or perhaps the judgment, of no consideration in law, when a sale doth in fact altei waids take jilace. Let us sup- ppse another case. If a man devise that his execiitoj' (248) 285 Haywood's reports, Oct 179S. gjjgjj ggj] jjjg \nx\69, and die ; and after his death his hfeip, '"^"'^'^^ who is a nnai ried man, enters and dies, and afterwards the executors sell pursuant to the will, wonid the wife of the heir be entitled to dower ? Surely she would not. — Yet ill tliis case, the licir was as much seised of the land ■ and inheritance as the liusband was in the case now before I us> But in both cases, the seisin and possession of the husband and heir vanish away when the sale takes plare, because then, the purchaser is in ; in the one case, from the devisor immediately, and in the other, from the com- mencement of tho lien upon the land : and whetiier that commence with tlie judgment, the teste oftlie writ, or the levying, each of these preceded the death of the husband. I have no doubt but that judgment should be fur the De- fendant, the vendee. In October, 1796, the cause was again moved, tiie Jud- ges Mac'at and Stone being present : but Judge Ma- cat not being prepared to give his opinion, the cause was adjourned. It was afterwards moved when Judge Wii- XIAMS was present, who inclined to change his former ojiinion — afterwards the cause went off w ithout a decision. Note. — This case was supported by the present Supreme Court in Badges v. McCabe, 3 Bawks tS, but overruled by Frost (i Wife v. JUhiridge, 1 Dev. Rep. 30. When a person conveys his lands in rust to satisfy creditors but continues in possession till his death, his widow is not entitled to dower therein. Taylor \. Parsley, 3 BarwJtt 125. V. D cherry. Case. For nuisance in erecting a mill. Per curiam, ' Hatwood only present — This action will be for every fresh continuance after a former action brought. It is not usual to give heavy damages in the first verdict, that is chiefly to ascertain the fact whether nuisance or not. If the party afterwards remains obstinate and a second action becomes necessary, there the damages are usually high. There is some evidence. of the assent of the Plain- . tiff's father, that Defendant might build the. mill; and j of a subsequent agreement, that the Plaintiff's father would rest satisfied if the Defendant would rut down the dam to seven and an half feet ; but as no land can be conveyed withoui deed or other notorious acts, so a man's lands cannot be chai-ged by any matter of less solemnity. A licence to overflow a man's land by a mill-pond, Haywood's iieports. 286 lop this reason, \h not good if only vcrhally griven— and Mar. 1796. this to avoid (lie (lan,e;cr of chaining or afiectinga man's "'"'"^"^^ real property by suboiitrd owths. Note. — Upon the first point resolved in this case, see to the sume effect Cuiru/Afrs v. Tillman, pout 301. The -jct of 1809, Rev. c. 773, points ')ut anew made <)( o!itaining redress where lands xTe overflowed by a mill pond, which tikes aw:iy the cominon hiw ritrht ol sninjy un- less in the case spenified by the act. Mumford ii others v Terry. 2 Car. Law. Hep. 4'..'S. In procei-diiig' under the act of 1809, iC the Defcndani dies, the hnirs cannot be made parties, and the suit must abate, Fellow v. Fulghaiv, 3 Murph. 254. 'With i egard lo the llci nse see Cook ■v. Stearns, 11 Mims. liip. 533, cited in the 3d ^im. Ed. of Comyns on Cont. 80, where it is siiid that a -lerb:.! license may excuse a trespass upon lands, though it cannot convey any permanent interest in them. The distinction Fee ms to be t'oundedin justice and does not at all trench upon the rule of law which requires interests in land to be conveyed by deed. A license to overflow a m;'n's land by a mill, pond would create no penn.inert right or interest, if only verbdly jjiven ; but if the praniee of the license does the .ict, surily he miiy justify when attempted lo be treated as a trespa,-'~er. ll is true the license may be cuuntermanded, and tlien the praiMee must forbear, or he will make himself from that time (what he would have been with- out a license) a trespasser. HEWBERN, MARCH TERM, 1796. Den, on the demise of Siade v. Nathan Smith. .\n actual possession is not necessary to prevent the operation of the statute of limitations until an adverse p(is-.ession conimencus, which adverse possession must be a cnntinned one for seven \eais to bar the Plaintiff. A deed, which is, in form, a bargain and sde, except that the consideration is expressed to be love and affection, in- stead of money, may be construed a covenant to stand seised. It seems that judicial proceedings spe.iking of an act of Assemhly, may be evidetice of such act when it is lost by lime. A bare right of entry cannot be transferred. * Ejectment. For 360 acre.s of land on the North .side of Trent river, beginning at tlte month of <\ creek, then d-Avn the river, thence by a line at nearly right angles from ihe river, and so round to the creek, and down the creek to the beginning. The Pliuntiff'.s title was deduced thus, the Lords Froprietms »n the 12th November, 1713, granted to James Castnge; he died under age and \\ itiiout issue, leaving an only sister June, married to Finya7V ; whom she survived, and in the year 1764, she conveyed to her son James Finyaiv. He on the 24th March, 1791, conveyed to the lessor of the Plaiiititf, tiie whole three 287 uaywood's rgforik. Mar.ir96. hundred and sixty acres drscribins it by the botimlaries ^^"^'''^~' m' iilixiicd ill tlic oii(»inal t^rafit. Tliis actiim W's com- imtKid in the niniitli 1)1" A|iril, in the yt;ar 1791. On the put iif the DiTcndaiHs it was jn-oven by an old deed, dated the lOtli i)f January. iri4. ami by the recoid'; of flic c(Hirt of orphans of the same year, that one Brice, (249) gnardiaii of til.' _a;iMuti'e Casi(/.fe. had by |»pimissiiin of the court of orphan^;, sold one iiuiidred and sixty acres of this land, beginnine; at the lower coi'iier tree un the river, running up the rivei', and then into the woods for Coiii|tlenient. A deed of i744, and another of 1 764. were prodiK ed ; in the Utter of which Mr. Cornell was n party. These proved that the second line of this tract, and 'he third corner, were deemed at those periods to he tlieiine and corner of Vassimore, the bari^aince, who purch.ised of th<' guardian 5 whereby tlie location of the l60 .iciieS wa'* confined t, ihe I'laintiflT's I'ight is not tolled. As to the rgso) time (lapsed between the sixth of March, I7"3. and first of June 1784, that was not allowed of hy the express di- i-ection of two acts of the General Assembly ', and the possession that can be counted in the present case, is only from the first June, 1784. to the time of the commence- ment of tin- action, whicb Was short of se\en years by two or- ilirie Mioiiths. An objection hath been made to the propriety of disallowing tin' time bet^veen the firs' of M^ich, 17*3, ami the fifKientli of November, 1777, the act of 1777, only sa>iiia: it should be disallowed wh''n pleaded to actions bi-mighf ; whereas the art of limitations is never pleaded in this action of ejectm<>Ht. The answer to that is, ubi eadem est ratio, ibi eudem est lex, the reasoir of that provision was, because during the time that intervened between these two periods, there were no coiir ts in this country ; dues not this reasoir ap- jily with eqiral force to air ejettiiient caseas to any other? A man out of possession when the law provides him wrtli no means to gain possession, should not have the not getting of possession dui'ing that time imputed to him as an abandoiimerrt of his piopei'ty, any more in Ihe case of a real estate than in that of a per'soiial estate. What is still a more lull answer- to the objection is this, that if the actot 1777, had not been made, tire act of limitations Would not have run during the time thei-e wer-e no cour-ts in the courrtry, to whidi the Plaintiff could apply for the recovery of his right. No laches in such case could be imputed to him, nor- could any presumption be I'oirnded upon Iris delay, as there is in all cases where tire act applies. 'I'lic court hei-e cited Co. Litt. iir Iris chajjtt r of Entries, whi're it is laid down, that a descent cast itr time of war, will not toll the entry of him who hath the right ol entry, because, sailh the book, wliere the courts are not open for the administration of justice, whether occasiorred by relrellion, iirsurrectiori or foreign invasion, it is said to be tirao of war, and laches are not then imputable to the 289 HAYWOoD'a reports. Mar, 1796. party. So here, tlio' tlie act liad ridt been made, the in- '^■^'^''^^m^ tfivi'iiiiig time was such as coiihl not subject tlie Plain- tiff to tiie imputation of laches. He could not in that time assert his rigiif. The courts of justice were shut up as to the possession of Edwards. In seneral, it is very much to be doubted whetlier such a possession had it continued for seven years, i:oul(l ha\e tolled the entry of the owner — he had no deed nor. any colour of title: but it is unnecessary to tjive any opinion ujhhi this poinlrnow. The Defendant's counsel (hen proceeded to state other , . objections to the Plaintiff's recovei-y — lie argued that ^ ^ the words used in the deed from Jane Finyaw to her son, wei-e give and grant ; and the consideratimi, natural Jove and aflei tion : it thei'efure could not be a bargain and sale, for want of a valuable consideration, and tliere were no words made use of to shrw th'* intent of tiie par- ties, thnt it should o|ierate as a covenant to stand seised : therffiire it must iiave been intended as a common law conveyance, and then it w:is void for waiit of livery and seisin. He ciied 2 Bl. Com. 310, 316. 311, 227. This was answered on tiie part of the Plaintiff, by citing 5 Bac. Jib. 362. 2 H'ils. 22, 7B. Per curiam — There is no doubt but that the convey- ance in till- present case, do''s operate as a covenant to stand seised, ut res magis valeat, and therefore that it i$ good in law. The Defendant's counsel then urged, that thougli there was no act of Assembly to be found in any of the printed books, previous to the date of the deed from Brice, the guai-dian, to Vassiiwire, in 17'14, and to the pnxteeilings of the Oi-phati's Court in the same year, the history of this country would prove there were Assemblies held pre- vious to that time ; the Lords Proprietors landed here in 1711, there are many old grants bearing date in 1711 and 1712, and some as early as the year 1706 ; the deed itself |)urports to be made pursuant to an act of tlte General Assembly, and the Orphans Court on their re- cord say, their consent to the contract was given pursu- ant to an act of Assembly. Per curiam — As to this point the genera! rule is, that the court must declare the statute law as it is to be seen in acts and statutes yet extant : that law however, is sonieiimes from necessity ntlierwise collected. It hatb been said by very learned men, that many parts of the UAYWOOU'S UEP0RT9 290 common law, were acts of Parliaiiu'iit worn out by time. M i"^6. 2 ff'ils. 248 Tlie ronimo!i law i'^ prt'seivcd and evideii- "•^'^''''*^ Ce«l l>\ jiuliciiil proceed if ij;'*. In the piesent case, there aiejuiiicial piocceditigs whirh speak of an act of the Lc- gislatu'-e ihai is not now extant, npxi wiijch the deed to Viissimore iinrpnrts to h.> founded. 'Vlv deeds nf i744 and 1764, prove Vassimore's having a coiner and bounda- ry line in this tcact of land. This proves that for a long time after the date of Vassimore's deed, the neighborhood recognized it as a \alid transaction. All these circum- stances, hut particularly the jir^ceedings of the Court of O phans, seem to he enough I'l Justify t'ne conclusion that the act of Assemhiy spoken of, ni the proceediuj^s of tlie Orphans' Court, did once exist : but there is no abso- lute necessitv for resting the cause upon this point; and ("jso^ as it is a new one, the court will not give a positive opin- ion upon it. 'I'he Defend. mi's counsel then made another obje( tion, wliich was, that in 1771, and for a i.'uiisiiiera- ble lime before, up m April 1775, Cornell and Edwards had been in (lie actual possession of pait of the land, namely, tiiat part adjoining the river and ci-e' k, claim- ing It as their own under a grant from the King. As to the upper part, liicy had not been in possession, neither had ilie Finyaxcs any actual possession for fifiy years bark ; tliereiore, as to tiio p.,rl held under the gram of 1774, Fimjaw, the vendor, in 1791. at and previous to the lime of his lonveyancc to the lessor of the Plaiii'.ilT, hail no otiier means of acijuirirjg tne possession, but by a suit at law ; he had nol tlie actual possession, but only a riglit of entry ; and tiiat by the known rules of law, he Could not sell or convey to anoiher. For this he cit.dS Bl. Com. 290. Co. Lilt. 214 a, and the case of Few -iiid Mves. decided at Hill borough last term. Oii ti.e .>ther side were cited /i'spinasse 433, who cites Sulk. 423. — Upon this point the court were vMth the D fcndanf. and so gave in charge to the jury. They found the Dtftod- anf not guilty as to all the land Comprised in Brice's deed to Viissimore, and guilty fi)r the residue ; and there was judgment accordingly. HoTif.— ViJe upon the fiist point, note to Strudwick v. Shnw. anteS. Park V. Cochran ft aL ante 178. — \riil m on ; i .uat, see DennitB v Farr. \ Mnrphey 1;^!?. Chrh v. ^rnoW, 2 Hm- S87. 29 1 iiAT wood's ueports. Mar. 1796. jjgn, Oil the demise of Pollock v. tlie Heirs of ^■^"^"^^ Zemiriah Harris. when a natural boundury, and courses and distances, are all given in a deed, ihe natural boundary will prevail in cases of a variance ; and in doubtful cases, a regard to this preference must always be ob- served. Ejectment. The patent under whirh tlie Plaiiitift' claimed, was tlie oldest. It called fm- trees standing in a swam|i at one jilace, in a branch at another, in a po- cosiii at another, for a pine standing; in a marsh near a hill, thence to a pine in an Indian old field ne;ir the river Neii'-e, ilience a course and distance across the river to the Nortli-west side of the river, thence a course and distance to a particular corner. The line from the pine la^'l menrinned, run accordint^ to tli€ course and distance in tlie patent, crosses a part of the old field and river also. It also runs through an adjoining marsh in a very miry part of it, stopping where that line intersects the ri- ver; and running the next line according to the course and distance in the patent, it crosses the river in two places (the river there forming almost an island by tlie circuity of its course) and terminates on tiie South-east, instead of the Morth west side of the ri\er. If that line is made to terminate in the peninsulated piece of land, and on the - North-west side of the river, and the next line he run {253) f,.jj^ liieiicc according to the course and distance in the patent, it would not cross the river as it lan at the date of the patent. The river from one part of this hent to the other, which that line would not cross, tia^ing been formed since hy a canal cut for the purp'iso, and in thai case the Plaintiff would he eiitillrd to lecovcr |)art of the land described in the declaration ; but if the second line from the pine is made to terminate on the North-west side of the river, immediately after crossing it, not re- garding the distance in the patent, then the next line run according to the course and distance in the patent from thence, crosses the ri\er in two places, and in that case th Plalntift" is not entitled to lecovej- : or if that line is ccmtiiiued until the distance called tor in the patent is com|)leted, the next line from thence crosses the i-iver in two places, and in that case the PlaiutilTiseiUilled to re(over. The latter is the line conteiuled for by the Plaintiff, the former that contended for by ihe Defend Haywood's heports. 292 ants. If tlie land linw.'vcr should b^ run out accnrdine; *'*'"• -''^'^• to the courses anri distancos in Hip p;it( nt fiom the be- giiinitig, then tlie lines do not extend to the. sw.mip, po- cosin and marsli. severally called for in th'' patent, and the land is very far wiihin the lines that do extend to them — so far within them that the Plaintiff i'* -lot entitled to re- cover any (hintc. Tlnse courses and di-tanre linis were distingushed Irom the mhers which were extended ti. the several natural boiindaiies mentioned in the patent, by beinp; called the dotted lines. Per curiam, after argument, as to tiie dotted lines — The dispute witli respect to them, may be derided by laying down the rule with regard to boundaries : it is this, wlierevei' the beginning is ascertainetl, and the lines from thence, are by the words of the patent to ter- minate at a natural boundary, as a swamj), hrancii, creek, river, mountain, hill, or the like, if eiiiicr the course or distance mentioned in the fiatent will not ex- tend the line to tlie natural boundary, the course or dis- tance, or both, must be disregarded, and t!ie line not- withstanding these, must be extended to that nutural boundary if tlic course will lead to it ; hut if the distance falls sliort, the line must be extended beyond llie distance, till it arrives at tlie natural boundary. And in the pre- sent case, if the dotted line will not extend to or inter- sect the natural b-undaiies called foi' in the patent ; and if on tlie contrary, the other lines will extend to tiiem, the result in point of law is, that these latter are to be dei'uied the lines descrihrd in the patent ; and tlicn there can be little doubt with regard to any of Iheni, until we (254) arrive at the pine in the marsh. As to the line leading from tiience, it is remarkable that the counsel on both sifles have adinitteind termina- tion is attended with this further advantage, thiit tlie next line drawn from thenrr according to the course and dix'-.uicc in Ihr palent, crossing the old field longitudi- nally, crosses the river hut once, as mentioned in the pa- ten', and completes the distance in the peninsula without crossing the river a second time ; and then the termina- tion of thnt line i-< on the Novth-west side of the river, as called for in ihe patent, and »iot on the JJorih-east. It wtMild be attended with this f.rther advantage, th- 1 the next line drawn from the termination last mentioned, ac- corrling to the course and (llstance in the patent, i-snes from the peninsula, through the narrow neck of land that connects the peninsula with tiie adjoining land, where at the date of the patent there was not any canal, and »ill noi cross the river as it ran at the date of the patent Whereas iCitbediawn from either of tin- other twopoinls, it will cross the river at two places, although that cir- cumstance is not mentioned tn the |)atent. The circum- stances upon U'hirh this supposition is founded, are ail of them circumstances arising from the natural bounda- ries that are in this case, namely, the marsh, ihe old field, the river crossed but once, the line terminating on the Noith-v\esl side, and the river not riosscd at all by the last line ; and as they are f'liiiiished by a considera- tion of the natuial boundaries, tiny are competent to justify the jury in disregai'diiig the course called for in the patent, of the line from the pine ; especially as the patent mentions natural boundaries in every other in- stance where the lines did intersect them, and as in the ^^255; description of the last line, it has not mentioned crossing the ri^er at all ; whereas it must cro-s it in two places, if \^ hat either the Plaintiff or Defendant contends f"r, be tmc. According to ihe b'fore mentioned supposition, it will cro.>8 at the canal. v\h»re at the lime of this patent theie was none ; and so it will be accounted for, why th< patent in describing this line, has not mentioned the river, as it did with respect to the line next preceding; and in every other case where a natural boundary was touched. II' this supposition be adopted, the Flainliffis entitled to lecover a part of what he contctids for 0))ly. The Jury found the Defendant not guilty. HAYWOOU'S REPORTS. 294 XoTK. — This verdict must have bem fouiidrd upon a 5u<)positi<'n, Mjt. 1796. thai tlie lin. ill controvt-rs) was to be dr i' i) fi' m ateitninaii'm n'' itie ,^^-v-'^^ lim '.ext preceding, beinij at a point immediately after it^ cross'tigfUie river, and not at a pont further on in the peninsula— from whence the last Ime being ilrawn by llie Course and distance in the patent, woulil !iave itossi -d tbi- canal. Note Vide Bradford v. Rill, and the not? (hereto, ante 2~. LiiAvthorj) V. Sinitli. rf one of two joint owners iif a vessel, forcibly take possession of lii>v, and send het to sea, without or against the will oi the other, and she is lost, lie will be liable in trover tor her. Trover, for one h^ill' of a srhooner. IThis scliooncr formei'ly bilniiged scilcly tii Smith ; he sold the one lialt' to Lowtlwrp, who 8ii(ieiinteii(lc(l ilii- jtR'airs of the vessel for two of tliree vojatjes ; liul on !iei- i"e|iiruin_a; (i-om the tliiid voyage, «liicli was to Lo'idon, StmVA foi-cihrv took possession of liee. Tlie next Miynge was in Fchruary, to Ch.iileston — this voyage Lorvthoi"p foibad. Tlie next vojage was iniended (o Cv.pr Fiancnis — it was neither forbidden or ronsentcd (o by Lowthorp ; Smith sent hee out without ronsultiii.aj him. TiiC vessel was lost on hcs- outvvai-d biiiiiid voyage. Tlie (ounsei fof (he PlaiotiflTri- ted Butler's JVisi.Prins 34. Salk. 290, On the |.aft of the Defendant it was admitted, thai where one of two joint owners takes the whole to himself, and desteoys ihe thing owtied, trover will lie; but if the thing be fortibly taken at first, and afterwards used as the common pro per'y of both, and for the benefit of both, and whil-i so employed shall be lost, that such loss is a common one : liere tbe vessel at first was forcibly taken by the Defen- dant, and the first voyage to Charleston forbidden ; but it (Ities not apjiear they afterwards disagreed about the ve-isel. The last voyage was not forbid by the Plaintiff, and it may be reasonably presumed, as there is no evi- ilence to thii contrary, that it was by consent. Per curiam — If one of two joint ovvners takes jiosscs- 31(01 of the whole, no action will lie for this, foi- one hath as much right to the possession as the other ; but if after taking possi'ssion he destroys the property, he is then li- (250) able ; because the joint ownei-ship does not empower him to destroy the property r 1796. vpsspI to sea. and slic he lo'^t in that voyage, tliejiiiy may *-'~^'^'*' coHsi'liT siiih loss as a di'stnutioir of the vessti, orca- sioiied by ihijdiirt owner by means of sending her to sea, and find lot- tlio Plainliff. The jnry tonnd arc>'rdin;^1y for the Plaintiff, l)ein!r of oiiiiiion tliat tlie |.>ss in titis case was a destrurtion orca- sioned l)y tlh Dcfi ndant, and of fonrse, a conveision in hjii' — tlit'y assessed damages to £1072. Tlie com t cited JHolloy b, 2. c. 9. s. 2. 3. Note.— I u/e 2 Sawid. 479. J5ii//. i\. P. Si 05. Cn. Lilt 200 a. Rogei's T. Briley. Tlie interest to him, a legacy with an e.\priss use for him, or a se'.ret tiust and agreement on the \m\{ of ihe Ii-catce fiir hi.'; nfatee had made an en. gagernent to h<»M for his bv^nefit. Though a f.ir.t be posittvely sworn to, by onp nr two wilnessep, and th< y aprer [irolty well in tlieir tes- timony, yit '.he jiirj, t-ilher from th. i; cliartcter or ihe eiiCMni3t;in- ces of the case, m^y disbelieve them, and find against their evidence. Briley liad ofTered for probate a p:iper, pui portina: to be th'' will of one Jones, wlieieliy the jyeater part of 'lie pntperly w as dcv ised !o hint. This prnbute in the Coun- ty Court oil'itt, Wits opposed by Rogers, who li^d mar- ried the only ^iiid in conversa- tion, ihiit the piopeiiy was devisid to his fatlier, for the use of him, the witness, or in ti ust for him ; and the rea- son why it WHS not devised direi tly to him, was, becau.se he was involved in his cirt nmstiinces, and his creditors migl t have seised on 'he piopeitv htid it licen bequeathed to him. A witness in court, proved he had made these declarations. . Per curiain^-TUc objection to this witness is as to his ctmipetency. The objeciion is grounded upon this, that if he esiiililishes the will, his father, the legaiee, may then be (oniielloti lo fulfil ihelriisl he lias iindei'iaken. Now in the case of a will, the interest of the witness can only HAYWOOn's IlKfOUTS. 296 al)ppar by one of these three ways — eitliei- by haviiij^a le- M^i" '796. gacy cxiii'fssly and cljrectly beiiMcatlied, wliicli !•< not tlie ■■■^~'''^^^ present case; or by iiavhm a let^acy betjneatlicd exprt-ss- ly in tfust fill- liini, whirh is also not lliis case ; w l)y baviii!^ a log-acy bi-qaeatlied to a iliii-d pei-son, witliout aiij use or trust declared, but mion ascciet triisr and en- ga_e;einent on the p.ut of the legatee to hold loi hini — that is not the |irp-;eiit case, lor there is no |iroi)f that Briley, tlie fatlier and legatee, batli ever made any such i-nga.^e- ment ; and though such a (lei laration madi' by tlie wit- (257> •less, (nay tetid lo ditninish his cifdibiiity, it is not suffi- cient to remove his com|ieleiicy. 'I'lie witness was sworn, licpro\c(l the t'X'M-ntion of the will, ati did also the other subscribing witness — they svvore to lin- sanity of the de- ceased at the time of tlie exi'culion. Their testimony agreed in the circumstances attending the execution, such as the place, persons piesi-iit, time of the day ; and that Ills name, as well as ihat of one of the witnesses, was writ- ten by this other witness, lirilcy. Their evidiiice WaS corroborated by that of Mr. Collins, on Attorney, who swore Itriley came to him, re(j!iesiing him to go to the house of Ibe deceased, and wciie his will for him. and be a witness of its execution. On the other side, it w>jS pro- ven, that the day after the will bore date, the witness Urikij shewed it to a near neighbor of the .deceased, an(i told him he wisln-d to prove it at the next court, and that the t('stator at this time was in good health ; that the tes- tator had an only dadghtir. and said only a few days be- fore the date of the will, that he should make no will as he had but one child — that lie was ujion good terms with his daugliTer, though he hail foi'mei ly been othi-rw ise with lier first husband — that Briley the witness, on the 17th of December, eiglit days before the will bore date, applied in company w ith another man, of the name of JVyatt, to a Dr. Jones, for ratsbane, and got some trim him — that some time after, the Doctor saw him, and asked him if he was not the man that had been at his shop, when he denied that he had — that a Coroner'n impiest was held over the body, and that it, was the opinion of the jury, and th' physician who was then examined by theiii, that the drceasi'd died by poison — iiis death hiiiprned eight or ten days alter the date of the will, and BrUcy and the olhcr witness, both said he was well at tlie time of tin- exeru- tioii — the testator, a fen days befoie the daleof ilie will. 297 , Haywood's reports. Ma.-.ir96. expressed his ill opinion Uotli of tin- witness Brdey, anu '••'"^''"^^ ol IS r.itli(;i, (lie IcgHtee, in strong terms. Per curiam — l iioujili a fact may be positivi-ly sworn to bj '>ne or t\M; witnesses, and liioiij^li tlie-ie witnesseK may concur in iw;i •>■ of tlie eircuiiistances, the jury are not absolutely bound lo believe the fact tlicy swear to, if they have i-easoii, either fiom liie character of the witness, or the circuiiislanres with regard to that case, to disbelieve them. On the contrary, a gi-ai number of circum- stances comiiia; fi Dm witnesses of good credit, and con- curring in the establisjiinent of anj pusition. might cs- '^ ^ tablish it. Tiie court then recited the circumstances be- fore stated Oil bntli sides, and lel'i it to the jury upon the consideration of them, to say whellier or not this will had been duly executed. The jury found it was not the will of the deceased. Hartsfield v. Westbrook, One lin.e of ;i boiir.dary was fiom ;. poplar on a swamp, " llicnce down the swamp to the be[;in"inp": held, that th. s.iamp, and not a straight line from the poplar to the beginning, is the boundary. The patent called for a beginning at a tree, which stood (though not so espresseil in the patent) near the swrinip, iheiice in a recta. igular course femii the swamp, thence Si.uih degrees U est, thente North to a pine (wliuh also swiod near the swamp, but not said to be so in ;he piitent) thence to the beginning, not taking any notne or making any mention of the swamp. The patentee conveyed part of this land to Eaves, who con- veyed lo Hiirlsfield. Eaves' s deed began at the begin- niiig corner ol tiie patent, thence a rectangular course from the swamp, thence South, tlu-nce North to the swiiiiip to a jioplar, thence dffxvn the swamp to the begin- ning. Tlie trespass complained of, was on the opp.isite sld<- of the swamp from the poplar. It was wiihin the la^xl of ilie Plaintiff, if a direct line from one boundary to tlie other was fin Miie one ; but not within it if tin- swi'mji was the true boundary. I'tr curiam — The swamp is to be ( oiisiilerod as tbe bounifaiy — but th.it ti;is jiid;j;ineiit may not be hiirrieil. ymi •■ ay o) 'Vt' tlie Hi.tUer ii an>>tliei da}. Sh nlu ihe opinion ol the court be altered iti the mean time, they HAYWOOn's REPORTS. 298 will then set aside the nonsuit now ordered. The Plain' M»r.i796. tiff was nonsuited — mid a few days afiei-waids it was ^■^"^'"'•^ moved by Gen. Davie, that this nonsuit siiould bo set aside, sayin); he wished the ()|iinioii of the court upon this point, hecause another suit whs drpendins; iu court upon tlie same point, hetweeii Hartificld and Fuller, wiiicli would he disposed of immediately should the court be of opinion that the swamp was to be considered as the boundary. Per curiam — A case similar to the present was decided at Exlenton last term, between Foster and Sandifer — the expression there was, "tiience alont; liie river;" here it is, •' thence down the swamp to the hi\e;inning" — they are both of tiie same import, and the case of Foster and San- difer, is therefore tit to govern the present, and according- ly tlie swamp in thi- present case, is to be considered as the boundary. — Let the nonsuit remain, and the rule to show cause why if should not he set aside, discliar.2;ed. — Then Oen.Davic dismissed tiic otlier suit of Hartsfield v. Fuller. NoTK. — Vide Sandifer v. Foster, ante 23". Blackledgc v. Simpson. When to a bill filed, staling errors in an account seltled four or five years agu, Defendant pleiided specially, denying each error kihI al- so all fraud, if the Plaintiffdoes not take issue, and prove the en-or or fraud, the court will not disturb the account. This was a hill slating errors in an account settled be- tween the Plaintiff and Defendant some four or five years ago, particularizing the errors, and praying to have them rectified. Tlie Defendant jilead^d spicially and particu- larly to each error assigned, that there was no such er- ror as was assigned, and denied the fraud and imposition charged in the liill, lioiU in his plea and answer. The plea was now argued, and after argument : Fev curiam — Where a bill is for an account generally, then the |»lea of a stated account is a good plea in bar ; for the account having been settled by the parties, ihe presump- tion is that it hath b.cii fairly settled, and the court will not open it again merely because asked for by tiie party : but where the bill states a settled account and errors in the Aicount. and fraud or imposition in the settlement, then •f the Defendant does not deny the error anH fraud, ihn (259) 299 UAYWOOd's REP0BT8. M.r 1796 Plaintiff's allegations remain uiianswfred, and the court '^"^'^^i' will ' pi'ii tlie account as to the errors pointed out ; but if the plia denirs the error and fovud, and tiie f> and be denied in the HiiMwer also, so that issue may be taken up- on the error and frMud, the plea uf a stated acccount is a good bar in law. And IT the Plaintiff doth not take issue, and prove tiie error and fraud, the court will not open the account in any manner; but if issue be taken upitn these P"ints, and lound for thi' Plaintiff, then the court will or- der the account to he opmed as to the errors complained of and proNcd — but tli< plea and answer must deny the erior a>. positively as they are alleged, so that issue may be taken on these verv points — for want of that particu- lar, the plea would be ill — but hen', it is full, atd issue may lie taken precisely and specially upon the errors and fraud, and tlieref'i'e the jilea is good and must be allow- ed ; but the Plaintiff must still reply and take issue. Den, on the demise of Sasser per Guardian v. BIyth. A, seised in fee of the pr'^nises in qucition, executed a deed to his SOI., in wtiich he stated tliat for iht pr«fermenf of his son, l)e con. , veyedthe l;,ndtoh^''">'''*-' deed, dated the 24th Janiiaiy, 1782. he Kianted the (iie- mises to his said daii.e;liter in fee, absolutely nnil witliout any j)rf seisin, attornment or other cei'emony in the law wiialsoever.— r Under this art, all deeds in whatsoever form they may be drawn, where they evince an intent to convey, shall have the effect, if re,i;istered, tliat the parties intended them to have. If intended to operate as a fcnffinent, they shall operate as sucli, without the ceremony of liveiy of i seisin. If drawn in the forni oFa deeil <>f gilt, so that in strictness it is neitiier a feoffment ikh- deed nndci- the statute of uses, yet if thei'C appcitis to be a char intent to pass the lands, and the deed be regisfereMi. 2 Bep. 23. Or a deed to a man and his heirs, habendum v.*"V from 99 years to 99 years, for 300 years. The third re- solution in this case was, that ;:ti habevdum repugnmit to the premises is void, Cro. Eh%. 354, 255. Habeit' so*! IIAYWOOU'S UEPORTS. Mar. 1796. ^jjjjj after the deatli of the grantor, and no estate limited ill the premises, is void. 2 Ba. M. 498. Grant of the reveision dependant npun an estate for tliree lives, ha- bendum to A. for life, which estate to be.^in after (he three lives were expired, is a good grant of the reversion, and vest a pi'esent reversionary interest, the habendum bi-in^ void. 6 Rep. 41, Jlildmay's case. No condition shall make an estate to cease as to one and re> ive as to the other. Hen* was a condition, that he Hhoiild not siiHer a common rerover-y, and if he attempted it, that then the estate to one should ceas-e, and revive and commence in another. All these cases jirovc that a subsequent part of a deed, derogatory to a former part, and tending to lessen the powers over the estste granted in the prece- ding pari, are void. This proviso is of that nature — it lessens tiie estate granted in the premises, which was an estate to commence in presciiti,hy making itto commence not till after two lives in being. It is a proviso totally incompatible with the premises and derogat;iss tln^ estate as ilie parties in- tended, nt rds mugis valml qiuun pereat. it is the busi- ness of Judges so to construe deeds, as that they shall operate in such manner as will eflVctuate the intent be construed a covenant to stand seised, vt res mugis valeaU as it agrees substan- tially with the definition of ihat instrument — whereby the estate will pass at:crity cited on the other side, and which is next in order to be com- mented oti. 2 He. 23, .idmits an habendum may he void for rej)ugnance ; and says, win re ihe estate in the pre- mises, and that in Ihe habendnnu both pass by the d. li- very of the deed, there it ilie estate in ilie habendum, be less than the estate in the premises, the habendum is re- pugnant and void : or wheie the estate in the pieiniscs, requires a ceremony to its jierfection. and that in the/ta- hendum none — tlieie the estate in the habendum takes ef- fect by llie delivery of the deed only, and is nor void for re|Migiiai)cy. The provisional clause in this deed is not an habendum, and tlie bare saying this, is sufficient to shew the inapplicability of the case cited to that now under Consideration. But say it is an habendum, it gives no less an estate than that contained in the premises — they are both estates in fee. The only difference is, that the one is to commeiue in futuro, Ihe oilier presr..ily; the proiiso atiil tlir prereiiinj.'- parts of the deed are lii-tli parts of the same deed, and iioth to be taken into con- 305 Haywood's reports. M»r. 1796. sidepatioi), in order to ascertain the true meatiiiii? of the ''•^"''^^^^ parties. The for'iiier is not to cause a rcjcrtion of the latter part for repugnancy, unless they be totally irre- coricileablc in im-aninj:; with each other. What that (265) meaning was in the present case, is evident — it was to ci'cate a fee and IVt-chold in the grantee, to coininence in fuluro, upon the death of Ihe grantor and his wife. Tliis being once established, the only question remaining is, whether this intent he c(in)|»atible with the rules of law. In other words, whetlier a freehold can bo ci-eated to commence injuturo ; and that it cannot, )io one willdcny. As to the other authorities cited, they all proceed upon tlie same princi|)le with these already adverted to, except in one instance, where the habendum was deemed void, because it attempted to create a freehold to commence in futuro. Tiie next attempt is to support this deed as h covenant to stand seised. If it be a con>eyance under the statute of uses, such a proviso is not re|>ugnant, but must be taken as a part of the deed, and must ha\e a proper agency in forming a construction ujion the deed. Co. LitL 9.57. 1 Rep. irS. 9 Rep. 104. All these au- tlioriiies prove that a proviso contained in a deed under the statute of uses, is good ; and if the proviso in the deed nt John Sassei; the elder, be not void, then John Sasser, the younger, hail no estate in possession, nor had he any remaindei', there being no preceding particular estate to support it ; oi- if he had any other estate, it could be no other than a freehold estate to commence iii fnturo, and that is void. 5 Rep. 94. It cannot be main- taiticd that this proviso is a nullity; for. wherever a proviso contained in a deed, is of such a nature that a Court «if Equity would enforce it, it is good. In the case before us, had John Sasser, the younger, attempted to turn tiic old man out ot possession, tlie Court of Equity would have prcvintcd him frinn doing so iniquitous a thing. They Wfuild have compelled him to abide by the terms u|)on wliich lie had accepted thetleed. Again, it is a rule that every deed takes effect from the time of its deli- veiy, or not at all. it cannot for some time alter deli- very be dormant, and afterwards upon the arrival of « particular period. rtvi\e — in the pieseiitcasc the parties have attempted to make the nfi thi- time of delivery, tlie estate i)fJo/i?t, the younger, whatever it wa--. passed to him fimn that time ; ^ and that must ifi essarily have heen an estate of freoiiold to commence infutunt : or if the deed had no effect at that time, the estate did not then pass ; and as the d -ed can never hereafter have any eftecl, no estate at irtl pas- (266) sedfrom the grantor — and so eit'ier wa} thi- estate intend- ed, that is lo say, an estate of frneliold in fuhiro, is void. But to view this case in its (iro(»er light, the proviso in this deed is a ( oiidition. The word proviso is peculiar- ly ai>pi'opriat<-il by law, to create a condition. Litt. sec. 328, 329. -2 Rep. 70 6, et seq. Dyer 311. Cro. Car. i28. And as it IS a condition lo take place prior to the estate intended to be convened to the grantee, it is a conditioa precedent, tantamount to the same thing as if the party had gianted the estate in fee. upon condition thai it should not lake effect until after the deatli of the grantor and his wife. An ing up 'he possession to the grantee vviien thi- died was executed, iogeih- that it must be considered in lorniins a constr-uction upon the deed : and in tliat view it will ap- pear to he a condition, to have effect prior to the cnm- menrement of the estate ui John Susser, the younger. — He tiad not tlierefore a present C'-tate, but an estate to (267) commi-nre infnluro — and the condition upon which it de- pended beinj; repuj^nant to law, as it attempts to make an estate of freehold to commence hifuturo, and b>-ing tlierelore legally iiuperforninble. the estate dependant up- on it. namely the estate in John Sasser, the younj^er, can » never arise nor take effect. Tlie consequence of this is, that John, the elder, notwithstanding thin deed, had tlie estate in fi-e in him as before the execution of it. and a right to make a conveyance to his daughter of that es- tate ; wliich he has done as stated in the special verdict, by the one or the other of the deeds there mentioned.-— Till- foriDiT deeil they say is defective — it is not necessa- ry f'lr us to enquire, whether it be so or not — the other de< il to her is clear of that and of all other objections — and will pass the estate to the daughter though the other deed be defective. Gen. Davie — The words of the proviso are, "Provi- ded that this deed shall not take effict during the lives of the grantor and his wife, but the premises siiall remain to the use of the grantor for his life, and then to his wife for her life." This deed is either a deed of feoR"ment at the common hiw, or it is a covenant to stand seised ; and if it be a feoff"ment, the proviso is void. First, it may be a feiiff'nient at the common law — the words here used are well adapted to tliat instrument. There is no proof, it is true. t)f any livery of seisin, linl immediately after this transaction the grantee, or the feoffi'e, as I would call him, was in possession, and continued in jiosscssion lo the day of his death ; whicli is tantamount to a proof of liiery and siisin — and beside, our at t of 1715 dispenses with livery and seisin in case of deetls of feofl'mcnt, pro- vided the deeds be registered in due time — and consider- ing It in that light, the proviso is clearly void, because repugnant to the |)receding part of tiie det^d, wliirh con- vejs i fee unrestricrively. It is argued by J^Ir. Taylor, that thepruvisioiial clause in this deed, is a condition pre- Haywood's beports. 308 cedent and against law — it is not a condition but a limi- M^''^^^^- tation. Co. Litt. 201, A condition is a quality annexed ^-^"""^^^ to an estate, whereby it may either be deteati-d or enlar- ged, or created upim an nncertain e\rnt, nn part of which dennition agrees with the provisional clause in this deed. It is not to defeat, enlarge or create iht estate upon an uncertain event wliich may or ma> not happen — the es- tate in all events is to remain a fee, nor is it upon any event to be defeated ; neitlier is the life estate in Ihi- gran- tor and his wife, to be defeated upon any event whatso- /'g5g^ ever. Nuthins is here left fo chance or future occtirren- Ces, every thing is unalterably fixi-d — then if this be a common law conveyance, the provrso i« a limitation le- puguant ti! the estate granted in tiie former part of the de'-d. Shep. Touch- 129. Mr. Taylor seems to suppose that tiic word proviso, ex vi termini, makes a on litiim, that is not so — it inaj lie a limitation, co\enant, comtiti- tion, reservation, &c. Co. Lilt. 203, o and 6, 20t. 2 Re. 72. A proviso to restrain the geiieraiity of the for.ner clauses, is not a condition — whether it be a condition or not, deijfcnds u[>on the true construction of the deed, and the consequences that would result were it iield to be a condition — if these were such as would defeat the tiiie meaning of tiie contract, or not promote the ends it had in view, it shall be construed to be something else rather than a condition — as a covenant, limitation, or the !ike» that will effectuate these purposes. As to its repue-nan- cy — if it be a proviso repugnant to law, it is void, Fearno 178, 179 et seq. Or if it be contrariant in itself; or al- lowing it to be a condition, it is void and against law if it attempts to defeat only part of the estate to which it is annexed. 1 Re. 85 b, 86 b. For if a condition at the common law could make an estate cease as to one, and rc^ ivc as to another, for a |>articular time, the breaches of such conditions, wliich in their nature are seciet and not notorious acts, might privately transfer the freeliold from hitn who had taken it by a notorious act as livery of aeisin, or the like, to some othi-r person ; and again, by a like secret breach, from him to another — so Ihathewb* wished to bring a prcecipe, would never know agninst whom to institute his suit, nor the lord whom to call up- on tor his services. If it could be made to cease for a time, .ind revive again afterwards, then it might be made to cease during the minority of heirs, and by this meanti 309 Haywood's bepokts. Mar.iwe. flip wardship be lost to th<' lord. Such secret modes of ^■^"""^^^ estafes, (Vom one to another, are agHinst the wlidc poli« cy and fundami-ntal principles ol'thf conimon la\%, wtiich ordained all transfers of real estates to be by open and no- torious cererrmny . Fui tliernmre, if it be ;< pro\ isn or con- dition calcniated to deprive the l><>ldci' of the estate of ihe exf-rcise of some pnwrr wliicli the law annexes as an in- cident or quality to the estate from motives of policy, as a iirovi^io or condition no< to bar an estate tail, it is toid. Shep. Tinich. ISO. 131. 132. Litt. sec. 723. and the com- ment upon Litt. sec. 36(T, 361. 362. An habendum Is a material part i>f (he cli-id. as ii performs the office of de- scribing the estate, or quantity of interest the grantee is f269^ to have, and where it is repugnant to the premises, it is * ■' void — much more sh«ll a proviso coming both after the premises and the habendum, he void, when repugnant to both : and that it is void in such case, is ahnndantly pro- ven by Cm. Jae. 282. Cm. Eliz. 255. 1 He. 47. ' 5 Re. 12. 9 Re. Sundat/s cast'. lRe.96. Rutgrant that the proviso in the present case is not void — still if it can be so construed, as legally to carry into effect the intent of the parties, without violating any rule of law, it must be so catisirned — and here, the manifest meaning of the par- ties may be effectuated consistently with the rules of law, by construing this «leed to be a covenant to stand seised. 2 Bac. M. 498. 3 Dyer 272. Cm. Car. 366. I B. M. 410. 5 Bac. M. 362. 7 Re. 13 6. 1 Bac. M. 176. 5 Bac. M. 351. CoTV. 600. Hob. 287. A covenant to stand seis'd of an estate to commence infuturo, is good ; for so much of the ancient use that was in the covenantor, and whi> h i'< not conveyed out of liim, remains still in him — and in the present case, if the proviso had not been inserted, but the deed had convejed to the grantee an es- tate after the lives of the grantor and his wife, ihere Would have remained in them a life estate sufficient to 8U|>port the future interest of the grantee — and surely if the law W'uM hiive implied this without the help of the proviso, a pi'i \ jsri express to tlie same purpose, will not previ'iit the ilu'd from receixing the same construction, utile per iv utile nop vitintiir — expressum nonfacit taciturn cessare. As to the place occupied by this pioviso, being the ' 'tter part of the deed that is totall) immaterial — no n.iittcr \»here'tis Iti'id. the constrm tion must be made upon all that appears on the face of the deed>-and TS^ K havwood's repoktss. 310 the law ill making il»e proper coiis'iurtion, will aasicn Mar.i796. to carli nri' nibcr i.f 'lie yholc contents, without rej^ard to the order in which €l, Mar.1796. sufficient to support the future estate. Co. Litt 22, 6. This has V^-v^^ beer, al'eadv I'er ded in a vast number if ii.slsn'e^. riicr*- '» np pplnl htt'rr established bv uHioritiev. 1 «o. 175, 178, 98, 159,121. 2 Mo. 207. 3 Mo. 237. 2 Vet. 255. 4 Jllo- 1 19. 2 L. Rai/ 855. I L. Bay. 34. Tlifre can be no dount in tbt- present Cise .>■. t > whai was the meaning olthf parties, u\u\ the only qn. stitm is. «h-rtl. v it is po^'^ihle to pill such a cnnsirnction iipoii the ileed, (TWe 1 Nets. Jib. 487. 488, «. 16, 17, 18, 19, 20, 22. 3 Nels. 96. s. 18. Fearni: on Cont. Item. 30 33,) as to niakfi thut inieiit consisttnt with thi- rules of ti>w: and if the hiw will imply an estate for lif<- in the grantor, where nothing i? said about it, in order to sii;)port the estate in remainder, surely it will not rt ject sucli estate when laised by the express words of the parlies. Here that is done, and he- ides, the very case now before the court was decided not long since, and is repofted in 4 Term 181. There, there » as a conveyance exactly like the prtsent, and a (iroviso of exactly the same import, placed in the same part of the detd ; sn.i the c.'uit decided it was nut a repugnant proviso, but consis'enf with the estate granted in the d^ ed, and that the e.'rtates mentioned in the deed were well raised. Viile 1 iVV/«. 408, t. 22. 1 Rep. 101, 154, b. (2n) Se[»tember term. 1796. This spprial verdict was again arguerl before Jiidjjes M.4cat and Stujje, and thoy gave judgmeni for the Flaintiff. Note — It will not be improper here to observe, that this opinion of three of t!ie pres'^nt Judges — f"i)un tion, which conveyed the whole estate absolutely to tiie bargainee ; but in the premisi s of the deed, ther' is an exception of the grantor's lifetime, in any part or parcel of the land — wheilier the lessor of the Plaintiff took a fee by this conveyance, as a life estate was reserved to the grantor, was tlie question. • Davie, for the Uelcndant, laid it d^wn as an established rule of law, that a fee cannot be created by deed to takv effect or arise in /u/uro ,- and here, he said the f.rantee was noi to take till after the grntor's death. The Attorney General, Haywood, entered into » discuksion of the doctrine of use-., to shew that the use might be limited to lake effect in this manni r by the statute of uses, although it would not have been good at the common law. Per Curiam — Ashe and Williams, to the Attorney-General, we differ with you in opinion in respect to the op- ration of the statute of uses, but we are elearly of .pinion, tlia' lure the fee ilDlDediately passed to the grantcei and that the reservation is void- # HAYWOOD'S BEPOKTS. 312 ■ V. Sianton. Mar. ir96. Notice need not be piven unc'er the act of 1762. Hev. c. 70, s. 3, to the drawer, if lie lias no cff. cts in the hands of tl>e drawee. The receipt of paitnfthe money from the drawee does not discharge tlie drawer, aiul is to the bHiancc lie is entitled to notice only wlien he would be so in case of the whole's being unpaid. Tlie case was, one man diew an ordci' on another, in favour of a thifd. anil soon .tfrcf nio\c(l away to another State — tlie di-awee paid oarl, and refusi'd to p from th^ drawer td th>- dr.v.er tu dra ■< is sufficient ground. See also 2 Am. Ed. of 2 vol. Philips on Evidence, 37, 38. EDENTON, APRIL TERM, 1796. Hagan v. Paine, A consignee was instruited to exchange the consigned produce for till' t Su'-in:im ; when he arrived Ihert-, he found it iinpr. the law of tliat country, but were oolwithHti< uaywood's reports. 314 then became npcessrtry I o re-lii)ifl the -iiajiifs, antl have Apr. 1^96. th'-iii (■•iineyeti tn anollitM- par; oT tlii' se;i loasl, aii'l for ^■^'"^'"^•' th' D-rfii;lHiii'>^ v.s^els to dcparr hh it foi' thfir linnvw icd vo»aji;e, arid tu return .seci'etlv and take in the suyju'^i.— All this wa- (lone, and ahout nne liaif ol' Mic snffirs were losi in til • operation, ajettiiig wet wiien put info the flits— the xe-is-ls took in tlie sugars in tliis damased state, and carried iheni to Gu.idalou|ie. Counsel for the Plaintiif — A, factor. U3;ent or consignee ought to pursue the dircclioiis given i>y his prinrinal with respect to ihc goods roniuiitted lo his cai'e — if instru( te.d C273) to sell for really money, or to sell generally, which is for re;Hly money, hecanno' sell upon creilii, without running the ri>k himself — if h.- fails lo pay customs in a foreign port, he runs ihe risk of Uie forfeiture, if any should ensue thereupon — if he aitempis to transpoi-t goic's proiii'iited to bf exported, and liis own government -jliould seize the goods, the loss is his own. 2 Mo. 100. Vide 3 P. PFil. 185, 187", 279. Coxv. 255. Econtra — It was argued, that thnugii in general the law is as stated on the otiier siile respecting fact irs o< ron- signees, and their consignments, yet SdUietimes impo^.'Jitia f.xaisat, legem. Exceptions may be made to tins gi-m ral ruh' wirre tlie Defend. uit, the consiuni-e, prove-i to the .satisfaction of his jury, that it was impo-sible to conply with the terms of the commission gi\e'i !>> liis pri'ic(j»al ; if he cannot sell for ready money, when •■in|)ovM'rc(l to sell ; and that is implied in the case in 2 Jtfo. 100. waere one of the reasons r. ndered hy lite court (or tiieir jodg, ment, is, for tliat he did not plead he could not sell for ready money, implying if ihis hait a|ipi ared to tiie court, th'ii judgment would ha\e been (liffceot. By paiii\ of iCHSon, if he could not exchange the c Jii«igiied good ' ir goods of the counti-y Ih.t were leg >! y eX;.i>rt-ible, though in general he ought not toexcii.mge lor contialianil s;o.id-.; yet in a case like the present, where such goods i.i the common course of trade were usually and generally pup- ch ised, and it was generally thought not to be unsafe to purchase them, there ought to be an ex'epn .11 Iroin ihe ^. general rule — and ot tliat opinion ■ ■10 voio — od till > •■• was a verdict for the \ alne of the sugar* saved, and iudgment 40 315 uatwood's reports. Apr. ir96. Black, Assignee of Blanchaid, v. Bird. A neg itiable instrum nt in the liands of nn assignee is not subject to an) payments that . 1792. A Clerk of Bliincfiard ecttxed 248 bariels of far, at lite rate oi six sli'llii sjs, Virjjinia inimey, per barrel ; and in March, 1793, Blavcliard icciived from Stuart 1500 bti>helsof H-.tlt, at tiirer sliiilin^s per bushel ; in all, amounting to about the sunt menti'tiitd in tbr bill. Black was a partner ol" the company of BLanchard Sf Co. ; the eitdorsement of Blancltard «as blank, so thit it eiii's of salt and tar, |)i'o\en in the cause. Tiie (|iiestion is, as these deliveries were not enilorsed. nor tlie bond taken up, whe'her they are to he consider- ed as a good payineiii as to Black, ihe assignee. As to wbiih. llie roiirt is iif opinion, liiat this bill is a bill be- lontjiiig III Blanchard<^- Co. ibougb niadir |)ayable to Blan- chard only. Ir is expressed to be for a debt dtie to the company, and is gi\en to a partner as one of the compa- ny. Blanchard is only in the nature of a trustee for ilic while company; his act is binding upon the whole com- pany. The ci.mpany after this transaction, could not support a suit upon the open account against Stuart. — Tin n the payment having b' en made to a Clerk ot Blan- chard, it is a iiaymeni to Blanchard ; and a p-.iyment of a partnership debt to him. bctii.': ■"•lenf the jiarinefs, binds the wliule partnership ; and Bluek, the assignee, is one of Haywood's uEPonTS. 316 them : wlierefoic tin- pitj iner-t is a ,t;iio'l one as fo Blnck. ^f"* ^''^^• l^hp pi'psi'iii Ph'intiiT. S< cori'lly, sii p' -iiii.!; tl is imr lo ^•^~^''''*^ him- been it prtriiici-sliip liciiul, liiit in lulort- lo lilunchard only, h'dvirijr been rriMiii' payHldc (o l.ini onl) ; \e , tlie cifcmiis'iMice« of iliis cnsv Cfnder it |iriibMblc, tlmt tin' as- sig'iinc'it WHS lint (iiaHc till after 'he pa^ mpii'--, proljably not till sonietime nboiit tlif b"p:iiiiiiiig: "f i 794 : ;ui(l hen this bill was assii.Mieaper be .i>-si^iipd m ilie time it is pHja- bjp 01 before, and no pn\nMi>l> nidoisnl, Ibi ;issie;tipc will hold dis(liait;p»l "f ill pavnietit'- ihnt iiii'y have luen made previous to the assigniiietii : but if that be made after the day of payment, ilieii the Jiny are at liberty to take into considi'iaiion anv rirrniiistaiires from whpnce \ they may reasonabi} prrsniiie, the assignee knew of the payments. The presumption is stienjjtliened in propop- tion as (be time of the as-igrmient is at a _e;ieater or ^iiort- er distance fi urn the time ^f pajment, and in the same proportion itiese collaieral rircunistanres will haie the greater or less weiicht. In the present instance, a .yieat length of time has intervened, ai;d therefore a slight ric- Ciimstance will do, to raise a [iresumption of notice of these payments in the assignee. After such a length of time, wh) did not Black make some enqtiiij o( Mr. Slu- /q»-^ art respecting tins bill, before he took the assignment ? ^ •' Had such enquiiy been made, he would not have taki-n the assignment at all. The length of time was enough to put him ujton enquiry, jet be inacle none. Atld to this, that from his situation anil connexions with Blunchard, it maj be presumed he might have known sornething of the transactions, had he taken proper i ains~ If the j.ry believe he might have had knowtedge of the payments by enquiry, then they should find for the Delei.di'.nt — oilier- ■wise, for the Plaintiff, i'hey found for tlie Difendant. — Cases cited, 3 />. ^ E. 81. H. BL Sep. 89. Nmr-.—Vide 2d. .4ni. Edit, of the 2d. Vol. oj Philips on Evidence, p. « 34, 111 tlif no.e wlieir. .ht I .v Til;.'ive tu ncpo labli iiviriinK ins i ihe Ji. ncis of an a8sign's KEPORTS, ^^.^„^' Whitbie's AtlmiiiiHti arcM-s v. Frasier. If the husband dies liefore administraiion taken upon his wife's cliout in action, her admini'j rator, »nd •<>! his, is the proper prr>.Mi to admiiHsl' r them : but Hie husband's representative will be cniilled to the surplus aper payment of her debts. D' 'inne. The imnher made a gift of the negro in qiHsfi"!! Id Sarah, thf daut;luer. tu Inke i-flTert in [loiises- sioii after tlif ileatli of llu' nn'tlicr. Sarah married and died, and then tin' innlhi'r d'ld. The husband sur-NJviiig, aii<) I St of all the IniKboiid dird, \\i«»w an s for the negro. If was ohji-ned, that fli'- |iro|ii'ity in ilie negro passed into the hnshand upon the deaih "f the «ife, he being her next of kin ; that he was entitled to ^niministratinn, and v^as not liable to make disiribntion; and tliough he died before -.idmiiiistration 'akeni>ut. Iliat CaiiH' t prejudice him wi(h respect to any right lieli:<es of the shai-ei ; and that as this was a vested in- terest in the hiisbanti, his re|)resenlatives succeeded to Lis rights, and not the reitresentatives of the wife : and theiefdi-e they, and not the representatives of the wife, are entitled to this action— and for this were cited 1 Wils. 168. 5Jtk.5S7. Lovel.TS, B2, 85. Pre. cA. 21, .-60. 3 P. Wil. 443. 'I lie n-nrt took time to cunsYder, in ordef, as they said, that this cause might be specially made lip for the further consideiatitni of the Judges, should the objection appear upon further reflection to be of weight enough to raise a set ions dtnibt ; and alter some days consideration the^ git^e their opinion. Fer cariam — It is not necessary to make up the special easr ; this action was formerly brought b> the admixis* • trafoi- of the husband, and determined by two Judges to ha\e been improperly brought for that \ery reason.— One of the conn now present, on hearing this matter f^^G) first moved, was inclined to think the action shtnild linve been III the name of the administrator of the husband, but upon further consideialimi, he is convinced of his misiHke; and it was occasioned by nol distiiigiiisi jug be*\>eeii ihi right is ve>iij(l ill t'u' l( jofati'c. ov a (listri- vesfed in the rniiM. '>nii( his sh.if lo his lepiesentatixc — ill this case the Iiii^h:iii(l Avas t'liiitled as in'Xt of kin. antl not as hn'-h:uid, and hy Itis ile^ilh ha-ti'at()r of !lir vvif" hI'it- liehts caid. — No [11 isoi, is eiitiiln! to re( ( i\t tills nciiio in tlie fii'^t in- st inre.hut inilj as ai\v present, bein^ ol' the same opinion. So the Plaint iff ftad jndffoient. The court relied upon Co. Lift. 351. H. B. /?e.',j;J8. Note. — Vide Toller's Law of Executors, 116 & 2ir, where it is said that .Uliniigli it wa'i formerly lielil ihal if the liusbanfl 'lies vefore tak- ing out atlmiiiistntioii upon liis d' ce3s»rf wife's choses in :icti»n, hii reprcsmtativi will be entitled to a(Imini-.ter tliem, yet, it if now es- tablished that her next (if kin in such case is entitled to the admini-lra- tioii, bill he will Df accoiii'taiile lo Ihelnisba' fl'sri>ni"seiitaiiy> :■•'• .he resi 1 e of tiK' property after pivm nt of ()eht- &'. 1 P llillinms 382. Har ii But. Co. Lit; 351, a. noie 1. 4, Bum. Eccl. Zu»«, J35. See also Neale's Mm'r. v. Haddock, Con. Bop. 75, Murfree v. Reddiniy. Makinp a man master, and giving him command of a ship is, ipso facto, givinj* him power to take a load for freight in a foreign port ; and hi^ contract in such case, binds the owner. Bill in Kquity and ausvver. Redding had recovered ittdgiuent against Mnrfret for a negro — MiirfxeC' com- 319 HAYWOOn 8 KBPOHTS. Apr, l''96.,,^j,;„p,^^ j^,,^ Rtrttnl in l,is bill, tlmt TleMing lia«1 put one Scrunfon on hiinal liis Krig. a« master, Hiid sont liiu> with a lo-iil from Nowbcrn to Mnrfipi slxirougli, and tlint lie li»d piit ill fffo on hoard with him. wnd aiitlniiizcd Scravinn to si'll the iiea-ro. 'I'hi'j flu- an'^ver denie-,I. — Tlic bill ruitliof stxtid, iliat Scranto:i. whilst at Mtir- free'-boi-diisrli. tin-k in for tVeitrht h hiad of tar for liim, and a Mr. Fi^i;ures ; and hud never arrounted for it ; and th it Redding, as ■>\»npr-, ciiiKht to hi- liable Thean«\»er (27T) d'Miiid ih 't Sa-fwion was ajipoiit'd master for any other or fu'thir (iiu pii,>e. than 'hat of n"a\ij2;atinj!; the vessel from Newbciti to Miirfi ee>b'iroofi;h. and back, and if he had taken in a load niion f'lei.irht at MiirfreeMboroii(»l>, he did it without any anihority or permission from him. Per airiam — A master has a right tn make snob ron- traris, and n'-ii;>)l> is the jx-rsori who does adnally make them— the owners rannot be in rverv part where the ship jjoes to make !bem. The vi-r.'. makioj? a man nias- tei-, and giving him the mmniand of the ship, is a giving him power to fake a load for freight in a foreign port, 01 in a port at a distance from tiie place of the owner's I rci^idcnce. His appeating as master, is enough for any man to contiact with him upon the cr.'dit of his employer; and as it appears in the present case by the statement of Bedding himself, that the cargo was lost by the attempt of Scrnntnn to crnss the bar «itboiit a pilot ; and as the rule respondeat superior, is here app'icabl with great proprieiy, iliercfore let the injunction bedissolvedasto all but the valne of the load of tar ; and as to that, let it be Continued until the hearing. Books cited — Moll b. 'i, c, 1, s. 5 and 6. Moll. b. 2, c. 2. s 14. 1 Term Hep. 75,78. Lex. Merca. 95. Sid.4H. 2 Ch. C. 238. NoTi. — Vide Howard v. Ross, 2 H,iy. 333. Den on the demise of Lane, ■». Rebecca Davis. Tlie acl of 1784. Rev. c. 'J04, s. 5, will h»r a icmainder dependant up OK .'H est:i'e tall, in pussebsiun ui tenant in tail, at the time of pas- sing the act. Ejectment. Upnn the trial of this cause at the last term, the jmy (.und a verdi( t subject to this question of law. wh.the he r.c of 1784. r. 22. s. 5, for docking en- tails, cuuld bur a rtmuiuUurdepeaUaut upuu au estate tai^ Haywood's reports. 320 in possession of tenant in lail at tlie time of passinj^ the •^P'' ''^^^• art. IF it CMnld. tli-^y fmind for the Dcfi^iiilaii' ; il it did '~"^'^''"^' not, tlien the vt-rdict to be eiiti'i-rd f n- tlh' Pliiintif!'. At this tensi, it was artjiied by Mr. Hamilton, tliat the Li'gislatiire of Noi'ih-Cat'>dina li.id no no ver 'i> pn'^s any law havun; a leiiiispiciive view. 'T\\<- Bill of Ris ;ts, whirli is a navt ufoni C-i'istitiition. .sec. 24. 1'xp •s>lj iie- ga'ivc* iln- pow^T of pissii;;; ex post facto la-^s. Tlic act in q«i"'i"''' tn re- gulate entails, in such mannrf as t" previ-iif piM-peiiiitics. It gives ihein no |»o«er to drsirny lights tli;it iiad been acquired leg.ill\. by iiie-i's of entails pior bt that time. It Was not Only ig.iitist reason to give retrosriective ope- ration to acts of tlie Legisl ittii'e, but llie (oinnion law is (278) cx[)ie-sly against it. 19 Vin M. 4 Ba. Jib. 637. 2 Mo. 31' i. 2 Slwtv. 17. L. Ray. 1352. 5 Buc. .56.407. 4 Burr. 2161. 19 Vin. -44. 10 Uep. 55. Standon v. Morgan, in Plow, Com. 1 ^\ilk. is^8. Curia advisarc — And a few days afterwards gavejudg- meiit for llic Defendant. HILLSBOROUGH, Al'RlL TERM, 179ti. Lewis V. Hynes. Old Lc7vis devised negroes lo his wife for life, and after Iter death, lo hiv cl'ildien equally. One of tlicdaugliters tnarried Leivis. who died iri the lifetime of bis wifi'. and of her niotlier, tlie widow of the first Lewis; then the moiliei' died, and the wid'iw of tlie Litter Lewis iiiariied Hijui'S. Tlie question was, who was entitled to tbese negroes, thi; executors of tbe latter Lewis or Utjnes, the secotnl husband. Fer cxkriam — Willums and M.4cay. it was futaudi- vij decided in 'avor nf he execuiors i>{ Lewis upon ar- gunient. (^mere — The .lUthorities iipo i which this de- cision isgrootued, Fea rue 440. 9 Mo. 101. 2 P. Wil. 6f)8 — only prove that llie fiiis'iaiifl ma.v disnose. tor ralu- 821 HAY wood's pEPonrs. Apr. (796. able ronsideratinri. arnl ihat equity will protect such as- ^■^■""^^ si.j,'t)rno'.t. \ P. If'U. 366. 5 P. ffil. 4U. Fear ne 446, 447. Co. Litl. 46 6. 