From Lincoln.
A processioner reported to the County Court that he had been called upon by A. to procession his land; that B. had attended; that he began at a corner, and run one line, when B. forbade the processioning. Upon this report, the Court appointed five freeholders to go with the processioner, and procession the land. They returned to the Court a report of their proceedings, and a motion being made to set their report aside and quash the order of the County Court appointing them, the motion is allowed; because the processioner did not in his report to the County Court set forth the lines in dispute, nor the circumstances on which the dispute was founded, so as to enable the Court to decide which party prevailed, whether, so as to enable the Court to decide which party prevailed, whether the lines have been established correctly, and who shall pay costs.
It is only by comparing the report of the processioner with that of the freeholders, that the Court can determine which party prevailed in his claim.
It was moved on behalf of Willson that this report should be set aside, which motion was disallowed, and he appealed to the Superior Court; and the motion coming on to be considered in that Court, it was ordered and adjudged that the said report be set aside, on the ground that it did not set forth the lines in dispute between the parties, nor the circumstances on which the said dispute was founded, so as to enable the Court to decide whether the processioner and freeholders have established the lines correctly. From this judgment Shufford appealed to this Court, where the report was set aside, upon the ground that the processioner had not made such a report to the County Court, as justified that Court in appointing five freeholders to procession the land.
HENDERSON, Judge:
By the act of 1779, ch. 11, it is directed, that where a line is disputed, and the processioner is forbidden by either party to proceed further in running and marking the same, the processioner shall report the same to the County Court, truly stating all the circumstances; whereupon the Court shall make an order that five freeholders shall procession the land, c.; and that the costs shall be paid by the party against whom the decision shall be made. In this case the processioner states, that after having began at a post oak and run a certain course and distance to pointers, he was stopped by Willson; upon which the Court made the order in question.
We think that the order for appointing the five freeholders to procession the land should be quashed, on the ground that the report of the processioner is insufficient to warrant such an order. By comparing his report with any return the five freeholders might make, it would not appear which party prevailed; for when the processioner (506) stopped, he was perfectly stationary. It does not appear where he was going from the pointers, nor does it appear to what part of his proceedings Wilson objected; whether it was as to the beginning, the line he had run, or the line he was about to run. Indeed, it rather appears that there was no objection to what he had done, (for he was not stopped in doing it), but rather to what he was about to do. What that was he does not state. Had he been stopped in running any line, or forbidden to proceed on one he was about to run, which he pointed out in his report, it would then be within the act. Therefore, as what was the disputed line does not appear in his report, which we consider as the declaration, or rather the pleadings, of the parties, setting for their respective claims, there was nothing to justify the order of processioning, and the order must be quashed; and more especially as it is by comparing the report of the processioner with the report of the freeholders, that the Court can say which party prevailed in his claim; for it is from that the costs are to be adjudged. It is true the freeholders report that Shufford prevailed; but how do they know that, but from the verbal information of the processioner, or some other person. Besides, it is their business to report their proceedings, and for the Court to judge who prevailed, by comparing their report with their records. But their report is rather to be understood that Shufford prevailed in the claim he set up before. What he set up before the processioner, they, as a body, did not know, nor had they any means of knowing. The order must therefore be quashed, and Shufford must pay the costs.
Cited: Carpenter v. Whitworth, 25 N.C. 208; Miller v. Heart, 26 N.C. 27; Matthews v. Matthews, Ib., 158; Porter v. Durham, 90 N.C. 58. (507)