Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1857-05-15
From the Fayetteville ObserEer.


Jones's Reports of the Law Cases decided at the
late Term of the Supreme Court (No vol 4) is just
out, and hasty glance it shows us two cases one
of local and the other of general interest," which it
may be of service 10 Cur unProfessional readers
hear of.
The first is the celebrated Harnet county case (Pas-
hal MeCoy she Jus,iooo Of Harno,t county. -
The following are the Reporters statement of the
case ard The material part. of the JUDGES O, non
This was application for a mandamus, 10 be
directed to the justices of Harnett county to compel
the fulflment OF contract made with the petitioner
for the building of Court House and Jail heard be-
fore Person, Judge, at Special Term June 1856,
of Cumberland Superior Cont.
At the Term of the Coult TO which the writ was
returnable, an informal statement entitled ga re-
turn" was filed by Geo. w. Pegram, ESQ, and sew.
era other justices of The peace for Harnett county,
admitting the business OF the petitioners demand,
and alleging their entire willingness. TO pay the same:
at the same time another statement ws made by
Robert e. Belden, Esq, and other justices of the
peace OF that county, denying the business of the
claim and giving reasons in ertenso why they had
refused to pay the same neither of these statements
beng In FACT nor puportng to be- the return of the
justices OF the county as body
motion was made tina the return of r. c. Bel
ed.
motion was then made on the other side that
K. Z. Belden and others have ave to amend their
return; which also allowed.
Z" His Honor proceeded further TO Consider the case,
and ordered peremtory mandamus to issue from
which Judgment t. c. Belden ami his associates ap.
peaed to the Supreme Court
I" Hau5 hton, for plaintiff.
"J Winslow, b. Fuller, ard Haigh, for defen-
dant.
PEARSON, J. A mandamus TO " The justices of a
County" issues again>t them as a bcdy, and not as
separate Individuals so they must make ga return''
as body 10 this end it is proper for the Justices
to convene and a majority being presen,, as for the
transaction OF any other County business, to agree
upon the tacs which to be Sc, out for their return
n this' as IN other cases. majority of those present
Will govern. They will then appoint some one of
their body, who as their agent 10 10 make the proper
amdaVlt, and TO do all other ac's and things which
may become necessary in the the proceeding
In this case there is no return made by the ius-
ices rs body. G. W. Pegram, Esq, and several
OF the Justices, unite IN making what is termed their
return and Robert G. Belden ESQ and several
other justices, unite in making what s termed their
return; SO, there are two inconsistent and Fepugnant
returns, neither beinS nor purFortng to be- in fact,
the return of the justices of the County as body
g There is, in effect, no return, and nothing upon
which the Court could rightfully take any acton !;
consequently, 1t Was error the Court to proceed
and order peremptory mandamus. The proper course
was to drrt both of the called returns to be with
drawn from the flies, and require the justices to
make return as body in analogy to the order
directing "fep!eader," ordinary action where
or upon traverse which is too narrow. the Court
directs the parties to begin anew commencing at
the first wrong step.
The ord.r appealed from must be reversed and this
opinion will be certified to the end that there may
be proper reurn 10 enable the Court to decide
the matter in controversy"
The other case is that of Dewey vs.. Cochran, 10
which note negotiable at The Branch of the Bank
of Charlotte payable 10 its Cashier +. Dewey, in the
usual printed form. but not filled up as tie amount
offered to h President Of the Bank for discount
and by him rejected whereupon Caldwell and Ha.
gins, the makers OF the note took l. 10 Charleston
without the knowledge consent of the suretes and
filed il up with The of 1927. and p: ssed it to
Farrar & Brothers, in payment of debt due by the
| former to the larer. The noe was sent to MIR
Dewey, the cashier, for collection, and protested 70,
| non payment. Suit was brought by Fatrar & Broth.
ers. in The name Of Mr. Dewey, and judgment re.
covered in the County Cou-t, from which Cochran
one OF the securities, appealed. In the superior
Court, Judge Bailey directed nonsuit, from which
| the plaintiff appealed. ae." os-o 49,
The case was argued by Osborne and Boyden fo
| the plaintiff aud by Wilson for the defendant.
| Chief Justice Nash delivered The opinion OF tht
Court, affirming the nOnsuit. a.a ss59:s
/ "1he sureties bound themselves, (says the Chic
Justice, to pay to Thomas Dewey, or his order th