1(» Help. ^\ a. 1 Salk. 33'i— will hatu! of thrill ■^iipiKiit this (.'erisiim ; neither tl'ies H. Bl, Rep. 53a, fop tlvKigh a vested i:iti'ri'st in iTinaiuder. was there lield to xesi in t'le liiisltniid. thtt was the rase of a cliaitel peal ; aiitl 2 .3tk. 1'24, and the aiitliorilies ciied in fVhitbie v. Fraz,ier. iiiuve tiiat vested intei-ests in the wife, Milt I'ediiced in o pnss^'^si iri, do not gn t>i the hti^hciiid us hiisli,tii(l, lint as next -it' kiii to the wite where he snpvives hep — « lier -as it they went to liirn as husband, because vesii'd intepesis in thewil'e, thepe would be no oc- casion to claim iheiii, nop indeed rotiM he claim then) as atliiiiiiistpatiip lit" I he wife — these iii-sfpoes wepc hut ehoses ill u> lion of tiie wile of ttie lattcp Lewis, whicli the fipst hush.tiul had nevep reduced into p.issession : and as ^he ill fact had not become eiitiiled to ilie possrHsion till after the di-af(i of the inothep, which was sniisequent ttiel 'le- lollgMl^' to tlu- witV »t the time of I lie inter n rri .t^e This esse im re- poi'ed in IHay. 183, :iiid it seems thai Haivtood had then chan .ed ills lormer cpinion ai..l Bivmed di8|n>sed tu . is il.r I'^al when a wife h.is a vesled i-emainder, n b. comes he |jri>p it\ ot the husband by the niarriage, although ii ma> nit v-st in possession diiriii(r ihe life of the witr. It is well settled tliat it Glioses in action bel nj^ing to ilic wife are not reduced into posse^sillt) during her life b\ Uu husband, he I!, entitled to administer Hum. and if hi- dies heiorc admiiiis.iHUon taken out, his lepresentitives will be benefici.illy in'erested, 'hough it seems he wife's next ot kin can claim the idmii'isti'alion. From Con Iiep.75, it appears that Vie a.lmii.istrror o\ Vaniil Utal. who WiiS the husband oi Sarah J^'eal, (.meniioned i'l the ca>e ai>ov. fr m 2 Hay. J ind uho survived in r, i-iiU(;hi an acMon against UaiUtotk for till same piopeitv, but die court held m accord, iice wiili iVIdtbu .\ni Fruxier, ante 2r5, ihd the wile's reprenentaiive must brinj; 'hi- .i>.ti->n. bu' ti;at ne would hold as trustee for the husband's re()irs ntative. — Th case from 2 /fay.sliows IhHtS'ich m icinn w s bioujjhta d areco- vei h;. . th 1' ijn.' But il Hatwdod's litter o.n'rnii) be cnrret , :irid it s . I la 111. ..rj sti.iiiijij .supp .rted ) Bob'-rls v. Pnlgrtan. 1 H. Itlatk. Rrjt. 535, ttie cage in the Uourt of Conference, and fVhilbit'* Haywood's ueports.. 322 Jidm'rs. V. Frazier, ought to liave been decided differently u^jon the Apr. 1796. gr-.iHifl Vt»t 1 1.- wifp's interest was not a chose in action, but a vested v^-y-^,^ int re^'. Slaves hired out at the lime of marriage are chost-s in pos- session nod vest in the liusband though he mav 'liir her>re the time ex.'ires for w!nch th 'y were hired. McLean's Adin'r. v. TaylarU Tj^r. 1 Dev. Rep. 310. Frazier' s Ec'r. v. Allioon W Wife, ibid. 456. HALIFAX, APRIL TERM, 1796. Minge V. Gilmiiiir. Tenant in tail sells I md in 1778. a-.d dies le.iving a larger estate of land t'l his son, the present PaiiilifF : lie is bound by the w;irr . .ty of his ancestor and assess de-ci ndeil. He is also bound by the ex- press Words of the aci ot 1784, Rev. c. 204, s. 5. Old Minge held this land in tail ; in 1778, he sold to tUlmour — ihfM died, ieavins Kinds, of fitrlu or i«*n thou- saiiil pounds value, to hi.s son, the present Plaintiff, who is the lieir in tail. Per cMriam — .\ftef much argument at the bar, he is barred b.v the wai rainy ol' his iiinestif, and the assets descended to him, being of as nun ti and in(!e<'d g;r«-ater value than the lands in tiil. Serondly, he is baned by the express words ot 1784. c. 22, s. 5. that declares all sales i.nd con»c\ances made bonajide, and for valuiibic Cinsideration, since the first day ol' J.inuary, in tiieyear 1777. by any tiiiant in tail, in actual posseMsimi of any real estate, where such estate haih been conveyed in fee siiiijile, shall be tjood and effectual in law lo bar any te- nant or lenanis in tail, and letianrs in remainder, of and from all claim and claims, action and actions, and i i;;ht of entry whatsoever, of, in and to si'Ch entailed estate, against any purchaser, his heirs, and assigns, novv in ac- tual pi)Sse.>*sion of such estate, in the same manner as if such tetiant in tail h;id possessed the name, in fee. Hut as 10 the warranty, the Plaintiff's, counsel contend. d, that wai'ranty and assets cannot bar the estate iail, be- cause tha' had not been lurried to a right before or at the time when warranty descended. He cited Co. Litt. 383 6. There was a verdict and juiiginent for titc UeleiidHiit. SoTt— Vide Welts y.Ntwbold, Conf. Re}.. 27.i. 41 (arg) 328 Haywood's reports Apr. 1796. Bunii v. M-ioie's Executors, This rase, witirh haii (>f t'lc ciiurt for three or four years Jast past, now Cauie On to be decided. Tlie court said it was no longer necpisary to keep thi- cause waitinis; for thi- o|)iiiiciii of th»* riiuri,»as it had already been considered by thi- Jud- ges and fliey lind proceeded in consecjuence of that 'on- sideratjxn, to diifcf in sewial Cases whirh occurred witiiiii tlie present cireuit, how interest should be c.ilcu- laie ) — that on the Western circuit last spring, Ji.dge 'Macat; had loncurrcd in civii.e; such dinctions, oi h^d give . li.ein himselt. [ Geit, Davie, at the bar. said Judge MAt«L\ had told liini his i pinion was as the directions had lit-en sjiven this circuit.] Per curiam — The i'lterest must he calculated by the follow itig riih — it must he ca'lculated upon the priiK-lpal, from :heiiiueii conimeored tothe day of the first paynunt; if I In- pawnent was equal and no more than equal, to the interest then due, it must oxtii'giiish tlie interest; if it (280) exceeded the inieiesf, flie halaiir'e, after extinguishing the iiiteiesi, must be deiluclcd from th' principal ; if the pay- ment was less than 'he iiiteiesi, tiien the balance of in- terest must remain until the next payment. Interest must then be c;ilc(ilated upon the principal remaining, to tht timi f he mxl pHyjoent, which next payment must be applied in the fii-si pl;tre to the whole of the interest then due ; and so toiies qnnties — and in the jnesenf case, let sts, in pur^u.mce of a notice servtd upon liiin lOr thut purpose: I'er cu- riam. \i'\he suit s iKiw di.>4niiss<-(l, we must order the court below to pro' > id to judgment. Where a cause is removed by cirtiorari grantid by . Judge out of coiiit, it mu»t lie pl.ced upon the .rKU. mt. t locket, an i Def' ndjnt's uffihivits will be received to ~hoW th iinproprieiv of gruniiig:! new triiil. If the cfr/ioran l)e obi ,iiied in ciiin upon a rule m.ide u,>\u y, cause, the case w lien lemoved, shall be put upon the trial docket without fur- ther aipiiment. S'aied ID tlie court to he a certiorari to remove a c;msp from an infcrtur jurisdiction, and that a rnle had been Haywood's veports. 324 in!\«lfl on tl)p P!ai iff iti tho raiisi' tnl.iw. to ^ivp'sprnrity ^P'" '^^^• ill ;!ii^ cou -t for cusi-; oilici-wise 'his <• nisi- lo b"- di-i -^~-^"^^ mi-^seil. it was .ilso stated, that this mciro li^id been se''»ed (111 liiiti. and lliat be bad iidt jjivcii 'he stTui-ity reqiiii'fd ; wnerpi^pon t'le. coiiiisel !(>!• Diivis. il|i» O'TfU- daiit below and I'laintiff bece, in hi- certiorari, in'n,'d that !iie cast' sboiild be di-inin liie part of the F'.iiiitifif in the certiorari — the Defendant had none : but these be- ing not sufficient to grant a new trial upon, tiie court or the court in this case as (^sV i the lule of practice, that if tip cerHornri was obtained in this court U[ion a rule made, on the otiier party to shew cause, atid upon argument bad upon that rule, that then the cause when removed, should be placed inimi'diately on the docket of causes lor trial, wiijiout an_> further ur- gunieiit to be had ; but if obt lined bilore a Jiniije out of court, then it w .« sohji it !i. t'lc n\]r :iho\i iiieiitiulied. KoTE. — ViJe JIntnvmous, post 367. Reardon v. Qnv, 2 Hay. 245, 320. Haywood's reports. /il>r.i796. State . Evans. Where an outfigeous act, hs b maim, isprovpd,thel»w prc'umesthat ii was (lone with that dispo'^ition o( mii^d, which the law lequir bIo ' Constitutf guilt, until the contiaiy is shewn. Indictment for assaiiltine: "i\v Joseph Wright JVichoU son; and for that tlie saiil Evam, ii put pose, uiilawi'nlly dul bite off the rijjht ni foiefinsiT of tlir li'^ht hand of bim, the said Joseph ff right J^icholson, with intent in so doing the said Joseph l-f'right J^icholson to maim and dis- fi(2;ufe, a.fjaiiisr the act, &<. The ex jdenre was, that JVi- c/ioison applied to him at Nash Coort-Hoiise, about the middle of the afternoon, to borrow some money ; whifh dis|)lc'ased Evans, who said, as he was pooi', JSTicholson inti ndetl to iti^^ult him. On the same evening after dark, two men, Willinvis and Viverett, were |)laying at ranis, and some dispute arose between them. J^icholson jo- cosely said to Williains. \\hy don't yon whiji him ; who replied jocosely alsn, that he W"as afraid to attem|>t it — JVicholson, in tlie same strain, offered t() beta dollar that he riiuld flot; Viverett ; whereupon, inimediaiely, Evuns stepped foiward, sayinj;, he would accept the offer, pulled a d'.tllar out of hi^ pocket, and was handiiijs; it (o one Wo'.dward as a stakeholder. Nicholson snatched the dollar, and put it in his jiockel- Evans demanded it— J\'icholson, continuing the joke, said I'e had no money of hi>, — Evans still deniainled the money, and not having it delivered, proceeded to say, you act like a scoundiel.— ■ ^icholsiiTi replied, you can't make me so Evans an- SWi red but 1 can flott jon, and came up to JVfc/ioIsoti in an angry manner. J\richolson said, i will not fight you tnysell, but I have a ntgro fellow shall fight you. This exHsperaied Evans to a gieai degree. He came up se- Teral times offerunr to stiike .^'ichoison continuinj;; each time to say he would lake the law <>f hini. At length Evuns stepped off a little way. pnllul off his clothes, and came up again ; upon which J)/'ich4}lsnn took hold of his arm to turn him <>ff, und when lie \»as turned, struck him: upi>n vkliich the hlovv was returned, a fight ensued, and inimediaiely Evans bit off the finger, as stated in the in- dictment. Per curiam — Whenever an act of an outrageous kind iB I miiniiieil, and in order to its beii'g punislialile, the law requires a certain disposition of mind to accompany C282) Haywood's reports. 3^.6 it. The art being mice proved to be nimmifted. flielaw ^P"" i'-6- will piesiime it dr)np with hat «liBpoMifi iiei-e, thi' law rcqniiing the act of bi'itia; ' ff the finger to be tloiie on purpose. uiilawCnll}, and with intuit to maim, when the act itself is provefi, the law will presume it was done on purpose, and with inten' to maim, as it actually was a maim, till the c* idence sh'W- eth the contrary — such as liiat ii was dune by accidfnt, or done in such a manner as was not likely to be aficn'ied with tiiat effrct ; or that liie act done was in iiursnance of Some office or sentence of the law, as sliMing the iio^e, in the case of a Clln^i(■tion and jndt^mint of forjifiy, by the [iroper officer ; or that it whs done lor the »if cessary self-defcticf of the party, against some great bodily harm atteoipted by tiie person maimt'd, and that th<'re was.no other means of pri'v»»nting the inischiff, or other circum- stances of the like kind. No such < ircumstances of ex- cuse or justification have appeared on the evidence itt the present case. Had JSrichnhim made the first assault, ])eMiaps it might have justified ihe other in healing him, but it ci'uld not justify a maim. JV*?c/i()/so?('s b(ha\ioup in tiie present t ase was surely verj imptoper, bu! tho Del'etidant lia.s carried his i hiistisenieot loo far. This is a practice that otight to he discouraged, and if a sudden rencounter shall be dtenied sufficient to excuse the party inaiiuing, from the penalties of this branch of the hc;, it will he of very little avail ; for then in every sudden af- fray, the one party may bite off the nose, fingers, &c. of the (iijier. ami exi use hints' if by saying it was done in the heat of passion, upon a sudden altVay. And though JVicholsun would have in> i ight to complain, had he re- cened a gentle scourging fiom the Defendant; yet the other party being a man, as the evidence is, of very su- perior hoilily powers, there cannot be the least e.\cuse for acting as he has done. The jury convicted Ih; D'fendant, and he was fined five pounds, and senienceil to six month'? imprisonment, aceoidiiig to the act of Assembly-. ^foTE.- rj'nte Staff v. fnrln, wiir. U'T?. ■aAVWOODP IIKPOHBS. Slieii'iiil V. Davis. If in an action aKS.!:ist tuo nefendaiits fiirn joint contract, one of tlieiii cann't be tuken ; aftt-r ihe plurie« wrii, the olUer may be proceed- ed aguJ:>sl a'lOiie. This WKs ail action hroiisjlit against two Defendanfs, ii|»oii a joini coiiliiici. Oic of tlM-:ii lived nut oCtlic St,«te (283) and could nut be taiieti, l>ut tin- pcori'ss of tl'p court li«d b'-i'ii reguhi'Iv issued ns^ains' liiin. t'> thi- jilnries wiiich had liec'i ritiiiT.rd non est inveutns TIip PlnitififT tlii-ii pi-oCf(Mled;i.a;aiiist theollier, ami outlined a veidirt aj^rtiust liini ; and it was moved in arcest of jiidu;nii'iit, 'ha it was ii'iesular to proceed against Davis till the ot'ier Itud b en taken. This motion h^iviiii;; lieeu placed on the ai-guiiieiit docket, came on now lo be aigiied. Gen. Davie argueil in stihstance — That by llie law of ILii.^laiid, where one oC two Juint Defendants conid not be found, the Plaintiff pi-oceedcd to the outlawrv' against him, and iheii declared asaiunt the Defendant that was in coiiet, ihat he, l(V'-!;>■ i h CMi^i't r.ihle accuract — tli.it there must be Jieluzer, cxis;nnter, dlfc. to m ike out tho pr-ncss ne- cessary at the different .sta^eu of the pi'ucecUiiig. Also HAYWOOn's REPORTS. 328 titc net whicli puts in finiv siirli pacts of the Englisli law'^pr '96. as swo iKiw ill iisf, says, only sticli !inrts of tlio staluto -i»'~>^'>fc-' ariil (-ctiDnioti la a as were licf'oi-i' iiffmrc & use liciv and nut ini-! Rii;ii's, no man i;an he out- lawed, &C. but hv the law of the land ; but there is no law ill force heic forihat putpi.sc If the law ofouilawiy be not in force h<-re for any of the.se reasons, then tliere is (oa^A no otiier proces'^- thai a PlaiiiTifTcan use, hut that m-tiftoii- ^ eittir: but unfil tlse outlawry takes place, there, is a pos-^ibilitj of recovering something ag.iiisi uiin as well as against the olhei- — and if the absi-nl Defcf itant is under such i;ir<-uins;ances tha' Jndgnieni of onilawry in England cOuld not he pronounced against him, I ippre- lieiid there' can be no proceeding against the other n itil the absent Defendant be actually brought in — foe in Eng- land lliey rie\er proceed against th • aiT' st'd Difen'l int, till it appeals by the outlawry, there is no iiossibiliiy of inaUiiig the other i nter into the dele.tice with bim. In- deed our act o( Assembly seem* to cinleinplaie no other end ij'process than ttie 'ki-ig ih Deiendaut, for it di- ri . ■■< tne alias and plurics In go till thefiarlv bearfesie'I. Sec 1777. r. 3, s. 78. ' 329 havwood's hepouts. A|).-.1796, Ef per curiam— The juilirial iiroceedin^s of this coun- \,^-y>te» tr> litvp never rtTogtiizi-d ilie law of mitlawry previous to (III- Revdiulioii, and Hifrerore that part of the lavv of K'ij^IhikI caiuiiit b'- roiisidcred to he in f irre here at tliis tla.>. The words of the act are. that ail sucii statutes, and surh parts of Hip coiniiioii law as were here bi'fore iu I'orce and u.se within this territury, Jcr. and so much of tiie said sialuie.s, ntminoii law, &r. as are not destruc- tive of, rrpui^nant to. or iiicoiisislent with the freedom and in(k'|ieiidi'nre of tliis State, and the form of govern- ment ilieri'in establisiied, and wiiicli have not been other- wisf provided lor, &c. are hereby dorlared to be in full foiCi' — but this part of the coinmon law havint^ never (285) been used here before the Revolution, cannot wilhiii the terms of this act, be now receiteJ here as law — ihoii.:;li there is nothing in tlie ronstiiution to repel sui h a law, should the Lej^islatiire think proper to establisit it — on the contrary, the coiisiiiuiii)n aii^nits ihe possibility of outlawing a citizen. I2ili sec. of the Derlaration of Rights — No man shall be outlawed hut hy ihe law of ihe land. Tins implies he may be (lutiawed survato juris online. Bui allhougli a man may not be outlawed he-e, yet thei-e is the same reason in certaim circumstances for all.iwiiig the Flainfiff to proceed against one of two Di fendants in court, whei-e the other cannot be taken, as if it were the prac'ire to outlaw the absent Oefenilant. Tlie true reason why in Englani! after nutlawry the law allows a proreeding against th Detendant who is taken, is not because ilie ])iiipi'rtv of i\u- orh*"!' is forfeited, but be* a use lex nemini coget ad imp'i$sibilia It n-quiics both to be sued if possible, liial l)oili may bear tlieir e- qiial burthen of tin- contract ih-y havejointly undertaken toperfo.m. Ii is for the beiiefi' of the Defendant who is in court and amenable, that this is reijuired. ^^ hen it appears III the Court, however, to be impossible for tlio Plaii.tilf to bring both into court, the law will no longer require this of him ; for that would b>- to require an im- posihiliiy, and to defeat Hie Plaintiffof his jii^t demand. Alihiiugli from tiie nature of the coinrai teach Defe :"iaiit was answerable in snlidnmf tliis would be unjust ; and the law does not r);. the outliW'y. toe utmost pruceHH that the luw knews, anit the PUiniilf hatk in hi^ Haywood's reports. -330 J tower to use. So in this conntty the law will require Apr. 1796. the Pliiiiitiff to proceed ajjainst botli upon a. join" iiniler- '«.*'^'^>-' taivifi.j;, that both may be coiiiribiUory to the peiform- anC'of this joint roiitiact, until the FlaintifT hath pro- cured legal evidenre that it is out of Ills power to eolorce the attendance of some ()neot'|.hi ni or iino'e : and bv an- aloa;y, this siiotild seem to be effected here by the last pro- cess tiiat the law has provided. tUe p furies, r)r the attai'h- ment, kc. Though this is a point not ex[»re8sly decided in this State since tht- Revolution, yei thf constant opin- ion and practice of the bar hath been. &e. and it seems exiremcly reasonable, otherwise one D"fendant by with- drawing himself, inigiit forever prevent a recovery against his co-ie one Defendant is ta- ken, U'ld .in at'mt and pluries wgaiist tlie oiliei Defendant, returned " n t found," the Defemiant taken, sliall be allowed to pi ad I" the aci'o.i, and th Pla'nliff sh.ill coiiit: to issue its to him P-icf \. fkala ."/ LeMiar/, '2 Murphfv 190. Haywood's reports. Anonyn)ouill sliall not be dismissed by a plea in abatement under the act of 1782, Rev. c. - 177, sec. S. The Plaintiff had filed his bill in Equity, against the Defi-iidani, in tlie office (if the Clerk and Master, and liail pi'>(iir'cd a ropy of thf bill, and .1 subpoena wliicb lie had dvli»'-i»*d to the Sheriff ill time to be executed; but the Sli' riff did not execute the procfss at ail before the next term. At which teim, thr Delendant appeared and plead* ed in abatement, that the process had not been served upo:; him ten days before the term, at which by the pro- cess he was required to appear. To this pica the Plain- tiff '!( niiirred. Et per curiam, Haywood and Stone, Justices — The clause of the act upon which this plea is grounded, is in the act of 1782, c. II, s. 2. It directs ''Tliat no writ shall bf served by the Shfiiff, unless he has a copy of the bill iciidy to deliver to the Di fendant ; and he is hereby required (o deliver the. said copy immediately after the service of the said writ; nor shall kny service be valid, unless it be made at least ten days brfore the term at which the Delendant is required to appear ; and where (287) ^|,p sei-vice is by subpcena, the Defendant shall be sei ved with a ( (ipy of the bill, at least ten days before such term : in failure of any of which requisitions, ihc Defendant may plead the matter in abatement, and the bill shall be dis- missed." The intent of this clause is to allow the De- fendant ten days time to c.nsidir of the defence propti- for him to make — to employ the necessary counsel, and draw his answer, plea or liemurrer. The Legislature sujipo- sed that all these things could not be dune in a shorter time in most cases ; and this time they have si cured to him under the penalty of a dismission of the Plaintiff's bill, in case of an attempt to shorten the time allowed by law. The mischief intendi d to be avoided, is, that of for- cing the Defendant to make a defence before he has lime to pi ipiro for it. These provisions are similar to those matie lor a similar purpose in the act of 1777, c. 2. s. 14, wlnre process at law, returnable to the Superior Court, is directed to he executed ten days before the beginning Haywood's reports, 332 of the term ; and if otherwise (xeni'ed, that it shall be ^P"' ^''^C. adjiidgefl v. id upon Ihe \Avid in ^-^"•''^^■^ sertiori 74 of the same iict, where j ioces« eetiirni'.lile to the CouMtj CdUit. is directed lo be executed -t lenst five days: before the letiiin tlierenf; and if exec uted at any other time, that it may be abated on the pUa of th<' De- fendant. These several clauses b<»ing all intended fur the same purpose, it is proper that the construciion pur upon them slioiild be uniform. Now it has never been deemed to be the meaninj; of the clauses in the act of 1777, that process issued in time to the Sheriff, and returned unex- ecuted, shoulrl be abated by tl>e plea of the Dtfeiidant, but an alias issues. The process is only abateable un- der the opi-ratioii pirjudicial to the Defendant, whicli the non-exi'cution of process upon him is not ; for thai has only the effect of tcixin.a; him lonsjer lime, and is an ad- vantage to him. Moreover, the Defendant is to take ad- vantrt|;p of the irrejEfulafity or failure mentioned in the act, by pleading it in abatement, both by the ait of 1782, and the clauses in the act of 1777 ; but the rule is well known, that a Defendant cannoi plead until he is called intr) court for that purpose by a service of pi-ncess, unless he appears volnniarily, and the Plaitiiiff will accept of such appearance. This evinces the meaninjr i>f the act to be, iliat the plea in abatemi nt is to be by a person served with process, and lor an irregular service of process | not a pleading by a person not served wiih process at aif, and who for that leason in legal contiinplaiion, is not in court. It points ilirectly to the case of pi-ocess actually served, but within ten days next before the term. This plea does not ilisclose th>tt case, but ainithrr, a total non- cxi'cution of proiess, which is to be remedied by a conti- nuation or re-issuing of prticess, and cannot acconling to the true meaning of liiis act cause a dismission of the suit. So the plea was overruled. Note. — Tills case is reco(;nizeil »nd approved, in Worthington t. Colhane, 2 Cnr. Law Jiepos. *8. f289) Moore Knight and Wife, v. Theophilus Thomas. Tlie word credilors, in tbe act of 1784, Jicv. c- 225, s. 7, respecting parol gifts of slaves, means, js well timsc who liave become credi- tors since the parol transfer, as those who were such before. Trover. Thomas, as SheriflT, had sold the negroes in controversy as tin- pr^p^ty of one Pass, to satisfy an execution nf one of Pass's creditors. It turind out upon evidi-nce. thai Pass had com eyed those negiDPsby parol, bef. re wiin-s-^es. tti ilie- wife of the PlaintiflT. sometime before this creditor obtained judgment, antl before llie HAYWOOU's HKPOUTS. 334 debt was coiiliiicti'il. It was Hrajind a' tlie bar, a>i(l ad-^^'y ^'^^• inii*^'-"! by (lie rniiit, thai tlu^ Jmlj^rs lierctdfiuo liavr df- *"^'"^''^**' cifl.d ibat iiiidi'i ihc acl of 1781-. c. 10, «. ", a |mioI cun- vc.vaiKC iif" iicijrof^ is j;- lid a« bctwron Ibe partii s tbcm- solvt'S. as bct'tiie llio making' of this art; biitwas \"id as to cfcdiii'i'*, as well creditors who bcraiiie sticb afici tlic coii'xeyaiiif as tbose who were creditors at ilie. time; for llie iniscliicf iiitemled to be remedied by M'e act, \sas, that stibsdjueiit crrdi'ots had bieii defVaied of tbeirdebts contracted ii|»oii the credit of a man's visible priijierty, by means of secret Rilts to children and otiieis, ii'iade before Ilie debts coiiiracted oftrti limes, and when trie party may have been in j!;(»od cireiiiiistances. 'I'lie mnrt now assented to ibis construct ion ;)f the act, and opinj tlii-i j;ionnd giiintcil a neAV trial, the jury havin.^ found fi)r (lie Plaintiiyas (o one ne,2;ro, who bad been deliveied in ihc presence of witnesses some years before — Pass tiad become a debtor to (bat creditor upon whose t-xiMiitioii the iie;;ro was solif, and even before he becaiDf involved. Note. — Vide^noU- lo t'amll v. Perry, ante 2. WILMIx\GTON, MAY TERM, 1796. Siieed V. Mitchell's Exccntors. ifoiie or'two joint payees, endoi'ses all liis interesl lo the otiui, \',Kit other inuy niuintain an action in his own name for the whole del)i. This was an action brought to recover money due upon a noli- of liand. Tlie note when produced, appe,tred to have been given by .WzVc/ie/i to SiiCffZ and another, jointly; and Ibiit other had cndoi'sed upon the note a writing, jiurporiing that he bad relinquished all his right and in- terest in 'he within note to Sneed, mil for the Defendant, objeciitl, that this indorsement should liot be recfived as evidence for the piirj)ose now intended, namely, that si-iueiil in a worse situation ; and being unsatisfied as to his demand, he may accuidiug to these authorities, iiaywood's reports. 336 support an action for it. Had the endorser died, the ^^y l''9S- Plaintiff misht have sncd in his nwn name iiiidnnliudly -^"^^~"*i' — so wlien tlic endorser ex(ina;iiisli('s liis claim otlit-r^Aise, (291) there is the sami' reason the Phiii'iff may sne ah>iie — wliere (he coniract is made with two, there is goo(! rea- son why both should sne — one of tliem by niisnianaije- nient or design might piejudire the interest oF the other; it would he improper tlierel'ore, tiiat one should he al- lowed to inai'itaiii the suit alone. Tiiis reason cannot apply io rases where the interest of one or more is ex- tinguished : surely the remaining partners may sue, stating in tneir declaration the rircnmstances that prove the infeiesi of ilie other to be extinguished. As to the assignment of both, hiiiig rei|uisite to transfer the note to a tliird person, that is not exa'crly correct : it is usual for both to make the assignment : bill yet if one only endorse, that is a sufticicut transfer. R'ljd 68. Dongl. 630, 653, 65 4. Then according to tlic argument used on ilie otiier side, if oue can transfer to a third person, lie may also Iransftr to the otiier pai'tncr, ami so the Plaintiff is entitled to sue as as'^ignee — but if both are required to make a valiil transfei to a third person, it will not follow that both names most he endorsed, when one of the payees is to become solely entitled. If both are consenting that will do. It is absurd, that a man should endorse to iiimself. It is evident in the present case, (bat the endorsement of the one partner, was made by the consent of both ; and the endoisdment may be said to lia\e been made by both — the only two persons in •• it\ ;i|i iiis 0::>rty, it i.is , will renctcrtlie SlitrifF lia'ile criminaliter. Wlien a iJefcndaiit i c url, is oidered inln custoily fof h fi .t-, it will bu itnpro er •> isiiiarge him and order- mit independent tacts, fof wiiich the fni'iy won id be iiat)ie to ano- ther prosecution, to be g^iveii in evidence, in order to enhance a fine. Indirlment a.e;ainst tiie Defendant, f n' Hiaf m recovered a ju'].a;inent in this cuitt aia; .itisi Howard, and took out executioii ; anil put '\y same inio liie l^.lliii^. of the Defendant, beint; High-Sheriff ni the county uf Oms- low. to he exei uleil ; and that lie had made reluni ii re- ii|>oii, thai he had levied, biit could noi sell, fur Witm of bidders; wiiich > as a false return, &i'. Flie jiidgmeiit was produced on tbe trial, and also tlie ex^-i iitioo vvjth the return iipoi it. If vvas proientlia' ili • eXecntioM was put into the hands of the Defendani in due time lo be ex- tcuied; iha^ he deliNered ii to hi-. Dejtuty, who seized guilds, and app .iiitcl a day of sale; htt on that day, tie Plaintiff appeared ■vsilh an intention f.i hid for llie pe .p v- ty, and also another person, a Mr. Dawseij, wii'i was .Si'iit t" purchase negroes for his father; tnai ihe D.pii'y of- fered the properly for sale, and that ihe Del> mlam HtW- ard bid for r- want of bidil'-rs. Per curiam, alter ar$;iiineiit — NViieii bidders camn't he hiid ill a »iU- ;id\«'itisiil by tlic Sinrifl", llic usiiitl iciurn is, thai tlie pr'»|)ei ty (•Hiiiint hi- ■«dd for Wrtiit of biddi-is;' whi( li heiiii; in tlie pliiritl nninlirr. Iiiix occasionod a nuI- gar errnr, which iiiilia|i|iil\ li.illi lornierl) been cixiiitc- naiici-d hj hoihc •>(' tlie prof.'ssioii, and adnpied but too gem rally b> Sheritl'-. — lliai tlicre inusi h'- t^\o bld-hr-* at least at a Shei'lf's -iaie. Some li .ve held tWere must be tliree — tin S'ieiiffi> ui sell to the highest bidder, and high- est, i-i in the third degiee nl' cmiiparisoii. These o|)ini- o<<^ arc lounded on \ery greai iiiisiake ; ifnne bidtler appeal s, and no otliee, tlie Slieiilf ought to sili to him.— The siibsiaiire uf wh.tt tlie SlientT is i-oininaiided lodo, is . . til make the uioin,) loeiitioiiid in the execution, by s.lling ^294; jjj,. |,|.„|„., ly . ( iinsei|tiei.il.> . ll one person ha\ingthe nio- iie_> "tfrrsahid, the Siieiiff -hould sell to him, and receive ; the iiioiiiy I'lMiii iiini, it' no oitier bidder appears: and if ill Mil li caMe, iJi Slieritr returns lliat he i-onlil not gel! for Want of bidders, 'h.ii reuiii is untrue — but the Sliei-ifTi* not to receive the hid of any jiei'Soii who lias not the iiio- ne^. A iiid means, an otfering of so inucii money for the priipert_> exposeil to s.th-; not the mere verbal saying of till' |iaitv, iliai he will give Si> murli — tiiiM'elorc the bid of Howard, wlio had not the money, on^lit not to have be 11 legardeil ; he was not a bidder. Should the She- rlH', even .ilrer he .'las cried a liid, become saiisfi''d that the person makiii.^ it liath not Hie money, he should le- ji t t . I- l)nl, and sell to tiiai prrsoii, who was the higli- 03 iiid'li r, having ili>' money to pay. It is ohjecied. that a ])riii( ip.tl i- not liable criminally, for the in>scotidu<' of lii-< di |miy ; that is ine, hut lieie, and indeed, in every Case liKi ii, tlie High-Sheeitf is siip|io.'ied to make the re- tui it ; it is iiiaili' III hi nam< , ii would mil perlia|is be good in Mrictne^SF W'TC it made oiher^vise. It is also proven ill the present case, that the return was acdiaily in .de by the lli<;h Shei itf tiim^cif ; and lliou,;;h from the represen- ta'im III Ills Ue|Miiy, he iniglit not have known that the return was iinu-ue, yet as lie was a sWorn olHcer, it wttp hii i.o-iiii'NS III see t^i.H e\iry i.turn m:i(le by him was a till. 11 — it IS ai hi- peril it it peine o'hwwi-'e — slniuid an iijetiion r,f lilts kiiitl pie\ i.-Hano\er. 'ill tiie fine was paid. Some tiays after tirs, an 'iiplicatii.n was made to disciiarge the Delendain out of custody, ^s he hail not wbrewith to pa) the fine now with b;m ; a. id to issue A fi. fa. to the county of Onslow, for the levying thereof — and it was urged, that tiie court had done so in the cas'' of the \Varipntoii fines. Per curiam — Th proper process to compel payment of a fine, is a capiaiur pro fine, which is issued when the iiar- ty is not in court a" ih<- time the fine is laid ; hut when he is ill court, and is oi-de cd into custody, i' is lik' lie- ing in custody u|ioii a capias ad satisfaciendum, and tbeii a discharge from them by the Plaintilf's (iiiiseiit, will dis. Large the |iarly from any other execution : and per- haps .should ihe court now give into Un- pi-esem motion, it ma\ hereafter be said, that nfi. fa. was irregiilar aS his discharge from his presi nt roi.tii,, ment couli' i ■ have been iirocurrd h:id the S'ati- .pj). sed it. So th. n ion Wa- il.niid. Vide Sulk. 56. Co. Inst. ^2\ 8. Sa//c. 400. 4 m. Com. 5 cxec'ilor put n -iiri' fleas as mtile the as^ets respo-isilile for ilitir p»yment, .nd t 'l s">, in the Superior C&nrt he pi. ad- il that he had i.o assets txc< |.t what was 'i bit- to the -.vmeMi of 'mi- .ther suits. Tht latter pi, a is not (rod- It ought t havt confess, d jiidgmt nt to the suit- in the C u'^'y tvMjr', Hiid then plead those judgments to the suit in the Superior Court. This was an aciicin aj^ninst an exeriitor, who pleaded th '♦ hp hid fiill\ adiiiitiisii-rt'il all ih<' .issets of (hi- testa- tor. rxT'p sii itiiirli whirh w s liiihle to fdiiner jud^- mei^s '.rid suit'i. This anion was ronmierifed prior to some iiihi'fs. which were the suits Mlliidcd to in the plea; but (his action \\a« rptiirrr'h!t> to rhc Siipcrio. Court, and the otheis to the Count j Court wliich v^a-^ hi Id b- for. the Siijp'ior Coisrt : nnd 'o these suits in the County Court« the |th ■dings were such hs admilteil assets of the testa* tor siiffii iftit to siilisly thfin. In suppoit of this pha, It ■wa- aij^ued for flip executor, that although before any suit C'luiineiictd, ati execntor, in case of deficiency of as- sets, may py whicli of two rreditor" of e(|iiiil dignitj he ma^ think prpi'i-; yet where «(tie of ilitin halii com- niitired suit, he ct^itnot pay the otiter t" his prejodire ; a>id therefore he who firs* cimtnences his aclioii. is first entitled to iiiiymeiit. The ex<'( utor in the present case, cotild n^ method of pieadint; is satictioned b* the rase of ffafers and Ogdev, aiit atlequate to the paynicnt ofihe de- Diatid of either cndilnr; tiut he confessed what assets he had t.. the demand of one creditor, .tnil to tip oilier de- m ind fd the otiier creditor he ph-aded the othei suit, and the coffessinn of the assets he iiad fo that demand — nod it »>■ as held well. In il e pe sent CHse, the execiii«ir had not asset-i to satisfy all -he creditors; hot h'- ple.ided to (s but lo a certain aifloimt.cach of thein n)a> ha^e jndiToicrit lo that amount: or if he [dead to eac! plene udminisfriivit. at the trial a verdict timst be ajijaii st hioi npor ."rich dittiHod to the flmniiot of the as'- se « ; tiecause at tlif tiim- of the pl^a pliiuhd, each plea Wiis iiiiliiic, iiiid 'lie jury in each cau means to compel him to entei- it —hut in the case ni'W before the coni-f, the assets in tho ha'nds nf the executor, \v« re to a much lart?''!- amount than the scleral demanils sued for in 'lie Count} Court ; and had the execul'HS confessed Jndjjment scxerally to the amonnt of each demand, the court woulil have com- pelled 'he PixinliflT-- in those suits, to lia\e enteied their res; tcti\e judgments. So that they init^lit be pleaded t*^ fhissnit. 313 UAYM'OOn's REPORTS. M-iy ir96. fgy curiam — ^^'lll^•p.tllt•l•p an' sc»ppaldemarn1s of pqual ''■^''■C^^^ (]i^-iii>>. iinrl a <1('firi<'iirv of ns-iP s I" p.iy nil llu' r • ilit-MS, bel'oir any suit bioutjlif tli<- pxrrdUM- mnj pay ' • i!ic aiiiotint of ilic Hssifis, wliidi iif them hr piloses: Imi if suit be bniii2;l)t, he r;iii no ioiiejrr inako a vi)liiiilar> ()iy- mrnf — the coninu-nccinriit of the suit.' and liis lin» ins: no- ticr thpi'fof, n-sti'iiiiis bim IVum m-'kius; any vohmtxry payment ; but still it is not pri«)rity nf suit 'hnt etniilcs to pi-iriiity of paMiient, but tlm fifjat obtHiiiiii^ of jiidaf- mout — conscr|uHiilly the pipsdint;' a fotincr suit, ;»s the oxoCMtoi- liHs (loue licrr, is no gO'nl pica in bur of the Plaiiitiflr. It .should havp liC'ii a plea of a r»ioiPi- judg- ment, and that would have been (^ood. Tlie ps'iper course for an i-xerufor to take, when tb 're isa drfi j'-ucy of assets and he is Sued by srvcral crelitors 'f cqia' de- gree, i-- to conrpss judi^iiieni to as niany of thi'ir di-niai>ds as \\iil cover his assets, and pli-ad tlicse judsjinenfs in bar of the other rreditors. Whi'io 'here are two or iii^re. suits of equal diejnity roiTiinrnced as^aiust him by m-vrpal creditors, and lie hath not assets en'>uu;h to pay any one of tbi'iii lie must plead to some one oitliein the ain"un' of bis assett, luakint; an appri>|U'ia' ex- criitor lead irally .idniiiiistered all the testator's assets in pft_\ nieut of his delits ; but t.'iat a threat tininber of tlK-so pajinenfs had been made, some upon judtcmrnt and others voluntarily, a long time after (lie plea pleaded, but pre- vious 'o this time. Per curium — The only thitig now to be considered, is, whether tin plea of fully administered, were true at the //jeg-i time it was pi- aded — nut whether it b^ true at thi-i time. ^" ' Aid as it apitears that assets, to more th.in tin- ainnunif ol 111 • de>i!a:id. li ive 111 ei! i-xpended sine this jtlea. lu Mie discharge ol Judgments obtained since the pleading tliere- Haywood's urpoiits. S44 of, (he pica of course, (nulil lutt he true when pleaded. — ^'^v '''^^' Ti* riiiii.tiir liiiil judgiiieiit. ^-<-^^'w jjoT' —Vide Eviins v. Nn-rts's Jidmr's. post 411. Suru. Partners of McjVausliton u'l t'o. > BUu-lier's Admr. post 'i.\7 Churchill 'i i\ Im- mottty. Cameron C'inf Hejj. 55 J, S. C. I Miirpliey. 39. Collins v. lfnderliill\ Ex'r. 2 C. L Repot 579. Uot^g's E.xecutdi-s V. White's Adiniuistfators. Tile Admliiistra'or h:itl CaiUd to ple^ti^! pUne a-!miiiistravil, urany other pica shewing a want I'f assets, and ti.t- i'l .'nl fl'liad I'Otalned ju!g- m ■'•, ail ' upon execution rssui-d, «• nulla bona"ir-i\ bf'n relumed: held, tli.it tbf .idmiuistr-.itdr tt ras..it-^ il8. — tl)f Pl:'iiiiiR'h;iil protec'i' (i t" jiKiiiinciit in ihc U'^llal foMii to be levied de bonis testaloris. He had t ikcn a_^. Ja. (ijiKii this j(iilj;iiu'iii, to which tiic SliCfifThiid returned nuUa bona. And now ii was innx-d on the ])art of the I'lainiiflT, tiiaf a sjiecial^. /a slmuld issue to thi- S.ienff, to iivy the deht de boni^ teslatnris, if any to be toniid, and if iiiit (/e 6n»is ^i'(7>ri;o- f hi- ad'iiinistralur, Tliis niotio. was <>p|)iise(! b\ Spillar — he .irj^ned that there could he iio judi^iiieiit de bouts propriis, ajiainst an exe- Cutoi oi aiiiiiinistratiir, hiii vviien iic pleaded a false plea, the falsity v.lnrrof was vviiiiin his own kinnvleds^e ; and which plea «eie it true, would h<- a |U'r|ietual bar to the Plaii.iiir. Off. Ex. ;84, 185. Gud 19:;, 199. Where he pleads nil plea at all in leijieci of iliea-se s, oeii hiMou- fess the action, or snlfer jiMljjnient h> a noii Sum iiifor- mutus, the jud.^ineni can only be de bonis li'statoris. Off. Exec- 187. E contra — It was ,ir,y,iieii. liial by the la %v nf this I'luntry, lands in the h.iinis nf the heir or devisee, ail liahle to the debts of ilie testatoi, where the |iersiiiial Csi te is insiifficiiiii ; but tup woiils and iheexpfess pro- \isniii of the ai Is on that siiijecl, viz: 1784,0.11.1789, c 39, direct that the laiuls shall lie resoited lo only in cases where the insulliciency of the persMiial i-statejndi- cial'y xiipeais on the recoriJ upiit ilic plea of ptene ad- ministruvit, no :.ssrts. oe n.>t suiBeieni assets, hi-iiijj \e- riho n\ ho li uiinj; .if a jury. Hi.- creditor (Mnnot lake >.'nt his sci.fa. against tlie htir, before these pleas, or 346^ aAYWOorr's reports* Mny ir96. snme of them, are fouinl hy lln' jtiry.^ Wifliout consider- ^'^^^'"^^ iiii;; flii-roloiv v\liat the law may Itave been heCoiv 4he passing <>r these acts, il is now ci-rraiiilv law. tin' if an executor will not plead a want nf assets, he must be taken to liave enough to satisfy the Plain'ilt's deinamt ; since by not pleading in that manner. Iiepievents the Plaintiff ivom having recourse to the real estate. Were tlie exe- cutor under such circumstances not liable de bonis pro' priis, lie :niglit render these laws in favour of crMiitors C299) "' "" vere a sci.fa. now issiird, Ciiiiid the Defendant be admitted 10 pleail to that, plene administruvit — as to wliii h. the rule in (his case, as III all oihris. is this, where the Dilendaiit to the original action migln have pleaded a matter of delencc, and failed to do 11 ai the proper time allo^ved by law for that purpose, he can never afterwards, be admitted to plead ihat matter to any other suit grounded upon that original suit. He cannot plead to a sci.fa. any di-fence he might have pleaded to the original action out of wliicli it is (lerivcd. Mow it is evident he might have pleaded plene administruvit to the former action, if the fact \»cre su( h that he had fully administered; and therefore sh..iild a sci. fa. now issue, it could be of no service, to the De- fendan;, as to any defence he mii^ht set up under 11. As to the manner of cha ging an executor de bonis propriis, the practice has varied at ditfeienl 'inns in difl'eient courts — sometimes they have proceeded by way of sci. /a. inquiry, whereupon nulla bona returned, the Sherill «as commanded to make the money as befoio.; andif hcconid J Haywood's reports. 346 Ijnd no goods of the testator, then »o enqiiit-e by a jury May 1796. whether the Defendant had wasted; hiuI if the jury found ^^'"^'''**' a devastavit, Ihen to return the \ridict to r.imt; wiiei-e- upoii, liieri! went out a set. /a. against the exernt-n, to shew cause why the P-UMTiflT ihoiihl not have sati'-fnc- tion de bonis propriis. Off. of Executors, 166. At other limi'.. til'' iirartirc hath been, lor the Site iff to eefni-i! a devastavit; or- if he is utivvillitii; to dn -'>. f. ■ ihe i-uirt to eiiinpel hiin to i-eliirii a devastavit. Off. o/ Exe. 168. God. 199 — and thei-eupon. to i sue a w.it «)f oxt^cn-ioii Coiiiinanding him lo levy de f)onis propriis ; ot- where the Slieriff returns nulla bona, to i-sne m siiccial fi. fa. coin (300) manding him to levy ihi- debt de bonis testatoris, or if it could apjlrar that the CXiVu'oi ha- rtas'i d, &< . Iheti to levy it of Ills osvii ft-xid^. Off", if Exe. 167. '68. 5 Re. Fotiifer's case. As to tin- sci. /a. inquiry, anil set. fa. thereu .1)11. it is said in the hooks hefore cited, iha' tliat course hath been I'lg disused, it not bein^: so beneficial a course fop (he Dcf. ndant as that whit li directs the Sne- riff to return devastavit ; for 'hat in the first case, if the verdict be vsronj:;. the Defendant is withont redress, no remedy lyina; af!;aiiisi the jury — attain' will not lie, be- ing not a veidic tipoti ;in issue joined — arid he has no re- medy against the Sheriff, for he is jusfified in his i-e'urn by the verdict llovvever, the other way of returning a devastavit, seems equally useless ; for if 'he DefeiuJHiit bath filled to |»lea(l a vvanl of issets, ii is an admi-sion of thcoi ; and a jury will not hav- it in tlieir p .wn- to say non devastavit. So if the Slui iff ,vlter such omi'sion, returns devastavit, Iv cannot be lihble to an action for that reiurn ; lor the jury, as well as the Defendant, are estopped by the record, to say th.it he did not waste as the Sheriff hath returned. Salk. 310. L. Ray. 589 Eith.r of these methods then can aii-v.er no vHfmhle |)ur- pose — tliC Di fendani by omitting lo plead want of tsseis, becomes so absolutely liable to answer de bonis propriis, tha' no plea he can make, nor ..n\ tindiog otajnrj. can afterwards cveinpt liiiii. If the D.fndant can have no benefit by either of these mode- but that 'if delay, it fol- lows, that tlic l.'W will not r plead want of as- •^"^''^**' sets, uhoiher it happen by ronfi-ssioii of Uip action, judg- ntent by default, cii- citherwise, such omission ainoiiitts to an admission of ass'ts. It must be deemed that thert- are assets en(Mij?h, when the executor whose busiiii-ss it is, will not sav the contrary. Ai.d when a jiidgnient is onie Ri- ven Ha;ainst an executor, who has assets enou,e;li, he is bouDil to (irodnce ihein, or |»ay (he jud,u;menl hims-lf de bonis propriis. 3 Term 685. To pi-nnit the Di-lendant to i>l- ..(I a want of assets, after the proper time for plead- ina; is passed, is not only ai^ainst tha' order which in all cases i-. iibsi rved, but it tends to make proceedinjjs in com! infinite ; and to introduce delays, which tlie order of pl« auinjn; was in\Ciiie(l to pre\eni — and besides, to what time will such a pha after judgment, relate? If it relate (SOl) Id th-' time w hen tt is put m, then the assets may have been applieil in the iiiicrn)edi;ite time in discharge of other debts. This emliles the exei utor. after suit insti'uied against him, -.inil even after judgment upon it, to pay othee ( rediturs ; wiiich is ilirectlj aja^ainsi law ; for af- ter suit instituted, he cannot, vcdutitarily, pay any other creditor of equal degree first. Or v\ill it relate to the time when process in the original suit was first taken out? Sh 'l! tne plea stale that at 'he time of the leading process in 'he first suit taken out. oi' any lime since, he had not in his handsany of the good-, &f . of the testator to in: ad- ministered i II this nuist be stated, then why not inforcc him tw plead in the first inslanrc? Is it not belter that he should do so and Nhe» his situation at once, thin put the FlaintiflTto tjie Iriiitless expeuce of a second suit by sci./a. It would be better, as it would save Ihe addition- al expense an often happens, that the law has I'lit fix'd u|)on that mode of conducting the pleadings, that is liest cah ulaled to oust delayv and prevent liliga- tioh and expetuSi and then what reason can there be, why a special^. /«. to levy de bonis testutoris si ct si noii de bonis propriis. simll not issue at once r 'I'ln retinii of iiuIUl b'ua is liien as complete a proof of a devastavit, as if that were relumed expressly ; for, if by the previous judgment and proceedings, it apjieais to thr i nurl he has assets, and is hound to produce (hem or pay the debt — and alao by the Sherifl's retnrn ui nuUii bona, that he liafi J HAVWOOD's REPOTITS. 348 not produced tliem, dors it not fo'low. that ho is bv wliat*''> i''^^- already appeais iipdn iccord. li.ibic de h vis prnpriis ■•^^v->»' Does the i'priug at Fayelteville. let a special/./a. now issue, reciting the return of nulla bona, and com- roanding the Sheriff to levy the d. hi i|f the goods of tiie intesti.te in the hands of the adiniiiisti';vior ifto be found, and if not to be found, tlieii of the pi oper goods of the ad- ministrator himself — which was done accordingly. Note — Vide Parker v. Stephens, and the note thereto, a^iiv 218. 349 Haywood's nEPOHrs, «»' »''56. Maxwell v. Holland. Mr. McLain hail been counsel foi- the Defendant, and after hi^ dtice of the Peace. There was an appeal from the ^ ' judgment of the Justice to the County Court, where a tri«l by jury was liad. There an appt al was moved for, wliicli the County Court denied. Ue then obtained a certinrari to lemuve the |iroceedings into this court, upon an . flidavit statins: the above farts. This certiorari was set down on the .ugiimeiii dock< t in this court, and now the I'laiiiiiflTin the certiorari, stated the reasons for ob- taining it as above ; and it was argued on his behalf, that wlierever the County Cra\ii'S it (•ff.-rod (o assign rca- ""y ^''^^- sdiis, & j^ivc sfniii'}' for prosecutiiij; with effcci, ih^j oi - dtrt'il ilii- raiisi' to be m-i dnwn fu- liial, and lo he jilrtf ed amoiie;st those for trial at tiie next lerm. And it was df (he child of James J^IcMUster, deceased. It pi>intf>d Mills the e;nardiaii, who was no way connected to the infant by blood. It was now stated at the har and adriiiiled, that McMlister, the uncle, the present applicant for the gnaidianshi]). with scleral otiiei-s of the family, in the life- time of the deceased, had signed a deed pm-porting to he a conveyance for a very valuable ti-act of land to James, the deceased, and that since his d''a»h, the ippli- cani claimed that tract of land, oi- a considerable pnrt thi-reof. to his own use, in l!ie face of ih.it cnnveynnce. This Cause no" came on to be argued liy Taylor for Mills, and General Davie for McAllister. Taylor arjrned that ilie guardi(inshi|) ought not to t)e conuiii'tcl htMcM- lister the uncle, because it was a rule of the ( ommon law in the Case of a letiure in socage, that any person lo whom upon the death of the infani, his inhcritauce might by any p08sd)ility desiend, should nut be entrusted Ailb tlieguar- dianship of theinlant — No .me who hath any temptation to remove the infant out of the way, shall have the cus- tody of him. Co. Lit. 8", b, 88. a k b. In the present caSe sluHild the inlant die, the uncle now applying fop the guardianship, would be entitled at least to a part of the inheritance of considerable value j.the court cannot ap|ioint him without infringiirg the rule just nicntioned — a rule founded in so much prudence th.it the Jutlges have always resptcicd ir. Also it may be with reason conl'nde.d, that Ihe Judges in this count'y have it in their discretion to appoint whatever person (hey think (304) 351 UAYWOOl) S REPOH'fS. May 1796. n,,)^{ projier to art as guardian fur hii orpli'in — the an- ^'"^~*''**^ ric't ciininioii law diil iii' rouNeniencc and punctuality than Mr. McAllister ; »\lio, should he be ap- pointed, must eilicr leave thi' niaiiageinent ;uid care of the infant's estate to soiniageni. it i eii;l< > t ilem in a great measure: and niorcover, »Vr. McAllister having a claim upon par) rif the estate, and heiotr let into posses- sion by his appoinlinent. may imniediaiely hold for him- self, ({luvtiting the profits to his own use; and as the infant is now very young, not being more than a year old, if so much, when he arrives at age, it msy be very difficult at so great a distance of time to proiurethe pro- per evidences, eidii'iof his title to the estate, or of the amount of ilic jirofits made by his guardian. For these reasons he suhmiiteil, wheilier it would not be very im- proper to ;.ppoint Mr. McAlHstt'r. E contra — It was argued by Gen. Davie, that though the rule lespeciing !.iiary these rules pre- vious to till act of 1762. -ind h i makes no al'eraiion of the former laws in respect of persons qualified for the HA.YWOOD's REPaHTS. 352 guardianship ; it only directs in srcMfral, that the rnnrts *'^'' ^^^^- ^ whiMi iKM'PSiiiry, sliiill a|tp 'int. ;> ,ii;iiardiHii, Ir.iviti!; 'hciii to he (liiecicd in their choice hy the t-iilrs of l;iw alip^tly cst:ilv|ish''d : and -as ti) the ohji-ctioti iais'' such gnHrdiaiisiiip. strictly "pcakitis!: ; thiiu2;li it may he very prii;ier to \}:\\ some att'-ntion to the iiilc. in tlie -ijiiioint- liient of j^ii-.irdians, as it is ralrnlated tn pi-event the or- phan ivum fiillina; into hands, where, he couhl n-d with safety hi' irnsled In like manner, as where the ancesior died seised of an inht cuter as pjuardiaii on tiie pos- session of !lie lands tliat conld not descenil to them. Co. Liu. 88 a ^ 6. This proves that ilie guardian in socage dertvfd his a|ipoiiirin'>Mt and aniliority from the law im- mediately, wiih'nit the i .terveiilioii of a court; and he iniglit enter immediately on tiie death of the ancestor up- on t^ie lands desceud'.-d to the orphan, and also mi,i;ht im- mediately t.ike jiossession of tin' ward : hut the act of 1762. mauiffsily intended that no pi'tson shoiihl inter- fere with either, hut in conseqtieiiccof the appointment of the County or S'lpcrior Court ; ami tha' no pi rsoii should receive the a|)pointmeiit, unless he gave security as the act iequir>s — this was a circuutstaiice not r«-(piired in the socai;!- guai'diMi'sliip. If thr act had inieiidcd )hai a jter- soii desiu;iirt(ed b^ liw , sliould be entitled to the guar- dianship, ii would have been useless to have vested the power of apiiiiiitiiig him in the County or Superior Court: iheii appointment of a person already appniilcd by law, would be at least a redundant, if not an absurd act. The socage t^uardiaii could not interfere with any part oftiie ward's propei'ty bin his lands held by soca.ue ten- ure, not witli his copyiiold lands and ihc like — and not with any part of hi-> P' rsoiial estate; by this act he is intrusted with the whi»le .-sratc of his ward of every kind. In England it was usual foe the (i at lliat age. Tliese weie some of Ihe inconveniences experienceil under the fonncp law — or- uaywood's repouts. 354 pUans of tlie tender aa;e of fouitecii, i.ffpiitimps maile im *'•'>' ^''96* prutli'iit clioicos of muardiiuis — llicsc testaiiietitary guard- >"^~''~'*^ ians, however, like others, were liable to be removed by Chanrery, afier the abolition of the couit of \vard^ in the beginnini^ of the leigii of Cliarleall. f<>i- misbcliavirmr in their trust; oi-for givinu'rooui to suspect tliey were altout to iiiariy their wards in disparagemetit. The actof 1763 adopts the 9;iiiie provisions amongst its first clauses; from whence there is reason to believe the Legislature Wire actuated by the same motives as the frnmers of (he act of Charles — 'he iict of 1762 esiilioitly con- templates, that the guiirdiaiiship comiiiitted by the court, should be of the same iluratioii as that made by the appoititment of a jiarent. namely, to the age of 21 j for the I lib. 12lb atid ISth sections give directions about preserving the estates of orphans, and ler.sing out (heir laniis till they arrive to the age of 21. This net tiierc- fore cannot have a regard to t!ie old law relating to gtiar- dianshij), but meant to alter ii entirely — itgi\ps the court power to n|)j)oint till the ward came to age, such per on as they may think jiroper to be his guardian, witli auibo- ritv to remove him whenever he misbelnvcs in the trust \liey have comojitted to him. This is a much more ef- fectirril mode of pifictiring proper i;uai(li:ins, and of k prosport of ever succeeding tn the ward's esialp, whereas JUr. McAllister lias ; ami tlio' this is not a Consideration absidnlel} obli,s;:itory in (he court, thev will not entirely disrei^ard it — though they may ap- point whoever they think most pr(i|)ei-, even the next ot kin in the imniediate line of succession, tliey will not out of prndence do this wlierc the estate is large, and any other ptrson equally as well qualified oUVrs or ran bcpro- cureii to take tli' guaiiliansliip upon himself — the Coiii-t of Chancery in England always governs its discretion by this ronsidcraiion. among others, though the contrary was once avowed in the case of an ajtplication by Justice Dormer. There is also atnither riicumstaiK e in the pre- sent case, wliich haih bi-en mentioned ;ii the bar, and is not di'iiied, that ought to have great wciglii — it is stated that HJr. McAllister claims part of this ver} istatc. the wardship of w Inrh hi- is now seeking. It is saiil inaNOid- ance of iliis objectnin, that the orphan upon his airival at ftmrleen years, ma> chiise another guardian, and call him to account for ihe profits ; but il we appnint Mr. McAl- lister, he will be entitled lo the custody of the e\idplication, is the parent of great confusion, and isof very great detriment to the parties con- cerned in the application. E contra — It was aigued by Mr. Hay. that though he was ready at all tio.es tocontt ihute his sliareof i])pl>iuse to the great abilities of Lard Mumjield, aotl ihe rest of the court who miide the decision in Ihecasei'f HamlyAni Troll; and though he was at all times ready to pay a proper deference to the opinions of so great a man, he yet could not place an unbounded conlidenre in tdern, nor give himself up to b*' governed by them; nor could he be brought not to suspc t. but that lliesf opinions, like all other buinan productions, did sometimes partake of human infirmity — and more particularly would he be in- clined to doubt the propriety of ihe decision in the case of Hamly and Trott, so far as it ma> bf atiemptcd to be applied hei'e, since the .lodges of this country havp so often had the case of Hamly and Trotl under considera- tioji and decided against it. They havedecidi-d in many instances, tlmt the action oftrii\er is maintaiiiMblp against executors. It was decided by Ashk and Williams, Judges, Edenton, April Term, 1793, in the casi- of Dc- crow V. Miorc's executcns. Tht- same point was decided by AsHB. SpENCKR and WiLLiVMS, Judges, at Etienion or Newborn, some time hefoi- this: and the saniH point was decided by Williams. Judgi-, Morg-n. September Term, 1791, .WcA'mnie's executors v. Olipluml's execu- tors. Many other drcisions to the sam cHeit Imve taken place before the same Judges in different parts of this country, and if it be of imporlanct ihit llu rule sliimld , he ste?4dy and uniform, it is surely far better to adhere 953 ^ UAYV'OOD-S nEPORT«. May 1T96 to these decisimm, wliirli June taken place in our own ^"'*''"'''^^ country, .ind liave been noted upon >8 the law of the cuuiitry. fliau novx to alter the rnli- es'ahlisi.ed h\ them, and adopt a contrary one out nf mere coni|il'-iisanre to the derisions ' { Lord JUnnsfield and the lest of the court of Kitiff's Bench in England. To sliew that we oueht not to y L. C'li. Cowper. l r. Wil 4' 7. These authio'itics may serve to shew, that very great men have etiieriained opinions different from thff^e delivered by tin- court in tin' case of Handy anil Trott, and therefore mc sImxiM at least take the liberty of sus- pending a perfect acquiescence in its propriety (ill we ha\e collected such lights as will enable us to decide upon this subject for ourselves. No inconvenience can result from saying this action will lie againstexecutors.but cases may be conceived where the contrary position will defeat injured persons of justice. Such a case is stated in the arguments in the case of Unmltj and Trott. and is never answered ; and Lord Mansfield says, suppose the testator had consumed them and eaten the sheep, is the executor to get ofT altogether ? Anothei- of the Judges says, where goods come to the hands of an executor in specie, trover will lie; where in value, an action for money had and received — hut I wnidd ask what remedy has he where the property has neither come in specie or value to the executor, as where the testator killed the sheep of the Plain! ilf and eat them — no value there came into the hands of the executors — if trovei- will not lie in that case assumpsit will not, as it can «rily he implied in eases ex contrnctu, or quasi ex contractu. A conlract can never be implied liom a direct trespass, you can only imply a contraci where the party hath leceived value for your property — as where he drives yivur lamb to market and sells it, you may in sudi case elect to consider him as doing so by ymir permission, but there is no instance of Converting the killing id' your animal vi etarmis. into a Contract lo pay so much for him — and so long as the an- cient boundaries of actions shall be preserved, so long a5< uaywood's uepokts. 358 ',be trespass vief urmis cauwot beronvpi-ted into an action *'ay '"OS. on '111 r-A^v. iipdii iissiiuipsit, so Ions; will if be inipo^sililp '^^•'~^*^ for tlip PlHintirtto ,s;ei any rciliess in a Cmirt'if Lh» fu- «urli iiiju'y h • I liave joni nK-titioipd, iiiiK'^s the action of trover may he su|i|iorit'd a«jaiii''t cxerotMrs. Curia udvisari — An b>ave some injuries withtnil reiln-ss at tlieconimiins that liave rninierl) taken pl.'C<* here, since the\ have been made, and are fonml lo hi p\ . (im-tivc o!' no incinivenience, than by decidinc; (iiflVreoily iVnin the other Judges to maki' the rule of law nnccrtain — should these decisions be found in an\ future time to produce disor- der, liny niay be allered by the Li-gislaturi-, or by a scdeii^n Judicial drtennination to (lie icintrary. So there was judsrmen' lor the I'laintilf. Nnces ill the no', ante 4. ~ Den on the dimise of Andrews x. Mulfird. "Wli- re two patents or grants bear date on the same day, the immbcr ortlu- patents or grants must dfteimine tlielv. priority. No pos<. s- s'lor exCL-pt an HCliial one, by the claimi-nl himself, or his t'-nant, commenced bona fide, under a patent or i rant, :idvor!.t and contin- ued for seven years, will give title under the act cf limilations.— Wh' II the act iif limitations ouic begins to run, none of the iinpe- dimenis mentioned in the act, will stop its course. Ejectment. Andrerucs had lately purchased a tract of Jand of tlie beiis of J/r. ir«drf/e, thf patentee. Mu'J'ord derived his liilcufder Spikes, the paietrtit- f.f an adjoin- ing tract. H'' proved tin liftrinuiiig of Spikt's tract, and •very line and corner mentioned in the paicnt, and loca- ted that tract lieyond (htitbt. Andrexvs proved tlsat a line calli'd Waddle's line, was seen when recently made, ma- ny years ago, l)y one of the wiii.rsses on the r)tber side; whicli line included a part of i!ie land compriseil in Spike's patent; Hnd 'l..^ !ii iiad ht,-.' irknow l('J';t(l i i o.-.vcr- satiuii since, by Sjtikef,. It was also pro\cn, thai' IVad- 359 uavwood's reports. May irS6. dig informed Spikes many years ago, that tliat was liin ''"^"■^"^^ line. Both Spikes^ and Ifnddle's patents were tlated on the same day — ffaddle's v\as numliered with tlie number 4, and Spikes' with the number 73 : Itut Spikes* survey was mad' siveral months before ff^iuldle's. Spikes used this disputed part of the land, with the other part inchi- ded within tlie lities of his (latent, very soon after it was issued, by keeping his cattle upon it; and continued touseit as a ranjje until the year 1770, when lie took actual pos- session in person. About the beginnin.!;; of the late war, JUr. fi'addle moved to Europe, carryine; wiiii liim his two Sims, infants of \ery tendei- years, who returned and came of a.c;e within three yt-ars ])revious lo the brinsrin;; of this- suit, which wns commenced sometime in tlu' year 17^4. Spikes purchased his location of this land fiom a man who had built an lint, and lived upon it S' vera! yeais, intcndiof^ to enter it in the land-office prior to the time of Spikes' entiy. Counsel for ^iidi-eics. The whole of the preseivt con- troversy may be reduced lo this — w lietiier Spikes' or Wad- dle's is tlie preierabk title. The e\ idenre jjcovc-' that the land in dispute is ir>cludrd vvitliin the description of biilli patents — accordinj; lo the common plirase, one patent laps o\er upon (he olhei — the line as laid down iti the plat be- /■«,«> fore the c line of Waddlt's patent, di-^rri- \ie\\ as ruiiiiiii]^ fVmn \\ic pine to \\w •iuainp. h'' ilii- line srtMi b} tlie witiipss and acknowh'iigod b> Spikes, ii imer- spfts Spikes' iiomitlai-ies, and mis offlVoin his tract al- most all ilic laud we liiive Micd for ; and tiiat it is the lin>' of Waddlt's jiatciit, is suflicieiitly oslahlisiiod by the evidence. Tin- next tiling proper to he considored of, is, (lie date of these two patents, and such other circumstances as may ser\e to give the one of them a preference to the other. 'J'he point of prifcience must he settled before it can be decided, which of ilie two litis;ants is entitled to the land in disiiiUe. These patents are botli dated on ihc same day — mirs w«.s first numlieied, tliousjh tlieirs was first surveyed. IliMetofoi'i' piiority of date in i)atcnts iiath always been held in our conrts to f;;ivf preference of title. He who made the latter entry and hitter pnyinent of money, may have [irocmed the first survey. A man en- tilled to preference in e\ery view id'Jiistice, and who lias paid his money, and made hisenli'y, and haih been for some time perhaps settled upon the land, and improved it, may hnve his survey postponed to soil the convenience of I In- surveyor, and the survey he first made upon the other's claim, inl'erior in e\e(y respect. The survey or any other proceediuy; jirior to ihe,e;rant, is no part of the (313) grantee's title — these .-ire only preparatory steps towards obtainint^ tiiat wiiicli will give a title — tlie sjrant is the only eviilence of title that the law reco.^nizes — should (lie first survey he made tlie criterion of preference, it would be_i;et the utmost confusion — manj ohi grants have no plats annexed to them, and none were ever annexed — iliere is no record preserved of the tune when the sur- veys were made — what decision shall be given in cases thus ( ircumstanced ? Or wiiat merit is theic in a claim- ant getting his land first surveyed, more tlian there is in getting his grant, the complete evidence of title, first per- fected ? There might indeed be some justice in saying, that he who first made his entry and paid his money, should be entitled to preference ; but iu this there W'luld be very great nncei tainty. The fiist entry and payment of money, might he aimed direc;ly .