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and undertook to deliver it, he is bound to do so, and is liable
to this action for refusing, whether he had used the cdm or still
had it in his crib.

In the language of Lord Holt, *' the owner trusted him with
the goods, and he entered upon the trust.'"

But for this promise, the plaintiff would have required the
sheriff to deliver the com. This puts the plaintiff to incon-
venience, and there is an expressed trust, and an undertaking to
do the act. If one undertakes to lead my horse to Statesville,
and turns him loose on the road or refuses to deliver him, he is
liable, although no compensation was to be given; for he has
entered upon the trust, and I have been put to inconvenience by
reason of his undertaking.

'' The confidence induced by undertaking any service for an-
other is a sufficient legal consideration to create a duty in the
performance of it:" 1 Sm. L. Cas. 169, where the question
is fully discussed in the valuable notes of Mr. Smith, and of the
American annotators. Hare and Walker.

Judgment below reversed, and a venire de novo awarded.

Loss TO Pbomibsb ok BurxFrr to Pbomibob is laflBoieiit oomidemtiaB
for a promiae: Adcuauv, WiUon^ 46 Am. Deo. 240, note 242; HoU^ v. Adamup
42 Id. 608, note 511, where other caeee are collected.

Doe ex dem. Wallace v. Maxwell.

[10 Ibkdbll*! Law, 110.]

0oontnrx or Estoppel dobs not Apply bithkb to thb Sovebbxok or tt
its Assignee.

Ii4w Pbisumis Grant to Onx Who has had for THnmr Tkabs ooq*
tinnons adverse possession of land np to known and visible boondaiiea^
and the jury cught» under such ciroomntannML to nresome a orant.

Digitized by


▲tig. 1849.] Wallace v. Maxwell. 881

Aon ov OwirxBBHiP WmcH wjvr Aooompavt Actual Powmcto h. of. land
Id order to justify the p re eom ption of a grant are tnch aoti as persona
Qsnally exercise orer their own lands.

£jxcTifZKT. The plaintiff claimed under a grant to him from
the state in May, 1842. The defendant proved that one Black
had claimed the whole of the land in controversy for forty years.
He offered in evidence a grant issued by the royal government
to one Selwyn, to the reading of which the plaintiff objected,
on the ground that the defendant claimed title under the state,
and could not prove title in any one else. , To sustain this ob-
jection, he gave in evidence a grant of this same land, issued by
the state to the defendant, in June, 1842. The court overruled
the objection, and a witness proved that the grant to Selwyn
covered the land described in the plaintiffs declaration. The
other facts are stated in the opinion.

Alexander, Wilson, and Bcyden, for the plaintiffl

(hbome, for the defendant.

By Court, Nash, J. We concur with his honor, the presiding
judge, who tried the cause below, both in admitting the testi-
mony objected to, and in his charge.. The evidence objected to
was the grant by Georgfe HE. to Selwyn; and upon the ground
that the state had granted the same land to the defendant in
June, 1842. The sovereign can not be estopped. It acts by
agents and is a trustee for the people, and for their benefit, the
truth may always be shown: Taylor v. Shufford, 4 Hawks, 132
[15 Am. Dec. 612]. Candler v. Lwnsford, 4 Dev. & B. 407, is
to the same effect, with the additional princifde, that when the
sovereign is not bound his assignee is not. These authorities
»nly sustained his honor in this part of the case. The charge
delivered by the court divides itself into two branches, and in
each his honor was correct. The first was, that as the defend-
ant and Black had for thirty years had a continuous adverse
possession of the land in question, up to known and visible
boundaries, they ought to presume a grant, that is, that the
law presumed a grant and they ought so to find. The case of
FiJtgrandolph v. Norman, Term (N. C), 131, which is the leading
case in this state, states that such a possession for thiriy-five
years raises the l^;al presumption of a grant, and that of Candlef
V. LunRford cuts down the time to thiriy years. Less time
than thirty years has never been permitted in this state to raise
this presumption of law, nor are we disposed to admit it under
a shorter period. Thp case states that the boundaries of the

