Estes v. Hairston, 12 N.C. 354, 1 Dev. 354 (1827)

Dec. 1827 · Supreme Court of North Carolina

12 N.C. 354, 1 Dev. 354

Joel Estes v. Peter Hairston,

From Stokes.

A Certiorari being- intended as u substitute for an appeal, can only be allowed on the same terms as are prescribed in relation to appeals.

It seems an assignable contract, can only be assigned by writing on some part of the same paper which contains the contract.

Gaston and Badger moved lot- a certiorari .to bring up {lie record of a case lately pending in Stores Superior Court, between Hairston, as Plaintiff, and Estes, as Defendant. The petition of Estes stated, that Hairston brought suit, by attachment, against the petitioner, who was on his way, with a considerable number of slaves, from Virginia to Tennessee.; and while passing through the county of Stokes, his negroes were attached, and before lie could procure bail and replevy them, the expenses of their maintenance, while in the custody of the Sheriff, amounted to 81400. At the Autumn term, 1826, of the Court below, the cause was tried, and a verdict found against the Petitioner for nearly 810,000 — and a motion being made for a new trial and overruled, the Petitioner prayed an appeal ; but the sum being large, and he in a strange country, was unable to procure se-enrily. The Petitioner then set forth the efforts he had made, by sale or mortgage of his estate, to procure the security, and his inability to accomplish it; that he was advised injustice had been done him by the verdict, and that the Judge erred in his decisions at the trial, and hence his exertions to find security had been continued without intermission. In the meantime, Hairston having proceeded against petitioner’s bail, and being about to obtain judgment against them, petitioner had recently surrendered himself in their discharge, and was now in execution for the judgment. The prayer of the petitioner was, for a certiorari to issue without security.

To the petition was appended atopy of the case, made up by the presiding Judge below; from which it appeared that the I’huntiff declared, as assignee of Robert Hairston, upon a writen agreement, in these words : Memoran- “ dum'of an agreement made between Robert Hairston mi “ Joel Estes and fV. & E. W. Estes, ali of the county of si Pittsylvania, Virginia. The said Hairston agrees to s( sell the said Estes his crop of tobacco, at the following u plantations (naming them)-estimated at between 60 and ee 80,000 weight, for which said Estes agrees to give the et said Hairston ten dollars per hundred weight, payable 6i at or before the first day of December next. The to- “ bacco to be delivered by the 25ih of April next.” This agreement was executed in Virginia, in March, 1818, when the parties resided in that State. The assignment under which the Plaintiff claimed to sue on the contract, was not endorsed thereon, or attached thereto, hut was writlen on a separate paper, and executed in Stokes County, North-Caroliua, the 4th of December 1822. By this instrument, Robert Hairston assigned to Peter all his interest “ in and to a certain instrument of writing re- “ lative to a tobacco contract, signed, &c.” ( describing it) and also “ appointing him the attorney in fact of Ro- “ bert to sue in his (Peter’s) name, and recover to his “ own .use, &c.”

It was insisted by the Defendant’s Counsel, that the contract declared upon, was not assignable in North-Carolina, whatever might be the law of'Virginia, and that no assignment made here could enable the Plaintiff to sue in his own name* — and also, that if the contract were assignable, yet the interest therein could not be transferred by a writing on a separate paper, entirely detached from the, contract intended to be assigned.

But the presiding Judge (Dantee) was of opinion against the Defendant, on both points, and the Plaintiff had a verdict.

On hearing the petition of Estes, with the accompanying affidavits, and the case made by the Judge below, the Court were clearly of opinion, that the Judge had erred — and said, even if the contract were assignable, the position could not be maintained, that sucli assignment could be made on a detached paper. It must appear on the same paper on which the contract to be assigned is written, though it is not material on what part of the paper, whether on the face or the hack. Henderson» Judge, said, the only difficulty seemed to be, how to get the case before the Court — that it was a clear case for a Certiorari ; but the Court doubted its power to dispense with security — though if the Court possessed the power, it would feel no hesitation to exercise it, as the petitioner’s case seemed to be one of hardship and oppression.-— A few days after,

Tayuor, Chief-Justice,

informed the Counsel, that he and his brothers had considered the case, and were of opinion, that security must be required — that the Certio-rari is merely a substitute for an appeal, where the party has been deprived of the benefit of the latter by accident, &c. and is intended to place the party in the same situation as if he had obtained his appeal. But as the law is imperative, that no appeal shall be granted without security, the Certiorari which is substituted for the appeal, must be subject to the like condition. He added, that the Court had reluctantly come to this conclusion, being very desirous to aid the Petitioner, whose situation seemed to render it very difficult to procure surety, and whose case demanded relief.

It was thereupon ordered, that a Certiorari issue, and a special writ to the Sheriff commanding him, on security being given for the Certiorari, and that fact certified to him by the Clerk of the Court below, that he should admit the Petitioner to bail, and discharge him out of custody.