(gainst the claim 4)f a man who had settled atid improved, and who tinder the 3t»l UAiWOOU's UBPOHTS. Miiy 1"9G. oxislirig laws wns enliileJ to a grant preferably (o any* '~^"^'^^-' otiii'r. Adil to lliis, that, their lU'ver lias lipcn iireservcd any record of tliese eiitiirs. Witliitli Ihe number 4, theirs with the number 73, from whence ilu presumpiion is, that they were Issued and legistered by the Srcretaiy in tlie same order in which they are numhered, and conHe(|uentlv that our grant was first pertectcd. The numbering them at all can be intended tor no other purjiosc than that of shewing which was first issued. It will be argued, that we ■were never in actual posses- sion ot llie land in question, nor of any part of the tract of vvliich the land in question is a pari — this must b- ad- mitted. It will also be insisted, that (he poss,'ssio;i ol the person who made an ;ix-emry. as it is called, added to the possession which Sj»/vfs had bj his cattle, previrius to the time when he took .icinal possession in person, is sufficient under the act of limitations to pertecl iheii- title, and destroy ours. As to the possession oC the ax-en'erer. (314) that was withmit anj deed or cidour of title. Ii Was a possession of vacant land, and all the right it coulsion AS lliey iiHve proven subsequent to these, avail tliiiu — Spikes, and those claiming u olcr liioi, hail actual {lOwses- sioii only three years beJ'ofe Mie discontinuance ol'ou" Su- perior Coui'ls in the year 1773; and soon afiei tliat pe- riod, M-. ff^addle went to Europe and died there. His Kon» (lid not return until several years after tlo" war, imt lamc of age till jusi before the coninienienient oi' this ac- tiop. The act of limitatioiis expressly jirovides, t^iat time shall not be computed under tiiat act, in favour of a man in possession, and against him that is out of it and be- yond seas, till after eight years; nor against an infant , till afier three years from bis arrival to the age of twenty one years. Uesides lliat, tiie lime f the computation of lime under the act of limitations. Then all the time tliai can be coinputid in tin- present case, is, the time elapsed between the actual possession, and tha time of Waddle's' going to iMiglan I — a space of about tlwee years only. Possession therefore, in aiiy way in whicji they bave proved it, will avail iliem iioihing ; and /"gi^X tliis case must be decided, as it would have been before ^ "^ any possession commenced, immediately afier the issuing of the two gianls. Our patent, for the ■■easons before yivcii, IS entitled to preference and the ri.mitilTtorecoxer. E contra — It was argued hy General Davie for the De- iciidants — No doubt can be entertained bui that the land described in our patent, is the s.ime land we now flaini. The beginning and each line is proven by tlie chain ( arriers present at the original survey, and also at the •survey lately made by ordei- ol this court ; but it is ex- tremely doiibit'ul wheie the I'laintiff's land ifa>l> lies — they have proven no boginning, nor any line which ihey 368 Haywood's reports. May 1796. say ig jj,e boundary of flieir land. They have indcetl '**^^'''*^ piovni tliP pxisteiicc of a [liiie. marked as a connr tree, but ilip coiiisf of tlic line from ihnice to the swamp, tb"Ugli it will intersert our land, includes much more land ilia'i the line fhry have attempted to prove. Tho lint' wliich ihe witness --piaks of, was a plain marked line. Th>' line laid down in the plit is not a marked line. There is not a single marked tree in it or near it. It is very probable that this pine is not a corner iif Wad- dle's land. The evidence says it v\a.s a corner of an ad- joining iract. If the course leading to that pine be re- versed, it will indredbe the course mentioned in JVaddle's patetrt, hut the e\ ideiice say-* it i>< the line of an adjoining tract. The sui'vevor says it was marked when Ibis ad- joi.iiiig tract was snr\eyeil. Still it may have been Wad- dle's litie, but il ilo's not terminate at any such corncf as I ailed fir in Waddle's patent; and is continued much ltty»id the tliHtantc mentiimed in Waddle's patent, as Being the diitanre of the line of that course in the patent. Tliese circumstances render it very improliable, titatjho lines described in the plat, and now claimed by Andrews, are reallj th«> houndaeies i>f Waddle's land. It is proba- ble entiu^h, th,.t Waddle's laid is somewhere near to, or adjtiniiiig this land of Spikes ; but it is incumbent upon them to show a better title than ours to the land in dis- pute. We have cleai evidence that this land is included within the boundaries expressed in our grant, and unless they can as clearly prt)ve that it is included wilhin theirs alsti. we shall he entitled to retain possession — our evi- dence of title being not only equal hut superior to theirs. In Khoit, they must prove the location of tlieir land, and that II runs o>er t»urs, or they can never be entitled to recuver. The being able to raise a conjecture, that their (316) boundaries do intersect ours, can never be deemt^d evi- dence sufficient to |)revail against the [)ositive proof of our title. Uut let ii be granted that their boundaries do really intersect ours, it will init then follow Ihattney arc entitled to recover. Our grant is dated on thi; samedjiy with theirs. Even admit the lule to be in general, inat the first grant gives the best title, that rule is easily applied where the grants are of different dates, hut it canimt be applied to the case now before us. It is im- possible II. sny which t)f them was first issued. Any rule whicli pretends to ascertaia this, will be merely fancifni. Haywood's reports. 864 Wp should depart from ihcsprioral rule wlien it no longer *'■'> '^^6. etr.iblps UK to (lr( ide with cprtainf*, and we slnoild addpt *'^'"^'''^-' somi- ofher tliat is most likelv to attain justin'- I kii'«w of "Oin' liitlipt tn establisiied fir a dfcision <»f a case like the prespnt. Init none sfcms so likilv to pflpiiuatp tlie pni'posps ot justice, 'S to say v^licie the priorif.v of ihe gram caniiot be ascpi-taiio'd. ihat th'- ,£i;riinlci' shall be en- ifitled t'« pifferencp. who first (lurchasi'd am' pfiid fcr ilie land : and that his shvill he ascert^'ini'd wlc're tin- cntry is inif til be had. and Ihe priority olpnymeiit cantiot be actually lomen, by theprioiity o( snr cj. The first sur- vey itself forms snnie reason oj' ''refer ucv iiidftpendi iit of any otln-r co' -idcration in fH^^^r^)f the cbiiniHot und-r it — he first niakes th'- appripi'iaiion 'f tliat pariiciila' • pot to hinist-lf — !if ai.ikes tliat apprnpi iaiion niitm ions, hy goinjif upon llie la-id and '•ervi-yinK it, and separa iug it from the cirfumjacent lands by visible houndaiirs, — These act." make kmiwn t^* the rest of mankind that he bath taken that soot for bims If It is unjust for aijjl other to invade thai riglit afterwards, and de| ri\e liiinof it either by force or contiivance. Thesp ciinsideraiions have considerable weight in a case circumstanced as the present is. Where tiie ordinaiy rule of d' ri>-ion is found to be incompetent, the rule ))roposed. i:( ^muii; prefer- ence to the grant first nnmb>red, is too vague. It is impossible to say whether the grant first issued was that which was first numbered or legistered, or whctlier the numbering takes place upon the execution of the grant, or after the execution when the Secretary registers if in his office. If for these reasons, or any other, our grant is to be preferred, the Plaintiffs have no title — but if this point be against us, our possession has made us a title ; the ax-cntpi'cr was in possession five or six years, then Spikes purchasetl the location from him, and put in his cattle, and continued that possession till he began to clear and cultivate the land. This possession was pre- vious to what they call the actual possession of Spikes, (^I'j^ upwards of seven years, from 1757 or 1756 to 1770^ nearly fourteen jears ; aod by the act of limitations, seven jears ()ossession will give title to the possessor. Per curium — Haywood (oily present — Will it not be projjcr to consider, wheihcr if the act of liinitaiions be- gan to run IV'im the time actual possession vvhs taken, (wlii( h is stilted to have brcii in the lifetime nf Mr. ff 'ad- dle, the patentee, and about three years before ho went 365 haywood's iiEPonTs. Ma> 1796.(0 Europp) i(« oi)rratii)n can be siispeiuled by Iiis going '*^'"*''^^ bcN '111(1 sea, op by bis dejiHi, |pa\iiig iiifan* heirs. Counsel for the PlaintiflT — General Davie aii'J myself Jiave formei'ly coiisidei'cd ot thai qiicstii)ii. It in a rule adopti'ij otil> ill tlie case 'if fiiien in England — it d(ies not appl> '" the artof limitali'iiis. Per curiam — Tlie rourt thinks it is equally applicable in iints Will arise to be eonsideied ; if it be not, then theclisputo is at an end. There is full proof that the land claimed, is \\ithin the boundaries of ih<- patent under uliich the Defendant claims. This is not doubled by any one — it is not "disputed by the Plainiiff. For them to recover, itis necessary to show a title Kupeiior to tliat of the Defendant — iheir patent is for land lying on the same streani, very probably for a pari of the land in dispute — one of the chain caiiiers in making Spikes's survey some weeks af- ter, saw and shewed to Spikes a line then recently mark- ed, running through the land contained in Spikes' [mWnt ; and as he describes it, must have run somewhere between the boundary of Spikes'.s patent and the line now descri- bed in the plat, and claimed to by the FhiintifTs-tbat line has been since spoken of, and admitted in conversation by the Defendant. When Spikes sold, he refused to war- rant the land in ilispute, because nf Waddle's < laim. The court then enumerated tlic otiier circumstance gi- ven, in evidencp relative to the coiner pine, and the other (318) line spoken of at the bar — and concluded this point by say- ing, it is not the province of the court to drai^ any con- clusions with respect to this line, whether it existed, or wheie it is. Such conclusiims can only be drawn by the jury. The court oniv recapitulates the e> ideiice in the presence of the counsel, to assist the memory of thejnry, not for the purpose of directing them to lay stress upon UAVWOODS RTPOTITS. 366 this or that part <.f 'he testitnonv. Shoultl the court (].'- "'y i- -">• lixi-r Hti "iiiiiiiiii with ic-pirt 'o the pvidence, the j'"')'^*'"^^^ ar<' oi'ly buitud by it, should th^it ^>piiiiiin roiurirlr \\ith thfii- «i\Mi, (li'invii ffoii) tlir pvi«leiire they have JH-anl — Bh'iMid tlie jury howpvt>r. in the fii-psi'iit case belies f. 'hat (■raddle's piitent rovei*ed the ImhIh in slispu'e^ then the nesi circuiti'.iHnce to he rmi-idered is, «hich of thes'' twit patents is eniiili'it to ])fef'Tence — tlv'v iii'e hoth drtted on the same day, ff'addWs is iiiiiiihcrcd witli the imnihiT 4, and Spikex's with the miniher 71 ; hut SpiUes' survej- was nuili- several mouths before rTadd^e's. The rule, that hath hitlieito prevailed is, that the patent or grant of the first date shall he preferred. There is no other evidence of title b\ ajipi cipriation of Jands. but that of the ii^ratii. He tt ho first obtains his t^rrttit without fivtud, ob- tains title : and (rum that moment inny exc'iide all otiiers from »!ie possession. We cannot bo i'lflnennd in dr.te4"-- minin? a point of preference, by the first survey or the first entry, oi' the first payment of money for the land-i|» any of these circtiinsiances, or all of them together, make Jio title — if the grant does not follow, they sif'uify no- thinj;; — and whi-n it does follow, they reasf from the mo- ment oC its execution to be of any co'i'-idt-ration — tliat and that only, creates the title ; and that only is to be consulted where t!ie question of title arisi-s between dif- ferent chiiniatits. Siip])iisinj; this rule not to have been fonndi'd upon propriety at first,"it wr>uld be aMen! propeiiy where they iiavc once become fixed anil known, and to be generally acted under, simuld never he l)rnkeii iu iijon, but for reasons of the most ur- gent' necessity, and then only by the Legislature. In - such instances, it is of murh more consequence that the rule should be certain ami notorinus, than that it should be coof iiniahle to strict' notions of justice. Siionld we decide by prel'eri ing the grar.lre who had iiis land first sur\e\e(l, it uiiajhi periiaps serve the purposes of a deci- sion well enoujrh in the present iustaui-e ; yet many ca- ^ mi{;lit occur, where the fait of the first survey coolij ^ . _.. no! be ascertained; as in the case of old grants issued v^^^/ before the jtracticc of amtexing plats began, and in cases of new grants, whei'c the plat annexed to either of them Was serered Iron) tiiC grant auil lost. In all such instan* ces, it would be urcesv.iij to ad'pt aiioitier nilc of deci- sion. It is better t > follow one ih^t will answer for t!ic 36^ UAYUeOD S REPOIi'BS. May I"S6. jppigjoi, ^f g]] pascs wliirh msiy 'irisi- — by adlieiitig to the ^'^'"*'"^^ (lid iiilp orpioleiriiifj tlie'_a;iatit fi's< ppi-ferii-d ; mid «lien tlu'> ai'C dateil oil tlu' sainc day, 'if 'irffciriiis iliat j^i-int, which from some circiinistance!- apfiarptit on tlic fare of ttio deed, may appear t\tv best eniiilid to it In "he p>e*oiit case, it ajipcais in the fan- of /F«d(i/e's patent, that it was ■tiiimlnTcd with tin' niiinbi'i 4. whereas SpjA'es' was limnbei'ed witii the numher 73 : fimii whciire the strong; presiimiitidii is, tii.it JTaddle's ,i;i imt was first fiiiii(ili''ed, and ihnt it WHS iiuiiibeied in the saiiie (irdcr witii res|iect to the (iihi'i deed, in «liich tlicv were severally cnmplet- ed ; and if any oilier ciiTninstame of eqiMl wiipjht, should rt|i|ieai' ill the lace <»f the grant, it should ha\e equal infloeoce in d riding: th> (uefereuee. It Waddle's grant be entitled to priTereiKe, tlieii it v>ill beneeessai) I'l ron- sider, whether Spikes or ihos.- <'Uiiiiin'^ under iiiui, have acquit id a title liy possi-ssion uiiili i i!ie act of liiniialions. It is urged tliiit llif- |iiisse->sir)ii of the iix-enteter, as be is CItlled, ofwiioin Spikes (lurchasrd the lucatioD. is tn be taken into compuiaiiun : and next, that the [lossession which Spikes had by his cattle, is to be rerlinied. We will consider them, separalel>, and for 'hat purpose it is proper to state biiefly, the true im|>«iil anil intent of the act of limitations, so far as it re.irKids ihe landed estates of the cotintiT. That act bad tv^o nbjeris in view — the one and principal object was, to fix upon a mode of set- tling disputes between uift'ercnt claimants uf the same lands under different grants or titles. The Legislature consuiered, where one «if the cluiin- ants settled njion the land, and continued on it seven years, with the reasonable expectation of enjoying it in fee, that his deed or grant gave him, that it was more agreeable to justice and the policy of an infant cuinti'y that wanted seitleis, to confirm Ihe title of such a (lossses- sur, than to sufter him to be turned out of possession by another, who had no otln'r merit than that his grant wag first dated. The Icrm of sex en years was fixed upon by the Legislature for that purpose. A prior patentee who would not enter, during the space of seven years, when the subsequeni patentei , and those claiming under hini, (380) were in the adual |)ossession, giving open and jiublic no- tice (if his claim, was by that law deprivi'd of i is liile for- e\i>. He shall iMii take '•(Kantage of an industrious set- tler and tui 11 him off, after he has improved the land for H.\YW00d's REP9RTS. 368 seven years toa;etlicr : but thtn in order to sjain a title May 179» by |)i)sscssi()n under this act, these circumstances must concur — he must be possessed of land whicli hatli been ac- tually granti'd ; iv possrssinti .if \ iicu'it lands will not do, nnh'ss atreiidcd with siirh circnnistiiticcs as I'l-quired by the late act of Assembly, for limiting the claim of the Slate — !.(> must taki" jiossi'ssion «ith a belief that the land possi'ssed is his own, as under a patent or ' his tenant — this notorious possi ssion must be a continued possession a secret taking posses- sion and not continuing it, as it cannot answer the^puf- pose of noforieiy to adxerse claimants, cmnot extiiiguisli their claim for not having been put in, in due time. — The other object of the act was, to quiet the posses- sions of such persons as before the pa-ising of it had taken jiregiilar conveyances, not strictly su|)portab!e by law; but >et fair, and for valuable considerations. This is provided for by Uie first clause of the act, and need not be enlarged upon now. The case before the court is no way affecleil by it. T<» apjjly these rules to the present case — the possession of the ax-eiiterer was of vacant ami unappropriated lands, and is not a possession within the purview of the act. Such possession could operate, if at all, only against the King or i!ie liords Proprietin's, not as the act meant, against another individual claiming under them by another grant or deed. It is not the pos- se!^sioll of a settler, having a belief that the land he set- tled upon was his own. As to tlie possession whicli Spikes kept by his cattle, that is not such a possession as is calculated to give notice to the adverse claim- ant, that his land is occupied and claimed by ano- ther. Cattle may be a long time ranging upon land, without its being publicly known whose they are, or that they were put upon the land by their owner, or that he meant to ( laim it : but if a man settles upoii the land by himself or teuiUits, and continues that possession, builds a house, or clears the land and cultivates it, his claim then becomes notorious, and gives fair notice to the ad- verse claimant to look to his tile. As to the cireumstance of Spikes having onee taken possession of the land, and continuing there some time, and then leaving it again>^ S69 HAYWOOU'S RKP0R'K5. Mny 1796. a single act of takincj pnsspssioii, and then Iravincf the ^'^~'''''**^ laiul aiil not do ; tor then every man who ha.s aj)-.ti>ntop (321) deed for land, and lives at a distance from it, is in dan- e;cv of losing his title hy some othrr per>ion iiaving a co- lour of title, making a seci'et eniry njion ii, and at the cx|)iratn)n of sewn yeai'H aftervvaiilH, setting up that pos- session as a title. Were (his the law, no man would evei- be serure of lii« tiiie for lands he did not actually reside upon, either hy liiiii--elt', his tenant or agent. Tlie po.sses>ion that is capahle of ripening ifitotiiK?, must be no- torious, and cuiitiniird for seven years « iiliout ciitry,claini or aclioM on llie other side. As to the remaining posses- sion th.it Spikesir.ul — il is stated tliat about the hiiginning of the year 1770, or ihereab.mts, .S;)(A'€S, or the person that clainx'd under liiin, took arlnai possession of the. iarnl in (|nesiii)n, built a house upon ii, clt^ared » fteld, and ciintitnied the possession down to the present day ; and I hat oil tiic oth> )■ side, If'uddlf had no actual posses- sion of the land ioclnded in his paieiit, or of any paft of it; and ihal he was in this coumry when the adverse actual possession commenced, and Inr fmr or (ive years afterwards, wlien he removed to Europe. It is hero propel- to observe, that from the .sixth day of March, 1773, to 111.' first day of June, in the year 17B4, thcuhole intervening time is struck oui of the coinpulatinn of time under the »(•! of liniitatiiiiis. b> ditrcrent acts of the Lc- gi*tlatiire made in the time of the war and sincei and is not lo be regarded : and while a man is beyond seas when his title accrues, and is of full age, he is allowed eight years to put in his claim against an adverse occu- pant. In the present Ci'.se, Jtr H'tiddLe was in this coun- try when the act of liinitations first began to run upon him, that h to say, when actual possession was first taken and continui'd by theadi.s, unless there are strooe; reasons founded in justice to the contra- ry, and the-e are pointed out iii the exceptions it makes to tiie tfener.il rule established iiy l! b) the attri:iiMi of several years time, with, the quality of still wearing away, they must take it aa 47 S71 Haywood's ueports. M^y 1796 (h..y find it, with its disudvaiitagcs as well as witli its *>"^''''''^' ad\ Miitat;cs, and iiitist use the same diligence to prevont a total dissoliiiiiiti of title, as the ancestor or iicisoii from whoiu iht-y (.li)iin was bound to use — and if this reason- ing will apply to the cases of these iiersons whose lia|>le^9 situation is not Uroiight on by their own niciiivs, as infants, (5i5) persons insane and the like, much more will it apply to the cases of those v\ho seem to act, as if they int'-nded to avoid the operation of the act, as a person imprisoned, lie that rcmo>es bryond sea, or as a woman that marries after the sicf be_u;ins to attach. 'I'liese voluntary acts of theirs, ought not in reason to defeat the possessor of the benefits intended for him. by the law of the country. — The conclusions resulting from this mode of considering the subject are, that the title of the Plaintiff in the pre- sent case, is barred by the Drfendant'H possession — There was a verdict atid Judgment for the Defendant ac- cordingly, and the tnotion {', .nlOi. cnniini-ncmenl of tile possession beii.g bonajiile, sei Hiddick SJ Wife v. Ltggct cited above, mid Me- Itte's heirs y. Alexaniier, 3 Hawks o22. I'hai whei-e th. stjlule . f It- niil«tii-n> once b. gi.s t.i run, noii.iiig will imp' de its pro.rfss, is now tt<|i fiftfled Sec .imnymous. post 416. Cobhant v. NUl's Exr's. " Hay. 5 Pearce et al. v. House, N. C. Term Hep. 305. Den on the Demise of Henry Young t?. James Erwin. Where the demis'^ in an ejiciment is about to exiiire before a tria ca I be had, the Plaintifi' will be permitted to amend, by extending the term. / Ejei'tment, brought several years ago, and hath de pcntied so long that the demise laid in thctleclaratinn will haywoob's beports. 372 cxi)ire before the next term, there bt'iitpf a continuance at^iy 1796. this. Mr. Taylor \wneA a lew days a.^o, on the r-duit ^^'^'"^^ gianiin}!; the (■.iiiinuance, to be at libi-iiy to enlarge the demise, so as to extend it beyond the next ter^m, oriothe time when a trial will |)riil)al)ly be h;i(l ; and lin- court were about to allow the motion, when the coiinsel for 'he Del'endarit insisted, that the enlargement mo\eil for could not be admitted, and prayed time lor a few days, to prc])are himself to shew it. WlicreMpun the court de- layed a decision iip'in the motion for a few d lys. and now on the day a|)poinfed for the further coiisiileriUion of Ji/r. Trtj//or's milion, the counsel, ./Voore, for tin* De- fendant shewed cause against it. Tiie Judges in every free country are boi)nd to decide according to the cstahlislied law — they cannot uiake pre- cedents where tlic seeming hardship of a case maj' ap« pear to tliem to require it. Their otfice is to be law be- fore tliat (tei-iod, npon whatever I'easons tin y may l>ave proceeded either for diawine: causes more and more witiiin the arbitrinin of the court, or to accommmlate tlte Jaw to tlie circumstances 'T that country, such decisions are nol precedents for our coorlB to ftillow. nor can they fdhiw tliem if they pursue the directions of the act of 1778 ; according to the directions of whicli, we are to receive as the common law. such parts thereof as were heretofore in force and nse in this tenitory ; so ilia,t in order to ascertain whnt is the coiiimr)n law here at this lime, we must in every instance recur to what was the law here at and htfore 'he time of our Rivolution. 1 make these lemarks because the aufhorities thatare to be relied upon for tlip suppoii nf the present n'otion. are almost all of Ihein either so near to the time rioi* to the discontinUHiice of our Superior Courts before the Revolution — they were chiefly made by Lord .Mansfieldf a man indeert «)f the dp, 1 .ration. He ais.. ciie' ^''^^• obstrvrd, he liiul no iidiioii o( iKiildiris^ a ww f)ork-h"iisc ^^''"^'''*-<» — alluding to ilio (irip set U!> >ii,Iu''!^i- Hisgham — ilnnby iiitiinaliiic; his r'c;ir opini'.ti liiat iU<- nioioii wj's nut al- lowable. Chiof-Jii'itire lloiT. and the other Judges he- f(»fc Itin time, thou_i^hl the demiKp in a dj-'rinTwiion in ejertiiieiit, was matierof Rnhs — it whs the wrj thing the PlaintilT lecoveiod. H tin- teini w«s expired, there was iHitiiiiifr iicfoiild recover. The ejectmen' now ii>>e<> recover, he could not re- cover at all. If the lessor had no right to make it. or if one of several lessors had no ri.a;ht to make it, if it was made after the «nister complained of by the lessee, if the time of its commencenn'ot was not asceitainable. or had not yet arrived ; or if it had expired — in all these cases, accordiii!^ to the ancient authorities heretofore followed in this country, the Plaintiff could not recover ; and they were such substantial parts of the declaration, that the court could not suffer tliem lo he asneudid. These au- tboriiic- were received as evidences of tin common law in force and use In-rc prior to the act (sf 1778, and which is again enforced hy that art. Our courts since the Re- 375 IlAv^voot)'s hei'outs. May 1796. voliitioi) have tlioiislit so, ami I do not rcciilloct a siiipic ^^^''<^<^ iiisiame wIkto tliry Imvc siiffeied (hf dcinist- to l)i- fn- largfd. 1 tenieinbcf a case flint liiipppucd iti tlii- court not many terms ago, where J(ida;(> S\ illiams rd'iiHcd a inotinn of lhi« suit, iuid I innsi submit i" tlieroiiit w lictlici" it is proper for ihemto eNlablisli a new jirecedent agiiiiisl the niiiforni tenor of all llie adjiidiralions up to the time oi Lord Mansfield, and as it setins to me, against the ex- press provisions of the act of 1778. E contra, it Wiis ar.sjiied hy J/r. Taylor — It is not con- tended on the part of llie IMainliff that the ronrt lias the ]»ovicr of makiiiy; law, nor lUt- we ask that they shall de- part from established pr that sti' (! ltd, may eiiiicr reject them in toto, or alter them upon (iroper reasons, so as to reduce tbein to a state of uxywood's iiEroiixs.. 376 compatibility witli coinmon l;i« priiicipks. Look into May 1796' thi' !h\v bonks fVnm the earliest times, and see how that ■^~y~'*-^ which liith betMi siij>]inse(i to be the common law in a great varictj of painis, hath miderj^oiic successive chan- ges iiy suliseqiK'nt detcniiinaiioM, fmiiiiled, as mankind have adniiited by ilicir acqiiirsiioMce, upon ticttcr reasons ; yet it would bo improper to say the coiiimort law is alter- ed — it is only bettor ascertained as mankiitd have gradu- ally acquired grcaicr li.i^lits, more freedom for discusssion and a wider space tor the exercise of the nieiiliil powers, in propoi'tion as th« lyi'aniiy of sn|!e)-stitioii aiid of gov- ernment have WO!!! away, and opened ti liie (iis(;overy of manki'id, ihe way to tiiith. I'hese two ciiciimstances will account for ilie ie;)iigtiance of many of ihe ancient decisions lo the iM;ixinis of the common law. They will at the same time evince 'he jMOiirieiy uf a hat every law- yer knows to be a fact, that th-" more modern decisions are held to be the best evidences of what ihe common law is. Indeed, n ithiti;;; cat! afford a sli'oiiger proof of the justness of these nbservalions, ihan the history of amend- tnents at tlie common l;iw, alluded to by Chief-Justice Holt, in OIK' of the Repots cited on the other side. It proves the intluence a parlicular cau-^e may iiave in for- inini; the decisions of ;he day. He refused tltc motion not because it was (inrea-ionrtble, but as it tended to the alteration of a record, and ;is he had no aiind fo build a new cliick-iiouse. Edward ihe first, after lie hail been aome time in the French n l:i)rtl (tower, acfiMted by the avidity of thr princely of- fice. Can any cx.iinpit' inure slionjjiy rviiire thf |)i'0|iri- ety of re-examining lormer decisixiis. and trying ihein by cuinuiun iaw niaxiin.s? Can any exaniple more satisfac- torily prove that the mod^-rn drcisions, where variant from the old, arc worthy of our cnnsidrraiion ? Ntitlier the old nor llic muftern dfcisions are tlie vrry common law itsrlC — they only prtfrss to ascertain what it is. It is mori- reH>out this time, between tin- cases wli'i'e judgment had been gh'en and whcie not. if it had been given, the record was made up and could not be altered. After- w.irds, a distinction was made between the cases where the motion to enlarge was made pending the ejectment, and where after. In the latter case ii could not be alter- ed, lor that would be to make a new term, and not to en- large tiie old. These distinctions seem to have been a- (330^. dopled, to get at an amendinciit witln>ut infringing for- mei' decisions — some of which had decided, (hat Ihe en- largement could not be made "here the motion was after the term expired. However, since these disltnctioris pre 48 379 Haywood's reports. May 1796 vaile«l, tliPiT ha\e been otiter derisidiis in favour of cii- ^-^'^''^^ liifsriiiR the (I'-misc. wiilioiit reiranling >lie forranr r«lps. In ilic hrxt of Gforge III the ilcmisf was laid lo be in tlie S3(l lit George III — alici' vci'dirt, the court upon argu- ment, alb)\ved tb" demise t(» be amended : lliere. the term was not ronimence«l at the (ime of riie trial. Tlicre vas :inolber case, Coxvp. 841, where th<- demise was en- larged Jifter judgment. In the 14tli of George III. the term was ex|)irrd and allowed (o be enlarged. 2 BL Re. 940. 941. Tlie rourt there said, an ejertment is the erea- tute of the rourt. and open to every equilabli regtilation for exiii-diiiti^ the true jusiire of the case. These deci- sions Wire declarations of what tiie common law was ionj; bef'ire our Revolutic)n. They were most probtbly recei- ved here — and if only such decisions as took place before the Rrvolutimi, are evidences of the common law under the act of 1778. still tlie amendmeni may be made. It seems highly jiroper njxin the reason of the thing, that amendments of tliis lvin D - *-«''"''"^*^ feiidant, said it (ould not br done i«fi«>i tin- jiny iiiid de- livei'd ilifii vcidirt, tlioupjii btt'nie ii was ircordi d. Haywood, Justii:!-, \ . lii veiy clear it iiia> be. r, tin n b .tk to thi- bar, and betui ■ they dehvtr tluir tciUic},. the Phs re- ceived by tlie court and entered of record, previous to which stage the jury may retract or alter it ; neither is it complete till the recorii of it be read over lo them, and assented to.as recorded. Anonymous. Articles for the conveyance of land upon the payment of money, will not create such a trust on the part of the Plaintilf (at least before the money is paid) as to prcvc nt his recovering in ejectment fronj the person lo whom the articles were made. This was an action of ejectment. Upon the trial of which the Plaintiff produced bis deeds, and proved a clear title in himself. On the side of the Defendant wercpro- ducetl articles for a sale of the land, signed by the Plainlift': in which it was agreed, that the DeiendHUton pajment of so much tnoiiey, sluuild receive a title from the Plaintiff — and Defendant's counsel said he could prove payment of the money. It was denied on the side of the Plaintiff tiiat payment had been madt;. and the Defendant', counsel stopt here wiijinut allempting to prove the payment. He argued that the Plaintiff ought not to recover — for no man can recover against hi.s own 38i haywood's heportb. \ Sfey 1796. tjolemn deed, covenantinp for fnttlict' Assurances or quiet ^^'''""'^^ cnj. jnipnt : and Hiis aj^rceTtirnt bririj? under vthI. is tan- (332) tHi';omit to siirh » Vhetlier the [tefendant has an equitable title is not ntiw necessary to hf consi' ered. Thi»i com-t will not enquire into the eijiiitable title of the Defendant upon a trial in ijectment. If lie hath an equitable title onl}, this rotiil has no jtiris- dirtion i'nsiirli acasr — it not beinf;rcin)|ieteni by the roles of liiW to gixe reiiel' — it wcirild be nniiatoiy in :hein to enter iiito any innv estimation of that ciiTuinstanre ; nei- ther is the ruse hi lore the court similar to that cited on the nther side — this is not a covenant lor fnrthei- assu- rance i>y quiet enjoyrri! nt, it is only a conditional agree- ment to make a title wiien the money shall lie paid ; and it would he directly iti tie fare of the aj2;reemetit to say the Flaintiff shall be iii\ested of iris title before he liatli reci i\ed 'he niiine>. Ifbecunnot recover now aj^ninst the Defendant, neither would lie have a ri.a;b' to recover against the ^enr^e of the Defendant, and he wmild be totally deprived .f the security he has reserved by the terms of ibis afjreenient. Per curiam — Let the jury give a verdict for the Plain- tiff, siihjecf to the opinion of iJie court upon a statement of the facts proved on the case. This was consented to by the counsel on both sides — a verdict was gi\en acci>rdiMgly. and a statement made ■ut xupra. Three or four daj s afterwards the court gave jud.t;inent. Fer curiam — We have considered of this case, and the authnrilies relatixe to the point that was stirred in it.— 4 Burr. 2208. Right on tlic demise of Grffii v. Proctor; and Cimp. 597. cited at the bar upon the argument, go upon tills ground — where there is an absolute inii ondi- tiona! agreeineiii l>y deed on the pari I'f the Plaintiff, thai thi Defendant shall enjo) the premises, he shall not be permitted tu invalidate that deed by recovering against HAYWOOD S ItEPOUlS. S^2 »t. It is unrpasnnal)lc ih^t lip sliouUl. When Hip Jopi] '^^y ^''^^• is fairly pxcriiifcl, und raiiiini he ini|«'rtrhpil T": fi-dM', i is e» idciicc (if uiKxl coiciidfiHtiiiii i-HS'-irisr fnin 'Im Dc- fpiulaiif tn tlu' l^liiiiiliir. vliirh niakiH tlic Pliiinfift" i uiis- lee of tlie l<,2;i»iaI amrcenu nt liial llii- De- fendant sli:(ll Iiiive and enjoy tlir iiossissiot.. Hi- is to have a fi)iivt\>anrn when dp jiiiys tin' inoncv. Tiiis im- piii'S most strongly, liiat lie is not (o have it b"forr. — There is another class of cases' however, into which tl osc before citid seem to enter — they decide that a uustec shall not he perniiited to recover in ejectment airainst !iis cestui (JVC trust ; and (hat a vendor of lands is a trns- tce foi' tlie vendee. One of these cases is r |)or1 by seltinsc t* I'isht. Courts of Law now tM'.ce notice of ihese Irnsfs t'l prevent d< lay and ex- perice to the suiiors l>y seiidinp; tlieni lo Equity. Oihers of these cases reported in Ifoiig. 770, Diirvfnrd and East. 735, hut in these cases i|ie r-iile is laid diwn to aj)- ply whei'" the Plaiiiiift'is cl( ari) a iiiistee, ^o cir(uin- stanced ihat a Court of E(|uity wonld ilecrec a specific oxecnlinii of the aa^reeiiient — there he shall not recover ; bill if it be not clear liiif doul)ffnl whe'hee he be siicli a tru-.tec or not. a Cbdrt oF Law leaves that enquiry to the court that has prii|)cr cognizance of trusts, and will not take any notice of it upon a ti-iai in ejectment. To say ill a Court nt' Law, tiiat a (riifiiee shall inrt recover in ejertnicnt against' his cestui que trust, \-i goingpi ihaps full far I'lioiigh ; jierhaps further than the rules of tiie ancient common law would warrant. Had this rule in- deed pre\ ailed formerly at law, it is jirohahle tiie Court of Equity woiilfl not now lla^e been >n possession of that jurisdiction, to svliicli the di'lay and expeiice of an apjili- cation, has latterly inilnced Courts nf Liw to adopt the • rule established by tliose decisions — and though perhaps wi-re this a clear trust, this court, for the same reasons that weighed in these cases, might now adopt, the same rule, yet wo are of opinion this is nimnoo justice,- we. shouM iKii be «:iriairir{l iti sayiiiii: the possession sliuiild be taken from ilie PlaiiiliJ)'. or dciiieJ lo him, when bis agreement cvitlciilly implies ihc contrary — wherediie let L-^'^^J the Pliiinliff have jiulgnient. Judgmeiii was cntcreil lor the Pl.iintilT accorditigl} . T^OTL.— Viile Mams oil Ijntmfnt,o2,jS. neaJv. Rcail.S T R.W^. Exeruiois of Davis v, Wilkinson ct aU By the act of 1789, Sev. c. 314, s. 4, the s^rvivinf: obligor and execiJ (ui'sof the (lecexsed may be sued jointly. This suit was brought against tlie executors of a de- Vide ceased joint niidertaker to pay, and the survivor. There r'^'^ftAW "'^'■^ sever;;! other suits on liic docket of this court thu« iJ"co. V. circunistaiiced, hcing suspcndrd l»y inoiions in arrest of Daniel judgnieiil, and sjircia! cases, iirilH a decision could he had Cierry& upoii some one of them. The tloiiht arose upon the coii- am'e iwf ''"■"Clion of tlie act of 1789, c. 57, S. 5. " And w hcrea.s it is a lule of common law, that in case of the death of a joint obligor, the debt can never survive agtinst his beir^, execulors or administrators ; which role fieipient- ly is injurious and oppressixe to the tjurviving obligor or obligors : to remedy which be it enacted, tlint from and after the passing of this act, in cas&of the death of one or more Joint obligor or ohiigors, the joint debt or coii- trac ^liall atid may sur\ive against, the heirs, executors or adniinistratnrs of the deceased obligor or obligoi'.s,'$as ■well as against the survivor c)r survivors ; and when ali the obligors shall die. the debt or contract shall survive against tile heirs, executors and administrators of all the said joint obligors. Jmies for the Di leiidants — This act was made for tho benefit of the obligee or creditor, as well as for that of the debt(W. It was lor the benefit of the obIiji;ee that he should not he confined lo the surxivor, as be perliaj)S might be insolvent or not to be come at, but that he might re- sort also if he clio.se to the executors of the deceaseil, wh» perhajis were sol\eni and x^ilhin the reach of process. — The old rule was frei^uently injurious to tho surviving ir^YWOOD'S REPORTS. 384 obligor where lie was onl}' a suntj — llic crcilitor was ^^^ ^''^^' •obliged ill tlif fifst iiist.iuico to take liis remedy aj^ainst '-^'^''''^^ him. 'I'lie lU't mc-.mt to remedy tlu-sp miHrliieis. by etia- biiiij? 1h(" (M'editi)f tit sue eitlier the iiiic or the other at his election ; uiili tliis view it says, the (lel»l siiall sur- vive as well a!;;ainsl the executor as tlic survivor — not tliat it sliall survive against both joijiti}. but it U to bea delit charc.Tubie upon one as well as, that is to say, in lilie raaiiiier, as as^ainst the other or survivor. How did it survive against the survivor, at the lime olpassiti^ this art? Why, ai^aiiist him severally and Jointly, witli the other — as 10 him, tiiiTe is no altei'ation hy this act — he stands as he did belorc. The act i)rofesses to he made for his benefit, but if he is still jointly to be sued witli the /-3^-> rxciiitor, he is no more cxeujpti'd IVom suit Ihan hefore. ^ Whether only a surely or a princiiiai", the injury com- plained 1)1" in ilip preamble, as to him, remains nearly the same ; and as to ihe executors, if iliey be the executors of a surety, they are in a worse, situation than before, if they are no>-v necessarily to he siieil under this act. As to the creditor, lie too, in many instances, is placed in a worse siiualioii, if lie must now sue the executors toa;ether with the survivor, when they ai'e !n)t periiajis amenable to process, which must be continued to the pluries before he can proceed atjainst the survivor who is on the spot. The cieditor will be delayed longer thafi if this act had not been made — how is it beneficial to the creditor to say, yon shall sue liotli. When hy so doini;;, he will be greatly delayed, and v. hen, but fur the act he niiglit proceed to ju(l;;ment immediately againsi the survivor? But if the act gives election to sue eitiier tlie one or the other, as t onnleud it does, tiien t!ic creditor receives a bciietit from it which he had not before: he may sue the real debtor only leaving out the innocent surety, and he may pi'oceed '.vitlrmt the delay incident to suing them hotli — the other coiisii'uctioii suhjecj^s to all the iiicnnveniences just now j)oiiited out. Some argument may be drawn from the words of t!ie sentence next following — " And in all cases of joint obligations or assiimplioiis ol coiKirtners and others, entered into after the passing of lliis act, suits may be brought and prosecuted on the same, in the same manner as if such ohlign(ioiis or assumptions were joint and several." The Legislature provides for cases before the act, and for cases after i( : witii respect to the latter iiSS iiavwood's reports. May 1796. t|ie remedy shall be joiiif and several — is there any rca- ''"^'^^^'^^ son, why tln-y should wish ir to be joint onlj in the foi'» iner casfH. and to altei- il I'roiTi several, as to the s!irvi- vor'S. tojitini aj^aiiist '.' • ii ami the executors .' Tin- Le- gislaiure evidt-nlly tuKsideicd ihat to make the renu-iiy Si'veral, was essen'ial In ihr j)iir{)'iH<'S ol'jnstice, or why did they sa_> in liiis iseMtcnce that ajoini assumption shM be several also r And if (hey did cousitler it essential to justice that it should he sevt-ral as well as joint, why in the preceding sentence have tln-y intended to alter the se- veral renieiiy, iiilo a Joint one? Not t'> say any thin;; of the uncommon Jiidicinent that sncn a suit as the present, must iii-icssarily requiie. the smallest consideration up- on that point only will servi^ to sliow the conrusiuii that a different consii liction of the act would produce. (3S6) E contra — It was urged that the point now in contrn- vers> h d bien settled at Salisbury, upini ai-guiin-nl in the case of Brown, Measrs. Campbell 4' Co. \, Daniel Clear ij ix, James Cndgi administraiors of David Craig, Sepiein- her term. 1794. Curia advisari — After a few days taken to consider, thc) gave inila:ment. Fer airinm — We have looked into the case cited at tlio bar the othi-r day, deciiled at Salisl»ury — it was a case decided upon urgumriit hy Judge AsHii and Judge Wii.- xiAMS — we are satisfied wita the reasons of that decision as given by Judge Williams. VVherel'ore Ictjudginent he i-ntcred for ilie Plaiirtift'. and it was entered accord- ingly. 'J'hi-n the Plaintitts in all the other suits depend- ing np(ni the decision of this point, entered up their judg- ITient also. Note. — Vide Brown, Campbell Si Co. v. Clary £j> Craig, .'Idm'rs. unil the note tlierelo, ante lOT. Glisson V. thc Executors of Newton. Defendant had been awarded tu pay Plaintiff" a cerluin sum, but at (be day ofpaymfnl, iiol liavini^ thc mont-y, lu agreed «ilh Plain fl"lo give moiv llian six per cem. for induljjencr: and :> bond was p van lur th • priiK ipal sum, and Uie amouiii b'l^e tlie Icjjal interest wa» paid partly in money, and a note ijivrn tur tile balance: — Upon an action oil tliebond, ii was held, that the traiisuclioii was usurious and the bond void. Dt'ht upon bond, anil the statute of usury pleaded.— Upon evidence it appcated, that disputes existed between Haywood's reports. 38fe tlie Plaintiff and D>feii(lant, relative to a tract of land ; May 1796' that tliey aj^ieed to submit those dispiitfs to afbitr^stion j v.^'v^^' that the Hi'l)ilrai(irs awarded Glisson to give piis>*es,sion of the land to Mwton at a prefixed day; and thaf onthe same (l;i_v, JVcwtuii shotiM |>ay ninety pnunds to Glisson. On the day .ippdntcd, JVewton beins; unable to pay tiie money, prujiosi'd that Giissiin should gi^e liinr lor pay- ment, about eli'\en montlis |.in;j;i-r ; foi- that forhearance he would give a |)remiuni of 25 ih)llars, an! moreover, pay the ie_a;al interest this pro|>osal was acreptcd by Glisson. Wlieieupon. the bond in question was drawn, payable -it a day, aiioul eleven aioniha from tlie date, and JVfewJott paid f the 25 sslble to be eluded. He cited 1 Haw. P. C. 248, and a case fiom Crake's Rep. 2 Cre. 507 — Roberts c^- Fremain — where lliere wne two instrti- nients, one foi' seeur iitf^ the |)rinci|)al sum, the other for securing the unlawful interest ; and Doug. 235. These authorities arc diredly in point to the question now be- fore tlie court, and decide It in favour of the Defendant. Some of them are expositions U|>on the 12//t Anne, from ' which our act is copied verbatim — the ronstruction upon that act, IS a construction u|>oii ours. Upon these author- ities, I submit thi' case of my client to (he court. Per curiam — We wish for time to consider oftlils ques- tion ; and that a special verdict or statement of facts in some form may be made, that will put it in our power to pass judgment hereafter, when we shall have had time to look over the authorities cited, as well as any others that may tend to throw light upon the subject. This was agreed to bj the counsel, and a special verdict found, which stated the abo\<- facts, x\fter some days taken to consider, the court gave judgment. Per airiam — We have considered of this case with at- tention, and have looked over the authorities upon the subject, as well those cited at the bar, as also a case in 3 Term, 353, and other cases found in the different Re- porters. We have in fact, been averse to delaring this to be a case of usury within the act, because in that event, the principal sum secured by this bond, whicli is a just debt, will be lost as well as the unlawful interest secured by the note, hut the authorities in the books are too strong to be sui-mounled. Any shift or device whatsoever, to take more than the interest allowed, and paiti( ul,\i ly the device of securing the principal and interest by distinct assurances, is incompetent to the purpose of taking the (338) case out of ihe ojieration of the act. If the contract it- self, is upon tlie whole face of it, a contract to have a greater premium than the law allows, it is void, whether it remains a parol contract, or becomes clothed with le- gal solemnities ; as is also, every security or as-,urKnre founded upon it, whether one only, or more. This iwtlie true meaning of the act. Without any adjudged case, we should be bound to decide in tlic same nmimct — were HAYWOOD'S BEFORTS. 388 the act to be evaded by so simjilc a contrivance as that My 179C. ot° taking two seruritle-, the one for |)niicipiil, tlie oilicr'"^'"^^^^*' for ilie unlawful premium, it would atiswir no pur- pose whatsoever. The 13 doiiars rpcei\ed, is above the rati- allowi-d by law — and should we decide that the con- tract is not usurious, so as to avoid Ibe bond, iimnedi.ite- ly the Defendant may sue for the double value, upon the tast clause of the act. Wt-ci-efore hi judgment be for the Defendant, and it was entered accoidingly. KyxK.— Fide Carter \. Brand, Conf. Btp. 28. Executors of Cruden v. Neale. Plftinliff sued on a bond, and the plea, which wasfoundedon the 101st seclion iif the act nf 1777, c. 2, staled in substance tliat Pl:i:ntiffhad lemoved from tlie Slate to avnici assisling in the war ot tlic Revolu- tion ; that he had -.ittached himselt to the enemy, he. IJeid, that it Pbiiiiiff was a citizen of this ountry, the IGlst s^c'ion, hefort; re- ferred to, is repealed as to him, by several acts of the State Legis- lature i and if he was not a ciiizen, but a British subject, then by the 4th a'ticle of the- treaty of peace, he is considered as an alie;< friend, and entitled to sue in our courts. The plea in substance stated, that the PlainiifT in the year lemoved himself from this Stale to avoid giving his assistance in the then war, carried on against titc King of Great- Britain, and attached himself to the enemy, &c. and the plea concluded with praying judgment, whether he should be answered, &c. To this tliere was a deniurier and joinder. Counsel foi- the Plaintiflf— It will not be denied, and is admitted by the pleadings, that the Plainiiff previous to the Revolution resid«'d in this country ; after the establishment of the present farm of government he can be considered but in one of these two lights, as one wiio refused to become a member of tlie new go- vernment, continuing his allegiance to the King of Great-Britain, or as a citizen. "\N heji a change ot go- vernment takes place, from a monarchical to a republican govrrnmenf, the old form is dissolved. Those who lived under it, and did not chuse to become members of the new, had a right to rcluse their allegiance to it, and to retire elsewhere. By being a part of the society subject to tlie old government, Ihe^ had not entered into any" en- gagement to become subject to anj new form the majority might think proper to adopt. That the majority- shall 389 UAYW00D*3 REPORTS. May 1796. prevail, is a rule posterior to the formation ot goverti- ^i^"^''^*-' ineiit, and results from it. It is not a rule bindln!? upon inatikiiid in their natural state. Tlieie, e\erj man is indi pendent of nil laws, except those prescribed b> na- ture. He is nut bound b_v any institutions I'ormed hy his (339) fellou-nien without his consent. The PlaitjtiflT here is not stated by the |>lea evrr to have become a citizen or member of Noitli-CaroIiri«. The fart is that he never was a citizen. Had that fact been stated, we should have replied to it. As he still remained a subject of the King of Gi'cat-Britain. then although the intervention of war susiieiidcd his right to commence an action in our courts, that was but a tempoiaiy obstacle, ci^asing with the wai" which caused it ; his right revived winn the war ended. The clause upon wiiicli this plea is formed is, the lOlst section of 1777, c. £. •' Piovided, that no person who hath taken, or shiill take pact with the cne- nii''s of America, or who hath, or shall refuse, when law- fully required theieto, to lake the oatii of allegiance and abjuration required by the laws of this Stati-, or who liath or shall remove from this State, or any of the United States, to avoid giving their assistance in repelling the invasions of the common enemy, or who hath oi shall re- side or be under the dominiiui of the enemies of America, other than supi-rate no longer than the law of nations would have opt rated to the exclusi(ni of the Plaintiff from our courts, namely, during the continuance of the war. The clause says, the Plaintiff's right shall be 8us|)ended until the Legislature shall make further provision relative thereto; anil i" must be admitted there is not any expiess provi- sion made by the Assembly since ; but being made with a view to the cnnlinnance of the war, ami tliis State hav- ing afterwards made one of the United States wlio en- tered into a treaty for the terniioation of that war, it fol- lows, that all the acts of our Legislature made for the Haywood's beports. ^^^ purpose of «]istres«inj; tlie cnrmy, or to prevcHt (lirir J^!SJ etreiiiitlicriiiie; tliemselvfs, wei-c (herrby ipso facto wpeAl- ed. Tliiiim,li ihe State reiiirsentrd in tti. A-scmbly have not by tli.f Dthers in civil rases, will be tlieconseijuenres of tlie I'art stated in the plea. But can such a fact be picsumed ? Can it he averred against a man wlio has not been mnvicted of it ? Can it be tried inr redress r,f wi'on^s, willw)uta |irin ions trial by jury and a coiivittioti by tlioin, art' not laws of the land — suc.li are acts not atitliorizi'd by llie coiistitiition — they hiivo no claim to the t>bfdiencn or supiioi t of the citizen as laws — iliey are void. And if the section in question can be iriiidi' to licar- no othci- 1 oii- strnciion llian that oC taking away a cilizeirs ri.^ht to sue, Lel'oie uia! and conviction in a coiiHiitulion;il way, for theofTcnce tu wiiiclniuch nd u;i>e jtnli^inent sometime befort- the end of the term. Alter a few days tiiey t^ave jiidi^snent. Per curiam — All persons in (general, as well foreign- f^.A\ ers as(iliy,ens. may coi»e into tliis (otirt to ri:ci)ver rights ^'^ - withheh), and to obt^iin satisfaction for injuries done, un- less wlii'ie they ai-e subject to some dis.i'uility the law im- poses. l'"()rei,u;ners arc in general entitled to sue, unless a war exists between our coinitcy and tlieiis. Tlie 101st siiti this couud'y. to the ronditiini of alien iViend.-,, and to all the rights belonging fo that ( haraclcr, one of which is, thcrier ^^ 1 1,1,1 amb and IlAywoou, '-"'-' without argtitncnt, upon the autinn it\ of the foregoing decision. Also at Fayetteville, 1796, a client of Mr. Williama, who had joinetl the enemy in the time of the late war, and who had given notice of moving for a writ of ertor, was suspended by a plea in disability — that pica was now overruled and he was set at liberty to proceed. ^ Anonymous. in a bill by a wife for Alimony, it is must proper tliftt the luisbnnd be held to bail at tirst ; hut if that has not been done, upon proper iiflRilavils by the wile, the l.iisbaiul's property may be sequestered until he gives security tor the perlormance of the df cree. A bill lor Alimony was liled by ihe wife, and no secu- rity had been retpiired of the husband. I'lie bill had been served on him, and now an affidavit was made on the part of the wife, setting forth divers circumstances, tending to shew that he was preparing to remove him- 39ft uaywood's reports, ° self and liis piopirty ; and it was moved on hoi" ''''luvir. ^^^^ that somi- pctHnM lie jip|iointo new motion, that liie «anie iiad heeo done at Htlifax, in the case of linrrow v. Barrow, sonii- years ago, where the lourr orilercd tlie property to l:e sequestered under tliat part of the act of 1782, cli. 11, wliere it is provided, that during tlie dependence of the suit, at any lime, tlie court may require liirther security from a Derendant. or in failure tliereof, make nseof sucii prrsonai jti-oiess as was fornu'rly used by the court of < hancery lield in this State, and incident to the cbancery jiirisdiclion ; and shall in all cases ha\c power to order such process to en- force their sentences or de<-rees, as have iisnally behnig- ' ed to courts of chancery. E contra — It was argued, that tlie act empowers the court to require new .security, or to issue a ne exeat, Init not to interfeie with his projierty, wliicli is not to be touched until after the I'iaintift'hath eslablishtd her claim and obtained a decree. 'I"'liis court cannot issue process to take away a man's property but in cases where a de- cree is lobe satisfied. Slionid the property of tlie^De- feiidaiit be now seized and taken out of ids possession, af- ter continuing in tiie hands of the sequestrators lor sonic time, it niay appear upon the hearing of tliis Cause, tliat she is not enliiied to any decree — and will the court up- on the mere probability that siie may obtain a ,->^ setting iisiile the icpnrt. It was insistt'il in opposition to the motion, tliat Smith should i»ave made his oxceptions to it ill due tinio. and init at this late period, by way of aflidavit, taken ex 2)arte, and introduced puchk-nly. Per curiam — By the practice cstablisbcil here since the creation of Conits of Equity, in tlie year 1782, when it is referred to the Master to take an account, he, at the in- stance of either paity, must issue a notice a|)pointing a day for attendance. This notice must be served by the pai ty procuiiiig it. If the party cited do not appear on the day appointed, lie shall tnit proceed lo take the ac- count in his absence ; for perhaps he is sick or prevent- ed by sonif unavoidable accident, or has not been able to prejiare himself to take the account. But then, a second notice ajipoiiiting another day, shall be issued and served in like manner; and then if the party noticed fail to ap- pear, the account shall be taken ex parte. In the present instance, this practice was not observed, and therefore the leport must b? set aside ; and this is the more pro|)er. as the time ajipointed by the Master, was known to be in- convenient for Jfr. Smilk, and as he had not been actual ly mitired at all. Where a report is regularly taken, but the items of the account are improperly allowed or dis- allowed by the Master, e.\cepfioiis filed to the report are propel- ; but where the M ister proceeds irregularly to take the account, as in the present instaijce, the objection goes 10 I he whole re|iort. and may be made out and sup- ported by affidavit, as has been done in tlie present case. Note, — Upon tlie subji-ct of "rcf'trence to masti-r;.nf! report," sec Nash V. Taijlor, 2 Hay. 125. Anonymous, Ibid 157. Smil/i v. Esief W Malkt, Jliid, 156. Smith & others v. Malld, Ibid, 182. rUompsan V. U'DanUt, and Jeffi-evs v. TuTborou^'n, 2 //atv/cs, 307. WILMINGTON, MAY TERM, 1790. The following order was made in substance : I'er curiam — It is ordered, that the following hereafter Itc the rule with respect to ''^«^ to hf entered as of the prcccdinj^ term ; and afffrwards in llie same vacation, npon coniinu; out of the i-xecution, the Defendants at lawexhibitcd tlie bill in question, stating their non-liabilit}' to indemnify the Plaintiffs at law a- i^aiiist tliese debts by the terms of the (onirart — these be- ing debts rioi contjacted by tliat Com|)any, bui by tlie de- ceased as partnri- of :i Comiiany under anothee firm, of which Com|)iiMy, irilLiumsmi wis also a partner — pray- ing a reconsid<'calion of the latter sentence of dissolution, and an injunction in fiie mean time, against the execu- ('(^ci-s tioii at law. This injunction wasgi-anled as prayeerate as a suspen- sion of the former decree. All parts of the former de- cree must be peifiii iiieces, witlnMit security given for the |>i'rforinance of it. Neither is it in nil cases necessary to apply to the court Haywood's reports. 404 for leave to file a bill of review. But it is immaterial by ^'"y ^''^^• what name this instrument may be call»-(l — let it'luive^'''""'''**^ some other name than that of a bill of review — we know the object of it — it is to be nlieveil at^ainst the injostire ies(iltin.i[; to the Di-feiulants at law by the last dissoliiMon. In whatever way «e can arrive at a reconsideration of the sentence, we shall be satisfied. Per curiam — A bill of rev ie\v lies only upon a fmnl de- cree enrolled. Before it is finallv pi-ononnced and record- ed, any mistakes may be i-ectified by a reheariiij? griuit- cd npon a petition for that pui-pose, stating; wherein the injustice is likely to bapjien. A bill of leview is always granted by the permission of the court, given either in one form or anollier. If it l»e grounded upon new mat- ter discovered since the hearing. Iliat is cxhi'jiteil to the couit by way of petition for a hill of rev ie\\ ; and th;- al- legations of tiie petition are supported by ;illi(!avit« — and i upon these, the court decides whether it be proper to al- (553) low a bill of review. If it be grounded upon error apjia- rent in the proceedings, tlien the bill i.-i filed without any jietition ; but the Deiendaut pleads tlie decree in biii', and denuirs to the opening the eni'idmont iif it — and tlieo the court, before they can dispose of tl e diMiiu-'er. arc ueres- sarily obliged to look into the decree, and see wh'thci- tiiere is any such error as makes it proper to oxeri'ule the demurrer. If tiiere is no such error, they allow the de- murierj if otherwise, they overrule it, and open Ihe en- rolment — here is the consent of the cosdt before it can be laid open. Wlien a bill of review is alloweil, it iloes not operate as a supersedeas to the decree, and nothing in the natuie of a supersedeas should issue. This was -^o deci- ded at Fayetteville, as the counsel has mentioned, in A- prii. 1795, upon consideration. The bill of review must be grounded either upon new matter discovered since the hearitig, which the. party therefore could not use at the lime of hearing, and which in the judgment of the eoiirt would have caused a different decree from wh:it is m<<(le, or for error apparent. In the present ca^e, the objection now urged, might have been urged at the iiearing." The objection is, that these debts are not the debts of the Com- |)any against which the Defendants at law were boned to indemnif} (he Pliiiiitiflfs at law ; and for proof of this, they refer to a comparison of the bonds with the words of ilie agreement. What was to hinder them from urging 405 Haywood's reports. May 1796.(1,15 matter at the linie when (he latter dissolution took ^■^"^'^^^ place? Why (lid tliey not long ag;o, excej)! to that part of tlie report wliirli states tliese bonds to he a part of tiie partnership debts not yet lerovercd by tl>e rredii'H-s ? — That report was made up in their presence many terms ago — it was never exrepted or objrcted against, till this bill Nvas filed. This tlierefore is not aiiv new matter pro- per for a bill of re\ie\v, even were the roui-t now to de- cide upon tiie ])ropriety of grantipg a bill of tevi-w. — The counsel however, is willing to consider it as a jieti- tion for a rehearing, and should it now he disallowed, / that the injunction granted upon it .shall stand dismissed. It most be in substance a petition for a rehearing, lliougli it differs in form, and upon that groud we will itear it read, and decide ujion it. It was llien lead, ami the an- swer of the Dcfeiulants also, by consent ; and the court directed the injunction granted upon it to be dissolved — the answer having stated pierisely, that these were debts duo by the Company, the Defendants at law were bound to indemnify. (354) Anonymous. This was a single bill, for the paj'nient of so many dol- lars. Plea, non estfadunu dfc. Per curium, in their charge to the jury — In an action of debt, two things are recoverable, the numerical sum mentioned in the bond, and damages for the detention of the debt. Wiiere the currency in which judgment is to be given, is equal sum for sum to the money mentioned in the bond, the jury assess damages usually for the de- tention to the amount of the inteiesi accrued, hut they are not obliged to assess damages to the amount only. If upon enquiry, for instance, they tiiid that one pound ol the present currency of ihis country, is not equal to one pound of the money payable by the obligation, wliether this inequality hr occasioned by depreciation or any iith<;r cause, and though the money mentioned in the obligatitin be not (brcign money, they m.iy in the assessment of damages, increase tiiem beyond the amount of the inter- est, so as to make the d^itnagcs and priuripal equal in value to the principal and inttresi of the money mention- ed in the bond. And the jury gave a verdict accordingly, and there was judgment accordingly. HAYWOOD'S REPORTS. 406 Note.— Til another case occiirrii.p this -.xn e term, where the mr.ney *'»y ^i^°- mentioned in t'.ic Doiidwaw Spani>h milled dollar?, stciirfd by a penalty .i^~v-^>^ and condaioii, the cuur; directed the value of the con. I lion t . be as- sessed, and gave jiiilgment for the penalty; 1< avinjf 'be Pllntiff to tak'i out exeentinn for the value assesset', if he t ouRiit piopi-i, .nd the int^i. ^t. Tliorevvere several cases also ot ^isss .mpsils for currency, moie depreci:>t. 1 at the time of the cor.tract 1i.;.n it i^ now ; ;:n(l ac- ^ cording to the direction of the court tli" VlH'ntfis recovered "ilv the Teal valne in the present rurrency, tt e sums dei/ anded t>. ii ^ reduced one sixth — twelve shiUinfrs liuving been equal to a dollar when the contracts acre made, which iswiow only equal u. len. The i act ice for ihc tw(^ last circuits has been iiniformly upon th<- sam^ rjdts, and the eases have .lot been cobecicd separattly, because thiyai; num-roUf:, and the practice is now generally acknowledged ar-d aeqiiie"i( ed in. It was urped in has establish' d ih. rub: of /---c\ exehanf;e. We can readily know by the ac' of 1783, ii'.w many sl;ii- V"'' ' lings of the old North Carolin.i cinrency, a dollar is tqurd to, hut it will not inlorm us how many shillings ot tlie new curiency it renrc- sents ; and ot necessity the jury must a.-certain this under the act of 1777. Were this construction nei put upon the act, this absurdity would follow, that a contract forso much sterling-, would b.- left to the jury o assess the value ot in our currency, upon evidence if the real difl'erence of exchange ; wiKi-e.-is if the contract only mentioned so main guineas :'s were ttei.s of .itlmiiiisti itiiiii t^raalcd in another Statf, lonid not cntitl ibc itilminjstrator to 407 HAYWOOD's llEPORTS. May 1796. maintain n suit liPrc. Thoiif;li he said this question was ^"^'"•^^^^ resri'ved, wn'l jet depondod in Salislini-y. in tlie case of Uillarij Butts's ^Administrators v. Isaac Price. Haywood, Jiistiro. — ! was roncei'nrd in the r,nsf^ at ]jf» Salisbni-y to sM|i|)iirr tiic affirmative nf (lie proposition and have taken mucii pains to iiifoi-ni myself of llie law, and I think it is as the conit deciilcil here. JjiiTE. — It is cpit.in (hat the KHRlisli law is apreealile to llie decision at WilmiiiKlnn, asi-lat".! bv Mr.-Moore 2 .Ilk. 63 If. Bl. lie. 146, 1S2, 153. 154. r. l1il.Z70'.S7\. J)uer S03 Swmb. 441. 9 Hep 39. Gof.'. ?32, .<•. 8, n. Cvo. El. 472. Salh. 40, 1 Vern. 397, 307. 1 Mo. C. 244. 3 Term 387. And the reason given in some nf tliesp bootts is, tliat if llic (;i''*"t"iK tlu- letters ciradminstrutinn be denied, it cannot bo tried, as that is a ^icl to be tried by a .jury. 9 Hep. 40. And no jury of the vicinity can be i;ot in the case ot an adirtinisi ration alles^ed to be granted in n tiireign country. GoiJ. 132. liv othrrs it seems to Ijis owing til llie particular construcliou of the Ecclesiastical l^ouit, which can only jjrant administra'.lon in such cases where formerly the Bishop mlg'ht have possessed himseir uf thi- go: ds to be distributed in pios usus. 2 Jil Com. 494, 495. 1 hat is, o( the goods uiihin hisown Jurisdiction. Uefnre the Bishop, the King had ilic right of distribut- ing inif state's effects, which power he. usually leputtd to the ■nishon. G7flnw. /;•/;. 6'.h, 66, 67. 9 Jlep. S\). Pfew 297. Sn-inb. i'28. Until usage at l.;[iglh ripened into a riglit. 2 Tnsi. 399. 3 Mo. 59. /.. .Roy R6, 363. 5Mo.247. WillJie. pi. 2. Salk.pl.S. And this right the ll'isho, ' abused for their own private advantagi , till arls nf Parliament compelled them to appoint ndminislr.itors. So that administration succeeded to the Bishop's right to distribute, and tliat by the usage onlyVxtcnded to the gooils within his own dioc se, or of him whose soul he b:id the care of when alive. These acts substituted the profits arising from the fees for gr intinjj letters of adminisiration in the place of the Bishop',- ancient right, ti> distribute the goods. 2 Jltk. 659 Where there are no goods tlierelore, he has no riglit to grant the let- (356^ ters ; ant! in order to s'cure to him these sub.stituted profits, wliiere there are g od<. the admini'itralion i,s deemed to be void unless grant- ed by him : and since the act for granting administrations as it would be inconvenient where there are goods in different dioceses, for each flish'p lo grant Utters, in such case the meirepolilan shall grant them; * but then their nitliorily extei alify of cireumstances. In this country, the rule of our law is founJ- ed upon a different circumst. I. ce and other considevi.tions. The ju- risdiction here is foundeil upon the circumstances of ihc deceasedV residence at the lime of his death, the probate of Ins will, or letters of adminisualion is to be granted in the court of the county where he lived, to the end tlie citizens may know with cert.iinty wheretoapply, either to prove or lo 0|<|)ose the probate or the granting of letters. The ascertaining intestacies and providin.;; for them, is naturally com- mitted to the same jurisdictiMii: the framing letters testamentary or of adniinisu-ation by any oilier court. Is void. But letlurs granted in the county where the deceaatil did not reside, are void ; not for the same reason they would be so in Kngland, where 'he r invalidity is referred lo the ciicumslance of there being no goods of the deceased within the jurisdiction that granted. Since then jurisdiction liiiis In England, when there are no goods within it, and doth not tail here fjj"') lor the sane reason, it may follow that though afoicign administration ^ may not be good in England, it may here; for the goods here may be distributed by hdministration granted in another jurisdiction than ■»w here they are, which in England is not so. l:i the argument of the case of Hulls and J'rice at Salisbury, it was said I hat the edijcls within our iiv,n territory, art ilistributahic accoi UKl'OUTS. May 1796. lieie is ilistril)utiil>Ie by llu- )aw of his ow n country, and nol by ours. v.<.-v"^; 4 Term 185, 184. 192. Vatl. b. 2, c. 7, s. 85 109, 110. 2 Ves. 35. .imb. r>,j. 2,SVra 733. // .8/ «e/<. 691. 2 Bro. Ch it. 2P nil. 88. l^fVf Rtp. IS, 16. ^«^259, .V. 15. /•. C/(. 578. -Vmi thtii tlicrt is no ie:isi>ii KriiiimU--i.nht ; but neitlier with respect to hiin are tlie reasons ot'thnl :ii'(jument tntre nhicli eiclude ^ him in England -it dt-pcnds there solely upon t!ie rule that the ad- ininis''ation ot goods cannot be committ.