Digitized by


382 Wallace u Maxwell. [N. Carolina,

tract were well known and visible; that Black hod opened and
cleared up different portions of the land and inclosed them, and
had been in the actual adverse possession for thirty years and
upwards, and had continually claimed up to the boundaries, by
using the woodland as his own, and that the defendant, who
had married his daughter, had, since his death, contiaucd t\\e
possession. Under these circumstances, if the jury believed
them, they were instructed to find that the law presumed a grant.
In the second place, his honor instructed the jury, that if they
should not be satisfied that the possession of the defendant and
Black had continued for thirty years, but only for twenty-five,
yet if it were a continued adverse actual possession for that
length of time, accompanied by a continued claim of ownership,
up to the known and visible boundaries, for five years more,
they were at liberty to find, as a matter of fact, that a grant bad
been issued, if from the circumstances they were satisfied such
was the fact. TVe see no error in this portion of his chai-ge.
It is in strict accordance with the decision of this court in this
case when before us heretofore: 7 Ired. L. 136. This court on
that occasion said, that the actual possession of Black, for
twenty-five or thirty years,, accompanied with a claim and the
exercise of acts of ownership and of dominion up to a well-
defined boundary, was evidence that ought to have been left to
the jury to presume a grant of the land to Black or those under
whom he claimed. This was done by his honor in this case.
His honor was careful to tell the jury what he meant as to the
acts of ownership which were to accompany the actual posses-
sion. They were such acts as persons usuall}' exercise over their
own land — such as cleaning and cultivating new fields, and turn-
ing out old ones, when worn out, and cutting timber promis-
cuously. These directions were an answer to the second and
third objections made by the plaintiff.
Judgment afitoned.

Doctrine op Estoppel does not Apply to Grant from State so as to
pass an after-acquired title: See Casey* a Lesnee v. Inloes, 39 Am. Dec. 658.

Grant Presumed from Adverse Possession, when: See Casey* 8 Lessee
V. Inloes, 39 Am. Dec. G58, note (5S6, where prior cases are collected. Tho
principal case is cited in Mason v. McLean, 13 Ired. 264; in Baker v. JUe-
Donald, 2 Jones, 246; and in Davis v. Mc Arthur, 78 N. C. 359, to the point
that from thirty years' uninterrupted possession a grant will be presumed.

Digitized by


Aug. 1849.] HiSE V. FiNCHEB. 388


[10 IXMDMlA/B Law, 139.]

BsYOQATiON OF WiLL MUST BB Shown bt Somb Ovsrt Act apparent in an*
other writing or on the paper itself, and can not be established by parol
proof merely.

^oiKB Onx Chu>EBEJ> BT Tbstator TO BuRK WiLL Decbiyes Him by pre*
tending to bnm it, while it is in fact preserved, there is no revocation.

Appeal from the superior court of law of Burke county. The
will propounded by Greorge W. Hise was, on the trial, admitted to
have been executed by the testator, George Hise. The caveators
opposed its probate, on the ground that it had been revoked.
To establish a revocation, they called a witness, who stated that
C^eorge W. Hise, the propounder, had made to him the foUow-
^g declaration concerning the paper writing in issue: ''My
father was lying sick in bed, and requested us to bring him the
y^l the will was brought to him, and he requested us to throw

. ^^ into the fire and bum it; but I held the will and another
^per in my hand at the same time, and, for the purpose
. deceiving my father, I threw the other paper into the fire

'^ bis presence, instead of the will, and put the will in

my pocket." The jury found the revocation. The other facts

appecur from the opinion. .

-^^very and OaUher, for the plaintiff.

-^. W. Woodfin, Craig, and J, W. Woodfin, for the defeiidants.

^y Court, BuFiiN, C. J. Upon the supposition, that the evi-
dence of George W. Hise's declarations were admissible to
*8ect the interests of the other devisees, the court is of opinion,
^^t there was, yet, error in the effect given to them, as estab-
^^sliing, if true, a legal revocation. The act of 1819, revised
^tutes, chapter 122, sections 1,2 and 13, contains substantially
&6 same provisions on this subject with those of statute 29
Charles II., and therefore is to receive the like construction.
No devise of lands nor vnll of personalty, is revocable, other-
wise than by some other will, or writing declaring the same, or
hj burning, canceling, tearing, or obliterating the same by the
devisor or testator, or in his presence and by his direction
or consent, and all devises of land and bequests of personal es-
tate '* shall remain and continue in force, until the same be
burnt, canceled, torn, or obliterated by the devisor or testator,
or in his presence and by his consent and direction, or unless
the same be altered," etc. It is obvious, that the main purpose
of the act is to alter the rule of law, by which the revocation of

Digitized by


S84 HiSE V. FiNCHEB. [N. Carolina^

a written wiU, dnly attested, could formerly b^ established by
parol proof merely; and that is done, by requiring the inten-
tion to revoke to appear, not merely from the mouths of wit-
nesses, but also by some overt act, apparent in another writing,
or on the paper itself, alleged to have been revoked. It ia to
be done by another will or writing, or by the destruction of the
paper by burning, canceling, tearing, or obliterating. Now it
is impossible to say here, that the paper was burnt, canceled,
torn, or obliterated. It is true a great fraud was practiced on
the dead man by his son's pretending to bum the will, while he
in fact preserved it; that is, if it can be assumed ui>on the evi-
dence, that such were the facts. But the very question is,
whether upon this parol evidence, by itself, an intention to re-
voke can be found, or, if the intention be granted, whether the
law will allow such intention to bum and revoke to be, in fact
and law, a burning and revocation. The statement of the ques-
tion seems to furnish an answer to it in the negative. The stat-
ute positively requires things to be done, and not merely said or
intended to be done.

