Wiggins v. Tatom, 3 N.C. 385, 2 Hayw. 385 (1806)

April 1806 · North Carolina Superior Court

3 N.C. 385, 2 Hayw. 385

Wiggins vs. Tatom.

IP ATOM owned a ship, and took on board, to be carried to New-York; 640 bushels of pease, for the plaintiff, some for R. Armstead, and some for John Armstead. The vessel ran aground and was in danger of perishing, when all the pease but 176 bushels were thrown over board to lighten the vessel. This action at law being an action on the case, was brought against Tatom by the plaintiff, to recover from Tatom his proportinn of the loss.

Per curiam.

I will not proceed till you satisfy me that an action at law is the proper remedy to be pursued — I think it is not. The plaintiff’s counsel cited, but did not produce, 1 East’s Re* ports, 220; and the Judge said he would have the plaintiff called, and would set aside the nonsuit, if the plaifttiff’s counsel would convince him that it was wrong.

The plaintiff was nonsuited; but the Reporter having left the court before the end of the term, cannot say whe-the nonsuit was set aside or not.

Vide 2 Bos. & Pull. 268, 274, which supports the position, that the suit may be at law.