-d but by the ordinary of the placi wliere the goods are. In addition to tlie rea.sons of that argu- ment, ai:o'.her tniglit be urrcd of some weight, namely, th:oaic in anot'ier Stiie. Stephens's Ex'rs. v. Smart's Bx'ri. 1 Cat: Laxo Rep. 471- Although an admi .i.trator app ioted in aiioth. r Sm . ii..s ii i ri;,ht to sue in the coUits o! 'llis. yei « heie he lii.s .1 b.tbe entry oi survey. Ejectment for two hundred and forty acres of land. — Dickey claimed imtler a grant from the Sttl-, da^etl the lOtli of September, 1773, and proved the land surveyed 55 41 1 Haywood's UEPonxs. Sep. 1796. at the place mpiitioiiod in his declaration. Hoodenpik -^"'^''^^ rl'.iinud uudfp McDowell, wlio obtained a grant from the yiatf, datfd 7tli August 1787, which included the same land. .^/cOowe/niad first entered this land— Dicfeei/ some time after, entei-id his two liundred anfl fifty acres <>n the middle fork of Cain ri\er, but surveyed this tract of two hundred and forty acres on another prutia; of that river upon McIhweU's entry — and tin- question was, vvhelher this j;raiit \\a9 valid It Was argued lor Uoodenpile, that the act of 1777, c- 1, s. 9. declares void all <;raiits ullier- vrise obiaioi'd than that act directs ; and that the entry- taki-r had not hy his warrant, nor indeed could he autho- rize the surveyor lo survey tlioae lands lor Dickey, \\hich ^_, , he had not entered, to tlie prejudice of McDnwdL wiio •■"^ ' had entered them ; and consequently, that whatever the suiveyor had elonc in suiveyiog these lands, and return- ing plats of them to the Secretary's office, had been done without authority, anil otherwise tiian the act directs, and so was void, as were also all the proceedings subse- quent to that period, the grant inclusive. Judge VA'iLiiAMs — When a grant once issues for a tract of vacant land, it becomes the only evidence of ti- tle, and we cannot afterwards look further back than the grant. We must admit all antecedent proceedings to have been regular, otherwise we should introduce the practice of iisvalidatinsr giants by parol testimony. The grant may be suspefided and a trial had, where a claim- ant pr'oceeds to survey and return plats of other land than those he has entered, to the prejudice of another who lias entered them -. anf the acts of the Legishture. The Clerk of the House of Dele- gates can only certify sncii pioceedings as take place in tlie House of Delegates. In the fiiriher progress of this cause, the counsel foi the Plaintiflf offered to read a deposititm. 'Hie notice 413 haywood's repouts, Sep.1796. ^ag^ ^|,at it would be taken hi a rertain county in the s^"'''^'*^ St tc '>' South Carolina, nt the house oF John Archeiaus EUmore : and ihf st ihe benefit of cross-pxaiiiiiiation. Per curiam — We will presume John Jlrchelans EUmore and John EUmore, to be intended lor the same person. Another p iiif in this case was, whether lh> PlaintifT was h.iiii-fl hj tl'i' act the Plain- tiff for an indetinite time : for then the act will not begin to run till demand made, or unhss the Plaintiff can shew that the Defendant remoYed himself to sui h places where tlie- Plaiotiff could not find him to institute hir. suit, or had the negroes without the knowledge of the Plaintiff. So Defendant had a verdict, and there was judgment foi- bim. NoTK, — Upon the sufficiency of the deposition, see Ridt^e'i Or, phans V. Zetf!s & others, Cojif. Hep. 483. Upon tlie last point, sec Berry's Adm'rs. v. Pultam, ante 16. Porter v. McCIiire. The wife of a person imerested in the event of the question, but not of thi' cause, is admissible as » witness. \ The Defendant otTeied Mrs Greenwood to prove that Hagdr, Hie wmch in question, was a sound and sensible /ggjN negro. "The poini in controversy was, whether she was so or not. when McClure sold her to Por/er and warrant- ed her to be so. The hush.nd of this witness had pur- chased the same jiegro of Porter and since sold her. It was objected that Mrs- Greenwood was iiicoini)etent, be- ing interested in the evi-nt ol the quisfion ; for if the ne- giri was really an ideui. then the vendee ol Greenwood may tesort to him for selling an iinsnund negro. She is inteixsted in maintaining the negro to have been a scnsi- '— ble one. HAYWOOD'S REPORTS. 414 Per curiom— The tine nile is, if the verdict in tlils ^^P- ^"^^■ cause may hv jj'vpji in cvidfurt' in anoihei- ciiiise for "f against the witrcss, then lier testing. ?iy .siinnlil not be re- ceived, ottioi wiM' il may. Now (he verdict in this cause to wliicli Grceivweod is no purty, cannot pus^ib!} e\ei' rome to bi- Riven in evidiuce fur or a^aiiisl iiiin, ir; Awy other cause lo wiiiiii be sliall be a party, and tl'tiefme,' she is clearly a cocnpi'ienf. witness. Fmnieily there were some doubts, vvhrther a witness inieri'stcil in liic question could be icieived, and lor s-mie time, liip decisions were botli wajs : bin it is laiciy sfttlcd in onr court... ili.st no inteiest biK liiat in tiic f\ont of ibc laii'ic, .shall i iider a witness iiKmnpeteut. Slie was sworn and i^ave evidence. NoTK. — Vide Farrell v. i'L-rry, anu ihe refiicr.ces in the^iiolc upon this subject, ante 2. Muslirovv & Co. V. Gialiam. Enoch SawyerwAs tlie snbscribi.if;- witness to ilie bond, and lie was the Collector of imposts foi- the district of CaiTiden, and his dtposifion had been taken, and was now offi'f'd 10 be \-v '(\. Per curiam — It is the commoti practice to receive the depositinns of ail such |)nblic oflicers, the dtitit-sof wliose offices oblige them to alien*! at a particular plac for tlie discharge thereof. h^•t the (lepo>;itioii be read, imii^' proved the execulion of the bond by Graham, hut did not say thai Graham, the Uefeodanl in tiiis action, was the person who exciiitcd it. Per curiam — Yon may identify the Defendant bv proof of bis hand-writing. I'iie tMaJiitiffthin proved the hand- wriiing in which the obligor's name was sn'.isciibed, to be Ihf band- writing ot Gra^ajn the Defendant, and he bad a verdict and jiiiigment. England v. VVitherspooii. A lci:der of a spociSc article, (as ;i ncgrn lioy,) win re no paniciilap j.laci. ie appointed for delivervris not tiuflicicrit, if only mude at llie house of tlie peisr.nwho is bouni! to ni»k ■ il. Tender and refusal pleaded. The note when produced was for one hiindicd pounds. payable, or to be discharged by delivery of a likcl} ne!;rii, of the age of eleven years, by a day certain. Tii evidence was, that on that \\\,\ h'nisc ; and heside-i, had that been the place ajipoitited, it t — tin- Defendant pleaded always ready, and thi- I'laimiff was nonsuited tor not provinj^ a demand, and rf fusal or neglect in the De- fend.^ni. This decision may iiave bfen founded on such .-vid< nee as Judge WiiLiAMS spolce ol. If it was not, it seems, tobe directlyagainst the rule laid dou n ii< Co Liti. 210, b. and which is recognized as the true one in many oilitr liooks. Note — Vide Thompton \ Gaylard, 2 Hay. 150. Averv V. Moore's Executore. \ The action of Trover will lie aganisi Executors for a conversion, in the lifetime of their lesiator, alihougii the estate may not have been benefited by such conversion. This was Qn action of trover, and upon not guilty plea- ' Vide, ante ded. a special verdict had been found, which now came 4,21,308.,,,, ,„ be argued. It stated, that Avery left the horse in question in the possession »[ James McCay ^ that two men came With a bill of sale and cLiimed him; that JVeCay refused to delivei him ; that they then applied io JUoore, who wtfs a Justice of ihc Peace, to cause the hor.se tu be delivered to theiu ; that lie swore them as to the borse HWWOOD^S RKPOItTS, 416 beina; their projjorty. and g;ive a writfeii onltT for his de- ^^P* ^^^^• livcrv, which McCay disi-cf^urdod ; npi)!i wliich. Moore, -^^"""^^ in a jiassioii, lunk tioM dI' iho t»ridh-, and delivpied the h<)i-se 1') thcin himsflf. uiid they h-d Itiin away — Moure di- l^SoSj ed, and Jivenj nisitiiti-d this artioii ai^ainst his exfrnmrs. Juda;t' '.' ILLIAMS — VVe Iia\e dccidcrl in many instan- ces ihat an action oftrincr will lie aj^aiiisf cxcrtitoi-s, but that was in cases wIhm'C it apiieared the latate of the les- talnr had hcen benefited by ihe fonvi'ision of the thing that was tlie -inhject of cnntest : as if a man taki* my horse and sell him. or kill my bullock or my sheep and eat him ; here the estalf of thi- lestator is benefited, it is saved tlie expense of the piii-chase : but the decisions have never gone so far, as to make tlie action supiiortable against executoi's in a case like the present, where -the testator disposed of llie pr.iprriy without leceivi 1145 any benefit from it ; yt-t no 1 ase has ever negatived llie jiosi- tion that tiover will lie even in such a case as this. Jndjje Haxwood — Troil and Hami'm decides ihat an action will not lie as^aiost execntiDs, where the plea is, "III guilty. I am imlnied to 'hink that where 't i> a part of the judgnient as foruiei-ly rendered, quod tlcfrialens ca- pialur, the action will not lie against eX'Ciitors. Judg- mc'ts formerly conrlnd (1, that the Defendant cither should he in misericordia, oe that he '•honld be lined, et ipiod cainalui- jtro fine ; and litis was in the nature of a punishment to which executors were never liable : they succeed to tlie estate and become subject to such actions only as dcitsand a satisfaction from fiiat, not to ihe ott'en- ces and |)iinishments due to their testators ; and thejudg- meiit in ilic action (d'tro\ei- is not quod capiniiir. 8 Ih: SO 6. It Mas in substance only an action of pioperty. — If this jiosriion he true, the reason why an action will not lie against «'X<-ci!tors, will not ap|dy to this case. There have been niany decisions iti this country, that tiie action of trover will lie against executlea of " .surrender" by bail, must stiite whether the surrender was made to the comt, or 10 ihe Slirr.iTout of court, or it will be bad in term, dhder our .-.cl of 1777. Rev c. 115, s. 19, 20, the bail msx surrend rat mv lime bf jure fin •! judV)(/^, as bail, in the Count) Court; and after judgment upon the sci.fa. in th>- County Court, .ViiW up- pealed to thisccuit ; and after the soil liad d<|ii nd 'd here some lime, there was a plea pitis darrein contnimiuce put in by the Defetidaiit, vvhiih stated that >\\r Otfcndant ill the original action had been surrendereil, witli an aver- ment that he had lain ii. prison twelve month!*. The demui'ier was spei iai. iind stated foi lanse, that the plea did not set forth to w hom the surrender was made, whuther to iho court or to the Sheriff. Haywood's kepouts. -118 Per curiam — It is iiisistwl l»y tlie riiiiiitifF's counsel, Sep. 1796. that (lur act iiitnided to ;»iit Iiail iiiioii the saint' t'lxitiii^ ^■^'''''''•^ here HH ill Eiis^laiid by the rules of the rommoii law ; and thi-ir tin' C'iiidi;i(iri of the i'<'roji;niz;iiicc! w.is firfeited by a non est invenius letiii-ucd to tUeeapiqs ad salisfncieudu'tn; for n|)'>i) tliat return it uppcared, the Di-lt'iid-int liad nei- ther |)aid tilt- money mil' sui-rendi'icd liiniself lo prison j but by the favour of the court the bail arc di.s( hvirjijertblo if tliey surrender before the return uf the secotid sci.fa. but that surrender inusi he ninie lo tliL' court. It i-> very evident that our Ligislature intcuded to allow ty bail greater pi-iviici^es than were allowed by theconiniin law in the Enj^Iisli practice. Oar la\v allows a surrender to the Shi-riH'; and a snrr'euder at any time befure final judgment asjainst the bail, shall discharge iheni. 1777", c. 2, s. 19, 20, 79. As lo the judgment of the County Court which has been riiidiied, tliat was not a final judgment, it was suspended, or ratliei' nullified by the appeal — so niucli so, that there can never afterwards be any procei dings ujioii siifli judgment after it is .ippcaled CggS^ from. Whercfnre, as m the geiuiral queslion, whether bail may sui-rendcr under such circumstances, we are of opinion for the Delendant. It niaj indeed operate hai'd- shi|» in the case staled by ihe counsel, where a Defend- ant comes in and is surrt-ndered al'ler the Plainiiff has prosecuted the bail through the County Court, at a great exjience, inio this cour" : liut then it is iiiMhe discretion of the court uhciiier they will receive a plea puis darrein contiuunnce ; and tliey may receive it upon tlie terms of the Defendants paying all costs to that time, and the in- justice spoken of by that means be avoided. As to the form of the plea — e\ery plea should disclose all such cir- cumstances as Ihe law nquires ti> make up a valid de- fe'icc against the Plaintiff's action, and ihe omissioti of any mateiial circumstance, withuui which the matter pleaded would not be a good discharge in law, makes the. iilea invalid. Now the law requiies the suri«nder to be made eiiher in court, or lo tlie Sheriff in the recess uf the court ; and this is mai.erial to hi- set forih, that the Plaintiff may know bow t« leply i! false; for if it be alhged as a surrender in court, the replication is nttl tiei I'vcord. If out of Couri, the fact is denied ami refern-., to the de- cision of a jury. Unless it he sei foitn to wimm the sur- lender was, it is impossible to know how te reply — there- 419 maywood's uepouts. Sep. 1796 f„,.p ti,p p]ea jg 1,3,1 JJ3 t,, tiie p[„.,n in which it is pleaded. ^ ^*'^«*^ Tlie (loiniii ror does not, as i" contended, admit tlie fact of a surrender. A general di'murrer admits tlie fart, and insists it is not suffirient in lawfortlic pnrpose to which it is adduced: but wherea fact if well pleaded inighthave been suflicienf, but it is so pleaded that the other party cannot kno« how to controvert it : or in oilier words vvhere the far t is improperly and informally pleaded, and the de- tnurii-r s|)e(ially sets forth the cause thereof, if does not admit the fact, bul refers the plea to the court for ille- gality und itiforniiilitv. However, as the substance of this pica shews a good discliari^e, it is hard the party shonid be charged by mispleadiirg — we will delay giving judgment for- the present, atid lecommend to the parties an amendment of the pleadinjjs, so that judgment may be given u|i^)n the merits. As to the two cases not yet plraded to in this court, the Defendant may now plead, paying the costs up to this time. Note, — Tlie casi- of Peace and JCittrellv. Person 8c Gordon, 1 Murph. 188, ■ eciiles lliat tlif j-urrender of the principal by his b^ilat any time befiuc filial jiid,:n)rni against ihem, will discharge them, and entitle thim t' the costs of the aci. fa. Bui this is now altered by llie act of 1827. c. 15, HS to the costs which may accrue in the case where the bail IS dischaigid by the d ath or surrender of Hie principal afti-r the term ai whicli the bail is bound to appear and plead to Wm.- sci fa. As to effect if an :ipp< al from an Inferior to a Superior Court, see Murrn V. Smith, 1 Hawks 41. O'Neal V, Owens. An attachment bond is fiood without attestation. An attachment mubt issue, if the Plaintiff makes the proper affidavit, whether it be true or not. Attachment, and plea in abatement, that the atfach- .,,/..> meiit bond was unatteslrd. and no suit could be brougiit ^ ^ ii|)i>n it. 2n(l, that tlie Del'i'iidant was not aboui to le- move, nor had shewn any symptom of such tiisposition. but was at home at the time, when the attnchment was levied. Per cwrinm — Although thr Defendant was not about t.» remove, if the I'laintifl' suspect d it, so that in conscitmcc he could swear the Defeinlant was Hbinit to do so. be may take the oath ; and it is the duty of tlie Justice of Pence tu issue the attathment. If ihe Defendant sustains da* mage tliereby, he has remeiiy upon the attachment bond. HAYWOOD'S REPORTS. 420 ov if the oafh be false and malirioiis, he may indict for ^ep. 1796. perjiiiy ; hut the proctedinj^s sha'l so on. This lias hcvu ''-^''^^^'^ often (Ucidfd. As to the bond liein.s; unattested, it was decided lately c,t Fayette\ille. that an action of deht will lie on no nnaitcstrd tii>iid { and a« to the cimdition being only to paj in rase of failure, .^iich nsts and (I:itnae;es as shall ;ucnie ihereon — these ar'e not the •> ordspresn ibecl by ilie a( t, but this \ariance is nnt nl adid — the only de- fc( t alleged by the pha, is non-attestation ; but had it pointed out the variance, it would not Inive been fatal ; because, the act allows all f .rms a.ereein.e in snhstance with that prescribed in the act, to be ^alid — then what is the incanine: of the words used in the rontlition, "da'tia- ges thereon" — surely damages to accrue in or Ity this at- tachment, and for such damages relief may i)c had by a suit on this bond. But it is not tiecessary to tjivp any opinion ui)on this point — ^let the pleas be overruled. A respondeas agister was awarded. Note Vide Ingramv. Hall, ante 193. Chambers v. Smith. Any omission, neglect or delay of the Clerk, omny conlrjvance of the adverse party, or the improper conduct ci\ the Comity Court, in granting an ippeal where properly applitd for, is suflicienl to en- title the parly to a Mr/joror/, und a new trial will be iiiQnie>mission or delay of tlie Clerk, or by any con- trivance of tiie ad>erse party, or by any impioper con- duct of the County Court, as if tlicy adjourn after the tri- 4^1 Haywood's nEPORrs. Sep. 1796. al, to prevent the party from applying for the appeal — ""^^^"^^ in all surli rases, this cniirt will pjrant a certiorari, and (36r) nrdci a trial lierp, wiflinut ciiqiiirini^ into ilip motives of the p>rty prating the appeal, or ii'to the merits if his cai.se ; for hy the laws »f the ro;intry. he is entitled to his appeal whenever he thinks proper to rrave it, anile.a;e l»y the ronduct of others : and we would now order the new trial his counsel prays ftw. but for the rontrary alBdavits which rendei' it doiihttul wlK'tlnr he did .iffer the sureties as sta- ted in the affidavit, Whrrefore let this raiise lie over till the first d;iy of next terni. (hut the Flaintilf may produce the affidavits oC the sureties themselves who were offer- ed, or such other affidavits a-- he may think proper. NoTK. — I'ide Anonymous, ante 302. Anonj mous. Certiorari. This cause stood on the iUk ket of causes for triiil, and was said hy tiie counsel Cor tlie Plaintiff in the cerfiorari, to have been obtained in open court ; and he insisted that whei-e a cw/iorari is so obtained, the cause may he set down for trial v\iihont any further ar&;ument. \ Per curiam — Writs of certiornri are granted either by a Judge out of court, or u|k>u affidavit anil rule to shew cause ill court, and souietimes, though irnegulai-ly, up- on affidavit only in court. In the first instance the cause should be set down on the argument docket, and does not stauil for trial until the court have expressly ordered a ne.Vi trial to be had ; and whilst on the argument dock- et, it may be opposed by contiti>r affidavits. Where granted upon affidavits and rule to show cause in court, it siHtids for trial without further argument. But when granted upon affiidavits only, without a rule to shew cause, it is in the same situation with a certiorari grant- ed by a judge out of court. The adverse party must have an opportunity to shew cause against if, and no new tri- al is ti' he had, till after he has had a day in court, and fails to appear, oi appears to it without efti-ct. Note. Vide Dairtey v. Davis, ante. 280. Jltanhn v, (hii/, 2 // I • n II- Sep. 17Q6. Perkins v. Bullint'ep. ' AVIiei'e a matter !■: prcipfvly detcrniinahlr at law and the law can givR compl'lc- ic(!rcs«, Kqnity tti!l no' interfere. F,xiriiti"n ii|)(>u a jmljrtpeiil afler ;. ye.r and a dty, and alter dcat'i of tlie Defendant, without an> snre/acioj is irregular ; and, if in llie County Court may be avoided by vrit of error, or if it was in the Suptrior Court by evidence in ejectment, if hjnd was sold under ii. ' Tln> hill Htrttrd that Perkins, in tlie year 17'84, piir- ciia.st'd a ti-act of land n!' "no Griff hfim. and had it tcj^u- larly ciinvfyed ti) him and jiaidllu- piu'cha^o money ; and sevpti fir <'it;ht years ■A'i(iWA'.i\'^, Bvllingcr ha\iiig dis- rnvoied tiiat (ini> Michael Delamj had a judeincnt asjain^t (308") ' Griffham, innrhavrd tiie Ki'ine of him : ilmt Griffhnm died, and thai BiilHnger, ]»'t\u- imme nl Jielmieij. willioat any set. fa, against, the ht'i?-s or t'XtTutor-., took ont a fi. fa. and U'vii-d it on Vn^ iMods port hascd hy PerUins, and cau-scd tlicm to be sold, and pnrrliased Micut t>! ili.- Sin'rilT liimself, and h;id thrm ronvcycd (o him. And hs to tfiis part of t!ic rasr. the hill pi-ay d that ttie conve^jnce might be set /.side, ami the deed deccci'd to he Kiveii iii) and canrelk'd. Ii lh<^ii stated tlie iiialcrialily of the les- timony of some witnesses, ai|d jn'ayed that that testimony might be perpettiatcd. Tliere was a deiatirier to thefifst part of this hill, for Hiat. t!ie inatlei'S theicin set Coith is [U'opeily deterininahle at law. Per curiam — Wiiere a mat tee is jd-ojK-ily deleeininablc at law, anti the law can .e;ive lonijili'ie relief, a Court of Etjiiity will not iiiterfeec. It is not staled in this bill when Delanei/s judgment was obtained — .suppose it to have been obtained helore the sale (o Pcrkinf, the execii- tino isstied after a yeai- and a day. and alter the death of Griffhnm, without any sci. fa. and theeeloie the execu- tion is ireegular and voidalile, and may he avoiilefl if the judgment was in the Comity Coiiit i)y vsiit <)f c-ior, or if ill the Superior Court by t«kiiig advantage tlnienf in an ejectment, eitliee as PlaititiflTor by way of defence. — If Z>e/«He!/'s.jiiilgmcot whs afiee tiie sale to Perkins, then tlie land Coidd not he affected by. any exetutirin issucti upon it. and Ilic SIn'filf's sale is void. Indi-cd it has been decided, liial aji fa. affects lands in tiiis coniitry but f 1-0 m the lesle, and not IVcnn the Jinigtnent, and that the jadgmeiit only prevents a sale by the ownef. \c- cortiiug to that 'lecision it may be doubtl'iil 'Aheijiei if this judgment of JteUmeifs Um\ been regularly revived by 423 havwood's kkpouts, Sep 1796. gg^ I'll ^ a.c;<')in»^ tbr Iieii'H unci tcirptmrtnts, wlipUicr tlie ^'^~''"^*' laiidH ill till- liairds uf Perkins were liable tn be iflfcrted, as \\\f Ji, fa. would then issue in roiiseqiietire re is no ohjertion made thereto, let the Piaintiflf liave loininissions to take depo- sitions. Note. — Upon the first point see Glasgow v. Flowers, and the refer- ences in the note, miie 233 lit Hester's Mm'ts- v. Burtov, it uaslieltl that an execution wiidi isMiefl upon a jiiHgrncni utif a v^ir and a (l^y was irr.t;i'lar, and il wis set ;isie of Ox/ey v Mizle & others, says that the regularity of an execut on c;innot be questioned in tH\ ac/tion of eject- ment against a purchaser under a Sherifl 's sale. 3 .\lurph 250. This case, tind also Weaver v. Cryer and Mnore, 1 Dcj. Rep- 337, hold that an execution issuing- upon a judgment which s more than a year and a day old, is en-oneous. It si < n.s thai tlie position in ih:' principal ca.se with regard to the irn gularily of the execution is correct, but not so with respect to the mode of taking :iclvaiitair-e of the error, nor indeed whether il can be tatien advantage of al all against a purchaser under such iiregtilar execulinn. (369) Welch V. Wutkins and Pickett. A note was given by the I'lainiiff o f^aiily iiiiscalcuiations, and staled sev- eral sums ol' ujonev Willi vvliicli lie ouij;|it to liave been credited — all wliicli errors wlieii lectifii'd. chan,y;ed the balance of accouciis in Ills fa>or. Tlie bill fnrtlier stated lliaf upon the last settlement, tlierc was a balance struck of iG47 in lavor of Sfucr, ami a willing was drawn, pur- pi)riing that a selliement was made, and tliaf tiic bal- ance a()|)eared to be £4T aii'nt of riie said wri- ting to him. 'riiai afierwards. Spier assigned the said wriiing lo Moiitgomenj. who sued .Uartin for the money mentioned in the note, and recovered a judgment, &c. — The answer deiiird all |i,irts of the bill, except tticeriors ill cliargii.g the sums of several articles higher than was staled in ihe accooni Uipl before the last settlement ; as to wlijch no answer was given. Judge Williams — I am of opiuion the Injunction should be dissolved as to all except the errors unanswer- ed ; and that Ihe a<'coiint should be referred to the Mas- ter, who .should report lo next court. Judge Haywood — 1 am for dissolving in toto, not lie- cause 1 think the answer has denied all purts of the bill, hut bei^Hiise the bill iisill' shews no sutticit-nl cause for coming into this court. Alter a verdict at law, a man may apjily for rdiel; but ilun the case wlnre it is pro- per for him to do so must be an uncommon one, and must be specially stated so as to shew the cause tliere is for Ihe interference of this court ; but the rule as to cases ill general under whidithis cmiies, biingnot disiinguish- cd bv any jiec uliarity of (ircumstaiKe-., is that where the complainant has complete relief at law, Eijniiy will not (■''^O take any I ogi'izaiice of his cause. This is the case of tin- eomiilai.iaiit. Il, as he slates il,th. wriiing assigned to Mmlgitmerij w.vs not a m'g'itiHble one. then ii was liable ill the hands of Jiloidgomery, nutwilhslaiidiiis the HAYWOOD'S REPORTS. 426 assignment, to evpi-y dcfencf and objection that it was in Sep. 1795. the liands of *;;»cr ; and at law he niiglit have set up -^'^•"^^ these defences, and have lessened thiMlamages by proving the errors and mistakes stated in liie bill ; or il' the writ- ing was negotiable, and passed into the bands of Mont- gomery with notice of ihf defence Martin iutendcl to make against it, tln-n iiotwitlistanding iis neg^itiability, he might at law have defended himself, hy proving the notice Montgomery had of the defence intended, pre- vious to his taking an assignment of the note ; or if the writing was a negotiable one, and |)assed to Montgomery witjiout notice oi' the defence intended to be sei up, then it was free Irom any such defcnc<' both in Law and E- quiiy, and the bill ought not to be eniertnined. It is true a Court of Equity has a jurisdiction in cases of account, concurrent witli the Courts of Cotnmon Law,everi where at law the party complainant may bavecoinplele redress; yet the complainant musi apply to the one or tlie other of these Courts, and be conient with the sentence they pass. He is not at liberty, first to sue or defend in a Court of Law, and alter trying his late there, apply to a Court of Equity. If he could not ha\e completely de- fenilrd himself without the aid of a Court of Equity, as if lie wanted a discovery, be should have filed a bill for a discovery before the verdict had passed against him, and not bavf waited till after the trial, and then dilayed the Plaintiff at law by an application to this court for an injunction. Were this allowable, fvery D'^temlant would dela^ the Plaintiff at law, and lend off his c^iuse as long as possible, and afterwards have the benefit of his de- fence by getting an iiijonction, and still Imiger delaying the Plaintiff. I am not for going one step further in granting injunctions against verdicts at law, than arc prescribed by the rules of a Court of Equity as laid down in the books. Injunctions are a source of great delay to the Plaintiffs, and of great expence to Defendants, who are generally charged with thr heavy expi-nce- of a suit in Equity, for no other purpose than that of obtaining a short lespiie for a few inonihs from execution. I am fur dissolving in toto, but as the court are divided, I uui wil- ling, ratlii-r than no dissolution should take pU(-e, tu dis- solve except as to the errors in overchaiging the articles mentioned in the bill. 427 UAY wood's RBFOUIS. Sep. 1796. ji ^ftg (lissoivetl accordingly, except as to those arti- '^'^'"'*^ cics. iuiil the account referred to the Master to rcjuirt up- (Srs) on :•.! ni'Xt term. N<)T^■..—yide Black v. Bird, ante 27^, Welch v. Walkins & Picktl ante 369, and the references in ilie note to each case. Avery t. Bruncc. Per curiam — The rule is where an injunction hath been obtained, and dissolved (ni hearing the ansv\erof the De- fendant, and the Flaintiff retains the bill, if he takes no steps towards preparing bis cause for hearing, in two terms after, the bill shall be dismissed for want of pro- secnuon. In the present case, two terms ba\e interve- ned r>inci' the berominij an alien to the govern- , ^ ,. ineni, as was the ra>e Willi many npoM llie ai'cptii.n of a (.^' '*-' new torni. If this inteipieia'iori be rni-'prt, it will lead us to ai'Uthri question, wlieilier Miicklehenny be dead wiiiKMit heirs, or became an alien upoi' tin- delaration of indipendencc. Theie is no [inHtixe e> idence with re- spect to the first ol these points, hut 'he presum))ti\e evi- dence is sti'oiig enouch to wari'ant the jury in drawing such a conclusion. Where a man is absent a lone time front tJie couniry, after goin.a; from it with ;in inti-titinn of I'eturning, as if l:e gc) to sea and is not l>earil of in the course of six or se^en years' — it is usual in such ca«es to take jirobale of his will, giant letters of aduiini-^'ration upon bis estaie, &c. He may he dead, and yei in such cases it may be uiterly iin|)ossib!i' to addure any diicct proof of his death, as snjipose the whole crew to he sliip- ^wreckcd and dro\vued in the ocean. In the pi'esent case, the owner has been absent upwards ol' thirty }eais, and no p<-rs()ii claiming to he heir has appeared in all that, time — ibis also is presiimpli\e evidence sufficiently strong u|)on which to infer Ihe fact that llni'e arc no heirs. It is proper here to I'eniiirk, that he w as absent nine years or theieahout, from tliis country, before the coinmence- inent of ihe war; and if a space of six or se\en years uill laise these presumptions, then prior to the year 1776, when the declai'iUioii of independence took place, he was dead wiliiont heirs, and the land had o«cbeaied to Loid Granville, all who«e |iroprietory rights came to this State by the State Constitution. In this view of the case it is apparent, that the State was entitled to ih( land in question immediately upon the formation of the State Constitution, not as vacant lands, but as lands once ap- propriated, and of coufMe never since subject to the laws and regulations respecting unappropriated land ; and though Ihf State may liave granteit these laii(l-< in the year 1780, to the Defendants, yet that was a grant in whith the State was deceived ; or more |iro|)eily speak- ing, H grant issued by the officers of government, wbirh they were not em|ioweie<) by any 1 w to issue. The offi- cers are but the servants of the public, appointed for spe- cial ends, wliose acts are only binding when within the limits presrrilted to them by law — ibc grant is therefore void. It will be lontfhd.il that the Defendant has been Id possession ever since the year 1780, a space of more 484 Haywood's beports. Sep. 179S. than seven years, and (his must be admitted— bnt *"^"^''^-' dots it not Tollow from flieiice that the jvs pnssessionis whirli the Stale liad, was baiTi-d ? JVullum tcmpus occnr- ritpopvlo, liasl)rrn a good meiieral iiilr, without cxroiition (375) till the art ol" 1791. c. 15. From 1780 tlie.., to tin- time of grant to the University in 1789. this art hnd nr>t run ; and since 1789, when the titli- of ihr University accrued, until tlie coniiii<-ncen)ent I'f this action, seven yeais have not elapsed. So tliat there is iro bar, and as the State grant of 1780, is void, there is nothing to iiinder the Plaintiff's recovery. It was argued, e contra, that the Slate grant of 1780, was good, and h^d been so decided in a great nninher of cases, though gi anted foi lands not strictly v-^cant with- in the ineiining r.f the entry laws ; for the Stale hanni; once granted, shall not he [icriiiitted iir ejectment to say, Mor shall any one claiming under the State be permitted to say, tlie grant issued erioneonsly, or fraudulently or surreptitiously, and is therefore void. Judge Haywood (Whliams absent) — I am of opin- ■ ion lor the University as to all the points agitated at the bar, and for the reasons stated in the arijiimenf of the Plaintiff's counsel. As to the grant ol 1780, there have been many decisions that such grants shall be good until avoided ill a Cnmt of Equity. I atp of opinion for my own part, that the grant is ahsoliilely void ab initio, and thai its invalidity may be sho\Mi upon atrial in eject- ment. If was issued bv the ()flicer>; of the State, with- out any authority for so doing ; and is no more binding upon tiie State tlian if issued h^ any other person i>r per- sons no' calieil Governor and Secretary — but let this poi'il undergo further considri'ation and a decision that may settle tlie law— I will not oppose ^y opinion to that of adjudged cases. The Jury found for the University, subject to the opin- ion of till- court upon the question, whether the grant of 1780, under the ( ircumstances above stated, was a valid dee(| or not. NoTF. — Upiin thf- In; 1 of iliis muse, it was ol()int of of the island. The last litn' ran a certain course to the beginning. If the last line but one terminated where it 434 IIAYWOOU'S REPORTS. Sep. 1796. intersects the bank ot the island, the course from thence ^■^"^'"^^ to the begiimina; was e,xa('tly ihc roiirse of the last line as de!sci'ib>'n in these |K»!-licnliii--i — M is not at the lianli nf the island, nor at any hickocy, nor oD the piMnt of Ihe island ; neither will the last line drawn from Ihfnce he in the conrse nicntinned in the patent. — If we go 111 tlie end (vf the inai-kcd line, we enter npnn ap- I»rnprialed land, and a line 'drawn from riicnce to the be- giiMiing will include many acres of ihi-i appropriated land : hut if vacant hunl adjoin land a|)!H'o])riatiMl, and the patentee hy misiake inclnde part id" the appropriated land, he shall hold all the land u ithin his hoiindaries that was not pre\ionslv apj)ropriaied. Moieo\ep, iliat point acjrees N\iih ih" descri])tinn of the patent in more pi'iticu- lars than any oi the other points will — the distance of the line leadint^ to that point exceeds the leni;;tii mentioned in Ihe jtateat hnt A little ; a line drawu from thence to the heqinning will touch the pi tee where t'je Itickory stood ; that place »ili he on the l)ank of the island, and also at llio point of the isl.ind. 'I'liconly circtiujstanre in whicli it ili;a^rees with the patent is. th.tt a line cotilinneil frotn thence to the hcginning', i\ill not he in tiie conrse called for. By llirowing a\Nay the appropriated land in the is- land, ("ontaiiied within the an^le formed hy the intersec- tion of the two last lines, or hy drawins; a liin' along M»o (dgeofthe island from its point of int rsection hv the last line hut one, to the point of tlie island w here liie hi( k- ory stood, we avoid what prohahly the surveyor intend- ed to avoid, an interference wiihthi' Mppro|Mi.ited lanil, and allow to the patentie all, ami no more 'han he was intended to have. Should we run from tin- b'gionin^r of the last line hut one, directly to the hickory at the point id" the island, we leave the marked line, proven to be marked as a honndary, and loa\e out a p.r; of the land intended for (he patentee. The coni-t therefore is of opi- nion, that the mm ked line slimild he pursued till it strikes the island, and thai from thence lo the hickory, along tlie edge of the island, -ihoiild be deemed another honudarv. (378) '136 Haywood's uepouts. Sep. 1796, an(] tiie last line be drawn (Voin tln'iirc to (lie bc};iiining. '''*^^''^'*^ Tlie jiirv fiiiiiul acroMlinsly for the FlMiiitifT. Note. — Thai the mnvked line reallv ma'le as the boundary, is I" be folluwei' rather ihaii Ihf coursi- mentu'iied in llic patt;nt, where Ihev happen to disiigri >•, is :i ut- e>tablish'd l>)' several cases lurmcil upon ^he C'is •,{ Person \ Rouniitree \ which is a leadin)^ case, and was thus ^^Jimindlree n t rod i 'i^ic' •' ht-.iA, l.vrnpf ir. XJranville C lunty, on Shoccci cr. ck, and ran th'- said ir •« nut in following mani^er : lie- ginning ai a u-e i>n ihebmk of Shocc creek, running south ])oU s,in a curni r, ihence i a^i polfi, to i corner, tlien'^e north polfs, tn . corner on (hi- creek, thenci up the creek to thi- bepinning. ijy a iinHhifcc, t-ilh' r mi th' Sunevor or in the Secretary who fillediip tile grant, lu courses were reversed: Beginning at the cre« k at a tree, running norih pules, to a corner, thonce easl, &c, placing the Ui.ds on ihe opposite siile of Ih. creek from that on which it was reallv urveyed, ^othat liiegr.irf/ree seitled on the l.tnd ■airvry-d, which was ifterwards entered by Person, who obiMinid :< deed from Earl Granville, and brought an cjcc'inent against iJoM»(//rce f r Ihc prniises. On the trial Jtctund- tree |■ oi iln- siirvrj', ami his having been in po^sc-sion for soiiii. trnu, clainrting Ihe same under his grant. This c.ise, after beinj;' ■ m ral litn's argui-tl by the counsel on both sides, was at lenglli finally ditvrmiiied by lUe unanimous 0|>ini'>ii of ihc court, whodecided that I lie mistake nf tiie Surveyor or Secretary who filled up the grant, shouM n.i pr< judicithi- Defendant ; and titai the Defendant was well entitled to tilt laiid^ inunded to be granted a. id which had been sur- veyen. \nd llnre was judgment fir the Defendant. Note — Vitle Bradford \. Hill, and Ihe note th< reto, ante 22. Brown, Messrs. CiiiiipbclJ & Co. v. the Admin.stfatois of Craig and Clearj. When a person receives evidences of debt from his debtor for the purpose of collecting the money, ani)ii tin* li-ial, ilie I'lainlitls jwovcd (lii-ir . Case sufficient ly. On llic purt of ilie Drfriiilaiits i' was v" yj proven, tliat tlie) dflucicd !•. Brown some bonds and ar- COiMits title to them, the Delimliinis, frmn jieisons rcsi- dciii ill Soiith-Carnliiiii, where Brown lixcil ; rinil he gave (hem ,1 Writing, piirpuriiiii; thii: t-ifse delits v\lirn rollect- <>d, siioiiid be pa.ssed to tiicir credit, boine of ilie ac- (ouiits were returned, but oni« account ami Home I'Ttlir Haywood's heports. 437 boiitis bad been suod u|inii in S'liitli-Cmolina, and jiidi^- 5ep. 1796. merits obtained, and nulla bona lotui-pied to tin' exocii- ^■^^'^^^-' tioiis. Oitf cif lliein \vm\ been sued u|)()ii, atid t'lC record ])r(ivc(l ii i ihem -liaii hi' received, tlic cre- ditoi- is bound to use all ibe same diliajence to procure payment, and in i^ivinu; notice to his debtoi- Of 'nn-pay- inent, as if the papers received were arniallj nej^otiable ill their nature, and endorsed. This is prove! by ilie case of Chamberlyn v. Velarive, cited at tlie bar from 2d Wils. 353. And as. it his lieen (iptermified in our- courts, tbat a year shall be the longest time alloued for the giv- ing of this notice, in a case decided at Mortjanton, tliere is great reason why a person who I'eceives instriinient-, not negotiable, should be hound to give notLce in leason- able time, and I'efurn the papers ; since until the notice given, and the papers returned, the person who nas^ed them has it not in his power to institute suits for the re- covery of the monies due upon them; and foe want of such notice and return of papers, lie may lose bis debt entirely. Judge Haywood^ — I do not like to give my opinion in this cause, having been concerned in it whilst attlie bar; but I cannot agree with Judge Williams resj)ecting Ibe law of this case. The rules respecting negotiable instru- ments, are the creatures of commerce. They depend en- tirely on the custom of merchants, which has applied them for the conxenience of commerce to certain commer- cial instruments only. None but such instruments as are the subject of this custom are liable to these rules. With respect to bills of exchange oi' the like, the lioldei of the ^ paper must give notice in reasonable time of non-pay- i-^°^J ment to the indorser ; oi- he must prove on the tiial, tbat the indorse!" or drawer bad suffered no loss for want td 438 HAYWOon's reports. Sep. iroe notirc ; btcausc when a man takes a iicffotiablc paper *'"^"^''^^-' by inclorscinpnt. tin' custom raises a fonirait mi iii'» part, to i;i\e leasoiiablc notice of imii-paymeiil ; but if the pa- ppi' be takes is not tiet^otinble, tbe custonr) beiii,^ noi iitade to {govern surli trnnsartiotis. raises no eonti'aci at all conrrrnins it. and tbere it is rt-ffulated by the priiiriples of romnion jtistife onlv. Tht- piipers may be returned to the piii^ser of them al any time. The ri'rei%irit!; of them by the r icditor, is not any ilischiirge of the. debtor. -So/A-. 286. But if he has been so iieglisent after receiv- iiitr tin pjipers, as that lheiel)y a loss hits happened, wliich by usiiiff common and m-ilinary dilie;ence he might have prevented, and wliich iiitisi fall either ujion himself or the ])asser of the paper, llien the passer of the paper by pioxin.a; that riirnmstance, shall throw the loss upon the rereivei- of thi-m — ;juslire requiring that he by whose negligence the loss has ha; lake them in pay- ment. {Vide Sttlk. \5l. 6 Mr 81.) Tin- jury found for the Plainiitfs, anil Assessed damages to nine hundred pounds; »\a\ Henderson, Ihv \hv Defendants, moved for a new trial, on account of the misdii'ection of Judge Haywood, and had a rule to shew cause. Au4i u|ion the argument for the new (rial he cited 1 Term Rep. 40.'i. ri4. 4 Term Hep. 713, where it is laid down that in case of bills of exi'hange the payee must give notice of non-acceptance to the drawei' in reasona- ble time, or must proxe that no loss could happen to the drawer for want ol notice, by proving there wei'e no ef- fects of his in the hands of the di-aw'ee These aulhoi-i- ties wire cited to overiuiii that part of the cliarge to the jury, which slated, that the Defendants weie bound to take hack the papers, unless he could prove a loss lohavu liap|ieiie(i by the negligence of /irou'M, Hie lioldei'; and were jni< tided toestablisli the reverse of ihat iiropo-ition, name- ly, 'liat Drown must keep the papers as |iayineiif, unless h© could prove the insolvency of the debtors at the lime of HAYWOOU'S REPORTS. 1*^9 tluir rccejilion, nc licfoie lie culd possibly recovrr of^'^';^'^ thmia;li the p iprrs in questioi) wiii' iiol ■ ndoi si-d hop w- {■'■^'■J jyotiabli', }Cl liiiviiiju; been rercived liy Brown lor 111" piir- jxisc ol' 1 ollrftiii.e; ilic uioriirs diii iipao ilii'ni. vvhjc!. MM'e wlien folli'clfd to be nj)|dird tn his own u^c, hihI CiiMJied to the Ufreiidaiits, th;ii they woe io all respects si.hj.ct lo the same rules of law as if they actually were hills nf (•X('b:iiia;e and iiegoiiable by endorsenient. Aitd >if this opinion was Jodjje Williams dearly ; and lie wjis for };rHMiiii£; a new trial. Jiidi^e Haywood conliMiu'd to bo still of his former opinioo, but decliiieil oiiposiny; the new tri:il, liaviiie; been foriiiei-ly conrerned as counsel fur the riiiintiflfa. A new tiiiil vvan ;;riinled ac(Hr<(iiiu;l\ ; and at the next term, in March, i797, Ihe l*laintift"'s wimess beiii,!! not in court when Ihe cause was called, he suftereij A nonsuit. N'oTii-. — Vide tli« next case '.tf .Hsfon v. Taylor. HILLSBOROUGH, OCrOHER TERM, 1790. Alston T. 'ravlor. NViLHAMs, Judjje, inclined to clumire llie opinidn expressed in t!ie preceding c:\-.e of Brown, Canipbcil. ii Vo. v. Jlilmr's of Crwg and Cleary, a d ti> hold th:it iinn. jj..ii:d)K- p;ipcr, th.n!j;M <;ndnrs, d, does not bind lo tile same (lilitjence ;i.s ne;;()(i.ii>li:' instniments. Honds made'in Viij,'ini!. and assiifniihle hy llie hnvs <>(' tint Stale, but nut assiifiKhle by our laws, must be sii'ijccl to our laws when tlie con- tract uf assignment is made in this Slai". V d.positi. n expu'Ssid to leave been taken at iIip lions' nf Ulaiininq:. '-t Halifax (Va.) cmirt- hiinse, when ihe notice was to take il at llulilax onit hou-.-, was iej>-cted, althiiUKb il was piove.l iliat iljanning'i lionsi.' stood un'y about eight> yards from llie ci^urtliDiise. Tii. nccipt of an Att'ir- iiey now deceased, is admissible ti> piovethe time when bon ]~> were put into bis hands for collection. A record ' f a couit, ceitiR. d pro- perly, 1 xi-ept a nantol the seal of the court, is not admissible, iir.- less il be certified lliat tUe court bad no seal. The declaration stated a count fur money had and re- ceived to the use of t.iie I'hiinliff; another for money laid out and expended for the ii.se nf the Oefeodant ; another for j^iiods. Wares and iMerchaiidize sold and delivered ; and .(iiothcr 9pe( iai count ;is follows, to wit: And where- as alsii. the s.iid Edmund (Tfyltr) wa^ indebinl to ono John [Tnidentiw. in tin- sniii of sivieen liiindred and (ifty 440 ^^" HWWOOU S KEPDUTS. ^^1.;^^,^^ poiinils, file said Kdmund. tin- day and year ai'uresaid, in till- roiiiily Hiid disitji t Hf'rcs.iid. did imdrrtaki- ;iiid pro- inisi' 'hc/T^nid Lemuel C^lstouJ tli;.t if ilio suiil Lemuel \v(»iil;i> and Siilisfy tin- said Jalui, tlic sum ol' mmiey last iil'oresaiil, so tli;it 'ic ilic v;ii(l Kdmtnul slioiild l>c. ex- onerated and discliara:?'' I'l'-md tri>iii (hr same dt ht-;. by liirn so owinir to the said Juhri, ilr.it he ilic s:iiiisi-. ('(npowej" »nd anihorisi' liiin liie said Lemuel, to ask, flemand rfnil sue f'>r at l;iw, in the nami'^of him lh<' sail! Edmund. oiu- John. Lewis, jiin. at the cos's of iiim Edmund ; atid the money when olitaiiu'd hy him Lemuel, to he appii.-*! towaids the re|(ayineni and HatisfaitioM of him Lemuel — and the said Lemuel avers, that hf tiatii paid the snid Henderson the stun (dsixlet'ii hundn-d |)ouoils, loi- '.md < months or less, rroiii Ihe d,»!e oCthc as.sijjinn:'n;. lie applied '" Lew- is, and pi'ouiiieil some neijri>es in pai t discharge of the dehts ; and that on ilie 8tli of Jamiaiv. 1784, he put the boiid-i into ilie hands of i i Attorney in V'ii j^inia. t>. bring stiits upon ; whieJi wei'e hionjjiit arcnrdiuijly the 27fh of April. 1785. 'I'hiit on the 10th of Dr. enihc r, 1784. he receiti'd seventeen thousand wei^hf of iobaeco ,is n fiii'-. ther paunenf. and that in Api-'l, 179) (the Dflendaiit in the mean time having died) the suits were eaJied and dismissed. That on fla-' I9th of Julv. 1790, he cuisctl writs to he issued as^ain.st Ihc excmtors ; and ai July term, 1791, in Caswell County Court, he obtained judg- ment. Tlmt previous to 'hi-, tiie exepiilors lvntutli-Car"!ifia, and foiind ag-aitis! hiin : and tliat (S83) on the 13ih of Oetober, ]7d2, he gave uoiice of tliese pro- ceediti;;s to Ta]djr, and that he. intended (o resort to him. On (he part t)f the Defendant it was proven, that wlieii the ronii-act was made, it was insisted on by Alslon, tliat the bom's shouM he assi_!^!ied by Tiiijlor, to the end (hat if lie failed to }:;et t!ic nioacy o^ Lewis, he mi.ijht then re- son to Tai/lor ; aoil that Ttn/Zor upon this niatic ihe as- si.i^iinieni. sayin_s; the riicuinstauces of Lewis are i:;ood, and if he does not jiay you, conse to me, and ] will j^o w'UU yon and see you paid. That not long afieru arils, within two moiijUjn, .iilston bought some negroes (Voni Lnvis. and said'Hc eould have had more, hut the price v\',;- rathei' too high— he thought it most proper to wait till some futiiro time, when he niiglit have it in his pow- er to nr.ike a better bargai.i ; and said lo Taylor, you are rlear, he has property enough. Et was further pro- ven, "hat the bonds inidorsed were made in Virginia, and there pajahlo. lyhyte foe the Uefendanl — This is a new case. I have neve; in the course of m^ |ira(;tice or reading ni.-t with one so I in nmstanred in ill respects. The bonds in ques- !iun were given in Vifginia, where they were assignable U2 IIAVWOOI) S KEl'Oins. Oct. 179G [,y t|,p ac, „f 22(1 Peo. //. c. 35, s. 7, passed in the jeai- '^^~'''''*~' 1748. The (lifliciilty arisi's rioiii tin- as«i,;;-iiimMit Imviiif^ taki'ii plact' ill ilii-^ Sutli- — li:iIii-ii by lawfrDin llie assi^iiineiit of all iic- gotirtblo {M|ii-rs, naiuply, llial I lie assii^iiec sUoiilii a|i|iiy in a r('ii«.iniab!e tiim- fn- payment, and if be roultl not pro- cure payini-nt, lliat lie slioiild in a reasonable time {;ive notice thereof to the iiidofser. and also tliat he intended 'lo resort In liiui. These parlies intended tn vest an in- terest in the assi<;nei- by tlie intlorseinent. It was required forth'" very purpose of enahlin,t; the assitjnee to coiniueitce suiis in his own name, and to make tlie iiidorser liable upon the event of ihc ind(n-see not beinsj able to procure pavineiit of ihc ohii.ijor. This evidently was the ex- pressed intent of the partie-i, and I can see im rule of law to hinder that inteiii fioin takinj; eflfect. These bomls were in their original crealion ne.i^otirtble. and it cannot be iiisisied they lost this (jiiality by beinji; hrou,i;ht into tlii^ State. A ciinii'art of any kind made in one country, is in all other loimtries to be considered in the same lislit, and to have all the same qualities it liaid b> your undertaking to pay ^he assignee, as implied b\ law from the i>hli.;:ation you fia\ centered into. Shall he iioi be coinpilled lopay the assignee when he has engaged to do it, without which (384) I uaywood's reports. 443 engagement pel ha|is. ovidi-iiccd b> siicli iin instrument, 0<='-l''9fi- the o'lligee wniild nil Iihm- rontiMct d «'h!i liiiri ai all ? ^■^'"^'"^^ When \\r see a iiei^miable insiiufmnt in.xh', it is surely some iM idenci' that the credi'dr was iiiUMidcd to have givater pii* ileii;es with rcspfci to the ii-aiisfei" of tji.' debt, than It' it was ait instrument noi p issessing a transleea- ble qii.iliiy by law. Is ilierc any r-eason iiia< the laws of !his S'ate should give fewer |M-niiegis ii|>on tiies;- fo- reign conuacts, than th^- laws of the rountry wheie ihcy were mad.'? Siiail e Si'.j ihatourown citizen wht> iia8 taki-n ail a^sigii iient. shill nOi ■> le in his own iinoie. sliall not be the proprietor in all resjucts by virtue of ih'' as- sigoinenr, when b}' goin< into the ronntiy wluM-e the coii- traei was made, he will be entitled to that advaoiitge, and will be so considered ? Oiii- courts are open for the inforcing of all legal conTricts wherever m;ide, accord- ing to their true meaning and ioieitt ; b;if accoriling to the position [ urn now Ciniroverting. a man by rennuing liimself from Vii-^ioia into liijs Ste.ie, def.-ats that assig- nee wlio has taken his assignment iierc, of iiis reinee taken in Virginia, foe itipre is as uinch |iropiMi t'y Vi say- ing an assignmeni in Virjiiinia shall iio' ve t the pioper- ty, as that ..n assi;:;innen- h''re shall nut do it. It is true bonds made here bifore the act of ^7S6, were no' assign- able, becanse tiie assignn»eni of c/toses in action tend to encour-ige liiigaiion. Wh' n tiierefn-e a mao entered in- to sucli an obligaiion, it was no part of the contrict, but ind> ed llie reverse, that he slnmld be li ible to be sued by r,„,x an assignee. S'leli a i)ond therefore cannot be assi'.;o. d ^ J in any part of .he world ; but the exact opposite nf ^his is the cise with all hmids m.ule in Viiginia, since the year 1748: and I incsume. th>' laws of no C4inritry will say, that the coiilrart of the obli.^or shall be divested in his f.ivnr of an\ of its original siijiulaiions, '\|iich were for the benefit of the .bligee : om- ot which is with res- pect to Virginia bonds, that he will be liable to to a.s-ig- nee. As well niig it \\<- say. that a promis-oi.v note op inland bill of ex. han;j;i' di ;m ii in Eni^laiid, and assij^ned liere to one nf one ciiizi ns. shill not lie recnerahb- liere against the drawer oi makrr, as dieie is no l;iw her- to render them negotialih — tiid as we;l mn^nt liie English courts sav, you .sh.ill not recover ii.f.ne us bcc.u-.r he contract of assignaieiit was made in a country where these 56 444 haywood's reports. Oci. 1796 notes arc not nt>j:oti;iliIr. Were it tlic general law, the '■^^^'''^^ riiruliiiiii;^ p.ipt'r of cacli coiiiiti'y wotilil iniiiu'iliiiti.'ly be confined \t itliin lhi> limits of its own territory. We could take notliint; bo' luoney tVoin tlii-in — we could make no use of the |iapei- tliev circnlali-. nor titey of that w.' cir- culate. The couitiierrial credit of all would sustain a contraction, and become palsied. To avoid these mis- chiefs, it is a piiiiciple of tin- common law lon,^ ag« es- tablished, that every assignment follows tlie nature of the contract assigned : that is to say, if the original contract is miide uni-estiictively assignable, the assignment itself will convcv to the holder aniiiircstiirted power of assign- ing the instrument, and the same itiferest, pi'iperty and pouer that the fiist iioldcr had. 2 Burr. 1225. I think therefore, it may well be assumed, that these bonds were originally negotiable ; they continued to be so when bro't into this StiUe ; and that the assignment of them here, vested the whole interest in the assignee, and rendered the endorser a surety for th<- payment iipr)n the observ- ance of those terms ami conditions on tlie part of the as- signee, which are implied ipso facto in the case of nego- tiahle instruments from the assignment itself. Upon this foundation I shall proceed to inquire, whether there are not su( h circumstances in this case, as will discharge the endorser from tliis action. Wherever a note, and by pa- rity iif reason a bond, is assigned, its resemblance to a bill of exciiange commences, and not before ; and from that nminent it lakes upon its> If all tlie properties of a bill of exchange. Tlie assignor of tlic note or bond, is the drawer ; the assignee, the payee ; and the ol)li.§"or, the acceptor. Kidd on Bills, 34, 35. The engaginient otthe ('386) endorser' and endorsee are then exactly similar to the en- gagements of the drawer and payee of a hill of exchange. The engagement of tiie drawer iti the one case, and of the endorser in the other, is only conditioiial ; namely, that if the paper be presenie- means to resort. Kidd 118. 119. It niti.st not lie simplj, fliat pajini-ii! has Jiei'h refii!. ^^- fi. 169. \ Salk. \27. These authorities all show, that the endorsee of h note, must i^ive notice in reasonable time to the endorser doubt but that Lewis was during all the intervening time in ve- ry solvent circumstances. He is now dead — his estate divided among his legatees, and his executors retnoved to South Carolina. After the hpse of sa many years, dur- ing which this alteiatitni of circumstatices to the piejti- dire of the creditor has happened, is it reasonable, that Taylor, the endorser, should now be compelled tji submit to all the unfavorable circumstances that lie might so ea- sily have avoi:tviii>'ni. togivp notirp in I'l-M^oiiable'iniis In ilip end tliiil thp pikI'ii-spi mi.ehi |>i ocmp iiiiymmt niinsplf. Ppr- haps hp niifflit liavp |iriiriii-''d paynipnt iipon iMsier te'ins tbiiii ii lnwsiiii xviiiild ipquin. Hi' is noi 'hfiifoip to bo arcdiiiititbip fill ibc inro: vpiiipnci-s rpsiiltiiija: from the de- lay o(( n^^idiMil by tlip piospcuJiori of a suit. Thp FUiii- tiffsnlrly. who was tlip cause of thp dpJay, must abide its coiis.qiipiicps. / U|>'iii iliis part of thp casp, tbpipfip, I trust, it is not rash to roiirliidp, tbot the I^hiiiiiiff must fail — iip has gi\. II no such iiolirp of noii-paMUciit. as tlip law. and the natiiip of hi-i coiitrjict. icijiiii-cd ; ^ind by bis failure in that paiiiciiljii'. hiis made tlip bonds ills own. and dis- cli;u-.u;i'd tlip iiulorsrr from lii> warranto. Hp has not only r;illpd io__e;ivp notice, liui sonn »(tpr the assia^nnipnt, ha\iii.i; stcti Lewis and converspd with bim, and inquired into his cii tiiinsiancps. and ipccivpd a partial pajmriitof tin- lioinis, ho inlornied Tiiylm; iIm- indorspr. tliai Iip con- sidered him as clear I'i'ni bis stiiptysbip rir warranty of the bond ; tlicrchy piiitiHi; him iiiio a^sta'e of si'ciirity and iiialtpotion lo ibc busiiipss for thp I'litiirp. InstPad of thin, had lie tlirii ii.lulined the indoispr, tli:if be could proi lire pa> imnt but for part. and Inoked in him for 'he bal- ance, ilipie is no doiibi but tlip indni'si-r would have taken mea~nii's to procuip pavmpnt,aiid all the ini (iii>pnipiicfs & diflic'lties wbii li hm <• simp arisen, would liaxe bfPii |ipe- ventrd. How bard and unjiis' ilipn wnuld it be, after so mini; neiclijifencp, and such a declaratinn on ibe pait of Mshm, now to make tin- indorspr liable? But indepen- dent of the Want of notice, and ibis dpclaration by the in- dnisip, ilipre is annilipi circtiiiistaiicp in this ca'-p which will indniiitabl> tiisciiaij^e llic indorser — tin- indorspp re- ceivptl part of 'hi money from Lercw, fivcnr sixnegioes, within two ni'iiitb- aliir the a'^sij^niin'iit. and sevpntpcn \J^°°) (l.iiiisacd weiuh' iftnbacio. on the tenth of December, 1784; and llie rub is, that if the indnrspe gives credit to tin- maker I'f 'be note, be theieby discbaif^es tliP in- dorspr; and the receipt of miy pail is a f:i* in.e; of credit to 'h' in..ker or oMiyoi, iiiiIp-s he i^ivp m^iice Im ihe bal-' aiic. fits iioii p: yiiieiii, 1 Show. 102. 1 L. iliiii 744. 2 .S77V/ 745. 1 b'Hs. 48, Kidd on liiUs 65. Bull' JVTfsi. Pri. 271. In the piesi nl > a-. In- indoi sc lectlvpO part, aud delayed receiving the residue with the pi-uspect of HAYWOOD'S KEPORTS. 447 getting an advantatijcous b.ngniii of Letvis afterwards ;Oc''i'56. and so fai" "-.is lie IVnin intinr.itinc; to Taylor iiiiy ink'ii- tiim l. tKai lie i-xpiessly i]isr|iiii(;rs itiiM, n|i(in this pi-int :ilsii lie niiis' fail. The PiiUiiiitt Ir \v• i\ draw our ctniclMsi'itis from that onl>. What llies coiiSi qiieiK cs aie, 1 iiavp alieady con- iiidered, and they ha\e turned ont in favor of the indorsee. 443 *^^ HAYWOOD'S REPORTS. ,^^^,_' It is plain (lie Plaintiflrramint i-ccovcr on any of (lie gfiicPiil ((Hints — 'lit'io is ev i.'Irncc (if ni'itiey paid to the ii.«e <:f Taylor, but tlirri- is al'-o rvidcnrc \^liir!i slicws in llic cyi'dts wliirit liiive taken plarc. that tlieso bonds were rec(-ivod in payniftit for the money. They are in law made to be the bonds oltiie lioldpr Iiy tlie fii-ciiinst:iiire.s tiiat have liappeiird. Tbev are absfijnfc discharges of tiic indorser. Wlien an indorsed papf! is kept --iii iitircasnnablc time in tlie hands of tin- iiuiorsec, tin' lA'.\ deems il a pay- ment of a picrediiig debt by him wh" made the indorse- ment. He raiinot recoveron ilir s|ircial ronnt. adr.iitling tlie parol evidence may be received, for tliatmust be pro- ven precisely as laid. The ixidence is, tliai these bonds were assigned for the purpose of enabling the assignee to sutr in his own name, and to recover the money to bis own use. This is the evid^re both by the parol and written testimony. Tlie derTliration is, that he was to sue in the name lA' Edimind, and the money to be recov- ered (o the use of Edmund, and to go as a satisi'ac tion of his debt to Mston. The variance is palpabh- and mate- rial. The eiidence cannot be taken to siipjiort (be spe- cial count, and it must be deserted. But let it be granted as is contendeil for on the otiier side, that these bonds were not negoliable ; still the indorsement of liiem lo .Ulstoti, bound him to use the same diligence to procure payment, and to give notice of non-paynitiit in a reasonable time, as if they had been actually negotiable. For the proof of this position, I cite, 2 IVils. 353, which Cully comes up to it. There the PlaimitK being a creditor cd" the Defendant, received from him a draft not negotiable, and kept it by him without presenting it for payment four months : in \\liicli time the pet son upon whom it was dra»n, became insolvent. Though it was admitted an unnegotialile pa- ]ier, yet his negligence wiis deemed upon argument to have made it a payment ami disc'arge of the debt due from the drawer. Upon each, or some of these points, I trust tliere will be jndginent toi- the Defeiidant. Vavie for the Pl^iiitilf. — This case is not at all con- nected with the rules relali\e to bills of exchange — these (390) **'■'' ''"" oflTspriiig of commerce, in which it is of the high- esl imporiance that all possible piiin tiiality be observed. In a couiitf> as commercial as England, no pas- ses a negotiable paper. The drawee may cither be h Haywood's reports. 419 merchant himself, liabif to fuil upon (he loss of a ship Oct. 1790. thi> fiiiliiie i>r a t"()iei,!;ii corie.sjxnnh'iit, and IVom « thou- '"-''""''^'^ sand other causes, to which as he is hourly srShjcct, it may be every hour exported — or if the drawee Wiiot a mer- chant, lie may be a nianufacliiicis or in olhei' situations dependent for the money with \>hirh he intends to pay, on a inerc.tiant, subject to all fljese lasnalties. Many merchants in splendid circunistai.oes, by die failure of a foreign house nttei ly unknown to liieir home dealers and corrcspc.ndents, suddenly, in the course of aday, iiave be- come bankru|)ts, and passed away like shadows. It is very proper therefore ili that couHli'y. that llie recci\er or holder of a neajotialiie papei", should he bound (o ap- ply for payment wifi.nul delay. Were tliat not a condi- tion imjjosed by law. Ho one would be safi- in passing- a bill to anotlier— iie never coSId know, tliough everv min- ute in dantjer, wltcn his liability ceased, nor when he was certainly discbarj^ed from the recourse of the holder. This would .e^reatly check, ifnut destroy, Ihe currency of a paper medium, promotive, as it is of cmnmercial de- signs. But with respect even to net-'oliabie jiapei- in this country, there is no necessity for such deipatrh; t!ie ge- nerality of the people liere, are substantia), imlependent farm<'rs. whose property antr,Tis IViiin 'lie cuiiiiini iiii|ilifil by ilu- a'>'tiiil)l'' pa- pi'i'. riit'sc ai'p noi esiablislied. TIjcv ()('|)iii(1 up- on tliis ciistoiu, ai-e ascertann-d b\ ii. and arc apjiliiable to no contracts butsucli as are ilie sulij-cis of that riistoin. The bonds ihat !jja\e rise lt> the jjn-sent conti'oversy, are indetd assiijnable by li^j; law of Virginia : hut tliat law add> lo them in tln-ir assigoed slate, even when as- signed in Virginia, no other riri'.nmstanre at'endaiit on bills exchange, bni this, that the assignee may sue in bis own name. That law does not say loey shall be assign- able in like manner as bills o!' ex. haoge, or as ])romi3- soiv notes, or as the art of 3 & 4 .innc. C. 9. or one act of 1786, c. 4, did. Fnun this omission in the act of Vir- ginia, il is evident tiie Legislauire intended no more than to ve>t the properly of the hoods in the assignee, foe the purpose ol eiiaiiliiig hiiii to sue in his own name, and by that means to exchicie the obligee from any interference Willi the suit after its conmenremeiit. It was not made with a view of benefiiing IhecomoKicial partof the com- munity, hut sini|ii> to preveot the injustice of assignors ; who .s ijie law stood ai the lime of oi. iking tlie act. were deemed to be Hie r.al Plain' id's, and to have at law a power o\ei till' suit — and l)y atieoi|iting !o dismiss the suit, or !o receive the money, or iiy cnniracting adebt alter the assignmeiil. might either deleai the ai tioii of the as- signee, or compel linn lo resort to a Court of Etpiity foi" relief. All tills was [oevented by saying, the assignment slioold vest a right of action in the assign e in his own iiaim — tlius far th act in en led t<» go, and no further: and il maoifesis its design siiil more clearly, by pro\id- iiig that the I'laiinilT. the assignee, in an;, siiii bro'.ght by him, shall allow alt discoun s t lai the Defendant can prove, either igainsi toe 1' .tiiiiilT himself, or agtinst the first .ibli-ei , before notice if h' assign n nt gi^en ' i the Defendant — a circianstance evidently separating the case Haywood's reports. 451 of these assignmpnts. from those of pupers negotiable by Oct. 1796. the custom of mrichants. Fitf by ihe inlrs of ihat cus- ^.^^^''">*«' torn, the instiunient in the hands of tin' Hssij^nee, is • x- (392) eniptcd from the (ipriMtinii proves, tliai these bdiids wlien assigned, were noi inicnded to have any par- ticijiation of the nature of hills of excliange, save only that which I have before mentioned. They are not enti- tled to be othcrvxise respected in tin* li.^lit of bills of ex- change, nor as possessing any of their characteristic pro- perties, hut only thai of vesting hy as-ignment in the as- signee, (ii all events these bonds were not assignalile by an} law of this country, and if contrails are lobe ex- pounded h} the laws of the country vvlicie made, as sta- ted in 1 HI. Rep. 238. as cited on the other side, tiie con- tract of assiifninent being made here, can only have the effect which ihe laws of tliis counli-y will give it — a (low- er to sue in the name of the obligee, as sii forth in the special count in this dedaralioii. The contract tteing made here, must be construed by the la«s of this coun- try, in the same manner as the acceptaore of a bill in one country, that was drawn in another, shall be snh)e('t as to the acceptance, to Ihe laws of ihe country wliere that acceptance was made. 2 Strange 753. And as English or Indian interest is to he allowed in contracts made in those countries, and in the same manner as an English court will carry into effect a contract made in France, though void by the law of England had it been made there. This one general principle governs tiie wliole of these cases, that ihe law of the countey where the con- tract was made, shall decide its legal consequenci-s, its legal import and extent ; and according to this |)rinciple, Virginia bonds when assigned in this country, have al- ways been sued upon in llie name iif the obligee. This was one of the reasons the court went upon in reversing the judgments given in the actions in the County Court of Caswell. The action was iheie iiistitntrd in th^' name of the assignee, then permitted by ilie court after issue joined, to be altered, so as to appear to have heen insti- tuted in the name of the obligee. I do not deny liut that the assignment of a bill or note, implies tlie obligatiim on the part of the assignee comendrd for by ibe Difendanl's counsel, but I say these bonds were not negotiable, and 57 452 Haywood's heports. Oci. 1796 that therefore the assignment of iheni will not impose any ^'•^'^''^^^ snrli terms as the assignment of a bill or note would.