Den, on the demise of Wilcocks, v. -, 2 N.C. 256, 1 Hayw. 256 (1795)

April 1795 · North Carolina Superior Court

2 N.C. 256, 1 Hayw. 256

Den, on the demise of Wilcocks, v. —

There were severa! ejectment suits brought against the inhabitants of a part of the town of Fayetteville, for recovering the respective lots of ljjrtd on which they were respectively settled ; and vise issue of the contest depended solely upon the ascertainment of an old line of a tract of land of one thousand acres which lay adjoining to the town, the Plaintiff alleging that these lots were within that line, and the Defendants that they were without. — ■ A surveyor and jury were appointed to survey and view tiie land — and the order for a survey and jury was made in each of the causes; and at this term, the survey being not completed on the day on which the causes were called for trial, a continuance was moved for on the part of the Defendants, and granted upon the terms of their paying the costs of this term, according to the act of 1779, e. 4, s. 5, whereupon it became a question whether each Defendant should pay the whole of the expenses of the jury and surveyor, or whether the jury and surveyor should be allowed as for one cause only. It being alleged, that although there were several casets depending upon the ascertainment of this line, yet the surveyor and jury had but the same trouble and labor as if there was only one'’ cause ; and that one running of the line of the one thousand acre tract, answered for all. The court took time to advise until Judge Macax could search the record at Salisbury in the suit of Pacely and others, where the same question had been decided.

Note. — It seem? as if each Defendant, in case a verdict went against him, should pay the whole costs of the surveyor. The line must be platted for each, in the survey returned for his cause : also, each Defendant's lot mu,t be viewed and platted to shew its situation relative to the long line. With respect to the jurors, their labour is over when the lines are once run and viewed When they arc viewing the long line, that is a service for the Defendants jointly ; but when they are viewing the lots, that is for each Defendant singly ; and if they take up several days in doing this, the lots first viewed and passed by, should not contribute to the expenses of the lots not yet viewed —-as to that part of the service therefore, it seems, as if each Defendant ought to pay. We must wait however for a decision on thif point to be ascertained of the law.

Note. — Vida S. C. post 484.