took time to consider, and now at this day decid* eel against all the objections, except the fourth — and the caustt was continued without payment of costs*
Sorters ds hoc.
Smith v. Ballard, 3 N.C. 156, 2 Hayw. 156 (1801)
Nov. 1801
·
North Carolina Superior Court
3 N.C. 156, 2 Hayw. 156
Smith vs. Ballard and others.
- ‘*lpIIIS was a bill filed in 1788, to perpetuate testimony sgainsi * 20-persons, or more, who claimed and were seated upon & tract ol land oi 5850.acres, w'nich'plaintiff claimed under an old patent to one Conner.
There was also a.n amended bill, stating that they bad cu% down anddestroyed the line trees. Twelve of these defendants bad died above two terms before the sitting of this present court. At November term, 1800, he (the plaintiff) obtained leave to amend — which order at the last term was enlarged. Ik) the first bill there was a demurrer; and now Mr. Wright moved upon an affidavit of Mr. Sampson, to continue the cause ; stating that he intended between the last term and this, to have filed % bill of' revivor, to bring in the representatives of the deceased persons, but was prevented by an accident from doing so : objected first, that this cause is discontinued, as the representatives, of the dead defendants were not brought in within two terms ; Secoudiy — this testimony may be perpetuated as to the defendants who are in court, and so there is no occasion as to them to wait’till the others are brought in ; should it be dismissed upon, argumentas to the defendants who are in court, the others may stilt be proceeded againo; by bill of revivor ": Thirdly — these do fendanis have interests ioi-ally. separate and distinct from the absent defendants; and should a decree be now made, it would E ffect those only before the court, and not the absent defendants.; should tiw Nil! be dismissed as to those row before the court, aulithe pUintiff may revive afterwards as to those tvho are not *157¡o; Fourthly — that a deraum-r according to the practice oi the Courts of Equity in this country, need not be set down to be argued — and this the motion fora continuance supposes : Fifth-!y_shook! the court grant him a continuance, it ought to be on payment of all costs, as directed by the act oí 1779.
IJayxvood for the defendants.