— li operates as a mere powerto institute suits in the name of the obligee ; and is evidence against him uf money had (393) and re( cived from the assignee, which evidence supports one of the general counts in this declaration. Thiii upon what ground stands tin- defence? Mr. Taylor has rerei- ved our money ; the consideration for wliirh was, that thrsi- bunds should be taken by the PlaintifT, and should enable him to receive the money of Lewis. He has not been able to receive it — tiie consideration has failed ; and wheif^or it does fail, the money advanced with a view to it, shall be refunded, and may be recovered back in an action upon an indebitattis assumpsit. If a bill be given for an bundled pouiuls, and tiie holder cannot get it paid, he miiy demand the hundred pounds as a debt. 1 Com. 134. 3 Lev. 364. Bull. A"isi Prius, 131. As to what shall he deemed reasonable notice in the case of negotia- ble |>apers, that depends cntii-ely upon the nature of the traiiHMClions between the parties. In some cases ofdr..ff3 on bankers, the holder of the piper has been confined tu a day, or one or two hours ; in other cases he has been limited to the next post. What shall be deemed reason- able notice, can only be inferred from the nature and in< tent of the contract, and must deprnd in every instance upon its own peculiar circumstances — no general rule can be applied to all cases, except that general one of gi\ing reasonable notice. Now what was the true intent of this contract ? It was that the assignee should institute suits ag<4inst Lewis; the assignment was made to give him a power so to do ; and that upon the event of his not get- ting payini'iit from Lewis, he might lesort to Taylor. — He was ii'it by the nature of this contract (as it is gene- rally nndeisti.od in this country) to have any iccoiirse to Taylor till after he had li-ied the event and issue of a law- suit »ith Lewis. He was not bound tu use diligincc ac- cording to the ti'dinical signification of the word. Such assignmenis in this country, as they are explained by the comiiioii course - f hnsinesii, and as they arc understood by thi- people, pl^ce the assii;nor in a situation not to be calh'd upon till af' r actions <-ommcnced and tried against tilt- o<)ligors. Mstnn did use as much diligence as it was in tlie power of aii> man to use — he received tlie bonds in 1782, on the 10th Oeceiuber — he applied for and received Haywood's hepouts. 453 some part of the money soon afterwards — lie continued Oct. 1796. to make repeated applications all throuijli the year 1783, -^"^'"^^ be sued soon sifter the year 1784, and immediately upon the death of Lewis — and befm-e his suits were dismissed from the docket of the court iii Virginia, knowini^ that an abatement must take place, he .'■ued the executors iu this State — immediately upon obtaining judgment here, with- out any d' lay he followed them into South-Catolina. mid C394^ surd there, and before the determination of the suits there, discovering that these suits must be unsuccessful from the rexersal of the judgments in this court, wiihin a day or two after the i-eversal, lie gave notice of all these trans- actions to Taylor. What more could he do ? And what more could Taylor have done himself? He did not dis- charge Taylor from 'pis iiiibility by his conversation up- on his letui n fiiim Lewises with the negmes. You are clear — was replied to a questi to unnego- tiable ones, tliough in fact passed bj a dibior to his cre- ditor ; I mention this opinion now, becituse iho' I then dif- fered, I am not now sure but it was the rightoiic. These bonds were not negotiable in this State, and the assign- ment made here according to the caseciied from Bl. Rep. mnsi be governed by the laws of this country, and is to be considered as the indorsementof paper not negotiable, and may confer on the assignee only ihe powers attributed to such assignments in the argument for the Plaintifl"; and if notice of non-payment by the obligor is not neces- sary, the Plaintiff may probably be entitled to re- cover on the special contract laid in tiie declaration, which is, that the entlnrsee should sue in the name of the obligee, and in case of his not bein^ able to obtain satis- faction, should resort to Taylor. The greater part of the time elapsed since the ind'osemcnt, has been employed by the indorsee iu pursuing the obligor — he sued within 454 iiaywood's reports. Oct. 1796. thirteen or fourteen months, antl has continued to sue *-'"^''^**' ever since. The jury found for the Plaintiff, and he had jiidarment. Note. —The opinion of the court ex relatione It is cer'ain however, that it was in favor off. recovery — either upon the ground that an un- negotiable piper, thouph indorsed, does not bii d the indorsee lothe same dilipence, as if it wi re negotiable ; or that the special coiuract not stipulating' expressly for that diligence, the indorsee was not bonnd to use it, op that his suing within thirteen or fourteen months in his own name, was a using- ot sufficient diligence. Note. — On the trial ol tlus causu the following points occurred and were deciiled. Thi- Dpf> ndant offered a deposition, the notice for (395) which was, that il would be taken on a certain day named, at H lifax court-house, in Virginia ; the ciip'ion express-'i! a taking on that day, at the house of Manning, at Halifax couri-house ; and a witntsssw^rn in court, proved thai Manning's house stood about eighty yards from the court-house. Per Curiam — It cannot be received. The receiving of evidence by depositions, is only adopted from necessity. It is sul'jeci to many abuses. Ir we begin to say it may be taken at a plac near that fixed upon hv the notice, it will open a door to baud. The p. rty may cause it to be taken near the place, whilst llie idverse party may be waiting at the place appointed, in order to cross-examine. Besides if we once say that to t.ake it near the place will do, we shall never know where to stop, it may be taken at agreater distance than eighty yards; one hundred for instance, or a quarter of a mile, and yet besi.idtobe near. The deposition Was rejected. The PlaintifldfFered the receipt of Mr. German Baker, late a coun. sel in Virginia, to fix the time when the bonds wen- put into his hands to be sued upon ; and it was urged, that he was now dead, so that his deposition cannoi be had ; and that the rtci ipt is the best evidence of ihat f: is no sed, it should be certified there was none. We cannot know th:it there is no "^eal. unless it be certified; and if there be a seal, a record thus ci riifi ••! cannot be reci ived, in- asmuch as it is not attesied in the most auioeniic way of which it is capable. In order to its admissihility therefore it must appear there is no seal by which it can be attested. So it was rejected. havwood's beports. Luttcl'loh V. Powt'll. A warrant that does not state tliat the sum demanded is over five pountU, but o'lv thut t is und r Iwentv iiounds, will not au'horize an arres', and it the 'ffictr makes an arresi und r such vvaiT.nl and attei-waiiN permits the person arrested to go at large, he Will not be liabl.- for an escape. Case. f<»f an escape. The derlaration stated tliat Las- sifer was indebted to the Plair/fifTin a siin\ iiiid< r twenty poinds — 'hat he took out a waii-ant ajiai' st Lassiter, !he tenoi- whereof was inserted in the declai-ation, and was exniessed to be for a sum under twenty p.iunds — that Powell, llie constable, leceived the warrant, arrested Lassiter, and suffered him to escape. Thewai-rant. when produced. < omniandrd the officer tw far he ought to go, and that he may pro- duce it in liis justification, when questioned for what he has dfine niider it. The law will not permit that an offi- cer shall pioceed to arrest a man, and deprive him of his liberty, unless pursuiint to an authority given him for thai purpose. If he Was permitted to act without a w ar- rant in writing, he might mistake the verbal precept of the m.igistiate, aid do either more or less than be was commanded. From the uncertainty of verba! directions, and owing to the not recollecting the precise terms of them, he might easily act otheiwise than intended. For the benefit of thecitiziu theief'ire, that iie may at all times be able to call upon the officer to produce his authority, and to see precisely what if was, tin- law established the necessity of a wi-itten warrant. Any thing contained in the directions of tlie magistrate or of the Plain'iff. that is not contained in the wHpr.mt, is no authority upon which the t ffirer can ad. This w;irrant, in tlu^ present case, is ii>.: siicS iin one, as ran in law justify the arrest. — The ».(■' of 1786. liiieiis tint vn here ;he sum is o^er five pounds, the constable shall arrest, and hold to bail. It (396) 456 II A.y WOOD'S REPORTS. Oct. IT96. fihniild appoar in the warrant tliat llie sum is over five ^•^"""^^^ piiuiiils. ollicrvviHe lie cannot ariost. Tliis warrant dues not HtHtc that the stim (Ipinandod was over fivo pounds, bm onlv that if was undt-r twenty. It mi,^ht be also n'dei' fi\e, and therefore the arrest was ilh-gal, and re- leasing the Defendant in the warrant was proper and what he ous'ii to ha*e (hine. Tlie Plaititifif was nonsuited. NoTB Vide Ellis v. Gee, 1 Murph. 445. Arnold v. Bell. A debtor cannot dispose of his property to avoid an execution after it is issued. A disposition of any part of his pio.ierty to ;i cliild by a fatlier indebted more than he is worth, vyill be presumed fraudulent, unless the child can prove the purchase to have bei n made for a full and fair value actu .lly paid. Tlie declaritions of the father that his conveyance to his child was fraudulent, are not admissible against the child. Detinue for negroes, Tom, Jane and Jinaky. The Plaintiff pi oduied a bill of sale from his fathet, Jio/m .^r- nold, duted the 27th Febiiiary, 1795, Tor Tom : and an- other bill i)f sile, dated th<' 25tli December, 1794, foribe two other negroes. The D fiiidant proved a purchase of these negroes at the sale of a SlierilT, who sold them to salisly an execution, issued for the State from Hillsboro' Superior C-urt, April term, 1794. lor iBgoO. He also produced a jtidgment rendereil at October ti-rin, 1794, and an execution thereupon, returnable to April teiin, 1795, which was s:'tisfied. The Plaintiff then proved an actual paunent fir Tom, of £lOO, on the day of the date of the bill of sale, and that this money was acquired by a sale of his • wii pio[)erty, and that it was applied by the fa- ther in payments to his creditors — jiart of it towai'ds the (397) discharge of the execution of £100. As to the other ne- griies, he pi()\aiiced mmiies to the father to pay his creditors, and that money was due from the father to him, for articles putchased for the old man, and delivered to him in the beginning of the year 1792, to the amount of £80. The father had not property enough to satisfy the expcuti y E. 296. 5 Term 579. 3 Term 35. i & 5 Burr. E contra — Il was argued, that the decisions in thf case cited, apply only til negotiable lustrum -nls, that vhe witness iifFcr-d has pass d — It would be attended with greai mischiefs and mjurj to the crt-dit of sucli papers, were they to be invalidated by him who has passed Hiem afti r going ihriuifh sev.-ral hands. And though the maxim, nemo at- legal! turpltudinem suam est awlientlua, 3eemc by the proper legal ceremonies — he might always overturn his conveyances. The evidence wxs rejected. Note. — Upon the point of the execution see the note to Belly. Hill, ante72 As t.. (he a 1 nissibility iif decl ir.itions sei> Clarh v. .Arnold, will II »TW iod's jutTf, 2 Hay 287. Gray v . Harrisun, Ibid 29i. — EilOanks Ex'rs y. Burt, Ibid oou. Guy v. Hi.ll, o Murplt. 15fJ, tr.im which It ijipeirs thai wh.n-e ',Ik declnat ons of a ,. imii were made subsequently to the conveyance ortranstisr of bis title, they are not 458 Haywood's repohts. Oct 1796 admissible against the party to whom such title was transferred j hut V.^'V^^ if the iL-cIiirations were m:ide before the conveyance, us they would be pood 'igainst the person makinpf them, so they sliall be ad niited ag inst any persr)n wiio claims under him by a su!)stquent transt'-r. — But such (leci'ratioiis, where admissible, are not conclusive. Ufford V. Lucas, 2Maw/;s2li. Anonymous. Tliis was a writ of a false jiiilgmeiit, for reversing the judgment of a Justice of Peace gi\eii on a warrant. Tlie Plaintiff in tiiis wiit had issued a sci. fa. to the Defen- dant, to appear and oppose the reversal if he ilimight proper j and now Mr. Poller moved, ihat as the Delcn- tlant had not nxue in. and so remained undefended, that he might be permitted to emci juilginent nf reversal. Per curiam — If you have assigned niaitersof fad only, you may enter your judgment of reversal; if you have assigned matters of lnw. we must look into them. Wc cannot reverse the judgment merel) because you have assigned instances r)f false judgment, if the matters as- signed do not appear to warrant a reversal. The as- signment was read, and the principal matter was, that no time or |)lace was appointed within tiiirty days, by the Justice, for Defendant's appearand-. Per curiam — Tliat is necessary hy tlie act of 1794, c. 13, s. S & 6. The judgment was reversed. Solomon Walker's Administrators v. Matthew Hawkins. Detiime for negroes, brought againsi the intestate in his life time ; upon whose death, ijie Defendants, his re- preseiiiaiives. were called in and ntade parties; and there was a verdict against (hem. suhject to ilie opinion of the court upon this question, vvlicther an anion of detinue will lie against exeiutors, for the d<'f Jamie- son, an Hssigni'c, v. Farr. Per curiam — The indorsement made at tlie same time wiiii the npiiiid between tlic parties and to produce de- lay. Th<"y vvei'i' not rendered negotiable by the act of 1786, as money bonds were. It is true, if no tender be made at tln^ day, tite obligee may consider it as a bond for nioufy only ; but then if the bond is not originally negotiable, it cannot afterwards become so, for at the time of its creation the obligor did not mean to subject himself to the action of an assignee. Judgment for the Defend- ants. Note.— Fide Jamieson v. Farr, and the note thereto, anle 182. Peltiford v. Sanders. A verdict bad been obtaimd at this term against the Defendant, and now, Mr. PoUerUv the Plainiiflf. moved that he might have execution .gainst the Defendant, he being about to remove himself immediately, out of th« State. 58 460 Haywood's reports. Oct. 1796. pgy curiam — How do we know but a motion may be -^'^*''"*^ made to ari'ost judi^iniMit, oi- I'or a new trial, for some cause we know notliiu.a; ol' ;it pi'esiMit ? All tin* proceed- ings ot l!if court are injieri. and in Hio bieast of tin- court till th*> uM'in be eniiiul, and subji-ct till tliat time lo bp al- tered and \acateil. This cause m;ty be accompani' d by some of th'ibe many circumstances, that may render it proper to alter, vacate or set aside the ijroccedinajs, which l)a\( already taken place al this term. The motion was refused. Burton v. Slicppard. In an appeal from the court b low, upon exceptions filed to llie award of arbltr.itors, a new trial is noi U> be had in the Superior Court, but It will examine into the errors uf law in the court below. This suit had been brought hither from the County Cou]-t of Person, by wiy oC .ijipeal ; the f^cueral issue hnd (leen pleaded, and after dependin.^ in that court for (400) some lime, lli:- parties agreed to refer it to arbitrators : and if was referred liy a rule of court — the arbitrators met I'l tiie presence of the parlies, and took the case into coiisidi'i'ation, and made up ilieir award. Exceptions were taken to it hy the Fliintiff's counsel, one of which was, that ihc arbitrators had calculated interest upon the whole siiui, IV'Mn the timeof payment, &liad given no inte- rest upon the amount of the verdict which accrued and be- came due some time before the arhiiration. The cause beios; now moV'd b> Mr. Burton, it was urged by J/r. JVhyte, that according to the former decisions, this cause must now be fried upon the issue. The law reipiires whenever an appeal takes place fifiin a trial below upon an issue Joined lo the country, that (here shall be a trial de novo here j and in that predicament is this cause pi-c- cisely. Per curiam — If we should decide as (he Defendant'.s counsel coiileuds for, it would take away at rii. Thi'ce is no preceditig act to resort to for- ])r-lm>'iit as now. Prior to the late decision on sealed instruments wiihout a witness, many actions had been brought in case upon them ; and upi'ii the reconunendatinn ofllie court they were altered by consent to debt. The Defendant's counsel would not consent to the amendment, and the suits were dismissed. Note. — Vide note t settinj^ (|,p Oct. l"96. cause I nw (l.iwi) for- dial, as tin- art oC 1777. C. 2. s. 87, -^■^'"^~' liad cxpresslj pro>i(lt'(l fur such a rase : iv.n)' 1\, tlim the clei k hliimld furleit filtv (kpiukIs to tlie appillKiii, aiul also all daiiirttfrs siiTiained h> rr-nvdn of siirli delnj' or rrliisal. Fer curium — A caMi- lia|»|jeiird sninc liincaso at Eden- ton, whidi has bc liefore tei m. to Uiinw whether they were filed oi iHit; but qiiere, il they iiiiijlif not have been liroiiijlit up by certiorari, el vide ante, Cliumbcrs v. Smith. NoTE^ Vide Hard V. Orr, .A". C. Term Jiep. 151, wliere this c.ise is recogiiizetl and cuiifiimtd. Anon) nidiis. Tlic //ten (luys before tlic- term, in wliich appeiils inukt be filed in llie Supeiii^r Ciiurt, nnu.st bi- clear of tile dav ot filine; the jjsp' rs.ind of tlie first daj i>f tile term: at all events, i;f the first iiiy uftlictcrm. In this case, it was m^ived by General Davie, that the appeal shonlil not be rpceixed, tin re no! lu'incj fifteen d.iys between the lilinj; of 'he ap]ical pap. rs aiid the fiisi ilay of ti>e 111 .\t term, and he rited 2 /)/. Rep. 922. 1 Sira. 407 — as a similar case beinsj founded upon a cnle of cinirt, > wlitcli had the worils •' .il least," in the same manner as the act of 1777. c/*. 2. sec. 84, win re the expression is, that 'he rei ord of the suit shall be ihlixered to the clerk of III! Superior (Joint, at least lilteeii d.iys behne the sit- ting of the term. In the case in Strange, one day was 464 UAYWOOU'S REPORTS. Oct 1796. |,p]j f„ Ijp jiiciiisive and the otiiPi- cxrlusive ; and if that ^^^^*^ ciiinpiiiari'in prevail in the pt'rseiil iiistaiic<>. tlic i-erord (403) xviis ijion^lit up too IhIc : fm- there are not filti-eo days before the term, unless the of filing and the first day ol' the t<'i'ni are both inclmlei]. E conira— Williams riled Sulk. 599 pi. 7. 2 Stra. 765. Per curiam — Williams abs<'nt. Whether the fifuen days ar'e to be (rcnnnted inrlusivc or exclusive, depends not upon any pianice of ihe British ro(irt~, but upon the meaniiis; and desijjn of our own act, which seems to have been, that the apjii-llee after coniin< to the clerk's office, and fi'idin::; ihi- appeal lod_^i'd there, ini^ht have fifteen days for travellio]^ to the most distant part of the State, to pror'ure attendance of witnesses, and reuirniog lo the court, and io otherwise pre[)aring for the ti-ial ; but if the fifteen days are to be accounted inclusively, lie will Wave but tiiii teei) days allowed for those purposes. The fif- teenth day is employed in travellinj;; to toe ofljcr am! get- ting process, ami ihe fii-st day of the term he must be pre- sent in court icad^ for his trial. If we allow one of them to be inclusive, and the other exclusive, ijieie will remain but fourteen days. There should be fifieen c!>ar days — at all events, the first day of the term must be excluded. Tlie case was itdjourned to search for pfecedent6 on the application of the appellant's counsel. Note.— Oven-uletl, Anani/mous, post 462. State V. Briidley. The indictment slated, that Galling sued Eerndon, a constable, and others, for selling his cattle, upon an exe- culioii, at a diff rent place fiom that advertised ; and that upon the trial of this aciioo in the (^)nnty Court, it was a material question, whether Galling interrupted the constable, in driving the cattle (o Gatling^s house to be sold ; and that the Defeinlant Bradley was introduced as a wi'ness, and was swurii, and npoti his oath deposed, thai Gulling ilid not interrupt Mie conslable in driving the c:iti|e i<> Giillins;'s house. The evidence was, that Defendant ^Woie, Galling did not assist in driving the cattle from th-' officer — the falsity of this oath was suBi- cieollv e-tabliHtied Haywooo. Jiistiic. — I doubt whether we have power to say, the oath sworn by the witness is tantamount to Haywood's reports. 465 that imputed him in the indictment. Wc cannot imply Oct. 1796. that one thsiii;; is taiitiiinounl, or rquivalent to anotliff, -^''•'~>^ in iridiclmeois. Wwv ilic Jndi^es allowed this power of implicati'in, tliey inis^ht woeiiever tliey iliought pi'opef, ,.j, .-^ Construe the ott'i-nco proven to be tantamount or e(|iiiva- "^ •' lent to that laid in the indictment, w hm accordins^ to strict propriety and conimnn accept, ince. it was essen- tially diflTereiit ; and a D tendaot wIid had |ire|iared him- self to falsify the cliar.tjc as laid, mi.i^ht find himself snp- prized with evidinre cnnstrncfively fantamoniit, though not propi rly and strictly applii'able t'> thatihargc. I do not icCidlect any cases up. in this head at present — iiotie Iia\e been cited — hm this Ciisc seems to fall under the ojier'ation of a general principle, of vast magnitude in a free country, wliere the law is to govern — a sacred prin- ciple never to he evaded, nor ever to be thought of but with reverence. It is the best security the citizen has against judicial tyranny. I hope, therefoi'c, the \erdict may be so taken, as tobriMg this p'dot bci'iir-e tiie cmirt. In all other respects I agree, tliat tiie Del'mdant ought to iie found guilty. He was found goihj, hut the verdict was made subject to this point, el adjournatur. Note. — Vide S. C. post 463. Kennedy & Co. v. Fairmaii. JPcr WiLtiAsis, Jii'Ige. A notice to talte a deposition ought to be ser- ved upon vlie person oil lie othei' parly. Haywood, Judge. Leav- iiiff tlie notice at the residence of tiie adverse party, is a sufficient service. Tiie I'laintifiF ofTeied to read depositions, and proved the notice nf iiking tiiem, to have been left at the jilacc of abode of Fainnaii, he being, as it was said by the fa- niiiy with whom he lived, then absent: and that at another time, a notice was left at a house in Hillsborough, where the (lepiMient s.iw a man through the window whom he bc< lieved to be Fairman. Judge Williams (after argument, Williams for the IMaiiititf and IJaviedtv the Defendant) — The notice ought to be personally served upon the Uefendant — otherwise, a man might contrive to leave notice at the house nf iiis adversaiy. after lu' was gone upon a journey ; a.'" '.^ke the deposition eiilioi- belore his return, or so soo.' Jicr, as would put it out of his power to repair to the place ap- i 466 IIAYWOOU'S KEPOUTS. Oct. 1796. pointed, and (litis deiirivc liim dC tin", bciiofit of cros9-c.\- ^•^-^''^'^^ iiiiiiiii'i.;? tlic witness. Tlic iiisfanci' pjivi-ri .it the bai" is a prool, tliat \\v should hold a strict h;iiid ovcf this kind of evidi-nce — ll»e peiKr..! inteiidiii.^ to take llic deposition. Wailed till he sa" !iis o[)piiiieiit on his Joiii'iiey to New- York, whei-e he 'jad vei-y im|H)i-taiit business -li) transact, which noeossaiily innsl detain liini beyond the time spe- cified in the notice. J'ldi^e Haywood — I am of opinion thq deposition should be read ; what is siilficient service of notice in otlier ca- ses should be ileemed so in this. The law supposes in other cases that the initicf left at his place of abode, ac- C405") t»'»"y comi-s to his kimwledge, and prnceids against lilm up'xi that supposition. If noiicc to a jin'or be left at his placi- ot ab"de. and lie does not attend, he siiall be fined. 1779, clu 6, sec. o. So of a witness, 1777, ch. 2. sec 36. Such notice of a declaration in ejcctinein is snlficienl — so of a subpoena in chancery to answer. 1 Harrison iSX. — So of a notice in chancery to fake depusilions, if il be left at the place of alxidc of the (ifipositc party, the other |iar- ty may jiroi eeil to 'ake his depositions, and they will be good. S flarrisoii 29. It may indeed soinitiines bap|)en that tlie notic- may not actually come to the party's know- ledge, ( see 2 Shu. 1044 ) and the deposition may be t&- kcu e^- parte. This may be obviated by his mo\ing the court 10 postp ine the cause, upon un allidavit of the no- tice having not come to his knowledge, till he call have, an o|)portunity of taking the deposition of the same wit- ness himself, and by that means to have the benefit of a cross-examination. It is better to adopt this mode, than to require a notice to be p> rsonally sei-ved, and to throw a lempiation in the way of the parly t'» conceal himself. Kor then as long as he can keep out of the way of person- al ser» Ice. he defeats his antagonist of a trial ; whereas by allowing a service at the house to be good, he has no such temptation, as a concealment of his person will not hinpear- ing that ihe Defendant had entered an appearance bv iht- initials of his attorney's name, being placed on the docket, the motion was re- fused. A certiorari had been obtained for Ihe i-enioval of the recDi'ds of a caiisp from a County Conrt into this cdurt, reiofiiiiblf the term before last, and no notire of this cer- tiorari having been served on the adverse pariy, the roiirt at th( last term, ordered such noiice to issue, and at Ibis tei-ni no notice havina; been served, t.'ie Defendant in the certiorari, by Mr. Duffy his attorney, entered an iipoear- ance in the usual foini, namely, by writioj"^ the initials «f the attorney's name to the suit nn the docket; ;ititl now Mr. Huffy moved I'oi' a disn)ission of the cer/iorari for want of iniiice to the Defendant, according tn the rule of the last term ; and he nr4;ed, that as no process was is- sued to (i;ive tnitice liom the last term, that was of itself (.'*"*') a discontinuance of the whole cause. Per curiam — When a certiorari U obtained to remove a cause from a cmirt below, Ihe adverse parly slinuld ha\e lu)tic^ , to the end lie may ajjjiear antl oppose ihe motioti for a new irial if he thinks proj)er. As the cnurt at the last term ordered pi-ocess to issue from lliat term, it must now be taken that the cause was not then dis- continued — liad it bei n, no such process wmild haxcbeen ordei'ed, but a disrontiouatice woiiM have been entered, or a procedendo. Then notice slmuld have issued from the last tirm ; and it jippears imw, that no |irocess for that purpose has actually been served since, but the De- fendant's attorney has entered his appearance and moved on b'half of the Di fendant for a dismission, anil 'his is proof that the Defendant had notice. It is al^ay- so taken. Vide I Strun. 261. 2 Stran. 1072. Salk. 59 The object of iirocess is to give notice to the Delendvnt, and to bring him into court ; bui if hi chuses to come in Voluntarily, that su|»ersedes the necessity of process. — The entering the initials of the attorney's name on the docket, is the usual mode of appearing heie pi adi^ed, and is looked upon as equivalent to his having a power of attorney for that purpose, signed by his client, as prac- 468 Haywood's bepouts. Oct. 1796 tisetl in tlie Englisli courts. Siicli a power, and an ap- ^■^■^'"^^^ jit-aiiiMce ill coiisoqiieiice thereol', is a waivei- of all objec- tions i'lir irrcgiilai'iij' or want of process, if the adverse pHii^ cliuses so to consider it. The motion to dismiss was refused. State V. Dickens. Ill an Indictment for extortion in taking more than the legal fee, it is no excuse th.it the Uciendaiit did the act through misiuke, or un- der inipri)|;er advice. An indictment tor extortion in tlie County Court, stating the day on which the offence was committed .n/i- gures -nd also omitting the Word extarsivtly in ch.irginj^ tlit tak ng the unlawful fee, may be supported under the act of 1784, R- c. 210. It is not iii-cessary to slate what the lawful fee is, in an Indictment of this kind. Indictment for extortion, on taking eight shillings for a guardian bond; and not guilty pli-aded. On the trial the Dr.reiidaiit's connsil insisti'd, rliat arcnrding to the rate iif ffcs, in the fee bill |)iiblislied by the Secretary, the clerk is entitled for ever^ ori!er foreigii to a cause in court, to two shillings ; and for every guardian bond six shillings : altliougli in tlie act from wlienie the extract is taken, he is entitled for every guardian bond including all services thereon, to six -hillings only. The latter word- were omitted by the Secretiiry out of tlie rate of fees (iiiblislied by liiin, and as llie clerk might have been misled by the rates piiblislied by public authority, it can- not be said he took the excess corruptly. Also, it was proveri in this ''ase, lie was advised by an old practition- er thitt he might demanil eight shillings, before which ad- (407) vice he only took six. This prmes him to have been mis- taken ill the fee allowed by law, and it shews the inno- cence of the mistake ; and if the jury cannot say from the ev ideiicc th<-3 hear, that he did it extoisively, or with a corrupt or oppi'cssive motive, they cannot pronounce him giiiliy. Per curiam — Williams absent. As to the rale of fees pnblislieil l)y authoiilj, and collected (roni diifcrent aits of the L. sislature, that was fur the benefit uf the people at large, that any om iniglit know at once by inspecting tir rates, Alien an offiier demands more than was his le- g«l fee Ii was not intended to ( hange the law — every oflii er is hooiid lo knou 'vhui the \n\\ is upmi the subject of fees to be taken by himself. He caiinut excuse himself maywood's REPonxs. 469 from takin,^ more than the leejal fee, by sayinsf lie was Oct. 1796. misled by the rates published, or by the advire of an at- »-^'^'''**^ torney. nor by any other exrnse he can make. If siicb or the liice excuses were admitted, it would hardly ever be possible to convict an officer of extortion — lie might always contrive to (ground his coniluct upon inisap|irciien- sion or imitinper ad»icf. The jury found him guilty. Afterwards, iiis counsel moved in arrest of judgment, and assigned sc\eral tea- sons, the firincipal of whicli were, that (he day on which the offence is said to have been comiiiiited, Ih stated in figures. Secondly, that the receipt of the eight shillings is not laid to tiave been committed extorsivcly. Third- ly, that it is not stated in the indictment what was the le- gal fie. Per curiam — (Wiiliams absent and the counsel agree- ing to suhinit it to the di-cision of llie Judge in court) — This is an indictment originally found in the County Court, and broughi hither by appeal. It is tiit-icfore en- titled to the aid of the act of 1784. ch. 31. sec. 3. which directs that in all criminal prosecutions thertafter to be had by indictment or presentment in the County Courts, it shall be sufficient to all intents aiis iioiiie tn be fjjivi ii, and thi'i i** ihe part of tin- act fef»n-e(l to hy the words (ac (409) coidiiis; to the dirertioiis of Iheari) in ilic fiii-os:;'iiii;; part; by wiiirb the Legislature meant to express ten days iio- tirc. It wi's ai'sned e contra, GeiienU Davie. Per curiam — Notire innstbe .e;i»en that is exfircssly rc- qiiireil — if there is no le«i.e;tli of time presriibul in the art, it ought to be a reasonable time ; and wiiai is a rea- sonable time rannot be lie'ter iisiertaiiied liian by lefer- riii!; to the time the Legi-lature lias ; [ipoinied ill a simi- lar rase — ilie latter p-.irl of this act a|i|ioints ten days notice to creditors, whose deblor is about to deliver a schedule of his effeds — the pr'-paralimi for these iredi- lors to make, is no greaier than tlic preparation lo i»e made by those of tlie otiier class, and tlieiefore as long time shonl'l be y;i\en in the ww case as the od.er : hut ill truth this act does provide )hat ten days shall he given in the case now biCore the conrt. TIil- Mne inean- ingofany written instrnincht is liest collerfed frnm a view of the whole, et anfecea'nitibus et coiisequeiitibiis. — Notice is required in the first pait of the same clause, in a snbHequent part of t!ie same clause it is reqiiin d again with the addition of llie words, according ti the direc- tions of this act ; and by the latter part of tlie art, nolice of ten da>s must be given )o the creditor of a debtor about to deliver a schediiic. We are if possible to give every word some ((perati\e meaning, bat we should give no meaning at all to ilv words, accordi g to (he direc- tions of this act, if we say they mean nothing inme iban the pnceding words had expressed, in- notice in general. Indi'ii, according to tlie constriiciion of tlie petitioner's counsel, the whole of tills sentence, so far as it i-e- lates III notice, is nugatory — notice having been di- recti'd betore. Something umrc ihirefore must be me;int by the additional words, according to the inrom|ilitp and uncertain for want of de- '^'^'^''^^^ filling ilif time — therefoie the acts provides ten days no- tice to be given ; it lias not been given in (he pn'sent case, and the petitioner cannot be discharged. So he was remanded. At April term, ITQ?. anntlier person presented liis pe- tition to the court by Robert Bell, his attorney, to be ad- t^lOj mitted To the oath of an iisolveni debtor and discharged, but he iiad not gixen ten days notice. Et per curinm — Haywood and Stone — Tliat is neces- saiy by the spirit of the art. and they remanded him. Note. — Fairmitn petiiii.netl Jud)f< Haywoou, mi tlie vacmion tbl. lowing this ifini, who granted an habeas corpus, and Fairman was brouffht before him and tlie notices uere admitted; bui it being provi (1 thst not long hefon- these judgments olitained, f'lr which he was imprisoned, he Tinl sfiM property to the amount of eleven hun- dred pounds to one Coj-A/in; who it was proven h;.d subsciibed re- ceipts and taken notes as llie partner of Fairman, and it beiii); also proven that Fairman w:.s present wh -'i minuy whs lent by Coghlin, an< ket, that a judgment had been entered for so much, and that an ex- HAYWOOD S KEPOUTS. 473 ecution had issued, and thai the rest of the record except 0=*- ^''^S- what ajipeaied upon the docket, was lost. .Vr. Moore objected, tliat as to Ihat part of the lecofd which was lost, if it were a fact, it should he proven by some person on oath ; the clerk not heins appoinleil by law to certify the loss of a record, his certificate upon the subject was of no consequence, and as to those parts cf the recojd which lie had certified, thej could not be received — for he had only given a liistoiy of the record as it .ppeared to him, whereas the very words shouhl be copied, ihat the court might jiidj^e of the true import of it. Tlie clerk may mis- take the meaning of the eniries, and draw improper < on- clusioiis ficim them. And of tliat oi)inion «as ihe court, nd refused to receive the certificate, and the Plaintiff was nonsuited. Hots.— Vide Shite v. Nurman, 2 Dev. Bep. 222. Park V. Cochran and others. Ejectment. The Plaintiff stated his title to have been derived under a patent to J\''etvberry, who conveyed to Carrol, and Dyer, who conveyed tD the Plaintiff. He of- (411) fered to produce an office copi of the deed from Carrol and Dyer; Mr. Williams otijectcd to the reading cif it, unless Ihe Plaintiff would swear he Iiad not the original 1 liis possession or power. Per curiam — Ihe copy cunnot be read, unless the Plaiiililf will swear he has not the original nor can pro- cure it. The Plaintiff was nonsuited. Note. —Vide Blaiilon v. JMiller, and notf thereto, ante 4. Evans v. Norris's Adininisirators. An .iccount ag.iiist the Plaintiff cannot b« given in evidence under tlie ple.< nf puyment. A retainer m .y eitliri' De pleaded, or piven in evclence, U' iliT thi: plea oi fjlene adraiidstravit. Vii admi:ii«trator is buiind to pay debts already clue, Defore ilu.se i.ot yet payaiile. An adniiiiistr.it. ir cannot retain igiinst debts of superior dii^njty. Vo- lui'tary p.vments afiertlie teste of the writ are not allowaljht ; they are certainly not if made after plea. Case. General issue, payment, AnAplcneadmimslravit, pleadeil. In support of the plea of pHymeot, ilie Defen- «lant offered an account which the intestate had against th'- Plaintiff. Per curiam — The account against 'he Plainnlf cannot be admitted to prove the plea of payment, the Defendant 474 ilAYVVOOo's UEPOKTS. Oct. 1796 slxxilil iiave pleaded the (;i-nri-al issue, wiili a notice of ^^^""'^^^ set oil'; then (lie FirtiiitifT would have been made ac- qiiaiiiicd with the paiticuiar items, and niij^lit have prc- p.iied hiniselt' with evuiriice t.i contcNt ihem. If we al- low an account to he proved without heing pleaded in bar, or notice of !,e!. off jciven to the I'lainiiff, he must neces.sai'il^ be iin]irepared to contest if, however errone- ous II may be. If Such ■.•.ccoiints by rules of the C(nnmon law. w'erc adducible by the common law to prove the plea of piiynieuf, it was uiinecessarj to have made the arts for setiinpf off mutual debts and accounts aj;.uu''t each otiicr. The account was rejected. The Defeudant then proved the intestate had piirchiistd a house of him, and agreed to give three hundred puunds for it, to be paid by three yearly iustalouMiis j one of which payments was due before the instilution of tiiis action, and that he hud retained an hundred |»(ninds of the intestate's estate in ^ his hands to satisfy it. Jlr. Hay uri;ed thai a retainer could not be given in evidence, unless it had been pleaded. Mr. Tayhr, e contra, insisted, that a ret:uiier m«y be given in evidence under the plea of plene admiiiistravit. and I'ited Esp. 249. Per curiam — A retainei- may be either pleaded oi' given in evidence under the ph-.. ui plene administriivit. 3 Burr. 1380. Had the administr^tior p id a drhl of an hundred ])0iiiids to a thirr may re- tain that sum to satisfy his own demand, in preference Haywood's kepouts. 475 to any other croditor of llic same dcn^ree with himself, or Oct. 1796. of ail inferior dcgrre. By the ai-t of ir86, ch. 4. sec. 2, '•^""''^^ notes of hand, and liquidated and seltird arrnunis signed by the debtnr, are jnit upon the same fnnting with res- pect til payment by executors or administrators, as debts due by sprcialty, and our demand is i^rounded on a note of hand. Bond creditors liave always been entitled to be i)ai mm! at ihat limf, it was suftirii-iit. Permrium — An ext-cutor or adiniiiisti-atoi' can only re- tain to ^latisly his own demand, vvheii it is of ((jual digni- ty with ihiii of tlie creditors to whose disadvantage it is retniii' d — as the exccuroi' cannot sue himself, he is allow- ed to |MV himself by retainer. The law in his favor pre- sunieN, ihit h^d lie not been executor, he w«nild lia\e used equal diligence with any other creditor to procure pa> ment, and |)l res hini with respec t to paying himself in ihe same siiuation as it he had used tiie inos< expeilitiouK diligence ; hui he cannoi retain to satisfy liimsi'lf MJiilst there are (leliis of a superior dignity lo his. By the act of 1786, notes are pot upon tne s.tme footing with bonds, and are made supei ior to an> simple contract debt, where liie debt is mil liquidated, and scaled and signed by the pariy to be char;;ed ; ol course, tlie di bt due in ihe present case to the admiuistratcn', cannot be sarisfied liy retainer in pre- ference to till debt ot the Plainlift". which is by note of hand. As to ihi' voluntary payments made sin< e the teste ol the V. rii, and i)efore tiie plea pleade in ilie feuiisi.- above referred to. See Toller's Law of Executors, from 281 to 297. Peai'le v. Fiilsom. A ilischarge under the insolvent debtor's act, ordereil hy the proper ofhcfrs, will be pnsumed lo have been resul.rlv dmie, until tlie coutrai'y be- shown. Undei' the firt.1 insolveiitact, th'.- Defendant was disch ;igi'd only as to those who liail commenced suits against him, and had notice ,;iven them of the debtor's petition. Covenant, for rertifiratcs wliicii Dcfpiulant horrowed, and agieetl to letui-ii or pay for jm inmiej' ai llie rate of 4 shillitii^s ill thi- pound. AniongNt other pleas, the De- fendant pli'aded, that lie !iad been disrharj^ed of the action under tlie insolvent delitnr's act He produred a peti- tion settin_^ forth liis iniprisonniont at the suit of iini.ilic;» creditor, asid pinyini; tin- benefit nf liiat act, 1773. c. 4. He also |)ro(liu:ed the return of the goaler, by wiiieh it appears lie was in also at the suit of the present Plain- tiff. He also produced the subsequent iiroceedings, shew- ing his having taken the oa(h prescribi'il in tlia' net. unci his having been discharged. It was aigncd on lli oilier side, thai he ougiit also (o itrodiuc the iiotiee served on the present PlaintiGT. of liis being abmit to take the hi'iiefit of the act — live evidenre ofljen-d did nolaiJiouiit to a proof of notice. It was answered, that Ihi- giving of iio!it:e, is a circumstance incident to the business of his discharge, and must liave been proved to the Jns'iees nf t!ie Peace before they proceeded — since they have tUscharged him, the court here will presume, that all things picpaiatory to his discharge, were i-iglitly and legally iransacted,. and they cited Bull. JVisi Fri. ]73. Per curiam — Since there is a dischai-ge ordered by the pvoper oIKcers of justice, we will presume all ciicum- stances required by law lo precede the discharge, to have been regularly observed; otherwise, we niiist prcsiiine, that the Justices have acted illegally : which is a jire- sutnptioii never entertained iigainst the proceedings of. oflicers of justice. W in fact they have proceeded to dis- charge without notice, and the creditor will she\s thai, it will vitiate the proceedings. Tlir presuiiipiioii oi' omnia, rede uda, lasts onlj until proof ol the comraiy appear;. but we will not require the Defendant to prove notice to (414) 478 Haywood's bepouts. Oct. 1796. have been given, the PlainiiflT not beinf» able to shew any ^^"^'■^«-' iriea;"la'''*J '" tlie proceedings. There was a voidict for the b«f, iidant. One other point was moved in this cause, namely, whether the Defendant by a di'-cliarge under tlic first branch of the act, was discharju' d as to all creditors, or as to such only wiio liad instituted suits against him at the time of his inipiinonment. Et per ciirinm — Clearly , before the late act which has made sonic alteration, he vas discharged only as to such creditors v\ho had ronimenced their suits, and had notice given tiiem ol the debtor's petition. Note. — Vide Burton v. Dickens, 3 Miirph. 103. Iloitinvil v, Paiteiir & Price, Ibid. 270. Jordan v. James & Marsliall, 3 Hawks 110. Hodges V. Blount. Properly sold remiiinlnf; in the possession of the vendor where there is !in absoliilf bill ot sale, is evidence of tiaud: so is the not reris- tering the bill of sale till lung after it is made, coupled with an oner on the part of the vendor to antednte. ^ The 16th May, 1789, LassUer sold to the Plaintiff the iiegw) in question. Lasiiter dii ived his title under Lucas, . . who made a bill of sale tM Raifford on the lOtli of August, ^'*'^' 1788. The Delindant. niouul, who in fact acted for Wt)rseley,\v\ii> was the leal Defindant.prinhictd a bill of sale from the same Lncns to Worsclexj, dated the 5th of March, 1788. It was |)r. not pfintti ih. t ffnvselcy gave any \altiable consiilei'ation, Ihonj^h it is pio\>'d on the paiM lit Ray ford. W^orsWej/'s 'h-c ii inotion for .Her\. Ha-ward, 1 Hawks 320. Smith & Stanhj v. JSiel 6? atliirrs, Ibid. Ml,^- Ho-^ell V. Elliott, 1 Dev. Hep. 76. Aiionyraotis. Mr. Hay produced several executions which had been deliveretl ti> the late Slierift' of Anson, wlio had returned levied, and no' sold for want of bidder.s. Also, se'veral writs i\^ venditioni exponas tsstii*i- the like, in- tervening befi.ie the three years are completed, will pre- vent its running on so as to form a bar. Mr. Moore however, urged that there never had been any decision in any court to that effect, either in Eng- land or here. He said such an opinion was intim iterl at "Wilmington, at the last term, by Judge Havwood, alone on the bench. Thai he had heard ot'sncii a docli ine helore, at thi- time Mr. Iredell w as at the bar, and had beOn fur- nished by him with a list of authorities upon which Mr. Iredell had formed such an o|iiiiion; (mt upon examining them ;itteniivel\, 'hey are f ruml to be dictiims, grounded on tin- case of Touch tV Plowden, 368 — which was a case adjndireil upon the siMtnle ol fim-s. Judge Haywood — Aftei' the opinion I gave at Wilming- ton, l;ist s|)ring, I searched tli.' auihoriiies when I went home with gren diligence — many of the iiistances ai'e but dictums. hut every wlh re it s' cms to be hi-Id as law, and not to he (lis)iiite(l where the point occurs. It is so held in 4 Term Rep. 310 — and 306. in the notes, ff'ils. 134, was wiiiild argue it : and ihey d<( lining an argument, the court ga\e ju(lgm^■nt lor tlie DefiMidaiit. NoTB. — Viile Andnwi v. Mulford, and the cases referred to in the note ante 311. HAYVVOOn's RErORTS. 48^1 The Survivini^ Pai-tiins of Auley McNiiiishton & Co. v. Ocf^l796. Blocker's Adrninistratoi'S. A payment mul" afier llie teste of Ihf wi'it, is not i^ood in support of Ihe ple:i ii\ jilene ailiniaisiramt. .IiKlg'ineiits obta iieil ag-iin-.t iin ad. minislr,.ii'..t(ir before tbe ,esle of tlie writ, must be allowed him to tlie amount of Ilia assumptions. Case iijxiti assumpsit, for .tij'iiid.s, wares and mei'cliar.- dize sold ;(iid dfiivered ; And ilie Plalniiffs proved tiicii- case stiHici ■iitly, and esral)!i^lied a liemand rn ilie amnuiit of sE 324. 'Tiic Defi'iidaiits liad pie ided p/e/JC a(/?iiijizsira- "viL They pi'oved effecls eaiiie to liis iiafids to liic amount ofiSlora. Tlie admiiiisirator g.ive in evidenee sundry debts j)aiil before tlie instiintion of this suit; also divers debts p.iid tftor tlie tcsle of tiie leadin:; process (wiiicli in this case was a sci. fa. a^.iiist tlie administr alor, to make him a party to the suit) and before the jjlea plcided. He had tilso pleaded jiid^-nients had against him as ad- ministrator, ()re\ious ut the lime of hi:* pleading; and he proved several judgmi*nis had against him after the teste (if (h«' writ, aiiii before he hail notice thereof, and before J)!' a pleaded. IIo also proved assnmplions madi' by him- self, to |»ay several ilehts of ibe intestate to a large amotint, prior to the tes!e of the wi'il. M: Jlonre and ..)//-. Hiaj,£w the Plaintiffs, argued that the coioinon law of Eog! and, with respect to executors and admiiiistrators, is tlie law here, unless where it has boen altered by acts of tlie Lrgislatur •, passed since the year irrS, where the coinnion law of Eoglaml w.is en- forced hereby act of Assembly ; and aithough the Judges may be iuclineil to tliiiik some p.nt of thai law, as it ic- sjiecls excctiti."s and adniiii^tr.itors, more sirict than is pe.lccliy I (ii!-.istpnt with Eq'nty, yet as tlicy are to ex- pound, rn»t make the law, and as the Legislature have rievrr altered (lie.se seeniingly excepiionalde parts, it is the liusincss and duty of the jiidiriary to declare it as it really is. Then a« to volnntai-y payments niaiie afiei' the teste of Kie writs, it is a cleai jiosiiion, that the are ilh'gti!. . Wi'eti a suit is once instiliiied, it lak s fro u liie aduKMi.str.'.tor the o|iiioii hi' before had. of fust p .ving wli >t Creditor in cquai degne, he thonglit prop, i He can no otherwise prefer u creditor of equal d gree, than by confessing a judgment to hitu time enough to he C4tr) 482 Haywood's reports. Oct. 1796. pjradfil in bar to the foiincr acticm. The pica of plenc '^^-'''^O'' atlmiuistravit d'lCs iint, as is siipjKiscd on the <»ihcT siJe, i( lull' to \lu- tioif it is pleidrd, sd as that a pa) merit made pricir t lime since, their were not in the hands (418") "f '''^ administrator, any of the effects of the intestate to be administered. The words al the time of the action .broufili'j. or any time alterwards, are so essential, that wiihout tiicm the plea vvoulij be vitious. 3 Lev. 28. But a payment after- the time, proves there were assets alter the teste in the hands of the administrator, and disproves tliat purl of lite plea. A bare staling of the essential par ts of tiris plea answers what is insisted on for the Dc- fendarrt, as to its relation to the lime of pleadirig. it also ])ro\es a relaiiorr of the plea to the teste of the writ, and that the administration to be go>d, must have beeii^be- fore not after that time, whether any iroiice be given to the administrator oi* not. Noiice is no way to be con- sidered — it is irot staled in the i)lea nor need it to be — it is not more hard to com|)el tlie .idmirristrator to take no- tice of the comniencemenl of a suit against him, than it is to lake notice of jiidgmerrts obtaiired against his intes- tate in Iris lifetime irr every court tlii'ougjioui ihe coun- try— lie is undoubtedly bound to this under the pain of a devastavit. It may possibly operate injustice in some cases, to requii-e an adminisirator to take noiice of a suit at the moment of its commencement, and before he has actuiil noiice, under the penalty of a dcvasiavil, yet no doulit the rule was oi-iginally established upon proper principles, which woulil shew themselves as soon pei-haps in conseipience of an infraction" of the rule, as by any other means. Many <>f the old rules of the common law appi;ai- useless and unjust to a hasty observer, and some- times to a critical one ', but once broken inupoii,ai'C suc- ceeded by such a train of evils, as abundantly demon- straie tlie wisdom of aniiqiiity in framing them. Tlicy ought not to be removed b) the \iolenceof any rude hand, nor wiiliout great circrimspei'iion. and iie>er by the judi- cia'>. As to the e\ idenci' of divers debts assumed be- fore ilie teste of the writ, iln-y uere assumed as adminis- trator, wiicreby is cleaiiy implied, that he is only to be Haywood's ueforts. 483 liable in tiiat cliaiactPi' ; ami llien he sfaiids preci'=!ely in 0^'. 1796. tilt* same siltiatioii lie did beion- as to otiicr creilitors — a -""^'■^^ promise u> pwy the tlelits as adiiiiiiistrator, di the crediioi'. Taylor in leply — The law cannot be as stated by the PlainiiH's (diinsel, that payments in ule by tlie adinifiis- tra'oi' al'tcr ilic t'ste, and before notiee of the writ, are not allow.tble as cvidcore in support (it tiie plea »\ plene admiidsiravit. Common sense and coniinon jus;ire re- qnii-i-, iliat the adminisir itui- shall have noUcc from the ci'ed.toi- of his demand, before be is bound to attend toil, fA-iQ-\ or can coinmii a devastavit or misappliiation of the as- ^ ■^ sets by pajing other rreilitors. tlow eao tin- institution of a suit, whrre the \srii Is taken out perhaps iti tlie most seeret manner, be calciilafed to iifford 'his uotiee to the administrator? Why will the l, and that the adininislrator first bad naiice thtienf on such a day, before whicii da^ he iiad fullj administered. Tin- plea in the present Case is not dr.iwn out at large, but by a.u;ieeaieiit between the coun- sel on eillier side, is supiiosed to be dra'.vii out at full length. We may as well suppose the plea of /i/eite od- miiiistravit to be of this latter lonii, as of that stated by the I'l.iiniitf's counsel. I can sec no re.ison why such a pleash. nid not be good. As to tlie assumpsit, it was made before the teste of the writ. If it give a security lor the debt upon the Defenilaiit in jure propria, he ought to be allowed it as a payment as adniiMistrator, as much as if it had been a bond, and (bat undoubtedly would lia\e en- titled him to an allowance to tlie amount of the bond. — ^ Vent. 358. An assumpsit thou:;li made as adniiiiistra- tof, being made subsequent to tlie death of tiic iiilestate, is not a contract chargeable upon the estate of the de- 61 484 havwood's heports. Oct. 1796 ceased. No roiiti-acls are rhargeablp upon that fiinil, bift -"^"^""^^ siicli as were riiadi- by tlif dt-ceasid, except in a few in- stanct's, siicli as fnneial expenses and tin- like, wliuh are necessarily ixcMsioiied by llie death of the intestate — Wiie it i.llowcd ro ixeculors or administraiors to make contracts cliar.K;eal)lc ii|)Oii tlif i-siate of the deceased, no dead man's estate wmld be safe : besides it will not bi; denieii, iliat where an executor or administrator under- takes to pay a debt of the decea-sed. he becomes theieby, ab^iiliiiely boniid to do it. He makes ii iiis own propci- debt — no CNcnse for want of assets or the like will save Jiini. As lo the judgments obtained beloie they pleaded, I will say (Kiihiiig in respect lo them, since liie reason- ina; oi the Plaintiff's counsel admit-., that a judgment ob- tain! (I al'ti'r a suit coinmenced, but before the Defendant (_420; jj, i„,„|„| ^„ |,i,..,ni^ ,„,,y |)e pleaded in bar to the suit, and of I ourse tlmt plea need nut lelaie to the teste olthe writ. Per curiam — Williams absent. The plea of fnlly ad- minisi.ered, as to lis lonn, is as stateti by 'he Plaintiff's counsel; and in strictness, a paymeni made after the teste is not good in support of plcne administravit. As to judgments obtained al'lep the teste, they may be pleaded by the MdiTiinistrator. if obtained before (he plea pleaded at its pri^per lime. As to debts assumed by the adminis- trator b(fore I lie te.sie of the wiit, sndi assumption y ilie udministratur Offi.Exec.liS, God. Orp. Leg. 220. Plow. Com -277. NoTi. — Vide iMiie ti> Evans v. Norria's Jldm'rs. ante 411. I.itllejohn V. Underhill's Ex'ra. 2 Car. Law Kep. 574. Anonymous. Holmes had obtained a judgment in the County Court, and /J« letiiin day of the ccrtuirari, and if the writ is nut then returned, nor any proceedings Haywood's reports. 485 had to continue it in rmiit, it is likr utlier writs disron- Oct. i796. tinned, and a procedendo (ni_e;lit to is>«iio. Hcie is cleHily ^■^^^'"^^ adiscniiii'iiiaiiO', tln'r<-loi-e let a discouTinuance beentei'i-d, and a procedendo issue to tlie cmiit bflow. Kiddie, Survivin.s; Pai tner of Ramsay & Kiddie, v. Gabriel Debrutz. A confession in an answer to n bill in Equity, maj be given in evidence against the Defendant, in an aciion b) a tlilrd pi.ison. I'lu giving of a noic is no exnnguisliment nf the prior cause of actum ; and whrre there is i count upon :i note, as well as the (general ctiunis, a recovery may be had upon the general counts, although ihe note is alleged to be lost. This was an action upm tlie case, and the declaration contained a count upnti a note of hand, a eniiiit for money lent, for work and lanoi- done, anil ih<' otlier iiBual cnunts. Upon the trial, the PhiintifiF's connsi-l ciuild not jiroduce the note, iliey alleged ii wa- lusi: but tiie} produced an an- swer in Equity of the Defendant, to a bill hniosjlit ai^ainst him b) a thii'il person. in sviiii ii answer. In-stated ascliediile of di'bis owing to tiim, and ainana;si otiii is, he stated a debl of £90 doe to the IMaintiff. Jlr. Spiller olijected, that this bill and answer, being a suii lietween other par- ties, and in vvliich the Plaintiffs were no way concerned, (421) the answer could not be read as e» idtnre — it was evidruce only between tliose who were parties to the suit in Equity. Fer curiam — Where a verdict is given in evidence, it is to the end thai conclusions drawn by a former jmy be- tween the same parties, upon the same |)oiois, may have some weight wiih the piesent jury ; and as it is a con- clusion upon evidence subject to liie cross-examination and contestation (d'tlie jiai'ty against whom it is produ- ced, il is '.tllowed to be given in evidence against him — but a verdict between otlier parties cannot he given in evidence. However, the i onfessions of a Defend. int, iho' made in private con>ei'.''aiion, and to per.-.ons no ways concerned in interest, may be given in evidence, and that is the princi|)le the court goes upon with respi 1 1 to a con- fession in an answer. It is equally proper to iTCeive evi- dence of a Confession contained in an answer made upon oath, as it is to receive evidence of a confession made iu a less sidenin manner. The eviilence was i-et eived. Mr. fniliams, for the Defendant, then objet ti d, that there was no evidence to support the general counts ; antl 486 havwood's beports. oc, 1796 if fliprc were, yet it Irxiii.e: bocn proved that a note of '^^'^'"^^ hand «as fcivni, iirid is now lost, there could be nu rero- ^ei-y on the general roiints, lor tli:ii note was a neiroiia- ble iiistniiiieni, and nia^ now be in ihe liands nf some in- dorsee or hiilder, wlm ina_\ iiereafler resort to tlie Defen- dant, and will be entithd to recover no'witb'-'andins the jiide^menl the court may now sive. The liohirr will not be subj'-et to any transactions wliirb may takt- |>lacc between the original partirs to the note. It is true, a Court ol EqfiitN, in a case ihiisi ircuinstaiiced, wonld make a de( ici , but it would do so npi'n leriiis — it would ri-(|uire the Flainiift'to tfive siTUfif\ that the note should not af- terwards he deiiiaiidi'd of the Defendant, tc in the jiiesent case cannot he produced to siijiport that count. Vere it produred lure, and filed amongst ijio court papers, there wouirl be no danger (jf its rising up hereafter to rhaige the Defenilant ; and allliough, had tiieie been no count upon a note, nor any e\idenec of a note, the confession contoined in tin' answei might have been competent to the proof of the count for work (422") and labor done ; yet when the evidence shews a noir, it hinders a leeovery upon this count also. My objection is, that whilst the note exists, there can be no recovery upon the considej-ation for which it was given, or the cause ol' it. lest ti.e Defendant might be twice cliaiged. Dvffy. c contra — The giving of a note is no extinguish- ment of the prror cause of a< t'on, as a bond or otlnr in- strument miller seal is. 1 Burr. 352. lie said lie wa» unprepared with authorities, not having expected the ob- jeeiion ; hut if the court wonld direct a verdict for the Plain'ilT, suiiject to their opinion as to the matter of law, lie Would produce authorities some time in this term. — This wasassrnted to, and the verdict taken acconiingly. And the court having taken time to considi-r the case, and having seen the autliorilies itroduced by Mr. Duffy, viz. Ld. Ray 1427. and 12 ,.Vo(/ 309. gave judgment for the IMaii tiff— ihc !)( feiidaiii's counsel declining any further argument against these autliurities. Haywood's reports. 487 Note.— rWe ^dJim. Edit, nf Ut nil on F-M. 286, as to confes- Oct. 1796. sions ill a'l mibWii t-: I). I ^n Kqn tv. 'I"i ' T'S' o' t in this case is ^^"V>^ fully supported by 2 Pliil. on Evid. 11, f2d Am. Kdii.J Aimnymoiis. The Plaintiffin (liis raso lnul (ibtaiinul jinlermfnt against the Sliciiff ill iiii action in Ej<'(tnM'i!t in tin- Cr)Miiiy of Ciiiiibci laud, iiiid lliciT Wits nn rrniiiiri- in tin Cnnn'y to whom pfocess rniild bf diieilfd. Mr. Moore, f<'i- the. Piai. tiff, moved hit |iror:ssissi the Diftiidant. The Plaintiff and Der<'ii(lHiil had a.i^fieiMl that an artion siinuld he institiilcd wiili'nit in-oress, and an ih.sue made Up Id try the (act ; and .some tiniilit iniw aiisinsc in regard to the proper for in (if ai'tioii, and nf the issue to hi- made up, I'lcy leftiied it to the cnurt todiiect the jiioper foi in of actum and issue. Et per curiam — WiiiiiiMs & HAYWoon, Jtidqes. — The action used mi such occasi.ins f n- eii;hi or ten years past, is the action of trespass and false iinprisoninent ; to which the Dcfi^ndatit pleathnl that the I'laintiff is a slave, and caiitnit maintain an action ; and to this, the Plaintiff re- plies, lie is not a slave; and an issue is made up upon this point and tiied by a jtir}. The issue wasliien made (423) up III the presnit case accordingiy, and the evidence not being competent to prove the Plaintiff's freedom, the 488 Haywood's ueports. Oct. 1796. coupf recnmiDPndeil Mie wiibdiiiwiiia; a juror, wliich waa '^■^^"'^^^ ixsftyci] lo ; and tlirn thf Plaintiff's cnuiisel iddm'cI, tliat D{' Collins, became the purchaser, and left the horse in tlie possesMion of John for some time, and until the Defendant levied H'illiams' execniion on him, and ap- pointed a day of sale ; on which day, Collins appeared ami pro\ ed tlie sale and iiurchase as above, and had the horse delivered (o him ; and the next morning, sold him (o George Cox, without receiving any money, hut only taking his note ; part of which Collins said was jiaid af- ter the trial of this cause in the County Court, abour IS months after the date of the note, by discounting a debt Willi a creditor of his — the residue be said was retained in the hands of George Cox, to satisfy a debt of Collins due to another creditor, wliicli debt however has not^et been paid. A shoit time after- George, ijurebaseil the horse, he was again in the posscssiio) of ./o/m. a-id continued in bis possession till he exchanged him as bis own for another horse with a stranger, receiving some mtme), as the dif- ference of value. Soon after (be exchange, he brought the iiorse received fi'om the stranger, to George, who appro- ved of I be exchange and lent the horse to John; in wliosc possession he eontinued for some months, and until the Defendant seized and sold him to satisfy fViUiums' exe- cution. It was proven, that George bad lidilen tins lat- ter horse once or twice afier the exciiange took place. Jtr. Williams — Before Mr. Taylor procei-ds to make his remarks upon this case, it will l)e proper for me to apprize bim of the grounds of our (lefencc. We rely princijially upon iliis. thai the transacuon bet'^een Col- lins and George ami J.ihn Cox. was fraudulent and calcu- lated to protect the horse against tlie claim of other ere- 490 HAY wood's keports. Oct. 1796. (lifors, and tlioiefme »oid. .\iid fur tlip purpose of as- ^-^~'''"^*^ ciit. lining what Hre the inaikft of a frmiduliiit tr:irisac- ti'Mi, we wliall ii'lj'iipoii Twigiie'^s c:ise, S Co. Rep. 8l — beiii.a; a idiisiniciiDii u|)i>ii ilie ait of 13 Eliz. c/i 5. fniin wlinii our own ,ict of 1715, cli. 38. sec. 8, is taken. TayU)7- — Ti'e case ciied by Mr. ffWiams is rertaitily suuiiii law, l)iit il can neiei- be inide lo ih-,w upon a case cifcunistanced as tlie |»ics«'.iit one is. None of ilte inarks of hand laid do\Mi in Tivigne's rase, are found in liiat no« bei'oe ilie coui'f. Tne sali- and jturi'liasc by Collins /Acts') ^'■'''' "'" "••'de piNiiling any suit b> anotlicr ( reilitor «itli ^ " "^ a design lo (lei'cai his Miii. The pi opi-itj wln-n pnrcliased w.is noi put inio the possission i>\' Johiihy Collins, ir with lii> mnseiit. Thiic is no trust betvM-cn tlieiii, anil these trans.tciions were not done in secret ; but here was an oj)en Icvjiiig of exci iiiion, ailvertising ii for sale, and an open puiihase pnblKl} made by the highest bidder. One of (lie most jiroininent features ol franii, is its being dune in secret ; In le notlnng like secrecy is aitcin|)ied. After tiie piiicliase of Collins, John indeed had possession again ; and possession of (he lonircr owner, after a sale made by liini, is mentioned in Twigne's case as a inai k of fraud ; but every mark oi fraud may be exjilained by cirrumstances, and ovVriurni-d wliero the ciicumslanies prove that no fraud was intend- ed In oui' ease, Hie horse v\as not left wiiii John Cox by CoUins's (on-iCnt, but alter he Uudi'istood the oorso had been left in bis possession, he tiicn agreed John Cox shonld k< ep bim for -oine sliori tune, mat he niigh. pro- cure tbe money in the mean tune, if be could, andreiieem the horse, 'i'be money was what lie wascimtiy anxious to obtain. This shews he was not in John's p issessioii for the ))ur|iose ot defrauding ciediiors — 1< siiews tiic piirriiase was iiit made to vesi tlie legal property in the pun baser with a \i>\\ of securing ilic oSi' to the foinice owner. It is not ever) possession of the firmer owner afler a sale, tliat will nnike ii Icaudulent ; but onlv siiili a possessjoii as is imaprtiile of a lair explanaiion, and siiews that the benelii ol tlie |iro|ieriy was intended lor the foruiir owner. Nolu nhstanding the sale, if me re- taining of jiossessioo by John, is explained by the cvi- di lice to base been fir no li andulr.ii purpose, then ihis case has not one in. irk ol fraud mcatioued in the case cited by Mr, H'tUiums. Haywood's reports. 491 TFUUams for the Dffciidaiit— Where a transaction is Oct. 1796. secfet bft\vi'<»(Mi ;i cifditor ami liis di'ljtor, f n' ve-^tmi^ tin' '-^'■^'"^i'' pro()fit> »( ihe latter in the fnse ot'itut- ting tlie properly fiin of the reach of other creditors, it is not a bonajide transaction, not what it purports to bi- — in appearance it is one thing, in reality another; and the true eufpiiiy always is, if the transaction is in reality, what it purports to be or not. The true answer is to be collected, not from jiositive esidence only, fn thai is sel- dom to be had in cases of fraud, but troin a carefni atten- tion to and Comparison of circnmstances : and every tran- sacion, whether secret or public, liy way of volnniary aali- and puichase, or by way of juilgment, excuiion :.n(l sale nirtde publicly, when auend'^d by circuinst iin es suf- ficienily indicative of' fraui), may be rendered roid by them. JSo possible form or legal ceremony is ex'-.npt from scrutiny when suspecteil of fraud, nor frinn lieiiig made void by it. The law has been so enlaigeii from tinie to time, tor the purpose ofdeteciing and oltviaiing frauil in all shapes, ihat ii is n.w conipftent to pro((ne taken from llietii e — this nl«o whs reni'died. ZRd. 2. St. 2c. 3. Tlien camp the 3d H. 7. c 4. makiiiff all t^ifts in tinst fur tlif d.ivr, \oh\. 4 Reeves 140. 141. Then thi- 1 th EL C. 5. inii'iKhd t<» iMi-rlinn rvi-rv posnible case of fraud ; and l.isti} our own ai t ol' 1715. c. 38. So scdiciiou-. have diflR rent Lpi;i-.l.ttiires been to suppress fraud in whatever sh.ip' it ma_v rndi-avor to ronrral ilsell. The endeavors ol the L'Sislatuip havi- been seconded by the courts of juhiicf ill interprptiii.tjtlipsf several acts. The rule of in- terpie'atioii has always been, to jjiie the niosi extensive opeiatioii to these acts in suppiession of fraud ; so that , •. at iliis day, although a conveyance may jiui-porl to be ab- ^ •' solute, jet if any circuuistaiicp attends it from whence a jury may reasonably believe it to be fraudulent, ii is void. Thus if a man conveys by teoffmeut, and still takes the proliis, the law deems ita mark of fraud— the i onvevaucc is noi «hai it purpi>rts lo be, and is vnid if the jury will find it I'randu lent. 3 fiac. .