The court can not dispense with those acts, upon the ground,
that, in requiring them, the statute put it in the power of a bad
man to deceive and defraud a testator. That was for the con-
sideration of the legislature; which body has, neverthel^s, used
language on the subject which is clear and explicit, and which,
therefore, the judiciary iSoust observe, though, in a few very
extraordinary cases, it admits the possibility of fraud and impo-
sition. For it is clear, the legislature deemed it the better
policy to submit to that inconvenience, in a solitary instance,
now and then — since human sagacity is not Competent to guard
perfectly against fraud of eveiy kind — than to let in the more
extensive and frequent mischief, arising from perjuries com-
mitted in proving verbal directions to bum or cancel a will, and
a supposed belief of the testator that it had been done. We
conceive the words of the act are diametrically opposed to the
hearing of any evidence of the kind, and that, to effect a revoca-
tion of a will, th^.^ must be deeds, within some one of the defi-
nite words used. The counsel opposed to the will have adduced
but one case having any analogy to the present, and that is very
slight. It is that of Bibb v. Thomas, 2 W. Black. 1043, where
the will was slightly torn by the testator, and thrown by him
into the fire and slightly burned, and it was held that it was -
revoked, notwithstanding another person took it out of the fire,
and preserved it, without the knowledge of the testator. But

Digitized by


kng. 1849.] HiSE v. Fincheb. 385

the reason giyen^for it was, that the case fell within two of the
specific acts described in the statute, namely, tearing and bom-
ing; for, though the burning was yeiy slight, jet, having come
from the act of the testator in throwing the paper on the fire,
with intent to bum it, that was sufficient within the statute. In
Doe ex dem. Reed v. Harris^ 6 Ad. & El. 209, Lord Denman, in
speaking of that case, expresses a doubt whether the proof there
would now be deemed sufficient. But it is not necessary to
question it at present, as our case is essentially different in the
very facts on which BiJbh v. Thomas was put, since here neither
tearing nor burning happened in the slightest degree.

And on the contrary, the case of Doe v. Harris is directly in
point to the question before us. There, an old and infirm man
threw his will, inclosed in an envelope, into the fire, and a
devisee in the will snatched it off, a comer of the envelope only
being burnt, but promised the testator to bum it, and pretended
to have burnt it. Yet the court was unanimous that the will
remained in full force, and that very devisee recovered under
it in ejectment. It was so held, by force of the words, requir-
ing the palpable acts of burning, and so forth, in exclusion of
intentions and unexecuted attempts, shown merely by parol,
which it was the policy of the law not to hear by itself. The
judgment in that case proceeds, we think, upon a sound inter-
pretation of the statute, and it is decisive of the question here.
Indeed, Mr. Justice Williams, in his argument, puts, by way of
illustration, the very case stated in this bill of exceptions. His
words ore these: "It is argued, that, if a testator throws his
will on the fire, with the intention of destroying it, and some
one, without his knowledge, takes it away, that is a fraud,
which ought not to defeat his act. But so it might be said that»
if a testator sent a person to throw it on the fire and he did not,
the revocation was still good. Where would such constructions
end? The effect would be to defeat the object of the statutes,
which was to prevcii the proof of cancellation from depending
on parol eviw^^ce." That case is the stronger, because, in a
subsequent case, the court held, upon the same facts, that as to
copyhold lands, which are not embraced in the statute of frauds,
this will was revoked: Doe ex dem. Reed v. Harris, G Ad. & El.

Judgment reversed and venire de novo.

