Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1868-09-25
Reported Expressly for the Journal.
WILLIAM cox vs.. SUSAN COOKE,

to contradict the verdict, aud it is regular
in the County Court to grant administra-
tion upon his estate.
One whose acts give rise to a lis pendeas,
is party, and the doctrine of estoppeI, by
the fexibility Of the common law, applies
equally to him as to those technically inte,
parties.
Motion to dismiss certiorari, heard be-
fore Hugee, Judge, at Spring Term, 1868,
of Wake Superior Court.
His Honor dismissed the arru of certio-
rar'i and ordered procedeudo to the
County Court.
Quirk, Cannon and Snap for the APP
pellart
Buz-fuz, Contra.
The facts appear sufficiently in the opin =.
ion of the Court.
Pearson, G. 1.-THE case is this and
" nothing shorter - At February Term,
1868, of the County Court of Wake, Susan
Cooke applied for letters of administration
upon the estate of William Cox, as his
highest creditor. Notice had been regu-
AoAIy oO4fCu upOu tIo uGAG VI h1u VI OOA
that the application would be made.
Susan Cooke filed her claim and proved
her debt, on oath, before the Court
The claim filed was in these words:
The Estate of William Cox, late J. P,
To Susan Cooke, Dr.,
1865, June 18th. To Cash paid you
fee fo1 going through the forms
of matrimony with me and Joab
COOKE. SZ w
Cox resisted the application on the
ground that he was not dead, and so the
Court had not Jurisdiction, but the Ceurt
being satisfied, upon record evidence, that
the fact was otherwise, ordered letters to
issue.
Cox craved an appeal.
The appeal was denied upon the ground
that the right of appeal was given only to
those who were in esse. Cox obtained a
certiorari and brought the case up to the
Superior Court, where the ce'tora,'i was
dismissed and writ of procedendo very
properly ordered to the County Court, but
very improperly, for the reasons given by
the learned Judge below.
This is dry question of law, and in the
beautiful language of our brother, Reade,
in State os. Harris, Phil. 3, " in con-
sidering the legal questions involved, we
have not allowed ourselves to be influenced
by the cruel and lnAuman results of our de-
cision adverse to the appellant. Mr..
Oiley Cannon, in his labored argu-
ment, has endeavored to frighten the
Court from it's propriety by asking the
Sally Cox a widow, and Eull Run
Cox, and Bulla Runna Cox, and Bethel
Cox, and Bethella Cox, and Rebel Cox.
and Rebelia Cox, the children, orphans I?
The argument is "more plausible than
strengthy." The maxim, "argunaent1tna ab
inconrenienti, plu''inauna Ualet IN lege, which
Mr.. Cannon has pressed, and pressed
and pressed upon the Court, "availeth
nothing" It is only in doubtful cases ar
guments drawn from inconvenience are Of
great weight. I, II. Bla. 81. This is
not doubtful case, but a plain case; there
fee the argument has no weight. But
this Court deals not with results, but with
dry questions of law, and that upon "the
reason of the thing" No mind accustom-
ed to legal investigation would have asked
question SO little pertinent to the issue
If Sarah Cook, "under the law" is enti-
tied to administration upon the estate of
William Cox, how can her right be adeem-
ed, Or in any way affected, by the fact that
Sally Cox may be made a widow, or the
re bellious little Coxes be made orphans I?
" Fiat justitia, ratat co9lun1. We can only
say, it is the province of the Courts to ex-
pound the laws, not to make them,' as we,
ourselves, replied to Mr.. Merrimon, in
Holmes rs. Sackett ct als., Phil, 63, when
he, too, tried on - some of his gdzanaOn
upon us, in asking hard questions that
were about as pertinent as some that have
been asked in this case.
"In the present condition of the Gov
ernment and the Courts, and as the pro-
cess of the Courts is now controlled as
our Brother Reade has so forcibly and
beautifully expressed himself in Gibson vs.
Groner, Phil, II, there is no relief for
William Cox, nor Sarah Cox, nor the other
euphonious little Coxes, unless their {" dis
obiliies' be removed by the "Code of
Practice and Procedure which our Broth
ers, Tourgee and Rodman, are preparin g
in such leisure hours as they can devote
from their arduous political and judicial
duties.
Is William Cox dead
That is the question and to reply to it
we have to "d1p into " first principles, and
"knuckle down - to the hardest sort of
argument, and g try it on " and see if it
don't g fit the case.
In Cooke CS. Cooke, L Phil, 5SI, 1t was
solemnly adjudicated, after full argument
by the distinguished counsel, Messrs. Bragg
and Haywood for the appellant, and Phil
lips and Battle contra, who each brought
to bear all the authorities from Sir George
| Croke, who wrote much in his Reports of
| the times of Charles, and John, and Eliza
| beth, down TO General Schofeld, and Sick
les, and Candy of our own times, who
| wrote much more, that this same William
| Cox, who had been Justice of the Peace,
was killed off by order of General Scho-
field on the 9th of April, 1865.
It was there emphatically aQJudged that
he was dead. And not only this, but it is
further adjudged. "This is settled in the
matter of Hughes Ib. 81, Wiley cs. Worth,
Ib. III, and Haley cs. Haley, Phil. Eq. 18O.
And we ourselves in the same case well
put it, that "The idea that after the State
| attempted to withdraw from the Union.
had waged war for four years, and had
| been subjugated, the officers of the State,
| who had in the meantime disowned theil
allegiance to the United States, and at
| tormed to the Government of the Confed.