^6. 603, 6 4. If a man indebt- ed, conveys all his |ir' peity to one rd" his crediioi's, and yet continnes in possession and uses it as his >i\vii, it is fraudulent. 3 Re. 81. If the debtor has _s;iiods to the va- lue of twenty pounds, anil five several ci-editors to tlie va- lui of "wenty pounds eacli, and he conveys to the first cre- diioi- liis effects, upon a secret unst that the creditor will deal favoiably with him, and lei him have the use of ihe go 'S or some part thereof, it is fraudulent ; or )vhere till seller continues in possession iioiwithsiandint; the sale. Pre. Cli. 285. Or where the debtor lonveys all his estate withnit exception of any part, the j^enerality of the con- veyame induces suspicion, and is evidence of fraud. 2 BacM. 604. 605. Oi if the seller roiitiiiues in p-s-^es- sioii, and is to aci ouot annually. 2 Bac. M. 60S. Ur 'where, 'hough a valuable consideration he given, the con- veyance is not bonujide, but with a view to defeat some Ciedi;i)i- ..r purchaser. Corop. 43>i, 434. Or where a mail hi iiig sued and issue joined, before trial, coiiveys to a third person to the use of his sou, with a proviso to be void lip n 'eniler of a small sum by th' grantir, who still CO les to t ike Ihe profits. 3 Dyer 294. Or where a prim.ij[>al grants to his surety, before the surety is dam- Haywood's reports. 493 aged. he the prejiidire of other credit. .rs. 1 ffils 44. Of where a iamlloril rlist'uins ih-' fiUher's goods aiiil 'iclis them, and the sun imrrh ises, and Hie fa- ther continues in possession. Pre. Ch. 233. All th.se and the like rircumstanres, are the indicia offriiiid ; and noMi- of them stronger 'haii that ofth.' foimer owner still continuing the possession after a sale. In *he present rase, Jtihn Cnx, the dehtor, «as conti- nued in possession after n seizure by tiie Constahle, un- til it biciinie necessary to sell, to suppress the clamor nf thi' neighbf the la' ter horse vested in him, liowevei' he miglil be li.ible to his broi tier's action f..r disposing of the other ; and Hieii he jn'operty thus acquiicd, was clearly liable to Williams' exei 'ition the., in the hands of the officer. It is'-ned .h .'9'!i Sep- tember, 1792, .ml the excliiins;e to'.k pi e ftrwuds, •whilst the execntion was in the liainis .if ihi' llicei . The law is clear, that goods arc bound from the teste of th& 494 hAlYWood's repotits. Oc ir96 expciition ,• and 'hut the excmtion will so attarh upon *"^'"*'"^' them as to disHlile tlie dibtor from spjline; tlicni iiftfr- wanis — iliey will Me, liable to be seize«l io th<' li;iii(lsofa vend prius ov posterius in the same day, \et in sup- picssion of ti-HUil, the exrcution was construed to have is- sued before thi- sale, and so tlie sale was void — therefore in the present rase, as the exenition attarhed upon the horse the instant he beranie \he property of the debtor, the officer was well justified iu selling him. Per curiam — The _a;oods are honnd from the teste of the wrii of exi-cuti(»M. but that rule wilt not apply to ilie pre- sent CHse — John acted as the agent 'if his brother, who havintj approved of wUA he did. ratified the iraiisaciioii ab initio — so thai the pi-oprrty of tlie latter horse passed to George Cox, and not to John, if the first horse leally "Was George's — as to that the court differed. Judge Williams. — The circumstanres do not amount to proof of fi-rtud — ihi' possession wliich John had after (429) the purcltase by his brother, is not to he taken into con- sideration, tlie brother having a right to indulge him with the Use of his |)roperty as hi- thought proper. As to the possrssion he had alter th<" seizure by the cy the consent of tire con- stable, who was atrswerable if the property was not after- wards Ibrthcomiirg. It is the rrsnal jiractice with offirepB in ihi» coirnii'y, who seldom i-emove the properly brfore the day of sale, unless whei'e tliey suspect the Defendant will r'emovp out of the »aj. As to the possessioir he had after the purchase by Collinses agent, that was without the privity of Collinx — no part ol Iris possi'ssion appears to have been cornirrued by the consent of the crrditnr, and ii: that par tirnlar differs widely from the possession mentioired in Twigve's case, and the other subijequent cases grouirded rrpon it. Judge Hatwoou. — All the circumstances subsequent to tire sale, are lo be taken irrto corrsirleratioir as explana- tory of tire real state of iln- precedent Irairsactroirs — the possession of Jo/ui always coniirrued — George gave nothing ftrr the horse, though a > iliiable coirsidcfiiirori was pre- tended and held up. The debtor having used the hurso Haywood's heports. 495^ as his own, and ilispnsrd •>( liiiii, arc visible marks ofOcM?y6. fraud. Tlir jur^ I'liund for tlie Plaint ifT. \^~v~>>m/ Note. — U;;in thf question of (raud, ice Hotlines \. Blount, and the note thereto, ante 414. State V. Norris. A motion to postpone a trial foi- murder, on account of the (jreat pub- lic ■ xcitemt-iU a;;uinst tlie prisomr, was ivfused. WitniAMS and Haywood, JuilgcN, iliffcred as tothe qu. stion, w liether i jnrorruuld be isked on oith, w-ietlicr lie h.idfxprc-sseil an opinion untav'ir4bly to the pi isunn-. The Slate may disrreilii its own witiirss by prov- ing til it the witness, on fom.er occasions, had given a ditTcient ac- count ol the transaction, from thai which lie rtlates in court. A person-who was violei tl\ abused and beaten, made his escape, ran to his uwii house, eigiit> yards oft', got a knife, ran back, and upon meetiiii,' with the dtceascd, stabbed him. It seems, tiiat he is only guih\ (it iTianslaiiglitei'. 11", upon ihe stcoiid iiieeting, the prisoner had disguised the fact ol having a weapon, for the purpose nf in- ducing the dece sed to come wiihin his reach, the killing would have been murder. Indictment for (lie murder of J^alhaniel Daves, and not guilty pleaded. Tlip prisonei' was biouEjIit to ilie bar to take bis trial. Mr. Hay read a paiagiapb from a paper iirintid in this place, and circulated on Monday last, stating the Ii'imi- cide committed by tlie prisimer in terms of a_L'j;raval"!M — and moved on that account far a postponennnt of his trial, apprehending tiiat the public mind was too much iiiitated at present, f.ir the piisoiter to bnve a fair trial. Judgf Williams. — The pr(i|)le in ihis country do not takr for truth, every thing that is puhii.slird in a news- papei'. The jury will know they are to begovcrnctl only by thf evidence and the law. I ti'ust no one will he so much prejuiliced against the prisoner, as lo be led to an unjust condemnation. It will be the duty and the business of the court, to see that be has vwiy advantage the law alhiws him. It is not to be apprehended that ii Jury of this Conniry will do him wicmg — their h'.imaiiity i- proverbial. Judfte Hatwooi). — 1 tlisappittve highly of thepiihli( atioii — the cause. However, is in course for trial, and must couM' oti. The clerk began to call over the jurois, after intoiming the pi isooer these were the men who were to pass upon his trial, and that be must chalh nge them if he thought propel-, as they came to the book lobe sworn. Jlr Uay said the kil!iii,;j ni Diives ly Hie piisMiier, had been a sub)ect of very geneiHl conversation; that the (430) 496 HAYWOOD'S nEPOKTS. Oct. 1796. fgpf j,j,,] {,ppj, rpii,(,.j j„ jj ne\vs|)rt|)Pi' under a_^.jjravatiitg ^^^"^^^ ciirtiinstaiires. and tliiiuji;li tliat publicHticni niijj;lit not have been mado witli a view of |ii'p-iirru|»ying the mind of any one wlio whs to take a part in the trial, Vft in re- j ality, it tuny have had the effert nf peejudicing thepiiltlic ' mind in (jeneral against tlie prisoner- : tdai he had but too much reason to appi-chend it had produced stich ef- fects : hf thert'l'oie nmved when the iir'isoner obji-cred to a juror propter effectum, or (or favor, as it is railed, that the juror miglit hf I'xainined upon oath whether he had expressed an opinion uuf<iablr to thr prisoner, as other- vise it would be difficult for hint In produce any satis- faciory pruof of the fact, haxiiig been ronfine'l and visiied only by one friend, and not knowitii; until the nioineut the juror is oflT'i-rd. whe-ther or not that person would be upon the panel. Gi-eai part of ihe jurors being lal«-sinen, summoned this morning since the sitiirtg of the court, had he ever heard of any man haxing expressed ;in unfavora- ble opinion, not knowing he would be summoned as a tal''S(nan, it is i o' lo be exiiccted the prUoner r(mld be prepared to pro>e his exception. ImweNer tiue it might be, unless it could hi- sujipused he had prepired hiin-elf to support hisexcep'ion ag^tin-t <-\ei> man w h had given such opinion, and thai would be unreasonable. Mr. Jones opposed t'le motion, saying there was no pn-ced'-i.i fop such a prr)crdiire, and lie hoped the coui't would iioi now ' make one for tiie first time in lavoi- n| this prisoner, who shiiuld be trit'd as all other prisoners have been. Judge Hatwooo — I do not ■' presi iit recollect, ever to have seen •-ncli a piaciicc, and 1 am induced to think there is n> precedent "f tjiis kind. Judge WiLLiiMs — therr is nnnr. Mr. Tiiylor then ciied 3 Bl Cnm. 363. A person about to be swoin as a juror, may hr chalh- gid lor any of the causes there staled ; or even when- the chalh-iiger tiath no princip.il cause of rhallenge. but only some cause of suspicion, the validit* of «hicli must br left to triers. H<' ills- cii d 3 BL Com. o64, wln-re if is laid down from Co. LitI 158 6. :Int a jiiiO! may himself lie examined on oai.li ol voire dire, with regard to such causes of clial- r.-.N lei)ge,as i. e not lo his dishonor or discredit. Healsorited ^ ^ A lil. Com. 352. 'Wi' re i( is -aid. ilie pris oier maj have the ...atitr ' liallrng s fir Cause, in a criminal, as the Pi iin- titf or Defi'id >ot m •} in a i ivil i ase, and where a ciial- leiigu propter affectum, is mentioned as one of tliem. He Haywood's hepokts. 497 argued, that tlip »>x|irc,ssiii.s; an oiiinion by tlip person of- Oct. 1796. fei'iM) lis .1 jufor-, if not a |)i-inrip,il catisp of ihrillcuge, as >^'^''">ii' lie tliiiiia;hi it was, at loast is siirli a raiise as inij^lii rea- snnablv iiidiico a siivpiri'iii of his not l)riiis^ indifffi-eol and impariial towards Hit- prisoni-r ; and if a prisoniT in a criminal case had a ri;j;tit lo except lo vi juror, siisppcfiiig liini to be unfavorable, there must be some niod"> oCtiying ami disroxeriiig the trnlli of tiie exeeption, and there was no ri asoii in a criinin.il case for resoitinq; to a diffefent mode of trial from tliii used in a ri\il one; a-id if on a ciiil case, for the poepo-se of i-i-aehiug the disposition of the juior towards thi- party, the law would suffer a juror to be imeri'ogated on liis oath, with respect lo the truth of (he Ciiiise aliei^cd, to shew him not imp. irtial, it is equal- ly necessary tliat a prisoner, where life is in daos^er, and for whom tiie law profrsses so inuili tenderiii'ss, should be also entitled to have his excepiion tried in tin- same way, and to the same means of in> estii^atin.;^ it. One of those means is undoubtedly the oath of the juror himself j and why shall not a prisoner have tli>' oaib of a juror, as well as a Plaintiff oi- Dtfendant who has only some tri- fling propi'rly pei-liips in question ? No inconvenience is. brought upon tlie joror by the question to be asked, more than in a civil case: lip will not be retpiired to give an Miswer to any question tending to criminate or d''!'aine himself. It is a very easy task for him to say whether he has deliveri'd an O|iiniou U|mn the case of the prisonei" or not. Is there any man here, who were he in the situ- ation of tlie prisoner, would not be discoiic<'rte(l to be tri- ed by [)ersons he suspected had already condemned him ? The motion ot Mr. Hay lannot be an improper one, or the law cannot be said to iiave that compassion and hu- manity for prisoners, which it so much boasts of. It is of veiH little consequence, whrtlier or not the practice of our cmiris, hath been known to conform to what is now asked for by the prisonei'; few cases perhaps have been known to require the same caution, and lor that reason, it may not have been taken. The quesiion is, does tiie law allow ihe prisoner such an objection, or such a means of discovering its truth or falsehood ? I think it does al- low of boMi, ;tnd must insist on (hem for the |M'isonir. Judge Haywo iD. — Upon reflccii >n, I am of opiiii(m (432) the 01 ition is proper, and (lie jier^oii olTcred may hv.;,iily bo iHterrogdtoii on oath, as to any unfavorable opinion ■ 498 HAYWOOD S REPOnTs; Oct. 1796. |,(. ]|a5 pxpn'sscd ai!;aiiist tlie prWomT. I can see no rea- ^"'''"^'^'^ soi: why tlio fxception is imt allowable as well in a ; but wlnn we once undertake it. we should disrliarge it laiihfully, rcjiiirdlessof those svinpaihi^ing feelings for the prisoner, which are so apt to be expeiienced on such ••ccasions — ^Ve are not to be inHneined in any ri'speci b» them. It is not a true position hat we are ro be the frif nds of be \ prisoner — «e me to >,ee tliai he has a fair trial, jhiiI this is all iliat is requiitd of u-. Jud.^e Hatv\oou — i am intrusted in some measure by m) I ountry witli tins man's life — lie mav he a bad man * and deserve deatli ; but I «ill imi piejmlge him, neitiier will I I'.i any eiiitiily ( aiise b"- pievaiieii up'oi to deny hini a.'^ pcivilegi he is etiiiiled lo. I iliink up'Oi i oii- sideraliun he is entitled to that whicli bis counsel ask for ' Haywood's beports. 499 hiin ; and were the wliolc world lure present to demand ^'^*- ^''^^' Ills cxcculioii, I W'liild nut refuse him an .idvaniase tiijit -^^"^J* should be niru i d> d lo liiiii; w hilnt I sit here, the publir cry (433) shall never seduce or ini)ir-l me into the adoption of a nieasiut niv Jiidt;ment disapjn-oves. jyir. Hay — In m'der to ti;et over the embarrassment this molimi IS likely t" produce, Hiid the warmth it has (jiven occasido 111, I propose, that whei-e a jiiior is rh.illenged propter affectum, or tor havioa; expressed liis opinion, liis name sli^ll he set down and no'cd aS >ne cballeiised f(H« cause, and that the cl.rk then pioceed willi the panel; and if the panel shall lie gone ihron_a;h, and the Jury not conipluled, that then, we consider of tlir Jurors wdose names are noted, and liow the • xc plion sh;i(l be ti'ii'ii — Periiaps we may get a .jury before tlie pmel is i^ooe ihro' and Mien it \\ill not be necessary to consider furl her of the exceptions. Judge- Williams — That (ir >posal is a propi-r one — I think il should bi- adopti'd. Judge Haywood assciited. The Jurors in tiie panel were then offered to the pi'is- oner, and a Jury was coinphted ; and they were sworn and charged wilh the prisonei". The eviihnce mi the tt i*i! was as follows : On Satur- day night, JYorris and Young c.iine ro the house of Mrs. Rainsay, wh re W'-e Daves, Dudley, Ramsay. Camphell and oihers. Young renained :v, ib \>\ zz «, JVorri^ c inie in and sat talking wiih Ramsay i'n- some time. Camp- bell went into the (iiazza to Young k\ho \v:is inioxir ,'cd. He talkud Dudley pnlle'l i.ft" iheir doriies and w- nt into the |;iazz 1, Yuuug and JSCorris bad gee oflT. Dudley aud Daves «ent indi the slroei, and JYorris ctme v\alking from ihe iippei' par) of the to«n, down ii. wards his own lions., passing iliai of Jlrs- Ramsay. Daves and Dudley went Inwards liim and inei bun, and Dudley said f that, lake s^itis- (434) la( li.ii,. Daves sw ppid i.> iiiiii ;iii(l .t^ave liiin tliiie or four IiIm«s. II |i '11 w i 'I' ^''orris ran li'. met ilieiii with his roat oflT. They deiii.xidid "I hull iTIie meant Gt;iitin,c;, and why he had strip : hi' iinswi-rrd thai he wa-< not for fii^htiiis;, and th;4 lie liiid siriipid t" sei Cap pla*, hearing the iltack Upon ,\orris. Al this lime, the w itiiess heard JVorrissay, dainri >'>ii, \ nil struck ine, did ^oii? Cinneon, 1 .iin now read* for yon. Daves -aid, you have a slick or srnne \vi .it'iiii >s e\ niiiiaiion of ijie vNiinoss, he said Daves kx ked :it JSforris ifter he fell in the first conihat, near Mrs, Ramsay^s ; and ihat JS''orris''s house wa-> ahi.iit fil'i^ vards IVinn the place where Daves was St. hhrd ; iha' he h.d jjnno some distance helow Jlrs. Ramsay's to^ani JSlw-ns's, hel'ore iliey met the second tiiiie; and tli;ii J^orris was gone tiiree m loiir minutes belore heriturne ; and that the fislniui? happi-md about an hoiii in the iii;;ht. riiis was Campbell's tesiiinony. I'lie . vidence <'f Youug was, that he iiiei JVorris at ihu race-tfi'oiind on S.-iurda.v, ai d rehuked niiu foi quaerel- lin.a; ilie nijjii' hifure Willi Daves. J^orrls answered, it is ;ill sitthd. W( drank toi^eliier at the pull — it was i)C- casionrd by litiuor. At night we»caine down by Mrs. 'Ramsay's, he askci me m ^n in, hut I declint il : he de- sired iiie HI wail a li'tle tor Kim — I v\ai to me, and wliei c Haywood's keports. 501 Saves was stabtied, fo JVorris's lumsp. Dudley ballowpd o i796. so l'>ii, liimselt', Daves and JVbrrisraine tni^ethcc int" tovMi IVoiii the i-i town, aiid uere dri — I never bear inali'e. JVorris nplied, it was not me hutrtmi ; let us go to Dick's and drink something. I proposed they should Hiiei at the races and drink together, which they agreed to. Al the I'ace-ground he (ailed to Daves and myself to come and drink with him, and we «lid so. — Afier drinking togifher we parted. After dark, at Itamsay''s, JSTorris came in and sat down. We sat down to supper, and J\''orris was asked to sit down, but declined and went out — Campbell was missing — hut after Hinjpei- canie in — Daves asked him what J^orris came for ; Campbell said, lie siijtposed to lireed a rioi. — Daves ■■mh\ mysiHtoen pnlled off' (nii' cloalhs and went into thi' piazza. JVorris and Young were not tlnrc. — Daves called out for them, sajing ihey were cowards — J^'orris came up, and Daves met him. I went off calling for roung, lie answered, i am here Daves and .N'orris bad .siiiic words, and Dares trinpid him up. JVorris rose and Daves struck him. JVorris riquiri(ea|ioii or a siick, wliK ii JVorris ijc' icd. Jlrs. Thompson called out, sa» ing, JVorris lias a sword or gun, he will kill you — do nut g^ 502 haywood's repokts. Oci. 1796 to liim. Daves llo^^pv^'r, and JVarris met in the street ^^■^'"^^ <)|)(iositp lo wlK'ie wp were. As th<7 mtt. JVbrris niitdc a Illume. Daves ciifd out, he. lias stabbprt inc, and fell. Toung ;in(l iiiyst If went to him — his bowels were diiI — vvc caii-K'il him to J^lrs. Ramsay's, ami in two hours lie died. A' tlie last nipptiiija^. 1 did not see Daves strike befni-e the stub It was eighty pr an liiindiid yards from TAonip- SOJi's ih'- pliicp where the slab wiuse ai Mrs, Rdmsay's, Daves saiil to me, Mrs. Ramsay does not v*aiit ,^orris here, you had better ask him to go out, I lejilicd, iMi — he «ill go presently, Mrs. Thompson denused as follows : that on Saturday niglii she WHS sitting in an riui house, and lie-ud a great noise, and a woman's voic<-, and «aw Mrs. Rainsaij in the Slieet, and heaid very heavy blows, an you ^top us? do you want to fight ? IJe answeied no. Daves then came tn where she was, and said ,A''»rrJshad abused Mrs. Ramsay unmercifully, and that he li.id resented it. AI this time Dudley anil Foung Were in the street in high words, and Mirris laine buck running. Dudley and Foung stood sonu' small distance from her anil Daves. JYorris siopt on the olher side of the stuet and sioid a shoii lime. Si e saiil to Daves, do not go to him ; perhaps he has a weapon. Daves replied, Haywood's reports. 503 damn liim ; I am imt nfi id of liitu, « papnn or no weapnn; Oct. 1796. ami vxpiit roiiiid the oihers li'om Iier, towai'ds JVorris ; ••'^''^'■^ and said ti> «A"'rris, liavejuiiH weapnii ? he iiii>v. fifd lO. Havp >Hii a rliib ? lie answered no. Th<-ii said Daves, dn yon iliink yon ran stand a man n^n he advanced, to stand iiack. 'I'wo or three hliii\s pussed liefore the st;ii), and she thinks (Vom the mannei- nf Duves's iidvancing thej wcrefjiveii hy him — In went tow. nds .A'orris as if s^dIii!; to »"nik hioi. — (437) She heiiid the blows that lirst passed near •.1/rs Ramsaifs — ihi-y were very heavy. Sevri-iil other witnesses were sworn, but they related noihin,^ material. Mr. Briggs stud, on Sutnrdiiy, the day precedinj^ the ni^ht when Daves wa.s stabbed, he told him he rxpecieil lie vvontd hav<- lo fii;ht ihaf nisfht, hut did not s;iy whom. Jlr. Dick, icciied the qiiiinel be- twren Daves an*! J\"(/rns on l^'ndav : at which time Dud- ley saiii to Daves, say what ytui please to him. if yni can't flos him, I can. An old la(t.> swore Daves had ob- tained a jiidij'nent on a warrant aicainsl souie man, and about thi-ie weeks In fMie his dealh left it \^ithher, tellins? her to keep it, and if any accident happened to hiiri, and lie should ilie, that sIih iiii,a;ht collect the money — and a day or two aflei' his deatli Dudlcti came for it, Ano'lier witne-s said, the day helore yesterday Diulley w..veen Dud- ley '.ml JVorris. Jones, the Solicitor General, then moved 'ohave leave to in'rodiire wiUU'Sses to prove a variance between what Mrs Thompsou, mv of i|i>- witin'saes, had swoi-n iti cmiri anil what sill- !• 'I rehited in seviT;tl cok v eisaiimis to others. He admitted the rule in civil cases was. that the 564 MAY wood's reports. Oct. 1796- party produring; a witness, should not afterwai-ds he per- v-^v'^, ini'trd f. distiedii that witness; l>iit tin- nilo h d m'ver been ad»; iil .s lie knew of in rt imiiirtl rasrs. Itirivilra- ses, the |i;u-i\ ronvfisfs wiili llic wit.iess l», fdr- his inti'O- dnclion. and kmiw^ what ho will swear ; and is scnei-al- ly arqiixin!i-'t that the witness is crtdihh-, as he rhiims a benefit IVoin the tcstiiiiini) . It i- pinper in snrh ra>-es he should be liniind by hi*- admission, hiit tiie nason ol' that rnh- wiJI not ;ip- j)lj to ('liinin.il rases, where thi- i>eoseriiiioi( is cartied on by the oflirei- of ihe puhlir. not a' 'he instance of any jiar- ticulai' prosecutor'. Tliai pnhlie officer is a stranjcer t» tlic prrs(>n- he inoduces as witnesses — he has in ;;eneral, noopp irtiinity of knowing; eillier any thiua; of the charac- ter of the witness, or of wliat it is he will sweii*. other- (438) wise than as he Collects il fr'om others in the course ot con- versation. Hay atid Taylor objected to the wtti^npl of the Solicitor- General to discredit his ow"n witness — tliey insisted the rule of not allowing lhi> to hr doite in civil rases, was equally applicahle to ciiiiiin>il om-s. Per curiam — The r-nlc is so in ci\il cases — let autho- rities lie pr'oduced to 'lio \ Im^w il is in criminal ones. — The s»''i'l-ses we^e calh'd to saiipurt her Cre- dit — ,j|,.y ^;ij(] ^in. ij.jii t,,i,i f|„. story III thi'ir presence at dift'eient times exactly as slie iio-v told it in court. This rloKeil the evidence on both sides — a sn.nrnary of which stands tlpis : On Satin day niglit, JVorris Ik Viiung retnrninjr tV'ini rlie race-, JVo^ris went in at Mrs. Ruin- r,„„x siii/'s. \\iiiN; Voting w'.iitedfii Omi in tin- piizz i. In the '^'*'^-^) hoiis- , J\rorris talkeij wi h Rums ly, sitting on the hed. and supper coming on. iie re'ii'"d an i vventupthestrei- — I'oiing g'uiig (low n. Duilleij \. Daves noderstamling from CaMp- hell, they had come tini e Vo qn.trrel, stripped, .vimiI, out calliii.i; foi- tiiem and saying they were coa^rds — jYorris at this going d.iwii the street, passi'd near Mrs. Ramsuifs not far (Voiii wliicli tlii-y were. Diives accused nun of co- iWiiig there to lireed a riot — JVorris denied it. Daves iii- si-lei| iijion it. (lid proceed,!! to abusive langu.iLje, which JN'o.'Tis letortid and Daves repeated, tiipiiini; up i»ts heels and kicking ,il liiiii winlsl on' 'he ifidUnd. J\'.;l.tyor an hundred yard- — Dares and Dudley >>eiit '1 iwii the slreei to<\a.rds TiwnpMii's. w here, they, t'lund l''lJlt^^' strip- ped. Dddley '-t"od in ihe sti-it, opposite T/fnnps.-n^s, con\e-sing sNith Fnnng. Daves als i st.od in tii' si ef. Ml'. '• TAom;)so»i's, coiivi ismg with Mrs. Tliompson. lYqr- ris. ;iiier an absenci ()| ilneeorfour iniiute.s. ien,ined rmuiiiig, and as 3Jrs. Thompson says, stopt in the street 506 HA V wood's llEPOItTS. Oct. 1796. ()p|)i)sit»i to tlipin — as the '>t)i-i' wifm-ss says, lie ran up '^■*'"^^'**^ ti) Dives witlioiit st(>i>pii):r — Daves (lisr>veip)r siji k, w nrli JVorris d ■iiicil and thev nut. Campbell s.i)-<, J\''orris cri- ed our, (i.inp on, I a-m rendv I'nr von. Mrs. Tlioinpson srti -., blows piisspd ii|ii>ii tlieir iiiei'ti'isj, wliicii -lie belii'v s weiT given by Daves. Dudley sa}s. In did mn -ee Daves stiikt' b' fore tlie slal) — ilir oiliei witnc-scs say iioiliing of iiJAvs ti iliis tliin . I;iiincdi.it' ly npoii llie last meet- in;;, liie deceased received the inortai wound of wsiich lie died. Jones, Soliri'itr-Geiipra! — The ci-imi' of wliirh tin- pris- oner is indi' led, IS tiiai oruiiirdt'i- Thi'ie is no doiibi but thai a hoiiiicidr was cotiiniUled by hini, and I will not dwell upini such jiarts of tii>' i-»i(hMice as j^o to the proof of thai — the couiirM 1 fl iiiglKee h, liiat murder is ac- coinpanied willi ilie circu nsiance of malice aforetlioiiglit aiiii manslaughler not. It ts this circumstance tint makes H lioiiiicide aiiioiini to the crime of murder : whenever tlierefore the q tcsiion is. wticfoer :lie hoiuiiide amounts 10 murder or iiol, the first tiling to he enqmied f>i is, was it dxne with nialue aforetlmuglit. And as ilils circoin- staiiie IS so very aia'eri.> ilii-. ineaning whicii m commou ac- ceji atioii Is iianiHy .lifixej to i: — 'ii ilevid-nce. gmilg' or ill-will to a p iriu'dlai'p -ison : for hoiiiiciile iu..- slaye nay never tief ifi' have sei'il ui' heard ol the jieisio K.ill -d — is if a oi.tii resolve lo kill the fiesi .nau lie iie'ls, a .d i^i'iii out ai.d Kills i man lie it.-i-er ii'fore s,,w' ; or il he. discli icge a gio .in >ogst a m dli'ii must extent; and that one who has behaved himS' If with so much obduracy and pi-rverseiiess, should no longer be regarded as entitled to that coutpassion which the frail- ties of human nature may justly claim. He has acted not from the frailly of his nature, but from the unfeeling ferocity of a savage heart ; and this circumstance causes the law to impute to him the crime of murder — ;i crime whi|||i seems worthy to be treated with no indulgence, but 64 508 Haywood's reports. Oct. 1796. with the liighist .species (»f severity. So if A. invite B. v^^v^"-- to liis iioiise, whi re A. has a womjiii whu lives with him, and 15. anil she disagree, and B. ahnse her, and A. re- qiie'-i'i B. Ill (lesisi from ill-treatiii,!; the woman, for that lie is l)oiin(i to prittei-t her ; and B. sliall continue hisabuse and A. re(|ucst him either tu desist from abusing her or to leavf thi- huuse, and B. gets up and throws a bottle of wine itt ihe head of A. and immediately draw his sword, ! and B. with hissword kill A, it is murdei': for the wmds , s})i>k< n by A. wer-e not improper, nor such as ordinarilj ! would stii- uj) a man, to whom such words on such anoc- casDu were spoken, to seek the life of the other . yet B. having .hrown a bottle full of Aine vvith great force at tiie head of A. and by that hri\ ing discovered an intent to kill him, and immediately having f()llowed his intendi d lilow witli drawing ins sword, anoilifr indication of his seik- ini; iiu' life of A. upon so slight an occasion, arecircum- atanits that shew a disposition in tlie slayer, regardless of social duty and I'atMll^ bent u|)on mischief — a heart ex- cessively cruel and turned to iiiliuman revenge, and there- fore it is munler. Keelyng liJO. Whenevei' this excess of cruelly appears, this disposition of the mind to enor- mous revenge, seeking n|)on no extraordinary provoca- tion for the life \ quit ilie affrav, go lunne, ])riM idf liim-ilf w itti -^"v'"^/ a kiiirt", fftiirii and plunge il into the hods of his ad\er- isaiv, iiiid that he shall be guilty nfnunioic tli iii man- slaii.nhter ? Such a doctrine will deluge the couiitiy in blood. The life of every man wlin is diawn iiito a quar- rel and ronfetids with another, will bi- ■» danger. What can be more '-ruel, uiore indicative of a malignant heart, than this deid of the prisoner ? He qii.iriels -\ii(i an- other and is beiten, a thing that ha|i|)eii-i t\ety da}-, and 'that will ha|)|»i'n so long as there are men ; for this he quits the conflict, goes directly fo'- a deadly '^eaprjo, re- tui'iis and kills his antagonist. Would oMiee men in ge- neral, in his situation, have taken up tlie cruel purpose of seeking so deadly a revenge? 1 think tirey vvmild not ; and it seems to me the act can apjiear no otherwise th.in as the effect of a cruel disposition, nut of hninaii weakness deserving of our compassion ; and if it he Iheeffeci rifcru- ielty, it amounts to murder. Had he not lime In going 80 ;or an 100 yards and returning, whilst he was nieditaiing the horrid deed, to admit fall out and liefli'. and iti tlio mutest nil*' kills llie other, that ia maiislHii;;htri- : th<- blood is healed, the |iassi(iiis boil, fafje dictates his conduct, aiid wliilst the bh'Ws aie jiassing, tliei-e is no lei-' slayer ha.s time 10 deliberate or even think upon ilie act he is about tn commit. Keehjng ]55, \oQ>. Lmch\55. Any circum- stance of delibeiaiion a( (iimpanyiiig the fact er to fall under the iinpiila- tioii of murder ; as where two persons suddenly f.illeiisi- of the teini malKC : iiiid havirij^ kiir.'d iti pursiuuici- oltliat, iiC is s'iil*> «' """d' r. "IIIk'U.!;!" he ^as sirickcti b) tliP<»4liei* before tlic mortal vnoiiik! was ifixeii. Ujioii iht- iiiO'^t at- tei.fhe cousidi'iatioii. I cannot bui \ iew this rasje as ii.ur- dii', and with tbi' obsei'vation- I lia\e ii()\\ made, I sub- mit the Caieof tliis (inliap|iy iiiaii to tlie decision of the court and .jnrv. Mr. llatj, and ihfw Mr. Taylor, answered tbe Soliei'or, an idence. xvi-igiK d |)j t|,c law of the country^ piib- li< jasiic- icpii s lie shonld not he screened by an_> mis- placed Compassion ; and if ui)oii the evidence he is not 512 ilAYWOOD-'s llEPORTS. Oci. 1796. giiilfy of tlie Clime imputed t" him, no influence wliatso- ^''"^^'**^ evei- '^lioulil prevail to iiiri'li-e liis -.irqtii'Ul. Whether he bi- gi'ilt* or iiiif, (li'pei'ds i.pon the law ami the fact : be- fore we proi eeil to examine the fart, we sliould clearly cotnpreheiid what is iiieani hy the term, murder. To fix the atieiitioii only to such circumstances as are mate- rial to he con«i(lcre(l now, it will he sulticient to say, it is a killing with malice prepense- The other p^irts of the defi'a'ioti have lieen fully s^wfu b> the Snlicit>>r-Ge- neral. Malice prepense is a lee;al term that needs ex- planation. It does not siffnify ill-will or male\olence against an in«rni«lnal; it means, hs some authors express it, a disposition to do evil : as c)theis. the symptom of a wicked, depraved and corrupted heart : as others, the sign of a heart regardless of sociiil duly, and f;(t;illy bent upon mischief: by others, it is termed a circumstance attending the fact, that cuts <((f the slayer from all man- ner of excuse. All of thettt being only diffi-rent modes of reprcsentitig the srtine idea. By this latter explana- tion is meant, that when tlie killing is without anv justi- fying, excusing or alleviating circnmstatice. it is tiieii murder. Tiiere are a great variety of such circumstances: for instance, where the killint; is committi-d hy an officer in executing the sentence of a proper ti ibunal ; the kill- ing by such authoi ity and for such a reas(m, is a circnm- stancc that Justifies the party. So also if a man kill ano- ther wlio is attempting to kill or rob him, or the like : here the killing being with a design to prevent the per- petration of as gieat an cmI aitiinpted to be brought upon an innocent person, is a circumstance th it justifies the deed. If a man doing a lawful act in a i)roper man- ner, undesignedly kills another : here the killing being done without any (h'sign to kill, and vvitlimit atiy nigli- gence in the party killing, is a circumstance which ex- cuses him. Soifiht parly slav ing hath been fighting with another, anil declines the ( oinbat, and the othrr press him so hard that he is obliged to kill him to prevent his own destruction, or great hoilily harm; this circumstance fAAc\ "f killing to avoid liis own destruction, though originally ^ ■' cnlpiiblt in figliling with ihe decertsed at all. will excuse him from tiic gnilt of f hiny. And in all other cases, where ihe circumstances attending tlie fact, are such as will .jn-tily or rxruse the paity, in- is not guilty of muidiT : because the circninsi.inci s are not sucli as leave him without excuse. Also, althuugh the killing may not HAYWOOU'S REPOIITS. 5l3 be attended with ciiriimstances oCjustififation or excuse, Oc'i''5S- yet it inaj br attedded witb siicli timimstariciS as v\ 11 1 '-^'"^'"'*^ mitigate nis oflTince, aiitl air; great and \ inlciit provocation lirttli bet'o gi.eii to liiiii by the piisiisi kilh-d. anil hi^ io the transport and I'ury nfhis iniision killeth t!ie otiicr, the law 111 such case altribiifcs the killing to the frailty of huiaaii nature, opcrati'd upon liy excessive anger, 'Xcited by the unworthy tieaiinont nf the ileceas^'d ; and both law and reason s.iys, th it a killing undir such circum- stances, should not in- punished with the same severity as a killing withmit provocation, or\y:'lionta very great one, and when llie mind is cool and reflecting. The great distinction between minder and inanslaught«r is this, manslaughter is committed under the ojiei atioii of furious anger, that suspends for a time the proper exercise of reason and refieclion, and wliicli iiatli been stirred up by sinne great provocation : for there are some |)ro\ocaiioMS tuai arc not indulged with an allow- ance of exciting the passions to such excess, and thus a distinction is formed bitween the k('(l brfiiri' : il' oilioi'wise tlicy should find liiin not !!;uilfv iif nuird'c; , but of nianslaii.s^litcr 011I3. — Also, altliciu;;li ilie sI::tii'I" I'atli bet-n greatly pniMiked, and was ngilated by icsriitmrnt and anger in the liigbi'st (ligrce, and bath not liad a siifficii-at linu' fm- rr)i)ling be- I'ori' the I'afal stroke givon. jet ifni fact he appeal's to be jxisse^srd of drlibeiMtion and refie lion, wiu'ii or just be- i'lire the time lie t;iv(s the innriai blow, it 'vill be nuirder. As where two men quarrel, anil a!«(//{;// stri|)pe(l and went out. They hallooed for him and Young in th- street, calling them cowards. Daves cliarged JSTorris, when met, with a design to raise a not : he denied it again and agdin, lill called a damned liar ; vxhen he retorieil the lie conditionally ; Z)avrs tripped np his heels, kicked at liiin on tiie ground, struck liiiii .t, I tiiiiik it would liave |)eeii l)iit inanslaii£;liier. (448) Morris returned in tlicee or fnui' ininutes, and gave the fatal stab. If lie came uji and not! in.a; more pissed be- fore tlie stal). as the witnesse-. CaiiipbeU and DtuUeif '-ay there did not, llien it is for fliejury to considei , wheMier the three nr t'oiir iiiiniitcs iritervening betrtrcn tU'' tdows near .Mrs. Rainsay^s, and the stal» opposite Thompson's, was suth'cient time for the passions to cool. If it was, the killing was iiunder. If ii was not, the case falls under the same cmisideration as it the fatal stroke h^d been given when Daves first struck liini. If the jury be- lieve what was sworn hy Mrs. Thompson, and wliicli the other witnesses d'l riot meoiinii, tiiiit Daves >>hen he ad- vanced towards Mrris after his rettiri:, stim k him two or three blows before the stab, they have a right to con- sider whether that Was not a fresh [)rovoration, sufficient to ext'iiuate tlic hotnicidc into manslaughter. If, Itowi ver, the jury believe there was tint a sufficient tiini- fm the passions to subside, and that the liluws mentioned Uy MrSt Thompson, did not pass, yet the circumstances related by two witnesses of JS''orrts's, having twice denied iiis having a weajioii or club, as it tends to .viiice deliberation and reflection, must be taken into their consideration ; and if they believe from this circumstance that he at that time had a rellecting capai iiy, and meant to conceul the weapon from Daves in order to dnw him on, that he might kill iiiin, then he is guilty of murder. It is proper, how'ver to observe, thai such a conchision is in some sort negatived by Mrs. Thompson, who declines J^orris told him to stand off. oi the wmst would be his. The jury will now take the law, the facts, and thecircumsjancrsof tiiis case, and hy a careful cnmparisoii ol the one witli tiie other, they will draw a conclusion and say whether the prisoner is guiliy of murderer manslaughter. 1 trust I have stafi'd the lnw correctly. Judge WiLiiAMS. — I agree with Judge Haywood ex- ' ccpt in a few ji.iriiculars : he says, malice is understood of a killing under suth circumstances as cuts the purty off from all manner of excuse. I do not think this a true position, he may have some kiorice without regard to con- sequences. I am sure I have as much feeling atid com- passion for my fell m ny who were present !it his trial. Tin- jiir) who acqiiiiti-d him, were higlily censured Perhnpsthe learned may be of opiii on, wiieiithey meet with this case, thiit tlie jury } to tin State's discrediting Us "iwii witness is not law. Se. Sawre>,\ Murrcll ii others, 2 Hay. Z9T. But the paity calling a witness, may dispro'L oy (jilier witnesses, the f.ct which ihc first witness swore to. Bull. N. P. 297. .ilexandcr v. Gibson, 2 Camp. .V. r. Rep. 555. 518 Haywood's reports. Oct. 1796. State v. Oldham. The act of 1779, Hev. ch, 157, sec. 2, respcctinj^ the appointment of Jurors, is only direciory, and does not appl) to Grand-Jurors. Hi- was Convicted at this tn'Oi, of the murder uf one Archibald Juckson, and it tieiiia; demandid (if him what ho liail lo s;ij', wl v wenli nee of diatli should not be passed, his counsel. J\Ir. Duffy and Jtlr Taylor, ofTered leasons in arrest of judi^iiM'Mi, all of wliirh wei-e abatidoned in the course of the observations made upon them, except the following, MZ : That sevrral of those who were of the grand Jury that found tli>> bill, namiiii; them particularly, amongst whom wat JUr. Hodges, the foreman, were per- sons who then severally bad a suit oi- suits depending and at issue in this court, and were lh< reloie disqualified to ser\e as jurors; und for the maintenance of thi- objection, thiy relied upon 1779, ch 6, sec. 2, in wbicli is this pro- viso, viz: Piovideil ahvavs, that no County Court shall knowingly nominate any person to serve as a juror at two courts successively, or any person who shall have an action or suit at issue in the Superior Court, at the term to which be shall he so noniinatt d ; and they said, that (451") u"d«r this clause, Jiidge Macvy anil .Jndgi- Hatwooo, on the Western circuit of tlie spring 1795, hail rejected all su( h jurors as disqualified. Per curiam — This act is only directory. The intent of it was to exclude suitors from the petit jury, from an apprebensioii lest, in the cour-e of tlie term, such persotis might combine mutually to serve each othrr. This is not to be apprehended in tlie case of a grand -juror, who has, it not in his power to Tender a quid pro qtw in the same way, should he be i-ver so much inclined. This act is as well directory to the Snp'tior as lo the County Courts. If the Ctiunty Court ought not knowingly, to nominate suitors for jurors, neither ought this court knowingly, to receive them as petit jurors when sent. The intent of the act is, that they shall be excluded, and so far as the « iew of this act extend-, the Superior Court will not suffer its obje( t to be eliirled. Upon tins ground, the court |)roceed- ed in ihe spring ciicuit of 1795. £< per Williams that practice was well begun, and 1 do not know why we have not continued it. The reasons were overruled. \ Haywood's reports. 519 Aiimijmous. Oct. 1796. In this case.theqiicstinii was. Iiow the two fermsshould be coinpiitfil, wifliiii vvliidi, a rorcplairiadt or tin injiuic- tioii liill, must piocped afuM- ilic (li^sohition ofliis injiitic- tioK, \N licther the present term not heiup; je! ended, sh-idd be reckoned as one. this bcin^ the second, exclusive oi that wheii-iu the dissohilion took place. Per curiam — The present lei ni is to be accounted Ihe second, and if he has not proceeded before we come >cs^u- ]arl> 10 his cause on the Equity days, iiis canse shall be dismissed ; Mud the suit in hi present case Was disuiis- sed. But on the last day of Die term the Defetidaiit's counsel beinj; absent, Mr. Hay shewed that tlie complain- ant aciually had proccedid within time, and the dismis- sion was oideitd to be stricken out. Note. — Vide Jlnonymous, mite 162, anil the ciises tliere referred to. HALIFAX, OCTOBER TERM, 1796, Parker and Wife v. Phillips. Wliers a father, upon the m.irriage of his diiugliter, sinds neproes or or other property with htr in marriage, it \s, prima facie, a }>ift. Trover for a ne_a;ro, which the father of the PlamtifT's wife (and also »( Phillips, who claims iindi'i- a sul)sc.(|iii'nt gift,) sent with her on her maniaj^e, to her husband's house. About a year afteiwai'ds, in occasional conver- sation, be mentioned to iiis daughter, tiiat he had not in- tended evei' to take the negro away Irom her, when he sen! her to her husband's house. There v\as otiier evi- dence, but upon this. Stone. Justice, i tiled accorilinir to the former decisions in the casesof /'errj/ cj" Farrell, Car- ter ^ Rutland, anil fFliitmell v, Mmre, ilecided :it Eilen- ton, prior to the two oiliers — where a father, upon ihe marriage of his daughter, sends negroes or otiier proper- ty wiili her upon her marriage, to her liiisbaml's Innise, that it is a gift, unless the contrary lie proven : which in the present case not having been done, there wasaverdict and judgmeni for the PlaintiflT. NoTK. — Firic Farrell \, Pa-rii, and ilic note tliereto, anteH. (452) Haywood's eeports. Smith T. Powell. Though a judgment is not nepotiablf, yet the law will lo far take notice of an a>signinent, as to protect it a(;ainst the act of the as- signor. This was a sd- fa. ti) revive a jiidtrment. and payment pleailfd : and on trial nf the ismie it H|)|)e;irid, that mi the daj «licn the jitdgntiiit v>as obtained, it wjin Hssigncd by Smith 'd Barkesdale — tliat a(>er«ai-ani«/ had sold a nei;ri lo Tate, and h. d tak' n a bi^nd tbi i liacco, whicli lie . assigned to Wier, who sued Tate in the nann. ni McJJanUl, in the County Court of Iliirke. Tate attempted to detind liiirib. if by proving the negro|to have been unsound There was a verilici in the Touuiy Court, and the caus' came up by appeal to the Superior C(i so ruled by the C' un, ihal all the former pleas were waived by this plea since the last continuance- The PlaintiiF's counsel then insisted that this was Haywood's reports. 521 a fraudulent trinsaciinn betwe" . McDaniel, the nominal Plaintiff, and Mar. 1797. the Dft'eidant, to defraud Wier, who h^id such an imerest as 'lie law .^"v^^^ at tliis diy, wili tk* notoe of, rhaupfli it wis otiiervvise hiUl former- ly, aiidcitfd 1 Term Hep. 619, PFiuch v. ffijcAj. And upon t\v,^, the court cliargrd the jury to tirid f ir tlie Pl:iintirt'; which they did. A new 'T'Al WHS inuv d for, and a ruli- to show causi;, iib<;iiued and en- larged to the next t rm, when the matter of law was argued before Judge \snE Hod .ludgt Macat, wiio dec ddl tlie directions .veie r.'rht, but Avery allcgin.i, he had been taken by surprise, they offt red him a new Inal for thai cause, if he would pay the costs up to ih„i time, which being ..onsiderable, and he havini; fiiid a oill m Equity for re- lief, he refused to accept of the new trial upon those terms, .nd there was ju ffmeiit for the I'laiutiff. Note.— reWe Ho^^'s Exr'.s. v. Jshe, post 471. S. C. Conf. Rep, 1 Wofford V. Greenlee, Conf. Hep. 79. SALISBURY, MARCH TERM, 1797. Yai' borough v. Giles. Where, in appeal from the County C"urt, and a new trial had in the Superior Court, a verdict for is great a sum wis obtained in the Superior Court as had been rendered in the County Court, Hat.vood Judge, thoupfhi judgment mi, "-hi be entered upj/;sta/ito- against the appellant and his st-curities, under the act of 178), Hcv. c. 233, s. 2. But Stone, Judge, was of opinion the act did not ai)ply in such case. This was an ajjiieal from the County Court, ami upon a trial here this tenn, llieie was a verdiit for the Plain- tiff for as great a sum as there was in tlie County Court; and the Plaiutitf now moved by liis counsel to enter up judgment against the sureties in the appeal bond, accord- ing to the act of 1785, c. 2, s. 2. Judge Hatwooo. — It may be done, the act is express. Judge Stone — The sureties are not in court : if a judg- ment is now entered against thein, it will be to condemn tiieni unheard : the law whicli says this, is a haish one, and should be constmed with all possible strictness ac- cording to the letter: the act says, when any appeiil prayed shall not be prosecuted, or the court before wiioin the appeal may be detirmined, sh-.ill affirm the judgnn nt, th'-ii shall the apjielhuit bed'Cieedto pay to the iippellee, twelve and a htilf per cent, interest, from tlie passing of the judgment in tlie Ciunty Com t, by which such :ip|i6al may have been granted ; and the bonds taken for prose- cution of appeals witii effect, should hereafter make part 522 Haywood's revohts. Mar.1797. of tlie records sent ii|) to the Superior Court, on which ^■^"^'^^^ jiiili^iiieiit in-iy bi* instanter entered u|i against the apfiel- laiit and his securities. Tiie sentences re^ipectrnj;; the tx^elve and a half per cent, and that of entering up Judg- ment against the .sureties, were (onjiiiiied by the particle and — _|udgnient may be entered ins/a7Jier at^ainst the sure- ties, where the a|i|)eHl is not prusecuted, or where the judgment is affirmed. A judgment is not affirmed wiiere theie is a new irial in tlie court abitve, for then that court gives a new judgment. The judgment of tlie County Court is only affirmed when (he appeal is nut prisecuted (454) and the appellee for tliat cause moves for an aflBemation of tlie judgment beliiw. That is not the predcnt case, the appeal has been pmsec nfed. Judge Haywooo — I think there are two cases speci- fied in ihe act, that entitle the Plaintiff to enter upjiidg- meni ; fiist. if ilie uppeal shall mil be prosecuted ; se- condly, if the judgment shall be affirmed — and that the affirmation of judgment here-spoken of, intends a judg- ment ill the Superior Couit, obtained for the same or a greater sum than the judgment in the County Court. — The affii'inalion h<'respokeu of, is not meantof an affirma- tion upon motion for want of piosecuting ihe appeal ; for tiien the latter jiart of tlie sentence means the same as the former part : when it is evident from their disjunction by the Assembly, that they were meant to express different circumstances. Judge Stone. — I am of opinion the act does not neces- sarily embrace the case now before the court. I am wil- ling, however, a notice may be issued to shew cause. So ihe Plaintiff did not obtain jiidgnient instanter. Note. — Hay wood's opinion seems tiie correct one, as it is constantly acted upon. Surviving Partners of Anley McNaughton and Co. v. Hunier. Under the acts of 1777, liev. ch. 115, aec. 10, tnd 1793, Rev. ch. 392, it is held, that .i |)lc» i>i abaum^nt is not tlie pri)|jcr mode (<• take adv.uitHjje of tlie t'Lilnntf 's Having brought his suit in the Superior Court, for less value tiian fif.y jiounds. Plea in abatement, that the Plaintiff's demand is not of the value >f fity pounds. Williams, for tik PiaintifT. The act of 1 777, c. 2 s. 10, directs, that no suit shall be cutnmenced in the Superior iiaywood's eeports. 523 Court, of* less value tlia-i fifty pminds, where tlie parties Mar. l-QT". live iri (liflFeri'rit disirlrts ; and if any person sIihII dc- ^■^'"^'"^^ niaiid a greater sum than is due, on purpose to evade ihis act ; or if any suit shall be coininenretl cnntraiy to the true ineaiiin.!^ of ihis act, the PlHintifTin either case shall be nonsditfd and pay costs. Pmvided tliat if the Plain- tiff, or any person for him, will make an affidavit that (he sum fir which his suit shall be Itrought, is really due, but that fur want of pi oof, or that the time limited for tlie re- covery of toy article hai's a recovery, then, and in that case, the Fiaintiif shall have a verdict and judgment for what appears to he legally proved, &c. The same clause is repeated and re-enacted in a subsequent act passed late- ly. The pleader of the plea has siippo-;ed, the court has no jurisdiction where the sum really due is of less value than fifty p(ninds, and has accordingly pleaded in abate- ment ; but this is a mistake, as becomes evideiii if we on- ly consider tlie consef|iiences of a plea in abatement, and how different thi' course of proceedings must be upon that from what the law intended. Suppose partof the demand (455') is barred by the act of limitations, how is the Defendant to take advantage of that circumstance, upon ;» plea in abatement, or how is the Plaintiff to know of his inten- tion to take advantage of it bef ire the trial ? Is the De- fendant to be permitted to plead a plea in abateiTient, and to give the statute in evidence? Suppose he has a sef off reducing the sum below fifty pounds, is that to be a set off upon this |)lea in abatement without notice given ? If not, how is ilie sum really due to the Plaintiff lo be asi ertain- ed, if the verdict upon such a plea should fiml the sum really due to be less than fifty fioiinds, & the Plaintiff ;hen makes the attidavil required by tlie act, will the court give judgment in chief upon such a finding? They can- not, fur the jury upr horse-stealing, upon which the evidence was — thai the horse was missing, and about tliiei' days afttrw arils, two men came with the horse, and Long lied, to the III. use of tlie owner. Long confi-ssed to the owner he iiad taken the hinse, and begged f>irgi\eness. The two mrn who brought him were not [)i-esent at the trial, and there \\as no other circumstance proved in the case. Per curiam — Where A. makes a confession, and relates . ciniimstances whi'h are iiroven to have actually existed as related in the ciMifession, that may be evidence sulKci- ent for a jury to proceed upon to convict the prisoner; but a nakrd coiifssion, unattended with circumstances, is not siiflicient. \ confession, fiom tin- very nature of the itiing, is a very douhifnl s|)ecies of evidence, anil to be receivfd with great caution. It is hardly to he supposed thai a man perfectly possessed of liims. If, would niaki- a confes'^ion to take away his own life. It must genei;ally procerd from a proinisi- or hope of favor, or frtun a dread of piinisliment, and in such situations, the mind isa^iia- teit — the man may he easily tiinpted to go liiithei' ilian the liiiih. Besides, the witness, nspei ting the confes- sion, may have mistaken his meaning. How easy is it to (456) Haywood's eeports. 525 understand the speaker, difreicntli fioin what lie meant ; Mn. 1797. and the !4iiiallest mistake in this p:ir'jciilar. inis^lit i-i'oxe ^■^'^'■>*>' fatal. As (here are im cntifirmatfiry ciiciimstaii<"es in the pieseiit case, it is bettei- to arquit the prisoner. The jiiij found him not .Sfuilt_y. Note.- Vide I Phil, on Evict. 86, contra. Clippies, GiiHi'dian of Allen, v. . \m caveat, a verdict w:l^ found against ttic PiainiifF, w hirh was cunfirmed in tMf County L'ourt, betorc- which linie Imweier, ti' Piaintiffhad oblai ed a grim Irim the St .te tor ihc land ; and n -w in ihe Supe- rior Court, it was ' eld, that thi grant could not be impeL.niicd at law, but !is ih. Del. ndant appeared ti> have had the justice of the case on his side, he shall have tlie costs of the caveat. This was a caveat. Uji'ih tlte trial, the jm y fotiiid for the party opposed to Mr. Cupples, wlitcli veidirt was mn- firined b> the Comity Court; belore which lime. Jlfr. Cupples, fill- his ward, had ohtained a .^latii fVoiii the Se- cretaiy's nffiie ; and the veiditt and pfnccedmjjs of the Coiinly Court were moved into this couit. Per curium — Tlierc have been so many derisions that a gfarit, Hitiiiiiii;h irregularly ohiaiiied, is valid in laW, that we think obisiKes bomid by them at picsein — al- though we fannot subscribe to the reasoning of thcin, of couise it is useless now to consider whether these objec- tions to the verdict are valid or not. However, with re- spect to costs, it is necegsaiy to say snmetliins — there can be no dnuhf, hut in point of Equity, Mr. Ctipples should pay Ihein — there lias been lln- veniict of a jury against him. and that verdict ronfirnied by the County Court ; upon argmneiit he has caused an abatement of the suit, like tiiat partial ah.iti ment vvliicii sometimes happens in case of the death, deslructioii, or ceasing of the piineipal tiling in dispute, so that the court cannot give jiidgmeiii for it — as where an action is brought against {cnaut per autre vie. and cestui qui vie dies, de- mandant may pi-oci id for d. images for drienti'm ; in eject- ment for lands leased, if the lease expires In f.re a drci- sioii, PlaiiitilT may proceed for dainaj;es and costs — Here, before the suit is decided, one nt' the pai ties puts ^'*^' ) an end to it by rrnnmng out of the court's place, has no ri;jlii tues'ihlish moth'-rsci nearthe formei, as to draw away its profits. Hut /kt Sto\b, .ludgo. The County Conn is ttnpowered to establieh fejries where necessary, and ma) establish two at the same place, if it is deemed proper to do so. There was a ferry established by order of the Ci>iinty Court, on the ri\er near the (•ourt-hou>^e ; and snnieiiine afterwards, upon some romplaint to the County Court, that llie peo|de of the roiintv were often drlay< d on pub- lic tiays, for want of crafts and ferrymen, they niiidt- an order, permiltin.&; aiiotiier ]icr$<>iii on ihe otlxT >^ide of ihe J, rivi I-, to iieep a ferry at or near the smni- place ; and from this order, the former ferryman appealed. Judije Haywood — These orders, for keeping; ferries," made hj the County Ctuiit, are like ^rant- ol tin King for the sitme piiipose in tin' E'lijlish l,iw ; and the liber- ty S'''"'t<"d hy them. Ike those in tin' Kini;'s siaiil, are foi feitahic for abuser or noit user : but there is no evidf in;e set lip ol iinpi'n|iri' beliaviom in the ferryman ; of 7ioit user or abuser. Tlie act of 1784, c/t.'14, sec. i ^'15, has ordered hoods to be ti;iven h.> tiie lerryniiin, in a lai'se pe- nalty, for ihefaiijilul and punciiiHl dis( barge of his duty ; he is tiiereby liable for inatiention in an} s|ie('ial instan- ces. Bj the Sitme arl, five priunds penaltv is infliried, for delainiIl,^ an> jiersons trip vv;-^ to the owiiei, as siirh inteiTcieiK e is iit.di'i-- takiiigs lif til; t son. and ofcouise di-wia£;ei>t)s to the piiblir. '['his hrin.e; the |uin(i|ile of "in law. I am not for albwiiig another fi rry to be esiahli-li.d at or near the same plaie — it n^ight divide tlie profits so as to retidei the ferry of no vabie to ei>iior. Jiid.!;e Stone— The act nf As--eiiibiy empowers llie (.458) Coimtv Court loesiabiish IVri-ies whrri- mresso'V — th'y are tlie prupei judi;es where it is fii to eslahii-h Uiem. — If they deem it pi oper to csialilish (v\o feri'ies at lln same place, thej may do -^o. There are two feiries iMablish- ed at the same place, in seseral part'; nF this Sl.ite — this proM's the power of the County Court to establish lliem. Sic ndjouniatur NoTK. — That ihe County Court floes pcsse'i.s tlie power to est iblish mo'e than one ferry ;it, (ir lear the sami' ;il:n-- , seems not 'n luvi- been dou'>ted in the C;ise ol Bard Si Merrill \. Long, 2 Car. Lain liepos 69, but ii is tliire said, tlihi ilie public faiih plr-(lp;ecl to tli first s.-.,ritt;e, oujjlit iioi to be viol it d, unless the public interest nianitistly demands the establishment of an additional feiry. HILLSBOROUGH, APRIL TERM, 1797. Kennedy & Co. v. Fairman. Proof of the clerk's hand-wriling, in entries made on the Piiintiff's bdoks, shall not be admilted while the clerk is livinjr, altlioui;h he may be absent from the coiimry. Assiim|)sit, for jsjoods. wares and merchandize, sold and delivered, 6cc. and upon the general issue pleaded, the c.iiisi- now came on to he tried. Tlie PlaintiH" i.ftVred a d''posiiion takfit in M^.i-jland, vvhicii proved th- entries ill till Flaiiiiiff's boi.ks, to be in ilie haoit- vv i-iiing til' a person who was a clerk of the Plainliff's at the time when the entries were made, and who at the lime of the deposition taken was on a voyage to tlie West Indies. — iJflDte. for liie Deiendant, olijei !e(l to this eudence, and ci eii Vorvper v. Mtrsdni, Esp. Rep. il. He niged the dan- ger of siK h evule ICC. i v i! it is receiv .,ble, a man may get his clerk to make what entries he ])ienscs, and to what '^ MAY wood's reports. ^^,^^„^' amount also he pleases, and tlirn set out on a voyage t« till' East (n Wcst-liKlies, and the. entries will enable tlie priiTipal to i'ei"o\ec the monies rontained in iheni, by pctnin^ 'lie hand wiitiiigoftbeclei k. Williams, e contra. Sticli e\ ideiire h-ts been admitted in one courts, li was admitted in a rase wt Fa>eltr\ ilic. where the Plainliff's clerk lirtd fjonc to some of the Noi :bei n Slates. Haywood, Jii(l4;e. — It has been admitttd, I believe, in the CAM- cjied i y Mr. ff'il limns ; iliai case was riled and staled by some of the bar at Fi.vciieville, in tlie course of ihe.il- artci'inent, some time .ifier i' took place. I was infoi'ined of the derision soon after it took place, but for my ortti part, I was alwajs opposed to the principle of it, and took the earliest opportunity at the next term aftei it hap|)eneil. and at FH>e(te\ille, where the decision was si\en, to a^ive it my disapjnobation. There a case came before ihe court, where the clerk had .«;one to Geor- gia, and it was offered to substantiate tlie account by proof of his clerkship to the PlainHff, and that the en- tries were in his hand-wriiins:. This evidence was re- jected by myself, and Judsce Williams seemed to concur thai the evidence was not pinpcr. i am of opinion most clearly, the evidence now offered is improper, and ought not be received for the reasons offered by the Delendani's (459) •'ounsel. The arlmission of such testimony would bo imm diatcly followed by a long train of frauds, as the committing of thein would be rendered so easy and in- viting by it. Judge Stonr. — 1 am if the sameopinion. We should take care not to open a door to thi- practice of frauds. — The receiving of such testimony is certainly liable to the inconveniences mentioned by the Defendant's counsel. — The evidence was rejected. Anonymous. No point can be niiscd in a special verdict, except what appears upon Ihe record. No pt-rson can plead the statute of limitations except the D> f'endant. T re '■laiutr ol limitations will run although the Det'emlant may b' out of the country. This was a special case for the opinion of the court, in wliidi the questi i he garnishee, and we Cannot receive any verbal testimony of that fact. vVe are bound to follow the recoiil. As to the point, whether the act will run against (lie I'lainiiff wiiilst tne Defend- ant is beyond sea — the DelVndant was in- fact in ihis ci'iiiiiry when the debt was contracted, thougli that is not stilted in the reconl so as to enable us to take notice of it — laying that out of tiie case, our art makes no saving in lavor of a Plaintiff, where (he Defendant is bejond sea. The British ait which had the same savings as outs, was always construed not to save tin- Plaintiif's ("450^ action when tlic Dcfendatii; was beyond sea, and that oc- casioned the 4ih and atii Anne, c. 16, s. 19. if the De- fcniiant was in this country wlien tlie contract w.is made, and the act began lo run asjaiiisl the Plaintiff, it will run on iiotwiihstaoding the Dererrtjant's removal; or if it had not began to run before his removal, his absence will not suspend its Ojieiation ; or if he resided beyond sea at the time of the contract, and the Plaintiff will make use of tli(^ remedies offered by our courts, he must ;iccept of iiiem upon the trrnis imposed by our la<.v ; that is 10 say, he must bring his suit within three years. Length of 530 HAYWOOD S REPORTS. Apr 1797. tiujp jg naturally, and every wIkmc, presumptiuii of pay- "^^"""^^ iiH'iii ; vvlierr no limr is liiiiilcd Uy law, ilie pn-sumptioii !•> left to be i^DVtM-iii'd by surlt rirciimstaiicps as arc suffi- cifiil to raise it ; where iiie law lias fixerl tlic time, ilie. pie»utn|)tiiiti iH not left t» be re^^nlated by opinion, but it must arise after tli' laps" nf ilie prescribed time. If in tins couiiti-y no time wis inniied by an express law, yet payment of this debi miglit b.' inferred from a lapse of three years, wherever it was contracte. so that thai case esiablisUes nothing m r^- thin th.i wlien the stauii.- once begins to run, nothiotj cm stop it, whico IS well esialilished by II he authi.iiiies. Would not the principle adopted in Jones v. Broddie, equally apoly to the case where there IS noUelend.int in lliiscouniiy to wnomthePlaintilfcouldapply ' Anonymous. Where two judgments are obtained ayainst'an administrator, the first an absolute one, but the seroid » quando judgrmot, and assets af- terwards come lo his hands, Hatwuod, Jud^je, -.aid — thai the assets must 111 iipplitd to the lirsi juiiginent ; but Stonk, Judge, seemed clear, thai they should go to ihe satisfaction ol the second. This was a sci.fa. to have execution out of assets come to Ihe hands of ihf Defenilant since this judgment obtain- ed ug.iinst him of ass.-is infuturo. To tliis sci.fa. the Deli-iidaiii pleadiMJ ,iinou.:'st other thin,^s, a former jud^- , mem. Tlie jui) found a former judi^meni recovered At Wilmington, not^ei ^ati^fIcd, and that liltcen pound-, bad come to the Difimlani's hands since ilie Juda;inent on Willi ii this m. fa. is siouudd, which was a judgment to be s.itisheil quundo assets acciderint. SxoNi:^, Jiisiice — This hltceii pniitids must be applied towards satisfaction of the latter judgment. As to the Haywood's reports, 531 former jiulgmpul, it ih not a jmlffinetit to be satisfied out of '^pr- '^797. assi'ts iiifidnro; and whi'n obtained, it imist Imvi' been -^~''~^^^ on tlie adini^sidu of (lie DeCeiiilaiit that In' had ihin .issets to siilisCy it, otlicrwise ho would have pleadi'd ,i want of them, ami then liiejodgment vMiiild have been abs'tlufe as to the assets he liad, and fof the residue to lie levied Gilt of a'iset'i winch in fuhiie should come t!e to the debt. Shall be be absolutely liable, and yet not pi^rmitted by law to I'eirn- burse himsrii' out of assets? Must he jiay Jhe former judgment out of his own pocket, though be lias assets in his tiands sufficient to satisfy it? Sn}i|iose lie hail paid this judjiiment, or the debt bef ire judgment, witii Uisown money, trusting to tlie coming in of assets for his reim- bursement, would iie not thereby have entitled himself to retain assets to that amount when they sliould come into his possession ? If beC')ol(l thus reimburse himsell, liav- itig paid the debt or judgment, why iioi, when be has made himself lialile to the payment of it i It is well known. an exe( uior may plead judgments obtained against him wiieu subse(]uently sued, and there is no instance of a replication, that tlie assets came to hand alter the judg- ments were obtained. Some of the bar not concerned, expi'essed a clear opi- nion that tiie fifteen pounds sliould lie applied to the lat- ter jud;;ineiit, whereup 111. I he court took time to advise | am! afterguards, tiie cause being again mentioned, Judge Haiwood said, he continued to be of the same opinion be Was the other day. lliere were not many auihoiuies in ' poim — he bad however Ibund one in 12 Mod. 196, <\bei'e it is laid down, thai the pleading of ihi juilgment IS a pro- tection of the assets which you have or may liave, until the judgment be satisfied. Stone, Justice — 1 do not think that case applii-s — I am ot the same opinimi I was. The fil'tten iionnds sliould be ap(ilied to tiie lattrr judgment. Sic adjournal ur. Note. — Vide 1 Hawiil. 336 6, wlitre il i> sai.l — " vVuew 'li cx' cu- tor pleuds several juilgments outstanding, and the Plaintiff takes a 67- 532 . Haywood's reports. Apr. irPr.jucIgnient of assets infuturo, tin- fiitnri' HssetB shall, in the first place, l (1 to lliosc jii j;meiits. H-nc.-, there is ;• diffnencc, as to the tiiMire assiMs, bei«i-. n ;i pea ■■'■ jilene adminisiravil generally, and -a specjal plea ot plene adtnimslravit prteter juJgnients."- SoutherlKinl v. Mallett. A decree will be mieied on an aw:ird, at the term to which it is re- turned, it no exceptions to ilie aw ird be made at that time. I'his was a suit in Equity, and all malters in dispute had breii loleiii «i to aibii' atoi s, wlii> mailo an award in faiiif til' Ciin)|ilainanl — who now moved fr)r a decree ac- cordiiij;; i" the lenns td the submission. fViUiams, e con- tra — A di'( rC'' raiiiiot now be entered on the awai'd, for it wa> oidy returned Jo this term. The Defendant is ab- sent, iia.s not bei II served with ihe award, and has had no .ipportunitj to extept. Davie was stopped by the ■' COUlt. (462) Per curiam — The practice never has been to wait for exciplioiis againsi an award. The party is present at the ,ttioii by the arbitrators — he is notified of the time — he may ap|il> at the ulinnitte time apjiointed for its ileiiverj or ptibitration, and jviiovv ihi- contents — he is or oui^ht to be in court attending on Iiis suit, and may ex- cept to any tiling improper. If Mr. Ifilliums will now make aii> < xceptions, w<- will hear them, and if proper, give lime lo support Ihein ; but we will not wait foi the party to make exceptions. No exceptions being made, there was a decree according to the award. Anonymous. ■The fifteen days before tlie lerm, in which appeals must be filed in th< Superior Couv:, are inclusive ni the day on which the appeal is filed, and also ot tlic fir.st day ol the term. This .ippeal was lodged with the clerk of the, Superi- or Court on the 28lh Si ptember — the term commenced ou the 6th of Ol tober. After argument by Davie and ff^il- liams. Judge Haywood — I am of opinion the Lpgislaturc al- lowed Hlteen days, fur the purpose of aftortling the appel- lee time to come to the office and see whether oi- not the papers were lodged there, anti afterwards, to go to any part of the State and get his testimony and return. In IIAYWOOU'S REPORTS. 