Revocation of Will: See Floyd v. Floyd, 49 Am. Dec. 626; Cooper's E^
faU, 45 Id. 673, note 675; Manion v. Martton, 43 Id. 61 1 ; BenneU v. Sherrod^
40 Id. 410, note 411; Wiffgin v. SweU, 89 Id. 716, note 7*24; Malone*s AdmW
AM. Dbo. Vol. LI— tf

Digitized by


88& Gabe v. Jameson. [N. Can^lina,

▼. HMg, Id. 263; BMm*$ Will, Id. 174, note 176; Diehey v. MaleM, 34
Id. 130, note 139; Bohanon v. Walcot, 29 Id. 630, note 635; Snted v. Ewing,
22 Id. 41; WdU r. WdU, 16 Id. 150; Oram v. Sheldon, 15 Id. 653, note 659,
where the sabject of implied revocation is diMsaaeed at aome length; Or eer v.
MeCrackm, 14 Id. 755, note 761; Oain$ v. Qains, 12 Id. 375, note 377, wherq
thii •abject ii diacossed at length.


Gabe v. Jameson.

[10 iBXDXLL'i Law, 198.]

to an action on a covenant in a sealed instniment, which ■onndi alto-
gether in damages, althoagh secured by a penalty.

Debt on a coyenant. Defendant's intestate, Douglass, con*
traoted by deed to purchase from the plaintiff a tract of land.
The coyenant was executed by both parties, and each was bound
to the other in the penal sum of three thousand dollars. The
breach assigned was that the intestate did not perform his part
of the contract, and the damages sought were for his failure to
do so. The defendant relied on the plea of accord and satis^u;-
tion, and proved that when called upon by the plaintiff to per-
form his contract, the defendant declared his inability to do it,
and offered to pay to the plaintiff one hundred dollars on ac-
count of his disappointment, which offer he accepted as a satis-
faction. The court instructed the jury, that if they believed this
testimony they should find for the defendant. Verdict for the

N. W. Woodfin and J. W. Woodfin, for the plaintiff.

OaitheTy for the defendant.

By Court, Nash, J. As a general proposition it is true, that
where a certain duty arises under a sealed instrument, merely
accord and satisfaction by parol is no sufficient answer, for a deed
ought to be avoided by a matter of as high a nature: Blake's Case,
6 Co. 44, As in an action of debt upon a single bill, for the pay-
ment of money only, for there the debt is ascertained: Preston
Y., Christmas, 2 Wils. 8G. But when the covenant sounds alto-
gether in damages, though secured by a penalty, accord and
satisfaction executed, though in parol, is a good defense. This
doctrine is clearly established by the case of the Slate v. Cordon,
8 Ired. L. 179. There the action was in debt, on a guardian
bond, and satisfaction pleaded. Upon settling his accounts.

Digitized by


A.Qg. 1849.] Pebbt v. PHiFFa 387

the guardian fell largely in debt to his ward, tbe relator, and,
in satisfaction, transferred, by assignment to him, seyeral prom-
issory notes on third persons, which were accepted in satis-
faction of the balance. This court decided, that the suit was
sabstantially for damages, that the duty did not accrue to the
relator in certainty by the bond, but from a wrong or default
subsequent, which gaye him his action to recover damages from
the defendant, and consequently a plea of satisfaction of those
damages is good. This case coyers the whole ground, taken on
the defense.
Judgment a£Srmed.

AocoBB EzECUTOBT IS Ko Bab: See MUehdl ▼. EoMUff, 47 Am. Dee, 260,
note 263; Brooldip^ Bagthy, De 6Vtitcir, 35 Id. 560, note 571, where other caaee
are collected.

In MUeheU ▼. ffawiey, 47 Am. Dec 260, it waa decided that an aoooid and
Mtiafaction can not diacharge a apecialty, although they will diadharge dam-
tgea ariaing from a breach of the apecialty.


(10 iBSDmLZ.'* Law, 269.]
On BAB No Bight to Kill Doo on Ownbb*s Prrmtbto, on the pretenae

that he is a nniaance, becanae he has ou former occaaiona bitten other

PXBSON IS LiABLB voB KiLLiNo Doo ON Owsher's Pbemises, after the owner

haa driven the dog away, so that there is no longer any danger of hia

bitmg him at that time.

Trespass for killing a dog. The pleas were, that the dog was
a nuisance, and that any person had a right to kill him;'and
that the defendant killed him to prevent him from worrying and
biting him. The juiy found for the plaintiff. The other facta
appear from the opinion.

Boyden, Clarke, and H. C. Jones, for the plaintiff.

Bxpfium and Craig, for the defendant.