533 other words, tliat it mhs iiiteiided ti^ billow him fifteen tra- Apr. i797. vellinaj f filine; ;iii(l the first day of the ti-rm. Siippiisf they hitd said, ihc pupors shniiM have bivit lilt'd oiif day liefiire the teriii : if it rimld he fi'Ml on Ihf fii'st da} of thr term, the appellei- wmlil have no liiiie to pre- pare f if filed on the day before, and that alloweil in be one day, ii might be filed nii the last iii'iment nt tiiat day, and the term roininence on the next, so there would be no time allowed. Stone, Justice — In a case at Edentim last term, it was decided, that the day of filio!:; and the first day of the term, were both to be reckoned inclusive. The reasons of this decision then appeared, and do now appear to me to be strong. These were, that heavy penalties weie an- nexed to liie not bringing a transcrip' up in time — affir- mation of judgment witli double costs by the act of 1777, twelve and an half per cent, interest by ihc act of 1785, * , ami therefore the act ought to be so construed as to avoid the penalty, and not so as to multiply the chances of in- curring it. Mol•eo^el•, the right of appealing is favored in law, and ought not to be atiridged by the construction we put upon the act. Jutlge Haywood — If it has been decided, though a- gainst my opinion, as it is only a matter of pi act ice, and as uiic itainty in such cases, is a great evil, i h,- 1797. taking in Wike, liOr was ilie piisoner tver se<'ii in jo-i- •^^^"^ sessin'n nf th^ Imrs"' in iliis «listrift ; tin- plar. wl'iir lie (464) sold llif luiiM'lo ilie \\iMir^«. is in llic disii id nfSali^bu- Y\. It is |pii)baUl<' lif iiii.a;!'' have iccci\cd the iioi-se Irom the person that did steal liiin. Ter curiam — When a hoiS'* is sf infer a taking, tlie inference also fidlnvvs that he was laken at the place where missing, and that was in this district. The jury found him guilty, and he had judgment of death. Galhr'aith v. Whyte. Per mriam. — Caveat emptor, ap|ilies where a man piir- cliB'^' s an aiticle nf personal pi-op"'rty iiipf in the xrndiir's posM ssiiin. H>* iiught in such ( ase to i e(|uir'e a wai-ranty — t.'O not being in pnssessioii gives reason to doubt. — Another case is, where the thing sold has some visible qu.ilny vvhich lessens its value. Where it has a (ptality lesscMJMg its valni.', and that is not disco>erable by ordi- nary inspection, il is o'liervvise ; in such case tlnre is no need of an i\i)ess Warranty — evety niiiii is lioiind to bo honest — he ought to discover to the vendee all such pro- 536 , Haywood's kepouts. Apr. I79r. peptjpg jis if |j„„^v,, „,ig.||t [))(il)iibl> dispose him not to j ^''"^■'"'^^ piiirliHSf It' ^ iiiari sell an iinsoiitiil lidcse, wluisc disiir- (465) ilei- is not Jvimuti, und receives CdII value us lor a ••ouiid'' hiMSi'. an action lie^ against the \tndor ; and tliat action ma> he an assuniiisit staiiii!; tlicsale, and ihat the vendor utideitook that the hor.se was sound. Note. — Up ■' the 'iiljrii '>f warraiitv on the sale of cliattels, see Mull. JV. P (Bnil. Ed- J 30, a t" 3'J b. Comyns on Co>^. 228 tf. 250. Cooper's Ju.'lituin). 609 Thortipson v. Tale, 1 JSIurph. 97. Lanier v. AuUl's Adm'r Ibitl. .Slieber y Jiobinnon & nlher", '2 Miirph. 33. Gil' chriit V Marrow. 2 Cur Law Ri-p. 607 Erwin v. Maxwell 3 Mitrph. \ 241 Atires \. Parks' .'Idm'r. ^c 3 //-mhs 59. Inge \. Bond & Sldugh' ter, Ibitl. 101. Bnttiin v. hriiel & othas. Ibid. 222. It «;11 be >< en, ii-uni some ofihe authoriti s !■ fvned o, tliit the pos iion 'liirt « fiilf price for a liors^ implies a WHvranty oCsouridnesi, atthou-h once sup- posed to be law> is now overruled, both in England and in this State. Troxier v. Gibson. An amendment cannot be pcrmiited in an ejeciment, so as to embrace land not included in the decl iMtion. Ejectment. The Plaintiff's patent described the last line as riiiinin,&; a course ami dist:ince, vvliicli led not to the beginninti;, but ihrongh the bod> ol' tin land. And the Plaintiff's atlottny in drauing the dcilaration, bil- lowing that (lescrip'ion instead of saying, iIkkcc to the beginning; so a^ to lia>e included the land in dispute, which lay between the beginning puint, and iliat which tertninated the last line as describeil in the patrtit. Davie I7i\a\ Jones. Let the Plaintiff he called. The court recommended to rVr. Jinffy to lake a rule to shew cause wliy llie declaialioi sli'iild not be amended, saying, perhaps aiKhorities may l)i' t"iiiid to justify an ani'iiilineni. oi perhaps 'ht Id of 1790 may authorise it. A ■nil' vvas taken. Alui wards t\. < ase was argued by Mr. Duffy for the amendment, and Davie against it. JUr. HAYWOOD S' REPOKTS. 537 Duffy proilucrd a ejieat inunhci- of '-.ises, but sepincil t» ^P""- ^'^^■ rely >" ■'■■H^ •> slifw. tiiai l!ip ilc- sciiptiii'i wt" iip ihiiij; (Icmuiidi'd iiiiiy bi' all<'i'i'il. If it coiilil. a Di-re;id i.il iiiij^ht be at a .m-iMt cxpcncc in (ire- paniij^ to d«t'('iid liis title fo 'nie tiM"t of laud, and aCtcr- toiwards be fotrcd lo go tbi'oii^li tin- same juiicess as to anotber, ;itid fu-a iliird. and s(i nu dd iiijinitum. For iC it is pr^.pci- til alier till- peii/itiii iu tlie first iiist.iiice, why slioiiid it not be done aftfi'wafds as ol'teu as the Plaintiff pleases. If after the institution of liie action, the Delendanf sells thai part, not iocliid'd in ihe. dccla- laiioie, and 'hi-n an ainendinerit is i)erinitiei<\ pendente lite, will he bonne! by lie r'erision !h:nia;b no p.irly to it. Th • anieicdineiit would be of liitle seex ice lo the I'l.uutifT, Mcr's as it would be required ;)f hiiii ti> pay all Uic costs up to ^ ^ this tinu". However, it sulHi'S to say, tliero is no pre- cedent in (h boiiks Dir su;ii a\i aniendiucnt — tlic petitum cauoot be amended. 'I'be court 'bought a day »r two ■o, tliat possibly it niii^bt be ainended undei- the act uf 1790. c. 3, s- 9. but upon considei'ation, we think that act does not extend to this case. It liasbe-.ii decided, that unilcp that act all such matie-s uf f.rin may be amended, except such as arc spec! illy d< niurrcd to ; and that where a special demuricr v.as not i>ioper as to the matter, no anieuduient could be m.nle. In ejectment there can be no special diinurri-r on account of the foi-m. for (be De- fend.iut is admitted upon terms which pin hide it;.}et sucli irrc.:ctmcn/,W5, and quere, whether n)i>iis. Tlie caveator was settled upon v fnct of apppopriatc^d land for many ycurs, and sui)pi>sfi st.i'ed to h;ivi.- b^en upwards o\ iw. ,i!\ oiif ye .rs. It was decrl d, th t the W cavr-aior was not en iiij I liy ihi.- riitry lavs ^l 1777 and 1779, as not having cluimrd uitui ui- timt- lii.-iited by ih,- act — nor by the stature ot limiialionsof 1715, winch :ip|)lies only to claim mis umler paieola or ye. hy iln- ..ct of 179i, 1 miling ilic claims of the- St.ite, as that act is bottomed upon the presumption of a former grant, and is nut appticable to vacant lands. Per curium — Tlie raventor was settled upon a traet of ap|ii-i)|)riateil laud foe maii> years, and .su|>p'>se(l the land - nou ill dispiitf t or from tin- person claimin!;. oi- declaration of righi 'o the perstMi possessed under such entry or survey, the pi-rsoii clairninj:; under such foi'iner entry or survey, shall he for- ever barred ol Ills rit;hi id' entry of liie land io question, and preference shall lie .!;'iien to liim who setileil on and coiiliniied peaceaiile possession of the same, &c. It is ar- giiril, that a |)ossessioii of seven years und.'i this ac^, giMS a title lo the piississor. The object of mis clause, is to curiecl (lie gviici aliiy uf the clause in the act of Haywood's reports. 539 1TT7. By that or frtrmer entry or survey in Lord Oran- ^P^- ^'^^'^• •oiUe's offices oiititlcd the ent'-riT to a pri'fereiice of entry ^■^'"^'''^^ ill iHirs ; hikI by virtue of sucli formor entry, lie inis^lit torn a man out o( possi-ssi'io. who perhaps knew nothing of tht" former entry and had settled up'Oi the land and im- proved it and never had any itiiiinatinn fir seven years from the former enterer, of his pc-etensions to it. This was a hardsliij) arising under tlie tormer lavv, and ih'' Le- gislature meant to alter it, by derlarinf^ thai such (losses- sion should entitle the possessor to iire-eniption, r,tther than the former enterer. They did not intend to give him a iti-opert.\ or dominion in the land, without entering it, and paying for it to tlie State ; and of necessity, mis right of pre-emption must he exercised within some l.in- ited time — for it' it was confined to no limits, he might never enter at all, and might always destroy annihtr's entry, by pi'o\ ing his seven year's possession, anil so hold til" land ilways, without eiilier etiteriigit or paying for it. This act was made in January, 1779. but was intend- ed to regulate disputes that had arisen or might arise under the former act, and to empower juries to decide in favwr of possession, where ihe foi'iner enterer had enter- ed in tlie new office, before tlie first of January, 1779. or wh' re the possessor liad enltred hefo.e thit time; for no dispute could arise where the possessor liad ent^'red, or might enter after the first of Janiiaiy, 1779 — the foimer eiiieri'r having made no claim before The words '* whicli may hereafter arise," refer to lisputes to arise upon ca- veats lo be entered, or suspensions upon claims Uien al- ready entered. If therefore the possessoi' for seven years, who had a riglit of pre-empiion, did not exert th4 iiu;ht befoi e till time limited by the foiim r act, it expired — tlie foriiicr I'literer In forever barred to claim by virtue of his former entry ; but he. as well as any other citizi n iniiiit set up a new claim, as for lands opi-n to be entert-d by every citizen iiidiffereinly. The caveator has no right /-^/.qn then under this act ; he has not claimed in due time. ^ -' It is next conteiuled, he has title under the act ollinii- tation.s. 1715, cli. '■27. sec. 3 " No (lerson nor persons, nor their heirs, a Inch shall hereafter have any right or title to any lands, tenements or hereditaments, sliall ilnTe- unto enter or make claim, liiit within seven yeais after liis, her or dieir right or title which descend or accrue; and in default, lie shall be utterly excluded and disabled 68 540 Haywood's reports. 1 Apr. 1797. from any entry or claim thereafter to be made." Tlie '*^'^'~'>^ act of limitations was made to quiet disputes arising be- twei-n different patentees of tJie same land, and those cliiiiiung under them. It supposes tlie land to have been already appropriated. It never speaks when the ques- tion concirns vacant lands. The preamble shews, it was never intended to operate against the King or the Lords Proprietors. The right or title to be barred by a neg- lect to enter witliin sfAcn years, is a right or title which by tlie common law may be preserved by entry — a jus possessionis derived under some grant of a|)propriation — a lii^ht totally distiitcl from the jjis preemptioms created by tiie entry laws. The latter is acquired by the circum- stances mentioned in the entry laws, and is lost by not being executed in due time. Tlie former is acquired ori- gintiJJy by grant actually issued, and is continued and trausuiitted down by mesne conveyances or descents, and may be lost by seven years adverse possession of another. The land now in dispute never was appropriated, and theiotore, lu itiier of the parties can acquire or lose any right under ttie act of limitations. It is next argued, that the caveator has title under the act of 1791, ch. 15. " Where any person or persons, op those under whom he or they claim, shall have been or sliail r.'nitinue to be in possession of any lands, tenements or hereditaments, under titles derived from sales made ei- tlier by < le.ditois, executors or administrators of any per- son deceased, or by husbands and their wives, or by en- dorsement of patents oi other colorable title, for the sjiace of twenly-one years, all such possessions under such ti- tles, Mliall be and are hereby ratified, confirmed and de- clared to be a good and legiil bar against tite entry of any person or persons under the right or claim of the State, &c. provided the possessir)n so set up, shall have been as- certained and identified under known and visible lines and boundaries." Before this act, |iersons whose lands had been actually surveyed and marked, and who had ob- tained patents which had been lost, and no registration of (469) them osses- sion, and in some instanres, hail actually lost their l<s^->^>w under such circumstances should be tak''>^ whether tlur isi rro- inline jud!rm>;nt in ordt-i to its i>moval. The > ii'y us ■ tlie i£cor(/ari(i ii:ier'ti 11 properly so termed, or ot the accedas nil euriam recoxlari) s tobringth^- prnceriltngsiirorouit.intlii" sim- man- (47'l) nei us the (.Illy use nf the cerlio"e step furtht-r lU-i, 'o pre- veni a cieiect of justic, it m:.y he concluded th;ii the recordari may be as well convered to thai use as tlie certiorari. Why s ;^|l ,t be sai ! we will cxttnd th>' certiorari to othi-r us. s tlian it was formerly employed for, and not \\\e recordari, when the reason and ierc--siiy for so ..xtending il is equally uvp( nt in the latter, as in the firmer case ? If the Justire r.fiis-tlie party hisappeal, or if the p :irt\ is In- jur.--.l and c ..nnot fioii Mireties for his appeal, or it he offers >-.ureties and they are rejf cled upon pretence of insuffic ency, or if tlu Justice isa p ity conc> nicd, or ;icts ulherM ise coiruDtly, oppressively or in- juriously to the parly, he cm have no redress whatever, niless this writ is allowed to. lie for the purposes contended for by 5jrrf'« counsel. State V. Curtis. Per curiam — If a justiro of Peace issue a warrant fur a iiiatti'i- wiiliiii lii.s jiirisdictiiifi, alilicusi' lit" may have acted enone'iMsly in tli previous siagcs, tlio officer slioiild execute it ; biii if it ho for a niattcp (lot vviihiu lii.s jiiris- diciiiiii. Ilie officer ought not to execute it. 2d. If the officer be a known olScer of tint district in which he is acting, he need not shew liis warratit \\!ien he makes (lie arrest ; bnt if he is an officei a])|ioinie(l for a specinl |)tir|i<)se, he oiiglit to show his warrant if de- manded. Sil. When he makes tht^ arrest, he shniihl briefly in- form the party Hrrcstetl <e right i>f suing for the partnership debts in the executors of Robert Hogg, making them also liable to actions, on account of dcbis due from the partnership — in 1789, the Defendant recovered against Campbell £500 for negroes of tlie Def( ndaiit, carried away by Campbell when he joined the enemy. The Plaintiff produced the bond, the deed ol assignment, and the act of ^s.seinbly, and there rested his case. The D'fentlanf tlicn offered the judgment recovered by him against Campbell, as a set off; which was objected to, by Williams, for the Plaintiff. He ar- gued, that all uncertain damages, all unliquidated de- mands which are sound iit damages only, aie in their na- ture incapable of being set off — only such demands for which debt, or imlehitatus assumpsit, will lie. can be set off. One principal requisite to a debt in order to its being set off, is, that it should be mutual. Cow. 56.— Iredell 172, and 'hese debts are not mutual ; the judgment ofii.'id lo be set off is obtain' d against Campbell, in jure propria, for a transac'ion noways relative to the partner- ship concerns, and which arose after the death of the «AY\VOOD'S REPOUTi?. 545 Tjther partner, and theronseqiieiit dissolution of the part- ^P""' ' '* nerstiip ; whereas the debt sued foe, is a debt couti'acted with tlic partners as joint nierchaiits. Mutuality of debts is so absolutely essential to a set olf, that no instancecan be jirodiiced, of a set oflF having been allowed, where the debt demanded is not due to the same persons precisely as the debt to be set off is due from. Even a debt due to a man in right of his wife, cannot be set off in an action against him for his own debt, Bull.l79, because not pre- cisely mutual ; the debt sued for being due from himself elone, and that offered to be set off to him and another — the reason of (he rule is, lest the interests of third per- sons might be affected. If the husband in the case cited, is compelled to sue for the debt due in right of his wife, that debt would survive to her in case of his death before the recovery ; that reason extends (o the case befin-e us. Were this judgment allowed to he set off, the interest of the representatives of the deceased partner who remained (47S) here, would be subjected to pay a judgment recovered against CainpbcU, for a lort of his own. If one man re- ceive rents for another after his death, by appointment in I his lifetime, and then be sued by tlie executors, he can- not set off a debt due from the deceased, because tlie de- ceased never had any cause of action against him. Bull. 180. Si) lierc, th(^ Defendant never had any cause of actitni against the Plaintiffs, and ought not to be allowed to set off the judgment against them. It is true indeed, that by the death eii the origin of a jiKlgnient, whether trespass or any other injmy to be comiiensaicd in dama- ges, wlien the damages are once aHcertained by the ver- dict of a jmy, ami a jnd^ment i^iven foe tlieiu, tbey be- come ftoin I henceforward a deiil, as much as if a bond had been given for them ; and may be sued for and reco- vered in ati action of debt. Espin. Hoiitel v. Strickland. And wli(ie\er the sum olV.-red to he set ofT. is pioperly I'ccoveiable in an action of debt, it may be set olF: tvery set (ilf being in lieu id' an a< lioii. As In the imitiwiity of (474) debts in order to a sel oft', ihat also is neci-ssary : but then a.s we are in a court ol law, th- legal interest is only to be coiisidi led. The assignment at inist, only \csts an equitable interest in the assignee : and th it is sucli an otie as ijiis court will not take notice of. Tlie interest as- signed in the hanils of the assigoce, is legally subject to all the incnmbranci s. it was siibjert to, or would have been subject to in the hands of the assignor, had the as- signment not been made. The sjiaic of «lebts assigned. Is still le.;;ally considei-ed as ilehis diie.lo the assignoi-. — H:id Campbell after tlie assignment, commiiied liigli trea- son, the deliis assigned were sul)ject to forfeiture. In short, the assignment as to third (tersons. operaies iio- tlii'ig — tlie law will not recognize it. Not withs'anding the assigiHiient, ^uits must still be brongiit in th<' name of Campbell ; the l.iw deeming it a mere niilliiy. The as- si.i;nini'iii therefore, so far as regards the le!;al interest of the parties, leaves them exactly in the same situation they were in befioe the assujumeni : and t'len a jiidg- inent lecoxerd against Campbell, may be set otf against a tiebt o oe reco\rrid by iiimself ; and laying aside the act ot Assemiily, that is the present case. That act lor the fofiiie iiiite if justice, has vested the righi of suing in the executor!) of the deceased partner ; but stiU the debts Haywood's uepouts. 547 when received, do in cuMtpiiiplation oIIhw belong to Camp- Apr. 179?". bell. ■ The exccuioi's are Hit- represeiiiati*"-'* .■>!' tlic iiait- -^"■''^^^ nersliip by Legislaiixe ci'iMtioii, and in the place ol' the sur\i\ idj; p.iriiiif HCliiis for the pai-tneisbii). nnd arc stib- jert to all suih actions as the jierson in whose place they stood was ; 'nd of course to an action for this delii, and consi'fjueniiy to the set offotfereil ; which is no more 'dan a cross action by the Defendant agiinsi the PlaiotifT. — In this \if\x of the case, both the inteiesi of Campbell, and Campbell himself, by his repc -.> iiiatives the execu- tors, are no>^ before iheconi-t. I'liis is>.'ibsta' tii«ll\ and pi-ojieriy to be consideici a> iln- ac'ion tA' Campbell, lo le- cover a debt llie i^w deems due and |iay;ible to liifn-< if, both now .ind \\heo recovered; and tlierefoi'e, the debt sued for, and tluit oflTered to b(> sei off, are rrci|ni>CHl and mutual debts within the meaning of our act of .\ssentUly, and are perfectly ( jear of the objection endeavored to be raised by Mr. Williams for want of mutuality. Ii is not so nniversail} true as is stated by Mr. IVilliums, (hat tjie debt to be set off, ninsl be a d<'bt recovei ai>le by the De- fendant again.-i the Plaintiff. Esp. 1AQ. 1 Term 112, 115. t mucli doubi whether ihcuse cited from BuUer 179, woiihl be so adjudged at I his day. It certainly (ould /-.^f.^ not have been so adjudijed to save the right of survivor- ^ '^^ ship to the wife. 5 Tenn49J, [troves tint a debt due from a surviving partner, may be set off in .in action brought by him tor a debt due to the partnership — there Was not such precise nmtiiality as Mr. 'filliams iiiotends foi — that was the veiy same case n> this no- befoe the court. Ill the present case, the whole partnersiiip inter- est is yet in Campbell the survivoi, and the ^nii for his benefit ; at the same time that the debi sought to be set off. is reduced toceriainiy by a judgment against !li:it »e- ry surviving partner. The assignment operaie^ iioi'i' exoruiors of his decea- snl purdier, and put it out fif the power of iiis creditdrs Id "lilairi a farthing. Williams in n plv. 3 Bac. M. 589. pi-oves that the right .if Hii; vivorsliip does nut tiiki- pl.ice amongst inei-- chanis ; and from ilience it follows, tliat the share it{ Ro- bert Hogg < '.iild not be ;ifrected hy thi'- judgment. And then -iimIj it follnvNs, that it cannot l)e affected by set- ting 'fftliisJiMlgment against its del)ts. If the srt offcon- tend'd lor br aUo^ed, ii will (ft-feaf liis interest or sliare of ilii'^ d bt ; and by llir same i«asoiiing, a surviving piirtiier by liis misconduct, may destroy the whole share of Ins deci-ased partners. This is incompatible with the rule, and cannot lie law : a partner by contracting pri- vate debts, caniM't affect the whole partiiershi|). Whcri tli' re is a judgment against him, and execution iss'iies. the Slieriff can only sell his share, so as to make the \ en- dee a tenant in common with the other partner. Salk. 392. If the wh'de cannot be affecleil by an action, nei- ther can it by a set off; and consecpicn'ly a private debt as this is, cannot he sit off against a partnership pari of it by asetoffwitji- oui :iff( (ting the iniirest of the other partner. He cited 4 Term 123. As to Caw/(6e/i's share, admitting it t« have been liablr to this s<'t off had no assignment been maile, ('476") J'"' **** '' ^'''"^''y W'"* made and confinned before the re- cowry of tins judguii-nt, it is in tlie sami^ situation as if it h.td bi en the transfer of an interest legally assignalile ; such as a note (d'haiid or Ihr like, which clearly would be txeinpt from Hiiy ifier drbt due from the assignor i ane .si t off. A ' demand fur unliquidated damages, caiinoi be set off: the Haywood's repokts. 549 i Logislafure never rduld iri'md lo iiitrndiire so mucli ron- Apr. \J97. ' fusiiiM, iis tliat of tr_>iiij5 actiiiiiK nftioxer, tfe^p s-' "r tlie ■■^^"'■^^^ ' like, hj waj ot se' off in ;tii action of il<-bt. H iil 'ln' De- I feiidnrit's (Irinan"! beeo Cur (Liiiiiijsjes, or aii^- iiniiqiii'Uted ! siiiii. I should lM«e been vei'> < learlv 'f oitinioii it lould not be set off; but ir is not f r oolirji'id ii.-d daniages — it is for a sum certain, i-cdiiced in rem jndicatam, bv the jii;metil. It is tlurefoie in itselfatid ofitsovxn Mature, cap'ihle of bein.a; set off, wi a'cvei- m.iy have been iu ori- gin ; an• recovered in the action go s to increase, it may be set off. Where two Plainuffs sue, and the sucn offered to be set off can be recovered of one of them only, it cannot be set off; or where one sues, and the hum offi red to be !>et off is due from that one and another, it cannot be set off; because in either case, the two actions cannot he reduced to one by a sel off, without doin.s; an injury to a third peison, by snhjficiing liim to the effects of an action, to which Infore the act of setoffs, he Would not have been subject. The act did not mean to extend the action of the Defendant to a per- son not liable lo it without the act ; hutonly to give him the effect of an action ag.iinst the Plaintiff, to which the C'^'''^^ Plaintiff was liable without the act, but not subject to by way ol set off. The law is so with respect to a partner- slii|i dealing ; the Defendant caninit, by execution upon ^judgment against one partner in his private capacity, seize and sell the whole partnership effects : he t an only sell the share of the partner against whom he his judg- ment, and the vendee bet omes tenant in common with the other. If he cannot affect the o Iter's .share by judg- ment and execuliiMi, surely he cannt)i do it liy set off; which is in lieu of an action. The law is so stated in Salk. and several othei- books, and this is the meaning of 'lie case died by Jlr. Hilliams, liom Term He. but ail this gors upon llie supposition, Ui.it the two partners arc alive, aud both sue. The case is widely different where 650 Haywood's heports. ApM797. one (lies, for then the survivor has all ilipparJnersliipcf- ^•^^''^^^ feci'- iujnre propria. He m;iy release the dehts, jsfive awaj th' effet t^, sill hikI dispose of tli whom he please« ; he alone ran take (lossession of all the offerts. The executors "f tite deceased cannot object to an> dis- position he may tMnk proper to make ; they cannot lay claim to an\ particular article : they cannot sue as ven- dee or donee, and recover the effects. WIm'u an action is hroiierht for the partnership dehis and effects, he sues injure propria, namiii.s; himself bj his pi-nper name with- out the addition of survixint; partner, and s'ates his rislit in the declai-ation. The maxim cted b_\ Mr. Williams, is a true one; hut it is not lo be understood as he under- stands it ; it means, that the interest and pruperty of the deceased does not cease as to him, and become vrsied in the survivor, as in the case of oilier joint tenants ; hut that there survives to 'h<' repiescntativesof the deceased, a rigfit to demand the dereas'-d's sirarc of the clear bal- ance that shall remain, after the debts due to and from the partnership shall be collected and paid by the survivor. Tlieir claim is to an account, and for the balance in money ; not to any specific articles or debt** of the part- nership. The survivor is their debtor, and tliry his cre- ditors to th"' amount of the balance ; therefore when he sues a partnershi|i debtor, he sues in jure propria; and thai debtor, if he has a demand asainst him in his private right, may set it off: and that is the reason of the rase in 5 Term 493. If Campbell were the Plaintiff her*-, and the assi$;ninent had not been made, this debt might he setoff. Then what effect has the assignment ? In this court, b} the I'ules of the old common law, it has no ef- f478) f'^'"'- ^ chose in action catmot be assigned, it vests no legal interest in tlie assignee ; hut then the act of Assem- bly comes in and h-galiz's thr assignment, and gives it the t'ffrct of legallj vesting the v\h(de interest the assign- or had in the assignee ; and that a.ssignment having been prior lo the Defendant's recovery, exempts the effects in the assignee'- hands from the after incumbrances of the assignor. From the time of this act, CumpbeH had nei- ther an interest in, nor a remedj for this di-bt — he could not in>vv sue for it were he in the country, and if his in- terest has so completely departed from him. that he has no (ontrol over the debt, nor can institute nor release at)} suit tor it, then he and his property is lial>le lo the Defendant's action uponthejudgment, and the Defendant havwdod's reports. 551 is liable for the bond to iheartion ..foihir ppfsons, wliose ^P''- ^''^''* recoverj will solo iiicrcitsf the fund of tin' n»Hii>;nre, •^'^''^'*^ wliirli is imt li;iblc ic pav tbr debt due to llic Delendaiit ; and ciiiisc qiK'Mil^, Ibf Plainliff's ate not such peisnns against uh'iin the Dcfeuilanl's dt-iuand can be set off. Stonk, Justice — I am nf the same opinion with Jinlge Haywood as to the jirincipal point, lliat ihis set nff "iigbt not to be allowed. Vavie I'oribf Defendant — The opinion of the roiiit pro- ceeds entirely upoit the eftVri of (he act nf As>eiiibly. I did not furesee tliis, ami hope ! sIikII be itidnlged willi an- olhet- argument. I can shew ^er^ ( learly that t be act has not the meaning giveii to it by the coiiit. Per curium — l-et the case be spt-ciallj stated — We will hear anoibef argtimi'iit. It was so stated, and afiei-waids at anoiber day in the (eiin, the cause was again argued. Davie, for the Defendant — It was argued the oiher ilay by the Plaintiff's counsel, that where purttieis sue, ,i debt due from one of them only, caiino! be set nfT, That is not denied, but it will not from theirce follow that where the surviving iiaitncr sues, a debt due fiom liiin may not be sft off. The law is, that it in;!y. Thi- court linow^s no right but his — be is answerabV to the executors of the i a ilrht din iVnni liiiiisrif. I think it ('ait he dniiliti'il, liut iliiit the siir\i\ ino; paitiier lioldti injure proprhu hikI that an rxi'intiiui foi a di'bt due fi'om biinseir, iiimv be b'vicil uti the whub- |)'U'iiiershi|i efri-( is to si:ti-f> it. As t«> the act nl' As-cinlily. it is in dei'og^itioii of thi riiiiinioii lav\, iii:i(h- I'm a sperial (iiirpuse, tOHnswer tlie ('OMM;t)ieii('e lit' pai'tiriihir iiidiv iiluals, and iiui^lit to be cniisli'iied -irictlv arcurdiHej lo its lileril meanin!?.— 5 Bacon's Mridgemenl 650. 10 Jlodern 182. [Uerc he read tlie ait of 1786. c/t. 56 ] H\ ibis act ihoss jXTSdiis whii were the execuiurs '•{Robert Hogg- ■ put in the pliice of tlie sui\i\iiig jiartner, they lepreseiH bim, they are en- abled to recovei' for the |iur|iiise of payint; ilie partner- sbiji debts, not fm- ihe piiipnse nf (la^ing uxor to the as- siijnee. They are, loi ought that is containyl to the con- trary In Ibis act, to pay the hai.ince to such persons as by law are eniitled lorereixe it, and ibai is the Mirvitiiig partner — they can onlv recnver in cases wbere hc might, were be not disabled — and are suhject as be winild be, were till suit in bis name. Wi//iu7iis, in r'ejily — The reason of allowing a set off in ibe case nf an aciinn against ibe sur\iviiig pstrtner is, because he may recover the partnership debt, and pay his (iwii private debl with ii ; but if be sues, the court will not compel him to admit the set off of a debt due I'roin biinself ill iiis prix ate capacity. It is at bis elei-tioii when Delendaiit. to set off or not. Ue may dis|iiise of tb^ ])artiieisliip debts in discharge of bis own piivate debts if be Ibinks proper, tii4 ibe law will not I'oice bim to do so. It will not cnmpei bim to do injustice by lireak- (480) ifS ''"' trust reposed in bun liy his partner at tlie time of coininencing t'le p;irtnerslii|).. He ibeii cited 2 Vern. 293, 706.. P. if'U. 182. 4 Term 123. loshew tliat incases of bankiuptiy. ihe ]iaitiii rslii|i tiebis shall be paid out of tbe pai luersbip olfecis befor' the prix ate debts of the partners. I'artneiship efleets in the bands of a survi\ing partner, cannot be taken to satisfy .". (irirale debt by ex- ccuiioii. A Court of Erpiity would protect tlie share of the (leteased pai'iiipr, niion p^ oprr circumstances laid be- fore it. Tlic Deieiidaiil in the present case, had riolice IIAYWOOO'S KEPOUTS. 553 ef tlic assisnmont l»y Campbell, and a iinympiit made hy ^P""- 1''^''' him I'l Camjibell .iftcrwrti-ii-i, would lot liiivcbe'-n iillowi-d. ••^'^^'^*^ The ad, of As-^i'inl»ly recognizes rlie assi^i'im-nt, aiid im- parls to it a Icijal etiVct und opi'i-atio'ii. With lOHpect *■ ti) rfssiiiiiiniMit-i ill !;('ii' ral, they are protectable in a Court ot" Efjiiily.' and no p.tymcril m.nlr .il'ter imtice of.tll aHsij^iiiiic-iil t'lir laluablr cun'^ideralioM, sli;:!! def-af tbe intens! of the assijrnee. 1 Sulk. 79 1 Jltk. 294. 2 Bl. Re 1269. lisr. 1 Term lie. 26- 4 term 340. Curia (ulvisari — A lew d lys af'lerw.irds, Stone deli- vereil tin- liii^il npinioii of tliC court, that the s.-t 'iff was not allowable. hikI added he would fijivc his reasons. — The iiiea, hr saiil, of the nnasHi.s!;n,ibi!ity ol c/wses in. ac- tion, is iiiiich alti-red now IVorii wiial ii was fonnci'iy. — Comlsof Eqnilj fo- a lona; time have protected such as- sii!;nmi'hl'* \\iitii lor valiial)le coiisideraiion. Coiirts of Lan also have lately come itiio 'hr resoliiijoii td" taking notice of them ; and very pioprly: for why should a Court of Law rrl'use to do vvuat is really. just antl proper to hr done, and what is usually and cvrry da) d iiie In a Court of Equity ? Many of thi- ancient common law rules have been chaiij^ed, uiriely bcc ruse they would not do that which Coiir;s ot'Ec|nity would. Arcnrdinsly Courts of Law now virw the assignor of a chose iii action for a Valuable consideration, as a trustre for .\v assij;;nrr; and the thins; assii:;ned is realiy and substiuiiially hrlon^iug to t :e assiy^nee. One ( onsrqurnce resulting frotn this is, that a c/*OA'c ill «cfio?t actiialiy assigned for value is not liable to the allcr charges of the assignor, espec lally where the third person li.ts notice nf ihi- assignment, and of course not to a se-ioirid' ■ sum suhseqin-ntly bccomi'ig due from the assignor. My opinion isfnunded not only oil the reason and pi-opru'iy of the thing, but also iipiin a case in 1 Term Re. 619, and the cusrs there c\lti\, wiiere .he tloctrii e ! .nn irealiiig of, is fully estalilisiieil. The law of ihese cases has been recot^niz't! by si'veral decisions in our own courts — l>y thitol Smil/idinl Poivell, decitled at H.ilif. >(, on the list ciicuii ; and by ihal of (481") ,)IcUanicl ami Tate, decided at Morgaiiton, some years ago. It is said h'lwevcr, that these cases proceed d upoti fraud ; but is not every case of a fair assignm' ni f n- va- lue, Mih'oipM'd to he defea'rd bv tho assignor to ih p.e- judicB of the assigaee, a case of fraud ? i tnink tiii» mo- 554 Haywood's uepoiits. Apr.i797. Jerri docti'ine ies|)e(ti'ig clioses in action assi^nei], more ^-''"^'''^^ |ieriiliaily iinipcM- lii'iv. bi-raus' udf Coui-ts of L.iw and Coiiiis >if Equity ai-e iiniii'd, and boili Jnt'isdicti'iiis to be exficised hy tlie same .liili^jes. It scfins vi-ry idle t'> j^ivo a ,jndi;ini'ni ai Law,, ini-irly lor tlie pni'irose nf seitinj; it aside or currertiti;; ii in a Coni't of Eqniiy. It i-^ more pio|)er, because inucb less expeusive and dilatory, for tlic Court of Law at once to make the same derisioo ihat is attain,ibl<' by an application 'o tbe Conit of Equity. I am also of opinion, ilie art of Assembly meiint to give pf- ficary lo the ii-^sigtiinent. It has rertaiiily gi.en tlie riglit of suiiija; t<» tin- piesent Plaintiffs ; and if tliey are only Plaintiffs in form, as llnre is no inst^nne of pleading a set off aifaiust a person who is not Plaintiff on rei m-d, I think thai circumstance alone, independent of any rousi* deraiion ri-spectiitg Hie interest, sufficient to oust the De- fendant of the set off lie propo.ies t'> make. As to the doc- trine of sei offs, wit'i respeci to th' quality of the demands capable in (In mselvcs of being -et off, and the pei'soos a- gaiMSt whom ihey may be s t off, I am of opinion, the law wa- accurately staled the other dosed, it w.is (granted. NoTB. ri(feS. C. Con Refi. 1. Woffor(l\. Greenlee, Ibid. 79. Ro. berts V. Jones, I Murph. 353. ffoble y. Howard's Ex'rs. 2 Hay. li. — Smith V. Fowell, ante 452. FAYETTEVILLE, APRIL TERM, 179". Anonymous. Ter Curiam. — The Def-ndant, the adininistratof, has not distiiigiiished in the in»entoi'y, the good from the bad oebis. We mu-.t take if they are ail i;ood«lebis, tint you may di-.ihaige liim (speaking to Mr 2\njlor,) by proving suits lor tliem, and thai ihe debtors »ere unalilc to pa). Tlie Conslallle Who had >prved the warrants, and had the executions in Itis hands, svas now dead. ;iMd Mr. Taylor could imt prove jn-,(d t-ncy in the iiebiors, and his client was cliaig'd vvith all ihcd-liis nentioncd in the inventory. The administrator, in reiurning his (482) haywood's reports. 655 inventory, should have said tlicse debt'^ are spcratc, and Apr. 1797. I allow myself to be cliai'Sfd with tbein when rerovered, ^■^^''^''^^i' these are desperate ; and ibeu be would not have been cliar.s;ed with tiiem unless recovered ; but when he gives an account of thhts in bis inventory, and says notliing' iahouf them, it is an admission in law that the debts may I be had by ilemandint; tb>*m of the debtor. Note.— rWe Bull. X. P. f Brid. Ed. J 140, a. Spillcr V. Spiller. This was a bill filed by Mrs. Spiller, for alimony ; and her counsel now uioxed, that so nnirh of his property might be taken, as would (irobabl) equal the decree "f the court, saying Mr. Spiller was wasting tiis pri>pi'rt.v. Per mriam — We Inne ordered sequestra'ions of this kind, when we have found tin- Difiridant withdriiwing his j)roperty, or being about in move it and himself tn avoid , an execution of the decree; but not olhirwisi-. It would be a gi'eat stretch of power in this coui't, to ordfr a se- questration, or a bond for the absoliiie performance of the decree, whenevei- a bill is filed against a man by one who .claims to be his wife. Note. — Vide Anonymous, anieSiT. Anonymous. This was a bill to foreclose a mortgage. Cochran was mortgagor — be sold one njoicly of the preinisi-s to Uuitt, and ills partner, in fee — their title came by a Siieriff 's sale lo Spiller. The mortgagee had a decree of foreclo- sure, uule-.s before a certain day the money was panl. — Tliat day was past, but no absolute decree of foreclosure yet eii(ei-ed. Spiller moved tcj.be made a |)arty, and to have the decree so altered, that he might be at liberty to pay the niouey for saving his equity of redemption. Per curiam — Let Mr. Spiller be at liberty to file a bill, stating his interest, and pray ing the decree ma_\ be so va- I'ieit a-< to let iiim in to |iay (be money. It would In- un- ijusi to foreclose the equity of redemption, and 'jar his ti- tle lo bis moiety, which ho acquit ed fairly, wahoui put" ting it in his power to prevent the foreclosure by paying the money. ro (483) 556 HAYWOOU'S REPORTS. Apr. 1797. Slate V. Moore. C- nl'essions whether extoried, or ii'>t, that n-Ute a number of cir- cumstances, all ot wiiicli ale proved by other teslimoiiy iictually lo exist, lire a^lmis^ible against the prisoner. Indictment fm- murder, and not pjuilty pleaded. Upon trial, it appeared the hody was found near Wadesl)or(>U£;li; and .IS I lie deceased anil Jloorc were seen to_e;etluM' a I'esv dii^s Itet'ore, rln* suspicions of the neighborhood fell upon him. Two men pnr'sued him, and in tiie nei,e;hborho fi'ei'inild. Aliens aro not allowed to acfiiiire real |)io|)ep!> ; hnt if an alifii lia--' pui-- clia-cd real piojierty, and is m jiossrssion of it, the |iiir- cliase is _q;(io(l. and will bf for t\v' benefit ^.f the public, 'wlienever Itie State thinU- pr 'pei; to exeit is ii,c;lit, by call-ins an ofBce to be fonnd ; bnt b.-foie scicli advantasje is taken, no itidividual ran 'tiie'Ceie witli ilie fictliold, I and violate the possession of ttie alien (.urciiasc r. His possession is lav^fnl as to all persons but tiie State, and he may demand dama_s;i' for the violation of ii, in a per- sonal action. Wliei'eforc, let (be D'-lrndant answer over. See Dyer 283. 5 He. 52 b. Terms de ley. Verba HJien. Co. Lilt 2. Leonard 61. Not*. — In tliis c:i«e the laisit:;ncd action — tiie promise here s'at<'d, may be taken to have been an express one, as the contrary is not stated in the speiial case. The PlaiiitifT bad judgment. Judgments ha>e been given for the Plaintiffs upon a quanlum meruit, before the II. Geo. Z, c. 19. Vide 5 Mo. 73. Note. — Vide Hayes v. Jlcre, Con. Itep. 19. Tuton V. the Sheriff of Wake. If the Sheriff returns an escape to 3 capias ad renjiondeiubim, he maybe sued for the escape, and not be proceeded against as bail. To a cnpins ad respondendum, lie returned an escape ; and this was an action for the escape. 560 HAYWOOD S llEPOUTS. Hat^'ood, Jiistirc — In England, an action will lie fori an rscapc on innsiip pioress, wlietlier the escape be va- liintMry or neglij;ent ; for tliere, vvlieti the Slieriflf has ta-j ken the body, he must produce it, or return a bail boiid[ anil if he has him not at the day ussijjneclbj the writ, he fails in his duty : but here, the Sheriff may if he pleases, permit the party to .e;n at large, and become his, s|)ecial bail under the act of \?77, ch. 2. sec. 16 ^' 76 — so that here perhaps, it is not an escape subjecting tlie Sheriff to an action, if he has not ihe body at the day. The Plaintiff may con- sider the Sheriff as bail, and the Delendant in his custo- dy, and proceed to juilgnient ; wheieas in England, the Plaintiff cannot proceed in such case to judgment. If the Sheriff is to be considered as bail when he retains an ar- rest without a bail bond, and has not the |)arly in prison, then he may surrender the Defendant at any time befme final jndg:ment against himself as bail upon a scJ.ya. — whifh he cannot do if an action for escape lies ag.iiust him. In England, a voluntary permission to go at laige, will make a ?eca|)iion by the Sheriff unlawful — here, it will not. The Sheriff is considered as bail, and pei4iaps may retake hira for the pui'pose of making a suirender'. U|)on these considerations, it is possible that the aclimi for an escape, where it is permitted by the Sheriff, is not the pro|)er action ; hot (hat he ought to be proceeded a- gaiiist as bail by sd.fa. Perhaps this esctpe may have been effected by fi.rcc and violence, under such circum- stances as to make it a rescous. and then the Sheriff is ru)t liable by any lasv. It is true, lie has returned simply, that the pr'isoner escaped ; but as he must have known, that a negligent or voluntary escape would not excuse him, he probalily intended to have returned a rescoMS. — An opinion was (jjixen by some of tin j)resent Judges, not long ago at Halifax, that a Sheriff upon a negligent es- cape, might be ronsidered as bail, i wish to consider of the case before 1 give my Judgment — I wish it to be spe- cially statd. It was so stated accordingly, and afterwards in this term was argued by Duffn for' the Sheriff, and Taylor Um- the Plaintiff; and tlie court gave judgment for- the Plain- tiff, saying, the returning an escape excludes the suppo- sition of tlie Sheriff's having become bail — though Mr. JDiiffy strongly insisted, that the Plaintiff by pcoceediiig to pidginent as he had done in the County Court, iiad thereby admitted, notwithstanding the rciurn, that the HAYWOOD'S REPOllTS. 561 ■Defciul.int was in com-t, wliicli could not otherwise be, Apr.l79r. tiiHti by ills rctarnim: to pi-JKon ni'lci- the return, or by l)c- inj^ consiih-rcil ;is bailed by thi' Sheriif. To which it was lanswticd e contra, that the jiidginent is crroncons f o- that C^"' ; cause, but is to be consideren as a good judgment till re- vci'sed. NoTK — Viik Swepivn v. H'/iitaker, and ihe note thereto, aide 224. Anonymous- The decree of the com-f made at a former term, was, that eacii party should pay his own costs. Upon which a doubt arose, wbcilier each party should pay half flic Costs, or only the costs which had accrued upon bu- jsiuess done for himself. And at Ihe last term it was jhi-out^ht before tlie court, who decided that each party should pay for Ihe process issued foi- his benefit. And then another ((ucstion arose, whetliera copy of the bill taken out to be seivcd on the Defiiidant. was for the Ix'uefit of the Plaintiff or tlie Deicudant. And at last term, after much argtimeot, Williams and Hatwooii, Judges, dif- fered in opinion. The matter was again moved now and argued, and the court clearly agreed, th it it « as a part of the pi-ocess to bring ih." Deleodant inio court, without which be could not be efTertually bi'ought in ; and lliei-e- fore, it was for the PlaintilT's benefit, as much as the subpoena was, and therefore, tliat he should pay the ex- pencc of it under the decreee. Anonymous. A writ issued against two jointly, and one plead in abatement. — Plaiiitifl' was suffered to take judgment against the other. A writ issued against two upon their Joint and several bonrl,and was returni'd,e.\fcuted upon b itli. One plradcl in abatement, that the pi'ocess was not sei-ved upon him in due timi', and the wiit was abated as to him ; and then Spiller moved to have judgment against the other. Haywoou. Justice. — This action as you have brought it, is a joint one, and an abatement as to one, is iherefore an abatement of ihe whole writ ; for otherwise yiiur jiidg- inent will not be as broad as the writ — tiiat demands a debt agaiosl two, the judgment will be ag .^iisf one mily j the other by his contract, is to be contributary to the debt, 562 HAYWOOD g UEPORTS. (488) ■""■ 'and tlie court will not tliscliarsjn iiiin because of an iri'o- i^iilar sotvicc of pidCi's-i, ami l;iy tlic,biii(li'n of tlic whole iipm tlicotlicr — thatdoi'- mil t^o to tin- mrrits, nor dues it j prove liiin siot to be c iiiUibutarj', as you bii\e declared I lip is. Stone, Jiistir.'. — 1 tliink tlie riainfiflr is entitled to I judgment. If two are sued, and botli plead the general T( issue, and tlicieisa verdict for one, tlie Plainlift'may hnve judgment ai^ainst the otlier. SpUlcr then cited Gil. L, Ev. 159 5 lie. 119, and tlie court pcriiiilted him to enter his jnilgineiit. Quitrt de hoc. — For if two be sued upn;i a joint bonJ, and both pi -c! nan est factum, and it be found for tlie one, and a.i;ainstth other, then it :ippe:irs one of '.hem can never be made contributary. Thoiigli tlie PlaiiitiiTshould be put to a nevv aclioii, he is lonver discharged by tlie verdict, and Iherefore, ilie law will give judgment ^.^'ainst the other, as there must be a writ of the same form against him, siiould a new on^ be taken out. I!ut where one only abates ttie writ us to himself, that does not prove him notto lie a co-obligor ; it is still lobe taken accordinij to the 1*1 iiiitifl''s avermcni in his declaration, that he is a co-obligor, and jointly con ribiitary with the otlier, and tliere* fore jointly to be proceeded .gainst wlh him ; tnis oth'T oupht not to Lje made answerable for tlie whole debt, when the Defemlant who pleaded in abatement, by Ins contract is equal]) liable, merely because the Plainiiffhas cliosen tor insiancevto nnsnamc him, or has commit- ted some otlier irregularity, wliich causes the writ to be abateablo as to one. The Plaintiff is bound by law and his contract to sue boili. If lie sues one only, the writ may be abated tor that. Stru 503, andyet according to this determin.ition, the Plaintiff may do th.it indirectly, which the law will n-it snff. r liini to do directly ; tor he m.iy misname one, and have an abatemt ni as to him, .md then proceed against the other alone. It is no answer to say, that joint bonds ire now consi- dered in law .^s joint and several ; for if the Plaintiff sues upon itasa joint bond, tli'en ii is in all lespcct.s, still to be held as a joint bond, anil ill the common law rules iispuciing joint bonds attach upon it. If there he two Defenduiils.and tli.y plead several pleas, and tin Plain- tiff take issue Ujion one, and de.nir to the other, and the issue be found for the Oeleiidaiit, t :e Cuuit will r..t proceed on the demurrer. 1 Bcic, .ib. 15. Hob. 250 et sic vice versa — lor in iioth c ses the suit being once abated, it would bi- ini|'ertin nt to jud,;e whether it ought to abate on the other's plea. Vide also ffob 180. where Plainiiff .-ues two, and is nonsuit as lo one before jud(;mini aga nst the other, he is barred as lo both. If there are two executors, and the one is mis- numcd and abate the writ, it is abated as to both. 1 Bac. .ib. 11. 6' Mo. 10 riioUj,'h one l)efend.uil may be acquitie ) in part and con- demned in part of a trespass ; or one condemned in the action, and the otiii r acquitted, ihe wrii c.^~*^^i^ tW" Ijei aine his siirei> on ihe day oftlie race. Per curiam — This is a fatal variance — yiii should have stilled Hie (ontract as il really vvhs. Mr. Taylor fii- the Plainiiflr iosisieil, he couM maintain it, and pra_\ed time foi' that |iui'|)osi'. So a special case was made ; and af- tern.irds, in this term, the coiiit callio!; ilie cause, Mr. Taylor declined arguing it, and the Plaintiff was noii- isnitc'l. Note. — Vide Buller'sMsi Prius. 145. HALIFAX, APRIL TERM, 1797. Jones V. Jones. Kocks in a river above ilie surfuc ■ of the water, are vacint property, and tile subjects of our entry laws. Trespass, quare clansum /regit. Issues, liberiim tene- vientum, ;iiid justiHcation. On the trial, the Deti ndant admitted he had np.iired a stand, cncted in the river Rojiioke to catch fish, and that he had fished there. It was Slated h> Ihe Plaiiniff 's cminsel, thai this action was (489) bfoiiglit for the piii|)ose ol tryinj; the risrhi of fishing a- inoiigsi the isLiiidsat the falls. The Plaintift'dediiced his title ;is follows : First by a (jjrant from ihe Go>.'rnor to Griffith, fif thirty sexeii small islands — Griffith convey- |cd to P. Johnston, and she to tliePlaintilf. Also he pro- duced a Siatr !:;rant for these islands, rocks and stainls, issnid under the act of 1787. He also produced a .u;i ant for an adjact'iit tract, the hoiiiidaries of wliicli included one bank of the river. His couiistl stated, that ihi- stind in question was in th<- middle of the river, that i!ie Plain- tift" Il id a liile to these islands, rocks .md stands, prior to 1787 ; also a title under the act of 1787, and a title to one of ihc bank^ by another j^rant. The Defendant's ( onn- sel rested his defence on the linig possession the Defend- ant had of this stand prior to llu State siant ; and that as ilie river above the falls was tioi navigable, the bed thereof, and the right of lisliiiig, belonged to the propri- etors of tiie adjoining lands on each side. He then gave 71 564 HAYWOOD'S KEPQRTS. Apr. I797.(>vi(lpnce of llip ainiquity oFiliis staDiI, and that the rnck •^'^'^^^ win ic it i^, liiiK bciii reiideri'd an pxrellcnt place for fisli- ins. iiid stands twu lunidrtd yards from tlie islands, and on tlic sdiitli side of tli< river. TIm' roil scl fur the PlaiHtiflTji^romideil liis argumpnl on the l(tllo\\iir;c points : Observing that ihis rork or stam!. as ii Was liot opposite to any island claimed l)y the Plain- tiff, ma} It hdej- tlie Jndgment to he given in this ra^^e, less derisixeof ilicgeneirtl (juestion respecting the islands and Stands ailjaceni ti- tliem, than was ai first intended, he pi'i'p sed first to ronsidei', how the lonimun law stood, an here. F. JV. Ii. 200. And then there remains no other means of acquiring . h excliisixe right of fishing, hut by a title deriwO under the owiici- of tin- soil, 5 Burr. 2814 — and this the Defendant does not pretend to. Counsel lor the Defendant — This river is cither navi- gable, or it is not. If ii is a navigable river, the right of fishing ill it is coininon to all the ciltzens — the bed or soil of it fannot be- granted at this da}, noi' can an) citizen be distiirhed or restrained of his right by an) State grant. Tlic Crown m England Maslongago restrained from ma- king suchgfants. 6 Mo. 73. 4 Bac. M. 156. 1 Mod. lOG. HAYWOOU'S REPORTS. 565 If it 13 not a navigable river, ilieii the bed of tlie river be- Apr. 1797. lorisff to the owners (ui eacU liile ; each el .iininir 'n the ^^-v^n./ miiidle . if the w..ter. 4 Burr. 2 62 4 Bnc. M. 153 Doug. 427. 4 Bttc. M. 156 Valtel 104, sec. 246 — and I tlien it is not siihject to be granted lij IM- Siaie, bi mg al- ! ready appiopriatid. All tint the Lejjislatin c ran do with respeit to the rislit-^ uf fishing in iiavii;al)K' ri\ers> is, to pass la\\s, presc-iil)irig the uioih- in which that right Js 10 be exercised by the tlie same agree- ably to the laws for taking up land now in fnrce, provi- ded they enter and lake up such isLuuls, rocks and siands ■within six months, &,c. The rock in (piestion, was near-- er to the lands of another person than the grant' e — his lands are not at, adjoining and contiguous to tliis rock, in comparison with the lands <'f that other. The grantee was : ot a person intended by iln-aci to haw- the right of pre-emption. The grant ha-- issued upon wrong sugges- /-^qi.-v tioiis, and is therefore void. Bull- 76. 1 Co. •J4, 45 ^ ' Tlie Governor was not antlioi-ised to execute such a giant. Thus the grant is not only vnid, because ihc rock belong- ed to the owner of (he land iijarest to it, but also for this otiier reason, that it issued vvithout authority given by the Stale to issue- it. Counsel for the I'laintifT — They relj uixin their pos- session, but possession cannoi lipen into title unless :tbe a Continued and constani possession — the possessimi of the Defendant has been for bve or six weeks only in a yeai, therefore it cannot avail liim. It is admiited on the other side, that no right can bcaccpii.ed in this coun- try by prescription — 1 t>hall therefore say nothing nior« 566 haywood'p beports. Str, 179?. on fliesp points. It ix Hii°:iiril, that iliis is a navij^ahle ^^"'''^^ river, hikI iln-refnii* rniild not be (granted, and I Bl. Ccnn. 286. 2 Bl. Com. 39, is relied nn. It is true, in Eiisilaiid such giarits uere restfaincd by pai-tirular Ihws. miend- ing ti> re>*traiii the prriojsjHii*!* ; but these laws are not in force hi re — our Li'gislntive body is unly resti'Mined and regnlaffd by the Constitution. Acts passed by them ior ihr (lublir goctil, and mii .rput^nant to t'lat Cnnslilu- tion, must be enf'orred. It is not a true position, that in casrof private ri>ers,<>r ri\ers not navigable, the islands belling to the owtii'i-s of ihi- adjacent land. Surli islands, eitliei on navigalile oi uima\ig:ible rivers, contain laud ' and territory, and nmst bi entered befme they Itrroine privati piojierty. This apcears by ouientry laws. 1777, C. I, 5 10, and if islands are to be entered ai>d do not follow the .adjoining lands, then upon the principle of 'he Sell ndant's connsci, the uw ners of thr islands are enti- tled lo a part of tin' lie'l I'f tiie rinr on each side of the islands. The art of 1787, is Ion (led in good policy, and dm s not exceed the poweisol the Legisia nre. |i was made to prevent strangers, not cilizens of North Cm o- lin;-, IVnm stopping up tiie ri*(' « itl> their stands, and depriving the lai ■ !■ informei! iha' 'he judgment of till court, (Williams ;»n(l Macat, JikI^i s.) pinr.i'fded upon iht ground, tliai llie n.cks ii> ihe T\' r .ibuvi ttic surt.icc of the water, were vacant property, and tlie subjects of our entiy-laws. (492) ■ miB^Qim" NEWBERN, SEFTKMBERTERM, 1797. Simon Bright v. Robin \Vhite. A purchaser ot lands under a Sher'ff's sale, c nnot sustain an action for mnney had and received apiinst the Shei iff, upon the gmund that 'br tule was l)»il, inA the con^ideTMtion had theielnre ti.:!. d. Ai lion on the rase, for money hud and irreived to the Plaintiff's use ; and the general issue pleaded ; and upon lIAVWOOn's REPORTS. 567 llie trial tlip cvidoi.n- "iis: (li.t Ox m olitained a jndir- Sep- IT'S". mttut : 'j^awiyt Bright, (lie (all. «i ■ T li e P;:.;i.tifr. wlmr >^^^~>-' ii)p(>i' ( xecuiioii isMitd, Hinl ilic Di Ici (i:iiit, as Sl.i'riff", Siitij-f> it— tlliil llie I Fliiiii iff . ftc Wiii'ds iiis'i'utfcl ;iii cjifimeiit to ii-cover I pnsHfssjoii. iiiid llicrewiis a M'l-rlii i :iii the letitrili "I w an antiiic; l,e jiidiiiHii' ue are now se- kins;. It is h^iil down in 1 Burr. !l'2. iliat \\lierevep a peisiiii has paid nionej iiinni a coiisideraliiin wl.icli liappens to Tail, or wliere ex oeqiio ct bnvn, he oiip;ht to ha\c his nmiiey icturned, his n( tion will lie to recoM-r it ba( k. it is |i. undid in rr;ison and Justice. Hrie ilic coii-idrratioo lias I'aili il. the PlaintlH' ii;:s not been able to nbiain pnssis'-ion of the land I'm which he p^>id his money ; ijv land belnim;id to a third p-rsi!ii, and ir.<'. to the Defendant in the ;icti':i. where Oram "as Plaintiff. The Sheiiff has received the inoniy. and ou;;lif to reiorn it It cannot be denied, that if the Slrriff lev ies an exe- cution upon ilip procei-ty of a third person, be is li-.ible to that peison's ac'ion — the writ does not aiitboiise a seizure of any propi ity hut that of the Defendant's — There is iqual re.isnii wiiy he simu d he liable to the ac- tion of the vendee, for llie writ docs not authorise him lo- sell to the \riidee any other properly than that of the Dei'i ndant. Hi !-■ gniltj of a v i riiia; and deceit to the vendee, if he sells to him the properly of any other 1ii;»n the Difendant. Should a private man sell property as Ills ravn, which tiiiiis out not to he so. he is liable lo the action nftlie vendee; and wlij f Infold not ihc same law cxteiMl to the case of a Sh< nff? M ilh respi ct to the sale of lands, tlie'C are as stioni;; reasons for iiiakin,i>; the She- riff responsilile, as there ai-e for inakint: a private vendor so. In the latter instance, lie buyer iii^iy (all upon the vpi.doi' foi- an ins|,ecti(iii . f his tide d-''!!-, and ihe sellei- hi'S 'In in to shew ; if the hiiy>'i willt.'ki r as'ii;ablf care, he cannot be deceived ; but where a Sheriff sells, lie has 568 Haywood's keports. Se;>. 1797. „f,t f|,p fjtip jlecds ; tin vpudi)! Iiiis iio DiPans of getting ''^"^''"^^ tliinr for lii^5 iiis|)('('ti<'ri — tlicrel'ic "lie Sliiiitt' vlioiiltl be (493) CHicfnl lint to sell hiids tlif pi'condiicl of the Slienff. Had he not wiongfiill> seized and sold the land, the I'lainlitt" Would not havi: been dc- cei\ed, nor would have parted xviih bis money as he did. Davie for Difn dani — The piiircijili' that be who has paid inoiiej upon a consideration which fails, shall reco- ver it hack of the icceiver, is a good one ; but it is not to he understood in the latitude tlie PlaintilT's counsel as- signs to it. He who has received inoin-y in liis ouii i iglit and to bis own use, upon a consideration which tails, ought to refuinl it ; and an action to compel him to re- fund, is sustainable : but if he acts as agent or trustee for another, or as a putilic officer, and leceives the money for a third persim, and pays it over, lie is not liable to refund. A contrary doctrine would destroy all agencies, attorney- ships, and otlices suhjeci to the operation of it. These persons are noi benefited h^ the receipt of the money — they I'eceivc it for otiiers — they are iin-re iiistriiments, whereby the money is delivered from the bands of one party into the hands of the other; it is deposited with them for the use of another. The cases cited by the Plaintiff's counsel, and all other <'ases upon the same sub- ject, extend onlv to support the action against a receiver of mone} to his own use — that \»'as tin- case cited from Burrow — there the Defendant received the oioney to his own use ; thai was the case of the annuity — the Defend- ant h.iil received the money to his own use. The same remark pplns to the case from Dallas. These authori- ties lb. reinit iiM' i.ot applicable lo iiie ju'esent case, wliich is thai of a Sheiiff, w hii has received inone^ for the Plain- tiff in the action. This action cannot be supported by a- HAYVVOOD^S REPORTS. 569 iiy adjudication to hi- fouinl in the bonks; al(liotia:ii occa- ^^P- '''^^• sioiis of iTStiiMiiia; to stirli an uciioii, vvitp it in.iintaiiia- •^^'"^'^''^ blc li.ivp iirriiricd nlmost cvi-ry man, under such disadvantages, WDuld be- come agent, CM'cutor or SiierifT. Tlie doitriue contended for by the PlaintilT, in iiie pi'esent aclimi, would destroy all siieh agencies and otlict s, bi'uelicial as they are, to the public. It does not l'ollo\\, beiause the Shi'iff is liable to a strangec for selling his personal elfects, iliat he is also liable to 1 lie vendee ; but if it did, 'lie argument fails when applied lo land> — 'lie SnerilF is not hound lO seize them — ^iaiids do not pabs ah pursuaal estate does, by sale Haywood's reports. 571 and (lolirnry. MoM-iilihs av- seizHd in order to tlipir de- Sep. 1797. livcfy. Tlu'ip is no ornisioii 1o siize laiiils ('or iliesHiie ■^^"""^'^ puiposc — wh '11 sold, tlipy need not be dflivored to itie vendee — the Slii'i-ifT Cittinoi expel tin- p'-sscssor and put C^yoj the vrndee irit" ixisse^sioti — ntid thi'i-eforp, the Sheriff is not liable Cor selling tlie lands of a stianirei' to the ex- ecniion. The dispute lies in soch cases, heiwcen the ven- dee and the rlainiants. The vendee purchasis at his own risk. The ShetifTis not snbjeit lo the claimant's action, the conclusjoti drawn from his liahiiiiy in rases of per- sonal property fails. We aiecleai-l> ofoi.inion, tlie jne- seiit acrion cannot be sustained. Verdict and judgment for the Defendant. Witlicrspoon and Wife v. Blanks. Fer curiam — Wihiams and Hatwoou, Justices. — If a litn- be to terininUe at a niitiir.il !>onndar_v, as a nionn- tain, pond, rock. <^c. and the di--tanie is roniplefed be- fore arriving at it, still the liu' must be continued on till that natural boundary be intersected. Also if a natural boundary be mentioned in the patent or deed as ter-mioa- tirig a line, and the coni-se c.ilh'd for. goes beside tiiat jioint, the course siiall be corrected, and such a course ta- ken, as leads directly to it fr in tlie last termination, [n such Case, tlnre is as much |-eason fir (lisregardi"g ^he course described in the deed, as thei-e is for disi-eg^id^ig the measurement or leng'h of tlie line as descr'ibed there- in : but in this case, eilher line lerminated at a natural boundary, which niigiit be that mentioned in tlie piicut; and there being evidence in favor of bo'ii, the jmy fiuud for the Defendant. The court however, granted a new trial. Note. — ViJe note to Bradford v. //('//, ante 22. Foreman v. Tjson. Stale pfrants cannot be avoided by eviikiice in ejectment, recourse must be liud to Eqiiiiy toi thit purpose. Where two paie s I) _nr liu s line dale, Haywood, Judge, thought t'le prority of um ler miglit d. cide tile pret. rence in the absence of oiher proof ; but Williams, Judge, contra. Ejectment. And not guilty pleaded. On the trial, Fore/ii«?t p> 'diKied ill cvidince a St ite tcrant, died the 3 1st uf October, 1782, to one James Lanoir; and tltes 72 572 Haywood's reports. Sep. 1797 flpdnred the title lej^iilarly to himsi-If. The Defendant ^'^'^'~>^ also rifoilucr-d a strain for tlie sainf land, dated on the same day — iher'-iip.iri the PlaintiflF stated, and offered tr» prove, that Tyson's sraiit was ohiaineil against the pro- visions of the rtc( of 1777, c. 1, sec. 9, which declares all titi' s ol)taii'ed other wise than accurdin.^ to thedirertions of thai art, to hi' void. Davie, for the Defeodaiit — The decisions of our courts ever sioct- ilie act or direct judgment to make it void. It may he ohjecied to, and its invalidity shewn wiienever it be( omes material to shew it in an> action whatsoever. And he cited 2 Term 604, 515, 561, 568. Diivie, e contra — Grants <>f the State, or of the King in Eiiiiliod, are of record, and cannot be avoided but by something of as high a nature — therefore it is, that in England, a judgment must be pronounced against them upon a sci.fa. brouglit to repeal them, before they can he deemed invalid. They are like judgments, valid in law, till repealed by couil)i'tent authority. But if the cause of the invalidity ot a grant appears of recoid already, tlieie is no occasion for a sci.fa. and the I'oiiei may pro- ceed lo vacate by judgment without any verdici upini the sci.fa.; and fin- this he cited 4 Com. 397. In the present case, no cause of invali'liiy .appears of record, and thi grant is valid and cannot be avoided in this action by pa>ol testimony. Haywood, Justice — Were this res integra,l should ba of o|iinion that such evidence as is now offeied, ought to be received ; and this opinion would be founded as wellj upon the act of Assembly, as upon the common law. The act says, a grant issucil u ider certain cir< unisiances sh.ill be void ; it is now said, and I beliexe pro|ierly,| that Equity will not repeal the grant. The sci. fa. sues III England from the Court of Chancery un the In Haywood's keforts. 573 i»iilp, and is retiu-iied into that roin ' fi>r Judgment, after a Sep 1797. trial u|ir)ii ilic issiif of fact in the King's Bench — ov in •^"^'^'^^ case of a fifmtiirer, judgment is giv.n by (he Cii.iticill.ir without sending the recin'dout 'if hiscom-t «t nil. It wmild seem to folhiw from In nee, that asci.fa. to lepi^iil ;i grant could not issue from this court, ami if it cm. not, iliere remains no othci- mode of avoiding the gi-ant, but by shewing its invalidity in an action. It is e\iilent, the act of Assembly intended that tlie grant should be avoided in a Court of Law ; for at thi' time of passing the act of irrr, and for five years afterwards, no Couri of fclquity existed in this State. With respect to the coiniimn law, I have no diiubt. but that such evidence might be rcdivid; tJie authorities cited at the bar proxe it ; -.md thi're is a case of ejectment. 10 Co. Re- 109. in which therlTcrtofa (498) grant was axoided by evidence gixen to the jury to shew its invalidity. There ai-e other cases in trespns',, and other actions reported by tlie same author, where giants Coming incidentally to be examined before the court, were atoided upon testimony given to the jury. There are two ways at common law of inipeachifig a grant ; cither upon a trial at law, wheie the validity of (he grant Comes in question, or where the party likely to be preju- diced by it, and ap|)rcbending a loss of evidence t' piove its invalidity, brings a sci.fa. ,>m\ obtains judgment of cancillation and repeal, and so destroys the giant itself; but there is no use of the latter proceeding, where the evitlence to counteract the grant, is as permatient in its nature as the grant itself; that is to say, where the evi- dence is of record. But tliotigh tiiis would have been my opinion, had no decisions taken |)lace in our court. I can- not now but consider myself bound by thuse adjudications which have been made ; it is bettrr to adhere to them, tlmn to render the law uncertain by contrary decisions. I must, ihereffoe, yield to the authority of the decisions, though I cannot concur with the reasons which have-bren given fur- them. Judge Williams — I am satisfied with tlie former de- cisions : I have heard many arguments upon this ques- tion, and I am every time, more and moie strengthened in the opinion, liiat the former adjudications are proper. To avoid a grant upon parol testimony, would be dread- ful indeed : the most valuable estates might be oyeriurn- cd by oncor two corrupt witnesses at any time. It is far 574 Haywood's bepohts. Sep. 1797 beffer to reject such ti'stimony, than let in such an evil ""^"^'''^^ with it. S (lie I'videiicc whs rejected. General Davie for the DifiMidrtiii ( the evidence being closed) insisted, that tlie Defendant being in |iosaessii)ii, cannot be de|>rived of it legally, but by the PlaintifT's siievvins; a heUei title; which in thf pnsent case he has not shewn — his gi'ant is of the same date «ith oni-s. \s to the number of his grant — that indeed, is of an eai'lier nnmlver than oiiis, but the nuinb'T of the giant is a cir- cunisiance of no niaieeiality. Tbe Secretary was exa- mined m this cause last term, and he said the number was .>f no conseqiieine in detri iniuing th»" priority — that the course of the office was, to make "Ut the deeds for ex- ecution in the Secretaiy's offict-, and send tin m in a bag or box to be executed, when they aie signed by the Gov- ernor as they hap'jen to come to h;\nd ; after which, they (499) are returned to the Secr-etary's office all togi tlier in a bag or box. and recorded, and nnmhered as they are record- ed. The course of the oflice is to be regarded, in like manner, as the course of business in mercantile ti-aisac- tions — and if it be to be regarded, then it is evident the circumstance of numbering the deeiU, is immaterial in a que-tinn of |)riority. It is not required by any law ; it Mas introduced into praciice to facilitiite busiirrss in the Secretary's office. Mrn's titles are irot to be decided by rei urrence to circumscances so trivial — they cannot be re- gardetl — and then there is nothing to deteiiniire the pri- ority, the court having rejected that of the priority of the survey. Baiter for the PlaintiflT — The date of the grant is what has hitlrerto been adopted, as the rule of diftViont pc rsims. iid thf doed of (he latter- date betiist leiristpred. 'li-ti will not defeat the title oftlie (iis! Iia .u;;ui)ee — hut hisdtid nf- teiwai'ds lerorded, sli.dl rela'e to the date Ihei-iof. -.iiid give him the preference. The time of recoi-diiicj thei-e- fot'P, is immaterial. Per curiam — The jurv lia'l bettei- s;ive a special ver- dict that the lnw njion this point m 'y lie settled ujmn a ilelihei-ate derision. /?^ per Jndire H^ywooij — 1 am in- clined to think th^ piinritj orniimhec, is nf s-ome wei.^ht in th'- decision of tliis case. It will not do to say incase of two ,a;iaiils of etinal date, that he shall prevail who is in pussrssion. It should he decided Ity some ftil(> more satisf.ict'oy. In cdmrnon cases, the date of the i!;i"iot is (500) resorted to, althonjirh It is |d.t point, see Andrews v- JHulforil, ante 311, and MiildirZ- & Wife v. Leg^et, 3 Murph. 539. Annn^mnus. when a Defendant in ejectment dies, the suit will abate, and cannot , be revived by sci. fa. against the heirs. Ejonnifnt. The Di'fen. Et per curiam — Wiihams and Hatwooh. Justices. — I'lie acts for coMlinning snits on the deaMi i«f eiiher |mrtv. extends only to such cases, wiii-re hef)ie the act, tiie executors by a new suit inis''t sue, or be su';d iifier the ahatiinent of the former action, not to those cases where after Ihe abatement by death, no new soil could he tnaintaiiied by or against them. The intent ol the act was te save the expinces of an abatement, «nil the delay i onsequent njion it ; ;ind as ejeciment In-fore tin- act, abated li> the death of the Defendant, and could not be su|>p')i'led ag.«ii>stex- ccutois Of heirs, for the ousier in the lifeiiine of the de- ceased, it vNill abate siticc the act in the same manner a» before. The act ne\er meant 'o subject executors or heiis to at tiotis, which the) were not liable to before the act. So the action abated. Note.— This is aliened hy.the act of 1799, Rev. c. 532. Carruthcrs v. Tillman. (501) This was an action on the case for a nuisance, and ovcrtlowing Ihe lands of the PlaintifT, by erecting a mill- dam ; md evidence vvas gi»rn of overflowing about thirty or forij acres of low land, which before the erec- tion «a*> nsiially ovifilowed at high water. Percurinm — Willi a.ms and Haywood, Justices — This action lies for any ovrrflow ing of thr Plaintiff's land, the tnaxiin being, you must so use your own, as nut to pre- judice another's pro|ier'y ; but the action may be con- tinued from time to time, till the Uefendant is compelled to abate the nuisance; every continuance thereof after a pre- HAYWOOD'S REPOUTS. 577 ceding action, beiiii!; considered as a new election — the ^j^.,-,' first action is ic^u-ded as a trial of tlie qtirstion, whetliff a niiisaii(;i- -r dot — theietoi'e it is not |n-o|K-i-, in the fiiNt instanci', to give exeinphicy daiiia^es, but surli only as will coin|)iMsate for actual Iiss, as kiiiin.i; tin- timbec oP ovei'flovv ins; a field, so as lo pi'evciit a cto|i being m.idc 111)1111 it, and thi- like. But vvhetv tlie abating tbe nui- sance will resioi'f tin- lands to the same \aliie and nse as before the nuisance, md no i'<'al loss has fx-eii as yet sus- tained, ilic dain.iges should bo small ; but if after ihis ihe nuisaiici' should be coiilinned, md a new action beought, then the damages siiould be so exeuip! iry as to coniiiel an abaleineni of lue luiisance. There was a verdict for the PlaiiUlflT, and six-pence damages. Note — Tirfe v. Deherry, iiiil the note thereto, an tn make the service until ten days betme the next term after that, the plaintiff's bills lall not be dismissed by a plea in abite- meiit under the act of 1782 cA. 11, sec. a. Anonymous, 2a6 3. Uiuk. (lie acts of 1777 c/i 2, sec. 10, 5. and 1793 c/i. 19, sec. 1, it is held, that a plea Ml abateiiiciit is not the proper mode to lake advantage of tne I'lain- tiff 's having bic.ught Ins s.iit in the Su- 6. pei'ior Cou t lor less vilue iha a filiy pounds. Sur. Paris, of McNaugldon & Co. V Hunter, 454 4. A plea in aliatement that the planiiift" is .11 alien, is not sU!-t ainable - a parij to ilus suit. The latter aiimin- istrator .vill not he allow.d to plead any thing m this suit, and the firmer Hdministraiors cannot plead ihe repeal of tlieir lefcrs afer the firs lerm since the reptal. Bailey's Adm'rs. v. Cochran's Adm'rs. 104 , An account stated and signed by one administrator is binding upon all, and will bear interest from the time it was signed. Id- 104 V^ here .n executor declares as execu- tor, then he makes profcrt of his let- ters t stameiiiary, and they are tn be objecti d to in pleading, upon oyer of them, or by d murrer if am o h ct appears in the declaratinn ; and at er the first term, they need not be pro- duced a;ain. Bui when an executor declares upon his own possession, ihe fact of executorship forms part of his title, and must be proved upon Ihe trial by the iinduolion of Ihe letters tetaineHiary tht-mselves. unless they have been lost, when perhaps, o her pi of of c xecuiorship will be admit- ted Ex'ra of V Oldham 165 When "no assets" .re pie. d, ihe Flam itJ' shall have ju Igmeiu for the amount of the ass is which he can sho« in the han.'.s of tli administrn- tor, and judgmee quandoft an absolute one, but the second a guitndo judgment, andasseis.fierw.rds comes to his hands, Hatwood, .judge, said, th it Ihe assets must be applied lo the first Judgment ; but Stone, Ju.lge, seemed clear tlial they should go to the satisfaction of the second, jinony- movs, 460 24. Wiien an administrator does not dis- tinguish in his inventory Ihe good from the bad debts, all will be pre- sumed to be good, until he can show th.^1 he brouglit suits fortliem and the debtors weie unable to pay. Jinony niotis, 481 25. I'he iilea of plerte adminiilravH should be received at all times, provi- ded the Oifcnd.iit does not come in with it at a very late period, to delay the trial. .Anonymous, 484 ■Vide Trover 1 2, 5 6. Limitations, «/a. tuteof 1 Jbat'-mcnt,!. Joint Obligors, 1,2. Husband & II ife,3, 4. 'Dttinue,6. ADMINI'^inVTION, LKTTERS OF. Vide .Administrators (i HxeoHlori, I, 9, 10, 11, 12, 16. ( 583 ACCOUNT. . The action df accuiint will not lie for a legatee aginst an executor, or (lie executor of !.ucli executor. Anmy- moiis, 226 2. Wh> n to a bill filed, stating errors in an account s. ttltd four or five years ago, ilefcndunt pieadfd S|,eci .ll\, de- n>ing each rrror and also all fraud, if the Hlaintff does not lak issue, and prove the en or or fraud, the c> urt will not disturb tlu accnunt. Black- leil^e V. Simpson, 259 3. An accoun. liken by the Mastur, in tlie absence of one of the parties and with'iut his having had notice of the tinie when it would he taken, ^liall be set asidi . Smith et al v. Estia, 348 4. When a report isregularlv laken but the it< ins of the iCLnunt arc innpro; er- ]y allowed or disallov cl by the Mus- ter, exceptions filed to the report are proper : but if the repori is iiTfguiar- ly taki n, then th^ objection goes to the whole repoii, md may be made and supported by affidav'ts on motion. Id. 348 Vidi Administrators & Executors, 5. Li- mitations Statute of, 5. Favtnent plea of- ACTS OF THE ASSEMBLY. Vide Evidence, 12, 14. AFFIDAVIT. 1. An indictment upoi. 'n affidavit not si|;ned, is good. Stile v. Ransom, 1 2. An affidavitolanag.nl, not a party in the suit, cannot be annexed to an answer to dissolvt an injunction : but an order may be mad to havv the fact, which the ffidivit was intended to show, tried by a jury at the next term. Christmas et al. v. Campbell el al. 123 , AGI-.NT. Vide Affidavit, 2. Evidence, 16. Part- nership, 2. ALIEN. PlaintiflT sued on a bond, and the plea, which w.is founded on the 101st sec- tion of the act of 1777 ch 2, stated in substance, that the Plainiitf had remo- ved from the State to avoid assisting in the war of the R^^voluti.in ; that he had attached himself to the enemy &c. Ikld, that if Plaintiff was a citizen of this country, the 101st section before referred to, is re '■ iled as to him, by several acts of 'lu- State Lfgislature ; and 'f he iia- not a citizen hut a Brit- ish sn ject, then by tin 4th article of the ti itv 1 f Peace, he is considered as a'l ali n friend, and Ciiiitled to sue ill our courts. Cruilen's ex'rs. v. Netide 338 Vide Abatement, 4. ■LIMONY. 1. In .1 bill b) a >Mf for alimony, it is mosi i-ropt-r that the husband be held to bail at firs ; hut .f that has n' I been done, upon proper affidavits by the wife, the husband's pioperiy may he .sequfsii red until he givessfciinlv for the pt-i-finmance of the decree- Anon- ymous, 347 2. In t bill f ir alimony, ihe court will not order a seqnesi ration upon the ground that the dc-l'enda'it is wasting his pro- perty. Spiller v. Spiller, 482 AMENIJMENT. 1. Plea in abatement tlai defendant is sU'.d as cx'cutor msleatl nf adniinis- trat r: motion to amend urn'' r the act of 1790 was refused Nothing 9^0 be amended under that ct hut what the other party migh' h v.- speciallv set down as tilt c.ti.se "fde'nniT' r. Cow- per v. Edwards adm'r of Webb, 19 2 A declarati'in I., i-jecim r -tivedon a tenant in possi >sion, cannot be a— mended sn as to cimpiise more lands than those already described Carter V. Branch, 135 3. Ii is a practice among the bar to cor- rec' any mistake wliich the clerk may make in issuing writs. Adams wSpeur 215 4. Where the demise in an ejf ctment is about to expire before a trial cm be had, the plaintiflT will be peimiied 10 amend iy e tending die term. J)ea on dem. of Young v. Erviin. 323 5. A writ cannot be altered (i'orn cove- nant 10 debt except by consent of par- ties : but it is usual among practiiion- er^ to permit the amendment, uhen the mistlike was nccasioned by ihe clerk. Anonymous, 401 6. An amtndment cannot be pfrin 'ted in in ejecimentsn as to embnc land nut iiiclnite. I in the declaration. Trox- ler V. Gibson, _4i$5 584 INDEX. 7. An amendment will be permitted to extend the tern the Sutierior C-'urt, must be clear of the day nl filing the papers, and of the first day of the teim ; at all evnts of the first day of the term. Anony- mous, 402 7. When in appeal from the County C un, and a new trial had in the Su- pei III C"urt, a verdict (or as «r at a «aiD was obtained in the Superior Court as had been rendered in the Cimiifv C'urt, Hatwood, Judge, thought ju igment migiii bi" entered up instanter against the appel'aiit and his s> curiiies, under 'he act of 1785, c- 2, s. 2. But Stonb, Judge, was of opinion that m such < asi the act did not apply, farborough v. Oiles, 453 8. The fifteen days bi tore the tertp, in which appeals must he filed in the Superior Court, are inclusive of the day oh which the appeal is filed, and also of the first day of the term — Anonymous, 462 Vide Bin, 1. APPF.AHANCE. A motion to ismiss a cause brought up by a certiorari, was made upon the ground, 'hat the notice which had been ordered at the last lerm to be gi- ven to the defendant, had not been gi- ven ; hut it app.aringthat the defen- dant h id t-ntered an appearance by the initials of his sli Tney's name bring placed on ihf docket, the motion was refused. Anonymous, 405 ARBITRVMENT AND AWARD 1. Award made ami returned into court: exceptions to it were fil d in writing ; the answer to the exci ptions was also filed in writing : both supported by affid vits. Judgment was given u on hearing them. This is the iisu I p' ac- tice in such cases. Cmn v. Pullom 173 2. An entry, 'referred to A, B and C," means a general reference of the c -use and not merely to audit and slat.^ the accounts. Cleary v. Coor and JIawkt, -'25 3. The aw ird of arbitrators ought not to be set aside, unless in cases, where their decision is plainly and trrossly , against law; not where the poin' le-.t cided might be doubtful. Iil. 225 1 4. In an appeal from the court below up<4 on exceptions filed t" the award of ar.l bitrators, a new trial if not to be had] in the Superior Court, but it will ex-l amine into ills >-rrors of law in Ihel court below. Burton v. Shephard, 399 j 5. A decree will he entered on an a- ward, lit the term at which it is re" turi.ed, it no exceptions oe ''ad. to ' the award at that time. Southerlund] V. MaUat, 4S1 1 585 ASSAULT. . Upon assault wiih int nt to kill, (he coiiti 11 'V punisli by fi e only. State V. Roberts, 376 ARREST. 1. A warnnt tlial dtics not state lliat tl>e sum (lenriandcd is iiver five pounils bul nl> thai it ■sunderi\vent\ V'ouihIs will nul aiitlioiize an arrest. Lntter- loh V . Powell, 395 2. II a Jus ic of the Peace issne a war. raiii tor a matter wiihin his jurisvlic- tion, alihou h he m;iy have acted er- roneoiisly in the previous stages, the offict r should eX' cote it ; hut if it be for a m«tier not wiihin his jurisdiction, the officer ought not to execute it — St ah V. Curtis, 471 3. II 'he officir be a knowu officer in thai district in which lie is aetl; g, he need not shew his warrani when he makes the arrest ; bu' if he is an offi- cer appointed foraspeci.il purpose, he oui,'ht toshew his warrant if deiiKin- ded. ■ Id. 171 4. When he makes the arrest, h'- sliould briefly inform the party arresird of the cause, as — I arrestyoa at the suit ol A. or in behalf of the Sta'e — otherwise, the arrest is not fjood. Id. 471 5. If a warrant wunt a seal, it is void. — And a person, arrested under a war- rant without seiil, and wiiliotit being told for what purpose he was arrested, is justified in resisting and beating the offieer Id. 471 Vide Escape, 2. ASSIGNMENT. 1. A witness may be imrodiiced to ex- plaiit the cnndition of an assignment. Greenlee v. Yoting, 3 2. Th'iugh a judgment is not negotiable, yet tl" law will so far 'ake notice of an assignment as to protect it against the acts of the assignor. Smith v. • Powell, 452 ASSIGNMENT OF ERRORS. Vide False Judgment, 1 . ASSUMPSIT ACTION OF. 1. A'iSUinpit will not lie for a sum, for wh ch ther. is a siilisiating judgment Tune V. Williams 18 2. An .ctio up n the ca^e in ;.-sump- sil, will lie for the use and occupation ofa house, at least upon an e.-cjir' ss pronii-;". .^vonijmous, 485 Vide Extiiiguisi.meiit. ATTACHMENT. 1. An original attaclimcnt Is only inten- ded to conipf I an appearance, a .d where stir, ties are givtn they ar ex- actly a> bail and may surrender. J/igh- tower V. Murray, 21 2. Anattaelimen bon! is pond wil'i tit attest tion. Onenlv- Owens, 365 3. An .tiachment mie-t issii.;, if the Plaintiff mail s the prnper iffiib vit, wheili r it !'<• 'rue or nni. Id. 36S Vide ,3dministrato's & Executors, 3. AVKRAGE. When the vessel is lust, the goods that are s ved are not liable to average.-^ Ffrguson V. Fitt, 239 RAIL. 1. Suit in the Connly Court and jiidg-- meiit for Pl.intiff : ai'peal bydcf. nd- ant t the Surerior Court, vvlih A & B securities tn tile appe I b..nd : before jtidgnient in the Sup' rior C'liirt, the bail below snrretidered the defe.idoiit and he was committed : after judg- mi nt in the Supencr Court, the ch fen- dant being gone, sci. fa. isued t" the siiieties in the appeal himd, and It was held, that the surrender by 'he bail ilid not discharge iliem. Cookev Lit- tle £;? another. 168 2. The plea of" surrender" by hail must slate, whether the surrender was made to the court, or to the Sheriff lut of couri, > Ise it will bi bad in form Ua- vison v. Mull, .364 3- Under our act of 1777 c/i. 2, sec. 19, 20,79. tie bail ma-, surf' nder it "ly time, bef re final ju'igment agaoist them. Id. 364 4. The plea, puis darrein continuance of the surrender, may be refused hy ifie court in cast-s "f hardship unless he Defendant will submit to the terms of pav ng c'Sts Id. 364 Vide Attachment, 1. Kscape, 1. She- riff, 14. BILLS OF rXCHANGE PROMISSO- RY NOIES, &c. 1. An assignee, two years after t'le ag> siginiieiit, sues the drawer and takes him in eyecution by » ca. sa. from 586 which he is dischnt'g^ed by an insolvent act; vecoiivsp to llie •! sip- or is {jone by the di-l:iy, ( Quere, wlietiu i- I- is not subject to any payments that do not appear indorsed, if it was assigned before, r,r at tlie time, it became du. ; out if it was as- signed after it became due, then all such payments, as it can be pn-sumed the assignee hail notice of, shall be good against it. Btactc v. Bird, 273 10. If one, of twi' jciiit paye s, endorses all his interest to the other, that other may maintain an action in liis own name for the whole debt. Sneed v Mitchell's Ex'rs. 1.'89 11. A lint., was given by the PlaintifT to WiitkinB for lands, which it turned out, Wi'tldna never had ; H'alkins cannot n.-cover on the note ; nd as the note, i.eing for thi- delivery o( s e- cific articles, was unnegotiable, J'ick- eit is subject to tlie same objection Welsh V." Wuthins & Pickett, 369 12. .\ note payablf in tobxcco is not negotiable, and bring unnegotiable in its creatioi , it cannot be made si by' any ex post factu citrumstance. Tiif dall'e Ex'rs. v. Johnston, 372 13. Whce a person receives evidences of di bt from liis debtor, for the pur- pose of collecfinK tht money, and ap- plying it to the credit of his debtor, he is bound to the sami degter ofddi- gence, in attemi>ting to procure pay- ment, and in giving notice of non-pay- ment, tliough sucli evidences of debt be nut negotiable, s if they wer ne- gotiable • nd had been iiidorsd — Per Williams, Judge, liut per Hatwood, Jud);e— The cr< diior wo Id nin be li- able fur any loss in sucii ease, unless hisdebt. r ou!dshowtliai the h.ssliap- pen-dbv his. tlie creditor's, orglect. 'i Brown. Campbell & Co. v. Mm'rs. of ' Craii! & Clean/, - S7ti 1\ >■ ILLiAMS,Jud!;e, inclined 'ocliange the opinion fvpres'.ed in the prece- ding cast of Brijwn, (J Co. v Adm'rs. of Ciaig & t'leary, and to hold that unnegotia' It- paper, tlii ugh iiitlorscd, d'O not biiiil to the same diligt-nce as negotiable mstruiTienls. Mttin v. Taylur, 381 15. lioiitls made in Virginia and assign- able by tlif laws of tiiat Stale, but not \ assignable by out laws, must be sub- ject to our laws wlien the contract of a.ssignm.'nt is made in this Stale- — Id 381 16. A bond upon which is an indorse- mi nt purpoiting that it may be dis- ch rged by the payment of so much tobacco, is not negotiable undir the aci of 1786, c. 4. Campbell v. Mum- ford. 398 Vine Partnership, 4. Injunction. BOND. Vide Debt Aclion of. Attachment, 2. HOUNDARY. 1. In the case of bouinlaries expressed in deeds atiu paUnts, the courses and distances meiitioned in such deeds or patents, musl be observed, except where a natural loundary Is called for and shown, or wheie markeo linesand corners can be proved to have been r INDEX. 587 made at the original survey. Brad- ford V. Hill, ' 22 , Tlif l.isl line of ;i boundary was from a white oak, ( wliicli stooil half a mile from the river ) " tht-nce :ilon^ the ri- ver to the bei;inniiig": MeUl, t^at Hie river is the b.u uUr^ Den on dem. of Sandifer v. Faster, io7 , General r<-j)utatioi) is admissible; as evidi-iice in cases of boundary. Stan- den v. Bains, ^38 . Marked luitrs and corners may be es- tablished as the true ones, a1' hough variant from the courses and distances mentioned in the deed. Id. 238 . When a natural boun.iarv and courses and distances, are all gven in a deed, the natural bound.iry will prevail in case of a variance ; and in doubtful cases a reg.rd to this pi'tferenc must always be observ.d. Den on dem- of Pollock V. Heirs uf Harris, 252 , One line of a Ooun ; iiy was from a poplar on a swamp thence down ihe swamp to tlie beginning: H' Id, tha; the swamp and not a straight linf from the poplar to Iht beginning, is the boundary, f/artsjiellv JVestbrnok. 258 '. If a course ami distance be cull, d for in a deed terminating at a natural boun- daiy, there the Imr must teriuinate, will tlier It exceeil or tall short nf tiie distance mentioned in the deed. If a course and disi Mice be called for, and there is no naiiinl boundary nur mar- ked line, 'he course and distance will prevail ; but if there be a marked line and coiner variant from he cnurjc .nd distance, the marked line and corner must be pursued. v. Bealtij, 3r6 8. When a natural boundar; is neniion- eil in a patent or deed, it will control both course «nd di tnce if variant frum it. Witherspoon & wife w.Bhmhs 496 Where there .arc t-.vn natural bnunda- ries, either of which will answer the description, parol evidence may be re ceived to shew the true one. lU. 496 BURGLARY. 1'. If an oulj hoiiie be so n 'ar the dwel- ling house, tiiat it is used with the dw llini< house, as appurt nant to it, burglary inay Ije committed in it. In this case, t'le out hjuse w .s seventeen and a iiairi.rftfiom the dwelling house f}tate\. Tioitltj, 102 2. A burglary may be committed in a store house, stS'iding t\» enty-four y'ds from tne dwelling li use, a'id Separa- ted tliereirom ny a lenc-e, it the own- er or his servants S" ;ietimes sleep therein. State v. Wilson, 242 Vide Indictment, 1. CARRIER. A person, wiio did not make i' his ordi- nary employment, undertook to carry gouds for lure ; he is nut to be tiken as a commo" carrier, and liable to the same extent, but is bound only to com- mon prudence. v. Jackson, 14 CAVEAT. Vide Grants, 9. Possession, 4. CKRTIORARr. 1. Certiorari lies, and indeed seems the only pio; er writ where a garnishee seeks to reverse an rroneous .judg- ment agaiiis' nim. Mien v. Willia)ns,\7 2. The «om1 writ, in tlie act ot 1787, ex ends to certi,raris as well as to bills in Equ.ii, nd s curitj must be given for prosecuting them, nrthey will be disrnis eel. Waller v. Brodie, Si8 3. Motion to dismiss a caus by the Plainiifl'in a Certiorari, who had been Defendant in the court below, upon the ground, that the Plaintiff in the cause bad not given securit) in diis court for costs in pursuance ot a no- tice strvi d upon him forthat purpose. Per Curiam, if the suit is now dismiss- ed, we must order the court below to proceed to judgment. Dawsey v. Davis, 280 4. W.ien a cause is removed by certiorari granted by a Judge out of ou.t. it must be placed upon the ar.^uiiKnt docket, ann tne other party to shew cause, tiie case when removed, shall be put upon the rial docket without fiinher argument. Id. 280 5. If a certiorari be obtained to remove a caubi. u,jiin the ground that an ap- peal had oeen relused in the court below, ih • case sliall oe placed upon the trii.1 aockt-i, wnii.iu. sliewinu any other cause. Anonymous, S02 588 C Any omission, neglect or delay of the clerk, >r any comnvaiice of tlie id- verse purtv, or (lie iinprDpei- conduct of till' (.'oupity Court in j^rHiiiinjj an appeal wliru pr pcrly applied tor, is sufli lenl to enlitle the party lo a cer- fiuro't, and a neu trial uill be iinine* d.i'. I tfraiiti d ill ihe court above. — Chambers \ . S'liih, 366 7. vV In. re a writ or cerh'orarJ is granted by • Judge out ot court, tbi- cause is placed upon Ihi argunient docket ; Where it is obtiiitd in court upon an affidavit and rule to sliru cause, it is placed iinnicdiati-ly upon ilie trial docket ; bui it obtiincd in C'uri With- out a ruK', &c a mus' be placed ii on the ar;,'unien' dockit. Anonymous, o&T 8. Where a cerKo^an issues, liie adv. rse pariy has nonce t appear on the re- turn day ot the certiorari, & it the writ is . not then returned, nni ar.v j>r'>cerdin^ had to contiiiut- it in ciuri, it is like oliier writs liscoiiiinu . an*l ^ pvoee- denilo ught to ssiie. Anonj)inous, 420 Viut Appeal, 2. ^ppeurance. . CHOSE IN AC riON. 1. A slave wr nglully taken out ot'the possession of A and sold lo I), and while in tiie possession ol U, sold by A to <;, may be rccoveivil \ C.ma sun i his own name. Hobertson \. Stewart, 169 2. riie purchaser of a cAose in action (or a valuable consider.itioii mllu piottct- ed m Kquity. v. A-riii^ton ti at. 164 3. A bare rigni of entry ca i it ue ii ms- ferred. Den on dem. ofSladt v. Smithy Vide Set-off, 4. CONDITION. Vide Variance, 2. CONFKSSIONS. Vide Evidence, 7, Jl, --, 25. COvSlDBKAUON. Vide Mo'iey, 4. costs against tlie Plaintiff* himself. Merritt v. Merritt &c. 28 2. Tile c nni Caiiiot order the State to pay ccist-i as a condition of geti Wig a continuance : nor inde d, it seems, in any case. State v. 221 3. \ surve>or and juiy, who were ap- pointed under separate orders in sev- eral distinct suits, shall be paid lull costs in each sui<, although from the locality of the lois surd tor, the same labm .laswerrii tor all the survr\s — Wilcox V 223 L 484 4. All ordei hai each parly .ihall pay Ins ow . Costs, means the cosis accru- ing ti'um the process issuid for i..ch, and not iialllhe whole costs. T/ie co- p> ol the bill saved on the delendaiit is ibr HlaiutilT'i benetii, and .:e must pay till ii. .'Inonymous, 487 V'd IViineis, 4. Continuance, 1, 2. — Oruiits, 9. CONTlNlfANCE. 1. Where a cause had been depending three years in tlie County Court, and five years in the Superior Court, and the P^air.tifi' lor the last three years had been unitornily ready fir trial, the couii ordered ihe Uefeiula.il to pay (he costs ol the Plaiiit;H''.s wiines- sen during the term as the condition ol another conliiiuance. JJenondem, of Tyce v. Ledford, 26 2. \ party urlio has been guilty of ni g- led, may, upon seeking a Continu- ance, tic compelled to pa> tlK b'>sts of tile urm, as the condition of the cun'iiiuance, and tliese cusis arc not lo lie refunded eeen tliougn hu should succeed III UK- c luse. Den on dent, of Park v. Cochran, et at 178 CONSIGNEE. Vide Factor. CDSTS. 1 U;oii nulla boi-a i tunnd, »he rlpfk may insuc execution tor the Plaintiff's COHHORAilON. Vide Ejectment, 6. COVENANT TO STAND SEISED. 1. A need, which is in forui a bargain and '■all except thai the coiisiUeraiion is rxpicssrd to be love and alf< ctmn, iiiste '!> ol money, may be cun^truida cov. n.. t t'l slaml seised. Den on dem o/Sladev. Smii/i, 248 COVK. \N1'. ACTION OF. Vide Debt, Mtien of, 1, 2. INDEX. 589 DKBT, ACTION OF. 1. AVhereUiereis no subscnbiiiff witness to a deed or bond, cusP and nnt cove- nunt iir debt is the prnpiT itciion. — Ctemenis & Cn. v. Easo'i & Wright, 18. 2. A bond for p!t clause of the deed wns a good reserv i- lion of the life estiitus, and that the fei' is a pfood remainder upon 'hem. Den on di-'in of Snsser, &c. v. Blyth, 259 Vide Evidnnce 1, 2, 6, », 9, 13, 20.~Graiil 1. — Covenant to slant! irised. DI'.LIVKIIY. A'ide Gifts \—Evidcnec 9. DKM.VNI). Vide Di'tinue 1, 2, 3, 5, — Limitations, Statute, vfi. DEMUKIIING OF THE I'AUOL. Theileimirring oftoe puroldoisnot holil in this Stale.— iiiifar v. Long, 1 DKPOSITIONS. 1. Notice to laki- a deposition at a cer- tain place in I enn.-ssee on the Sth or 6ih days of a particnlir month, held good. — Kennedy v. Alexander, 25. 2. Uf-positions taken in the ai)s<-iice of a criminal shall not be reid aj; dnst ^ him. State v. WM. 103 3. A depi.s.tion not sijjned by thed. po- niMit niav be rend in evidence. Mnr- pheyy. Wovk, 105 4. II is nstial (o read depositions v. iiere it appears that they have i)een re.f thf court for that purpose. Maarwell v. Holland, 302 6. When either party his filed his depo- sitions, he shall apply lo t!ie M.ister who shall issue notice to the other par- ty to attend on a particular da,, which sliall be served a convenieni time be- fore the day appointed ; upon which, the mast-r is to examine all matters relative to the ■lept it was taken in that town. The rli-position v. as re- jected. SuT. Part. ofM'j\aughlon & Co. V. Lester, 423 DEPRECIATED CURRENCY. Tide Money 2, 5, 6, 7. DETINUE. 1. Detinue will lie ngainst one, of whom the negro hud bei n dem;inde.l, at- thoupli befor.- the commencement of the action, tlie nepro hid been return- ed to the person of « horn he h:id been hired. Merritt v IVarmouth, , 12 2. Demand is necessary to su-tain the action of detinuo, and it must be m»de by the claimant himself, or by some one for him and so made known at the time of the demand. Elwick'a Execu- tors V. Rush, 28 3. On demand previous to bringing' de- I tiuue, defendant acknowledjjed that the negroes were in his possession. — Proof that he had given one of the ne- groes to his son.in-law, who wns in pos- session ot him at the time of the de- mand, -.hall not prevent the defend- ant's liability to the action. Floweri ' ▼. Glasgow, 122 4. In detinue the jury should assess the vilue of different articles, separately. Hatwoiid's note to Lewis v. Williams, 150 5. Demand, previous to bringing deti nue is not necessary, or if so, only for the purpose of enablingtlie jury to de- cide upon the justice of allowing or disallowing damages for the detention. Idem, 150 6. The action of detinue will not lie a- goinst executors for the detainer of their testator. 398 DESCENT CAST. Vide Strudwick v. Shaw, S DI-CONTINUANCE. Tive defndaiiis in trespass of which four are taken and u'lead to issue ; if the process is not continued against tlie fittli for several t>rm$, it will be a dis. continuance as to all. Ctbbt r. Fav>- rtr, 12 DOWER. 1. A widow since the act of 1784 can claim dower only out of the lands of whieh the husband died seised or po^sessed. J f instead v. the Heirs &c. of JVinsiead, 243 2. A levy upon lands in the life time of the husband divests the widow's claim for dower upon those lands, tho' they may not be sold until after his death. The case was not decided, but Hay- wood Judge was clear upon the points above. Williams Judge, differed at first, but afterwards seemed inclined to change iiis opinion. Iderjt, 24" Vide Haywood's note to Lee v. Ashley, 18ii EJECTMENT. 1. In 1728 the land in dispute was grant- ed to A. who in 1730, conveyed to P.. who soon afterwards went to England. B. sold to C. who in came to this country but soon went back aijain. — In C. returned to Carolina where he remained and in 1787 brought suit. One D. settled on the lands in ques- tion in 1751 ; lived upon them thir- teen years and dieil in possession, leaving a son. The son ass gned to !.ome person, who assigned to the defendant who had lately procured a grant. Under these circumaiances it was held that the PLaintift's^^ posset- sionis was lost. Strudwick v. Shaw, 5 2. In ejectment, the word tenement w th metes and bounds is sufficiently cer- tain. Den on dem. of Osborne v. Wood- son, 34 3. The defendant in an ejectment will not be allowed to defend only as to so mnch as the plaintiff can prove him in possession of. Carter v. Branchy 135 4. Articles for the conveyance of land, upon the payment of money, will not create such a trust on the part of the lilaintiff (at least before tin- money is jiaid) as to prevent his recovering in ejectment from the person to whom tlie articles were made, .inonymous, 331 .5. A claimant by escheat may enter and therefor m ly sustain ejec'meni. Uni- versity of N. Carolina v. Johnston, 370 6. A Corp nation must make its leases under seal, but the lease which is sta- ted in an ejectment by a corporation, is not to he proved, and will be pre- sumed 1 legal one. tdem, 373 Vide E.xclusive or Inclusive. — .imenrl- 591 ment, 2, 4, 6, 7.— Grant, 7, 8, 19.— Matement, 5. EMBLEMENTS. Bar.in of feme who li;id ii life estate, is sued for use and occupation by tlie te- nant in fee. The feme had died after the baron had prepared the land for cultivaiion but before pl,.nting-, it w.^s held that the Plaintiff was ei. titled to recover, but compensation must be al- lowed for the labor of the defendant in preparing it for cultivation. Gee v. Young, 17 ENTRY. liocksin a river above the surface of tlie water, are vacant property and the .<;ubjects of our entry laws Jones v. Jones, 488 Vide £xcctttion 1 — Pottession 4. EQUITY. 1. A nepro, whose life was forfeited to the public for nmrdc-r, was sold under execution without that fact being then known. A bill in equity by the pur- chaser praying to stand in tlie place of the judgment creditors for the a- tnount of the purchase money was sus- tained by tbe Court. Cornier v. Gti/inn't Executors, 121 2. After injunction dissolved, the plain- tiff in the injunction must take further steps within two terms after, or his bill will be iismisBed fir want of prosecu- tion. Anonymous, 162 3. Since the act of 1786, in case of com- plainant's death, the bill is continued in court two terms, in either of which terms, the legal representatives may apply and be made parties without a bill of revivor ; and the ;ipplication of a person not the leg:*! representative, may be resisted, the same as if there were a bill of revivor. A person who may become interested otherwise than as legal representative, must state the circumstances by a bill for that pur- pose. Idem, 162 4. A person made a party defendant in a bill, who is not compellable to an- swer and against whom no relit f is sought, may have the bill dismissed as to iiim. J'citterson ii others v. Patter- son y Sellars, 167 5. Wlien the court feels any doubt a- bout deciding upon a plea; it can over- ■ rule it and suffer the defendaiii to in- sist upon the same in his answer. /"- gram v. Lanier, 221 6. Where the law an give comph te re' dress, quity will not interfere. Olat' saw V. Flowers, 233 7. Eqiii y cannot chsnge established rules of law, nor act as a ccurt of er- rors to correct erroneous decisions of law. Idem, 233 8. Where a matter is'properly determin- able t law, rind tiie l.-iw can give com- plete r. dress, equity will not inter- fere. Perkins V. Ballenger, 367 9. Plaintiff has two terms after tlie dis- soUuinn of an injunction, in which he must take somesteps. or hishill » ill be dism ssed, Avery v. Brance, 369 10. I'he two terms within which the plaintiff must proceed after the disso- lution of his injunction, are exclusive of the one in which the dissolution takes place. Jlno7iymous, 451 Vide Injunction. ESCAPE. 1. An action will not lie against the She- riff for an escape upon mesne process. He ought to be proc-' d( d a.l!mof that a person of the name of tlu defendant executed the bond, the signature to tiie bond niiy be shown to l)e liis hand-wriiing to prove the identity. Jlushrou) is! Co v. Gra- ham, 361 16. ^^ hen the wife acts as si ivant or a- gentofthe husband, hi r admissions against his interest are admissiiilc. — Bugltes ailm'rs v. Stokes adm'rs 372 ' 17. 'I'liC rrrei]ii ot an ..ttoi my now de- ceatid, 'sadmis.s.ble to prove th' time when bonds were put iino ',\s liands lor collection, .^llston v. Taylor, 381 18. A record of Court testified proper- ly, except 11 want of the sed of the Court, is not admissible unless it be certified that the Court bad no seal. — Id. 381 19. The declarations of the father that his conveyance to his child was fr.u- diilent, are not admissible against the child. :^nold v. Sell, 396 20. A Copy of a deed cannot be read un- less Ihe plaintifl'will swear that lis has not the original, and ih t he cannot procure it. Park v. Cuchran and oth- ers, 410 31. A confession in an answer to a bill in equity, may be given in evidence a- gainst (he. defendant in an action by a third pefson. Kiddie stir. pari, of Hamsay CJ Kiddie v. Debrutz, 420 22. NaUed c 'nfessions uiiaUeiideil with citciimstances, are not sufficient to convict of a capital crime. State v. Long, • 455 23. Proof of the Clerk's hand writing in entries m ide in the plaintiff's books, shall not be admitled whde'the «:lerk is living, although he may be absent from the country. Kennedy SJ Co. v. Fairina't, 45S S4. In an indictment for horse-stealing, the jury may infer from circumstances, tl.al the horse was taken by the pri- soner in the district in which he is tried, although he was never se' n with the horse in that district. Stale v. ^idams, 463 25. Coifessions, whether extorted or not, that relate a number of circumstances, all of which are proved by oiluriesti. mony actually to exist, ar> admissi- ble against the prisoner. State v. Moore, 482 Vidi Witness passim. KXCHANGE, COURSE OF. Virginia money contracted tor in this State, and payable here must be determined by legally establi.shcd rates and not b\ the course of excbangi.^ Monlfort's ex'rs. v. .ilsloh, 2 EXCHANGE. A person who has a chattel in posses- sion belonging to another, and ex- changes it for another atticle, acquires no property in the article i»ki n oi i x- clisnge, if the real owner tloiks pro- per to apiii'ove of the transaction. — Cox V. Jackson, 234 INDKX. 593 TiXCLUSIVE AND INCI.USIVK. From tl.t- (111) (il tlie dU, :M.d trcnn tiie date, sij^i.ity tile sarru Uiing ; iini!, :'C- cordiug to tlie inlcnl, :riv either inclu- sive or exclusive. Ihiintrs. licvnulds 114 Vide Jlppeul 6, 8. KXKCUTION. 1. It is doubtful wlittlier an entry cs'ii hf sold hy excculioii. Be},nulti's i. yiinn, 106 J. Execution upon a judgment alter a jear iinci a day, and alitr death ojlhe (tet'eiidant, wiilioui takiii:; any scire fa- cias, is irregular ; and it in the County C"uri, may oe avoided \>\ wi it oi enor. Of if It was ill the Siipt lior (jiiiirt t'y evidence in ejtciment, if land was snl i under it. Perkins v. Bullfnger, 267 ?>. A dtbior cannot diipose of his pio- peity til avoid an t xi cutioii atier it is Ibsueil, Antotd v. Bell, 396 4. Extcu'ioii shall not issue duting llu' tenn, at which the judfjmer.t w.is en- tered, although the dtlcndiiit may be about to move away. Betiifurd v. Sunders, • ii'J'J Vide /■aitds — Judg^nent 2. — Fine 1. I'.XKCUTOUS. Vide Administraiurs and Executors 6. 7, 8, 13, 14, 15, 17, 18, 19, 20, 21, 2-', 23, 25. EXTINCiUISIIMENT. The givinjf lil a note, is no t xtinKuish- metitofthe prior c:iuse of .ictiun ; and where there is a count upon a note, as well as the ijener d counts, a recov. ery may be had upon the ^eMer:il counts ulthoiip;h the note is alle;;cd to be lost, Kiddie sur pariuf liamsuti li Kiddie V. Debrutx, 420 EXTORTION. 1. In an indictment for ex'ortinn in ta- king' mote than the legal fee, it is ti l^ari ot Ills pro- perly to a child b\ a f^htr md bled iTirre than he is worth, will he pr stim- (d fnudulentj unless the cliild can priive tlie puichase to have been made li r ■• lull .III tair value actually paid. Jrnotd V Be/t. S96 4. I'loperty sold rem lining in the pos- stssuin of the vendor, wiieri- Iher ■ is an absolute bill of sale, is evidence of friiud ; so is the not registering the bill of sale till lung afier it is m de, coupltd wiih an efTer i.n tli: part of the vendor to antedate. }Jvd£es v. B/onnt, 414 5. Where the possession of a chattel di es not tollow the conveyance, it is a st'iing riicumstance to show frsud, ihongli it inav be explained or remit- ted. Cox V Jiicksun, 423 FACTOR. ,\ consigiKe was instructed to exchange the coii.sigiitd produce for that of Su- rinam ; when he arrived there, he fiii.nd it impracticable to make the ex- change for any thing but sugar and coH'ce, which Wtre conlralKiiid by thu hiw of t!ial ci.Uiltry ; but still such kind of tr flic was usual, and thi- law ' hac shown in the action of ejectment ; but he re- 595 served the question. University of North- Car Una v. Juhnatan, 373 9. In Hicaveat, a verlict was IduiiiI njainst the plaintiff',wliich wasco firmed in the County Cout, before winch ti me how- ever thr plaintiff had ob'.uined a givmt from I he St«te for the l;ind, and now in the SuperiorCourt.il was tield that the grant could not be impeached at law, but as the defendnnt appeared 'o have had the jusiice of the case on his side, he shall 'have the costs of the caveat. Cupples, Guarihan of allien v. 456 10. St ite grants cannot be avoided by evidence in ejectment ; recourse must be had to Equity for tl);. A discharge under the Insolvent debt- or's act, ordered by the proper offi- cers, will be presumed to Imve been I'eguiarly done, until Hi contrary le slunvn. Pearle \ . Fohome, 413 4 Under the tir.sl insolvi nt :ict, the de- fendant was discharged only as to those who had commence^! suit- aicainst him and had notice given ihem .f the debt- or's p ttion. id. 413 Vide Bitts oj Exchange, &c, 1. INTAII.S 1. Tenant in tail in i.maindir, is enli- title.l, under the :.ct oi 1784, lo the fee Quire hy Hatwood J'atteraon, V. Patterson (J uthers, 163 2. Ii -.ci 111 1784 .ii 22 see. 5, wll ba. a remaindc ikpen laii upon an estate tail In possession oftenRnl in tail at the lime of passing the itct — Den. on the dent, of Lane v. Davis, 277 3. lenant m tail sells lands in 1778, and dies leaving .1 larger estate nt land to his son, the present plaintifT; he is bound by the w .1 ranty of his ancestor and assets descended. He is also bound hy th exjiress words of the act of 1784, ch. 22, sec. 5. .Minge v. Gil- inour, 279 INTERKST. 1. Whenever one person has the money of aio h'-r and knows what sum he ouglit to i^ay, h • mn~t pay inter' st for the same Slate v Blount & Blount, 4, 2. Wher a persun indebted to another, kn 'Ws w.iai sum he is to pay, and llie time he is to pay it, he must pay inter- est. Ifitnt V. Jucks and London, sur. parts iic 173 3. Interest is be calculated upon the pr iicipal fioin the time of its com- m^jnoemen' up t'; thi first payment ; if the payment just eqnals the interest, it must exiiiijiuish it ; if it is more, it must after extinguishing the interest, he atjplled towards the diminution of the principal ; if it is less, the balance of interest not ilischarged by it, must be kept for till next payment. Interest must then be calculated upon the principal remaining, t" the time of the next payment, which is lo be applied in the fifst place to ihe wliole .>f the interest then due ; ami so toiies t^oties. Bunn V. Moore's executor, 279 Vid ■ administrators and executors 5. INViNIOUY V.dt Administrators & Executors, 24. JOINT OHMCOUS 1. Under ihe act ol 1789 ch. 57, sec. 5, ilie first part of tlie section, the action is I" be brought against both, the sur- vivor and tie. adniinistra'.nr.Dt the le- c ased joint ol^ligor. Brown Camp- bell h Co V Clary SJ Craig adm'r. 107 2. liy the act of 1789 ch 57, s> c. 5,the surviving ubligor anil the i xecnuns of the di-c ised niay be sued joiii'l> — Davis's executors v. H'ilkimon Si uthen, 334 3. \ writ issued .sgainsl two jointiv, and One plead in abat'ment i Plaintiff was suffered i" tak judgineni agai.st the o 1,1 T. Quere ••}■ lUrwooD. Anony- muus , 487 \\t\ii Abatement. 1. Process. INDEX. 597 JOINT OWNER. Vide Trover 4. JUDGMKNT. 1. Ajudgmem by default upon a tobac- co bond is not final. Den on Jem, of Sell V Hill, 72 2, A judgment ( final ) binds land fronfi the time of its renditKin, as to piirciia- sers from tlie Defend nt, but not so as to defeat the title jPCt that one of the jnrnrs was not a freeholder in this State. Slate \. Greniwooil, l^l 2. If a jury, in a capiial case separate witlioiit returning a verdici, the pr:- soner sliull not be tried apain tor that olfence. Stale v. Garrigues, 241 0. The act ot 1779, Jiev. c/>. 157, sec 2, respectini; Ihi appointmcni of jurors, is only directnry, and does not ap|dy to grand-jurors. Slate v.Old/iam, 450 ,IUS POSSESSIONIS. Vide Ejectment 1. LANDS. 1. Per Macat, Judge. The statute of Sih George II, c 7, proviiles for the sale of lands for debts, and the making them liable for all just debts in the hauls of the heir, but dots not alter the (list inci ion between real and per- sonal est .te ; real descends to the heirs, personal ifoes to executors ; the land? in the hands of the heirs cannot be afiected by a judgment against the executors, no more limn the personal estate in the hands of the execuiors cau be iiffecied by aju Igment against the heirs. Bui ptr Ashe, .Tudgc : the statute mesnt to mjke limds liable to the payment of debts ; and is to the payiBent ol debts, iiretobe proceeded against as personal ch ttels : Thev descend to the heir chargeable with all such debt" as in.ay be recovered a- gainst 1 he e^iecuuir Williams, Judge, on a previous ca-e expressed m opin- ion sipiiiiii' to Macat's. DeJi on clem, of Baker v. IVebb, 43 Vide Scire facias, 1. LARCIiNY. 1. A horse stolen in one State or Terri- tor\ Hnd carried into another, will not make it a felony in the latter State. — Slate V. Broivn, 100 2. A special verdict which states the fe- luniiius taking in one State, and the taking coiitinuetl into another, cannot be supported .is a felonious takii'g ia the latier Iil. lOO 3. HATWiion and W illiams, Jueges, were f opinion that the taking wliich IS to constitute u f lony. musi be a tres| ass. .\she and Macat, Judges, thoui;!.! a iiorujw mi; wiih a fraudulent inteiii, m.,;lit >e t e round of a f lo- nious .it. State v. Lang, 15-1 Vide Indictment, 1. LEGAt Y. A devise to the Pi .iitiff of cash suffici- ent in the o|iiniiin if the executors not exceeding £1000 lo purchase . iract of lnnd : i'l a foilnwin)' cl.iuse, the fol- lowing devise, *' 1 give lo iny wife dl Ihe iie:.:roes I ootaineil n marr age with her and their iiicri ise : dso ,,ne third of slock, &c md iiit residue I give to my cli Iciren by my .rest nt wife." The esti.l istxhuisud ex- cept the negroes cuniiUid m ttie re- siduary clause to the wdV- and chil- dren, and ilebls to a l.irge amount re- m.iin unpaid: Hlauitiff'cl.iim.s li s iiiou- sand puunds. Decided, that the Plaiit> 598 tiff's legacy is pfeneral, but slill enti- tled to be p id >iu of'tlie residuary part d. vised t(i the wife and children, whif:!;, is ■< rrsiduum, can ncvt-r be spec'fic : tlia; the cliildren's part is to be first ;ip;.l.eil, as the \*ifi''s pai't, the' general nd residuary as t" the Plain- tiff, h specific in rt-fereice to 'heirs : thtt s 111 ■ testator in mentioning the sum ol £1000 tor the oliii.tiff, contem- plated ;i full •:'iij(iym ni by the lej;a- tet s of their respi-ctivc legacies of slaves: therefore, ondcr the discreti- onary po vcr j^ivc-n to tlie ex':'Culors of fixing thi ainouni to be paid to the Plai tff, his testacy shall be aljated from £1000 in proportion to the valne , of tiie negroes that sh:dl be required to pay the debts. Nash v. Siash'a ad- mr's. 228 Vide Account, 1. LIEN. A boat is drifted away from a landing, and tnken up by a slriii grr, who sells todefeiidunt held, that .he stranger's rigi't to salv^ig , is a demand upon the plaintiff, to be enforced by detention, and th it ilie right is noi transferable to a poich.isir of the ju-operty. Wins- low \ Watlcer, ' 193 LlBE'UMTlAEMENTUMjPLEAOF. Vide Havwood's i;ote fo Les Y.Ashley, page 186. LICENCE. Vide Nuisance, 3. LIMITATIONS, STATUTE OF. 1. Per Williams, .ludge. An ackiiow- ledgenn 111 made to an executor will prevent ilii operation ol th. sta uie of limitations, as well as if niau to the ttsiatnr. Hot A^a^, Judge, contra. — Billcvoa, MJin'r. v. Bugan, 13 2. TIk ar-tii 1 mitalii.ns willnot run, but from the lime th t it IS knoW' where th- ch:itt -I ', and that it is adversely claimed. Berry' sAiltn'rs.\. Pullam,l6 3. Ackir>wledgiiig ;h' ad. uti-.ii'.t, od. is not au aiknowleoginenlol iht ilebl, so as U' pr vent the ffi^ i uf tiie st i. tute of miiaiiiMis. Ferguson & Hife V. T.iylor, 20 4> Smd In tiie Ju'lg , arguemlu, tli.' the st.ituie of lion t: >s runs Irom toe time tbe Plamtiif knew where ihe ne- groes were, and that the Defendant cl.Hime I them, although no demand had been made. Elwick's ex'rs. v. Rush, 28 5. Tlie statute of limitations runs fi-om th'- d le of the last article in an ac- count, where the account has been runi.ing on from its commencement; but where it is once deserted or ended between the par'ies, then from that time. Sur. Parl'rs. of McNaughton & Co. V. Narris, &c 216 6. These words in a I tter from a Defen- dant to the pliimiff, " 1 would ratrter come to a settlement, although I should allow the account as insisted on by yon, than wait the event of a law suit," ate sufficient to take the case out ot the statute of limitations. Ferguson v. Fitt, 239 7. The words of a will, directing all just debts to be paid, will prevent the bar of the statute of limitations. Anony- mous, 243 8. When the aci of limitations once be- gins to run, none of the impediments mentioned in the act will stop its course. I)en on dem, of Andrews v. Mulfrd, 311 9. I ie statute of limifalions begins to run trom the time the negroes come into the pessession of the Defend.mt, unit ss entrusted with tliem by the Plaintiff for an indefinite time, (for then the act will not begin to run till demand made) or unless the Defend- ant removed himsell so that the Plain- tiff could nut find him to bring suit, or had tlie negroes without the know- ledge of the Pliiintiff. Elmore v. Mills, 359 10. vVhen the act of limitations begins to run against afemesole, her marrying Will not suspend ilsoperaliun. Anony- mous, 416 11. No person can plead the statute of limitations except the defendant, as for instance, a g.iriiishee Caiinoi.— Anonymous, 459 12. Tlie st.vitite of limitations will run a..:ainst the Plaintiff, alilioughthi De- fendant may be out of the couiiIia. — /(/. 459 Vid. Possession. 1, 2, 3, 4. LIMI lATION OF ESTATES. Vide Slaves, 1, Deed. INDEX, 599 MAIMING. 1. Malice aforetlviu lit is express, or lo be implied fr. m circumstances: intent to maini nr disfij^urv, may likewise be implied from circumstances: ;ind it is not nece>-sary to prove antecedent grudges, ihreatenings or an express design. Slate v . Ir-wm, 112 0. Wilt n an o»tras;e(ins act, as a maim, isproved, the law presumes that it was done with (hat disposition nf mind, whicli Ih.- law requires to constitute Ruili, until the cortraiy is shewn. — Slate V. Evans, 281 MASTER. 1. The master does not lose his wages by the loss of the vessel. Fergvson v. Fiit, 239 ■2. Making a man master, and giving him command of a ship is ipso facto, giving him power to take a load for freight in a foreign port ; and his con- tract, in such case, binds the owner. Murfree v. Redding, 276 MONEY. 1. The possession of money gives the property of it, as to any disposition which the possessor may make of it. Qninton v. Courtney, 40 2. Bond for payment of £100 Virulni . money, to be paid in Hroc. at 33^ per cent. Jurv gave a verdict for the equi- valent in the present currency. But Per Curiam — the verdict should he for £133 6 8. But upon a second tri- al, the Same verdict being given, the counsel ilid not press it •ny farthtv. Pcete's ex'rs, v. JVebb s aclmr's. 96 3. Whoever has the possissmn of mo- nev, has the property of it. C/ar>/ v. Allison, "ill 4. Money deposited by one person to be paid to aiiotlier upon a contingency cannot be recovered b', thatoilur, but must be sued for by the person who makes the deposit. Id. Ill 5. Payments made in ihe depreciated currency |irior to 1783, shall discharge the same numerical sum as their nom- inal value. Annnymotts, 183 6. In an action of covenant lor a certain sum in Silver or Spanish mdled dol- lars, the jury are at liberty to give the real value in our curvenc. as ilamagts, notwithsta.idiag tlie act of 1783, c- 4, «. 2. WinsloiD V. Bloom, '2\7 7. In an action of debt two things are recoverable, tie numerif al sum men- tioned in the bond, and damages for the detention of the debt ; and these damages are generally the inien-st of the money mentionid in the bond; but if the currency of the country is depreciated, the jury may give such damages as will afford the Plains ifl'ihe real value of his debt & interest tliere- on. Jliionymous, 354 Vide Excliange, course of. MOUTGAGE. After a conditional decree offoreclosure, but before absidute decree onttved, a person, who h;ts acqtdred an interest in the property mortgageil, may be allowed to come in and file a bill, in order to get the benefit of redemp- tion. Anoiiynvjus, 482 MURDER. 1. A motion to postpone a trial for mur- der on account of the great public ex- citement, was refused. State v. JVor- m, 429 2. WriLiAMs and Haiwood, .ludges, differed as to the question, whether a juror could be asked on oath whether he had expressed an opinion unf ivora- bly to the prisoner. Id. ' 429 3. A person who was violently abused and beaten, made his escape, ran to his o\vn house eighty yards off, got a knife, rin bark, and upon meeting with the deceased, stabhed him. It seems that he is oidy guilty of man- slaughter. If, upon the second meet, ing, the prisoner had disguised the fact of having a weapon, for the pur- pose of inducing the deceased to coine within his reach, the killing would have been murder. Id. 429 NEW TRIAL. 1. Verdict asjansl evidence is not suffi- cient fon'S taken on blind- ing out orphans, to be mide with the chairman of the court and his succes- sors, till bond is good althongli tlie successor be not n 'med ; •iiA a suit m:•^ "e sust'ined in the name of the successor. Anonymous, 144 2. After the plea of conditions peiforni- ed, no advantage can be taken of any inconsistency in tlie indentures of ap- prenticeship, as where, in a part of the instrument, the name if the appren- tice is put for that of the chairman. — Id. 144 PAROL KVIDF.NCE TO EXPLAIN WRI I'lKN INSTRUMENTS. Vide Assignment. 1. Boundary, 14 7 8 9. PAYMENT, PLEA OF An account ayainsl the Plnni iff cannot be given in evidenc«^ undtr the plea of payment. Evans v. JVoriia's admi- nistrators, 411 PERJURY. Vide new trial, 2. Variance, 3. PI.ENE ADMINISTR AVIT, PLK A OF. iVid. Adminislralors & Executors, 14 20 25. Retainer. PARTIES. Where a person cncerned in interest, is slated in the bill tn be moved away and not since heard of for many vears, so that he cannot be served with pro- cess, that shall be a good reason as between third persons, fur not making him a partv ; and the court will pro- ceed to a he:irlnsf notwithstandin.L'. — Irtgrnm v. lanier, 221 y]<\i- Money, 4:. Equity,^, Husband ii XVife, 2. Scire facias. 2. PARTITION. Vide Parlncrship, 3. PARTNERSHIP. 1. fJenf-ral reputation is not sufficient to charir'- '• particular person as a part- ner. Ther^ must be some conf ssion of his or s"mc overt act to prove it. — Hunt V. Jncks ii I^ndon, Sur. Parts. &c. 173 2. Per HAvwnoi), .Judge. Death of one partner dissolves the parinersliip, and a clerk or agent who has been appoint- ed by the company, cannot, afic r such dissolution, do any act to affect the interest of the company, as to receive payments &c The jnry found other- wise. AHde Haywood's nfte, Surr'ng. Parts, of McNaushton (J Co.y- Moore, 189 3. A partition, in a paitnership concern is matter of right, and may be calf d for at any time. Collins v. iHcktnson & Allen, 240 4. All asfignur and .assignee are both members of a particular ctimpany : a bill is made payable to the assignor, express^ d to be for a debt due the firm : a payment to the comp;>ny will be a good payment against either the assignrir or assignee members of that compan\. Blacks. Biri, 273 Vide Set-off, 3. , POSSESSION. 1. In this country no actual entry is ne- cessary until an adverse possession commences. Den on dem. of Park v. Cochran. 178 2. A pnssi ssion Id bar an entry must be a continued one. /'/. 178 601 o. An actual possession is not necessary to iirevent the iperntion f 'he^latllte ot limitations until an adverse posses- sion commences, which ixlverte pos- session must be u continued one for seven veurs to b:ir the Pliiiiitifi'. Ben onderi, nf Slude v Smith, 248 4. No possession, except an actual orn? by the claimant himself cr his tenant, commenced bnniijiile uniler a p:Ueiit or prant, adverse and coniinwid for seven years, will give title under the act of iimitaii'-ns. Hen on dem. of Jin- ilrfjis\. .Miilft/rd, 311 5. The caveator was settled upon a tract of unappropriated land for minyyeru-s and supposed the land in dispute to be included within I'is boundiries, when in fact it was not. TSe possession is stated to have lieen Ujiw^irds of twen- ty one years. It was decided that the caveator v/:is not eniitled bv the entry laws ot 1777, c. 1, s. 16, ami 1779, c. 7, s. 2, as not having cl limi d wiiliin the lime limited by the acts — nor by the statute of limitations, 1715, c. 27, s. 3, which applits only to claimants under patents — nor yet by the aet of 1791, e. 15, liinitini^' the claims (,f the State, as that act is bottomed ii|,on the presumption of a former grjnt, and s not applicable to vacant lands. Jlnonymous, 466 Vide Money, 1, 3. Grants. 5. VRINflPAL AND ACCR^SOUV. Command, as ■■pphed to priiicipal and acc.-ssory, means the ordr rinj; a (liing to he done, by a pirson who has the legal control over another, as a master over his servant. Stale v. Mann, 4 PROCESS. If, in an action against two Defendants lor a joint contract, one cannot bt ta- ken, after the jsiio-ies writ, the other may be proce (led a^jainsi alone — S/ierrod\- Davis, 282 Villi /)isroiitimiance. Administrators & JCxiculirrs. 3. Slieriff, 6, 13. PUIS DARREIN CONTINUANCE, PI.EA OF. 1. A plea puis darrein continuance, is a waiver of all inrnier pi a-, and an ad- mivsion ot the declaration. Greer v. Shepperd, 96 2. The court must be satisfied of the pro- liable truth of the plea, jntis darrein continuance, hefor^ titv vill p.rmtit to he pleided. Sur. Partners oj Mc- Nauglilon & Co. v. ISaylor, ' 180 3. At the pleadinj,' term, certain pleas vvere put in : at another term filter- wards, another plea was added, but not expressed to he a plea puis dar- rein continuance: The coun will not take the la^t plea to be /iw/'s i.'arrcin continuance. Peak v. Fokom, 181 QUI TAM ACTION. Vide Maiement, 6. RACING. The rules of racing are to be consulted in deciding upon racing contracts. McKenzic v. Jlslie, 503 KECEIVKliS OF PUBLIC MONEY, SUMMA HY.IUDGMEN r AGAINST. The act of 1793, authorizinif the Atlor. ney General to take judgme-nts against the receivers of public money, by mo- tion, and that their delmquencies shonld be sufficient notice to them, was declared to be unconstitiit onal and void by \\ iliiams. Judge, but was aftervvards allowed by Macat and AsuE, .Judges. State v. , 2S RECOGNIZANCES. Vide Judgment, o. RECORD. 1. A copy of a record should be ■c^ria- tim, and not be certified by the clerk that such things appeared to him from the record. IVilcux \. Ray, 410 2. The loss of a record must be proved hy the oath of some person, an 1 not by the certificate of tiie clerk. Id. 410 RFCORDARI. Vide False Judgment, -writ of. REHEAKING, PETITION FOB. Vide lieview. Bill of. RET.MNER. A retainer may be either pleaded, or gi- ven in evidenn under the plea of /ife. ne adminiitravit. Evans v. Nurria's adm^rs 411 Vide .idministralors (J Executors, 18. 602 INDEX. HEVIKW, BILL OF. An injunclion apidnst » iudfcment at law hai, 1, 2. SET-OFF. 1 A set-ufT agamsi the S':ile was allow- ed in the case ot th^ Sfate\. Tuiomci- ted in State v. 221 2, Uid quidated damagrs cannot h- set off: linl wlun thiy are reduced in rem judicatam they may be. Hogg's Ex'rs. V. Mhe, 471 3, In ^in aciion brought by two par'ners a debi due from one of iliem cannot be set-uff; t)ut if one of the partu-rs dies, then in a suit by the sutvivor, a deb! due from him may be set-off. — Id 471 4, Wl'.-H a cliose in action is assigned for valu!- received i.< deht contracted sub>>q'ir?ni y sital he avow j\ even at law. IS f ,-.i-otr aH-iinst the .■ssiguee, especially it there be an act of the Le- gislature taking notice of the assign- ment and enaliiing the assignee to sue in his own name. /(/. 471 SHERIFF. 1. A Sheriff cannot legally purchaase property at his "wn sale, and is pun- ishable for so doing. Jlnonymom, 2 2. Sale of Kind by Slier ff when- tnere is sufficient personal properly is good as t" the purchaser. Den on dem. of Of borne v. Woodson, 24 3. Thf want ol forty days advertisement, or the lind's not being sold untila day or two after the day appoinied will not vitiate the sale. Id. 24 4. Dictum by the court if the Sheriff sells real, when there issufficit n' per- sonal property, he will l>e liible to an action by the par y grieved, unless the p irty does not show personal property sufficient to sitisfy the execution. — Id. 24 5. One bidder at a Sheriff's sale is suffi- cient, and a rc-turn of " no salf for want of bidders," in such case, will suhjeet the Sheriff to an indictment for a false reuirri. Slate v. Joyce, 43 6. Process r turned b_\ the !)e. uty She riff, should lie in the name of the High ■^h. riff, and not in the nwme of the Deputy for the High Sherifl, i jmnt owners of a vessel forcibly lake possession of her, and send her to sea, witliont irag.inst the will of the ot.ier, nd she is lost, he Will b> h. 'lie in trover for her. Zow- thurp \, Smith, 255 601 5. The action of trovw may be support- ed ajjuinst executors for a conversion in llie Uleiime of their testator. — Clark V. Bill, 308 6. Tlie action of trover will lie against executors, for a conversion in the lilV- time of their testator, aUliour;li tlie estate may not have been benefited)/ such conversion. Avery v. Moore's Executors, 362 TRKSPASS. Vide Indictment, 2. Larceny, 3. Slaves, 2. Abatement, 4. TRUST. Vide Ejectment, 4. USURY. Defendant had been awarded to pay to plaintiff a certain sum, but at the day of payment, not having the money, he agreed witli plaintifl'to give more tlian six per cent for indulgence ; and a bond was ^iven for the principal sum, and the amount above ilie 1 g.il inte- rest was paid partly in m 'nty, and a noie given for the b.dance. Upon an action on the bond, it was held that the transaction was usurious and the bond void. Glisson v. Newton's Exr'e. 336 USE AND OCCUI^ATION. Vide Assumpsit, action of, 2 UNCONSTirUI lOM \L ACTS. Vide Jlcceivcrs of the Public Money. VARIANCE 1. Alter verdict it is too late to take ad- vantage of a variance hetween the writ and declaration. Haywood's note tn Lewis V Vyilliams, ISO 2. The condition is no ]> rt of the obli- gation, and a bond with a condition would not support a declaration for the sum mentioned in tlie condition. Adams v. Spear, 215 3. The words assigned in an indictment for perjury were, that " Galling did not internipi ili' c nst.ihlc in diiving the catile to Gcttling'a house," aiil the words proved were, tliat " Oalling did not assist in ilriving the catuc Irom the officer." It was held, tliat the words charged and those proved must be cle.rly and evidently of the same meamnfTi without the help of any im- plication or any thing extrinsic j and that ill lliis rase the variance Jiisfalal. Slate V. Bradley, 403 & 463 •1. The declaration slated an undertaking by two with alliird, to run a race witli him and to pay him if he won — the e- videiice was, of a race made between one of the two anf the cause is adm ssible as a witness — Pcrier v. McClure, 360 9. The Slate uia. discredit its own wit- ness by proving that ihe witniss on form^-r occasinns h d given a i.fTrr. nt account of the traiisaclK>n Irom that wliic'i iie relates in court. State v. Norris, 42P Vide Evidence. ERRATA. I'age, Line: 1 *4 of the note strike out the wonls, "if gift." 5 last of the nbstivict 'o the case of Greenlee v. Young', for " consideration" read " CODilltinn " from the boitom, for " could be sold," r. " could not be sold." of the note, tor " aci .fI714,"r. " uct of 1784." from tlie bottom, for " now" i . " not." of the note, .ov " oinds lands from its teste," r. " binds lands from its levy." from the top, for " directed" r. " decided." for " establishing" r. " a lolishici.; " of the abstract to the case of Seurs t;. Parker, for "cases" r. "causes." from the bottom, for " couri" v. "count." fio'ii the top, for " warrant" r. "covenant." from the top, for " buy" r. " levy." in the words " without what valu " strike out " without." from the bottom, for " McAuslin's" r. " McNaughton's. " from the bottom, for " miicli less g-eiienl" r. " much more general." from the top, insert ''is** betweeii ** condition** and " no part." from the bottom, for " action*' r. ** r.ason." from the bottom, for " April Term, 1794," r. " Aprd Term, 1795." 592 number 18 of the title Evidence in the Index, for "testified" r. " certified." 595 number 3 of the title Husband & Wife, in the Index, for " representation" r. " representatives." * In the table of the cases reported, the notes and the index, reference is made to the pages of the first edition ; but in the foregoing list of Errata, the pages of "he Dfesent edition are referred to. 81 10 S5 1 87 16 111 24 130 10 135 1 145 1 162 11 172 3 174 32 175 1 217 21 229 5 246 2 269 3 456 20 I i Si f^ (§ I