By Court, Butun, C. J. We doubt not that a dog may be a
nuisance, so as to authorize any person to kill him, as if he be
nutd and at large; for, in such a state, he is no longer mansuetcB
i^urcB, and the consequences of a bite from time to time, to
either man or beast, may be so dreadful and so general, as to
justify his destruction as soon as possible. But dogs are in
uiany respects useful, and, with many persons, fayorite animals;
and we are not aware, that fierceness, merely, and attempts to

Digitized by


388 Pebrt t;. Phipps. [N. Carolina,

bitei or even the actual biting of one or more persons, have ever
been held to empower another person, at a different time, to
kill them, and especially to go to the owner's yard for that par-
pose. As a watch-dog, his value is constituted by his being
sharp and dauntless; and therefore it would seem those proper-
ties can not, in themseWes, convert him into a nuisance. Hence,
the evidence rejected was irrelevant. If, indeed, the defendant
had been bitten by the dog, it might have been proper to show
the savageness of the brute, and to insist that the owner, if he
had knowledge of his worrying people, ought to have confined
him, so that he could not set on people passing, or bite a person
lawfuUy going to the owner's house; and to that purpose his
biting twice or even once has been held sufficient to make the
owner liable, if he did not kill or confine the dog: Smith v. Pe-
lah, 2 Stra. 1264; Bui. N. P. 7G. But here the question, as to
that point, is entirely different; that is, whether a person can
kill a dog in the owner's house or yard, upon the pretense that
he is a nuisance, because he had at a former period chased or
bitten some one else; and we hold, that he can not. Then as to
the second plea, the instructions appear to the court to be un-
exceptionable. A person is not bound to stand quietly and be
bitten by a dog, nor to give him what might be called a fair fight
among men. But if a fierce and vicious dog be allowed to go
at large, and he runs at a person, as he lawfully goes to a house,
or is passing along the road, apparently to set on the person, or,
for example, on the horse he is riding, it seems but reasonable
the person should protect himself from the injury of a bite to
himself or his horse, by killing the dog; for, although a man
has a right to keep a dog for the protection of his house and
yard, yet he ought to keep him secured, and not let him looso
and uncontrolled at such hours and in such places, as will en-
danger peaceable and honest people engaged in their lawful

If therefore this dog were one of the kind supposed, and the
defendant had shot him, as he came at him, and when he had
reasonable grounds to think that the dog could not be restrained
by the owner or his family, and would bite him, we should hold
that he did no more than he had a right to do. But when the
plaintiff's family were at home, and, by their immediate inter-
ference and commands and punishment, governed and drove
away the dog, so as not only to prevent him from biting the
defendant at that time, but also to save the defendant from aU
danger then, by driving the dog away, the killing of the dog.

Digitized by


Dec 1849.] Sikes v. Paine. 889

after that, and against the urgent entreaties of the family, could
baTe heen only on the pretense, and not on the reality, of pro-
tecting the defendant from ^m attack at that time, and the cir-
cumstances were properly left to the jury, as evidence on which
they might find that the defendant did not act on the def ensiye.
Judgment affirmed.

Vicious Doo, LxABnirr of Owvxr fob Injubt Donb bt: See KUtredge ▼.
EUhU, 41 Am. Deo. 717, note 720, where other eoes are collected; Piekerimg
T. Omnpe, 32 Id. 35, note 36.

Fkbogious Doo, whxk a NmauroB: See note to LoomU r. TVny, 81 Am.
Dm. 310.

SiKEa V. Paine et al.

[10 iMDttLli Law, 280.]

PnuoKS OF Skill abb Pbbmitted to Gits thbib Opdvioks in Evidbnos
on questions of science or trade, on the ground that they are oonversaDt
with the business to which they are called to testify, and have, there-
fore, peculiar knowledge eonoeming it.

PnsoNS Who katb Owned, Commandbd, and Rkpaibed Ybsssls are,
although not ship-carpenters, oompetent to testify as to the difference
between the valne of a vessel repaired in a certain way, and her value
had she been repaired in the manner called for by the contract under
which the repairs were made.

TiHK FROM Which Damages fob Breach of Ck>NTBACT for the repair of
a vessel are to be computed is the time ^en the contract was broken,
although the vessel may not have been called for until after that time.

Appeal from the superior court of law of Tyrrell county.
The question concerning which the witnesses mentioned in the
opinion were asked their opinions was, what was, in their opin-
ion, the differetice in value between such a vessel as was stipu-
lated for in the contract, and such an one as a previous witness
had described this to be. The other facts appear from the

Eealh, for the plainti£

A, Moore f for the defendants.

By Court, Nash, J. In the admission of this evidence, we
perceive no error. In general, witnesses must speak to facts,
and their opinions are not evidence. There are, however, ex-
ceptions to the rule. On questions of science, or trade, and
others of a similar character, persons of skill are permitted to
give their opinions in evidence. Medical men are suffered to

Online LibraryAbraham Clark Freeman John ProffattThe American decisions: cases of general value and authority ..., Volume 51 → online text (page 44 of 121)