McNair v. . Ragland , 16 N.C. 533 ( 1830 )

Since this cause was argued on the report of the master, and the exceptions, ante, 516, the defendants have filed a petition to rehear the cause and reverse the order of June, 1829, to account, under which the report has been made.

The first objection to the relief is that there is no proof of the death of Ralph McNair. That is susceptible of two answers: one, that it is presumed from the grant of letters testamentary to Elizabeth McNair, and of administration de bonis non to the present plaintiff; the other, from the great length of time since he was heard of; there being no proof in the cause that he was alive, since he was mentioned in the act of 1779 as having adhered to the enemy and gone out of the United States.

Another objection is taken, that the present plaintiff does not show his own letters of administration. He states them in his bill of revivor, and they are not admitted in the answer. It is not necessary that he should have them on the hearing of the original cause. It was sufficient that he should show them when he applied for the order, that the suit should stand revived. It is like reviving at law upon the death of the plaintiff. The Court must decide upon the character of the person applying to revive before he is allowed to revive. At law there is no plea given which can put that character in issue; for the suit is to stand revived in the same plight in which it stood when the original party died. The Court then ex necessitate decides the question on motion, and by inspection of the letters of administration. If at any time it should be made to appear that an imposition has been practised on (535) it, the Court possesses full power to protect itself and to do right to the parties. But the party is not to be held always prepared with his proof. The letters form no part of the evidence on the hearing of the first suit. Here the order of revivor is expressed in these words: "It appearing to the Court that Edmund D. McNair has authority to revive the original suit, it is ordered to be revived." This is conclusive in all subsequent stages, until that order itself be reversed.

It is next insisted that the plaintiff is barred by the statute of limitations. That would not follow were the case one to which the statute applied; for it is a part of the case that the McNairs departed from the country, and although Ebenezer was a resident of Virginia when he filed his bill, it does not appear how long before he had returned. If the bill must bring the case out of the statute, this does it prima facie, until a return to the country shall be shown on the other side. There is no plea of the statute, nor is it relied on in the answer. The Court does not mean to say that the late English cases are not law, which dispense with a plea of the statute and allow it to be taken advantage of on demurrer or at the hearing, though we incline to the opinion expressed by Lord Thurlow in favor of a plea, because that prevents surprise, and the plaintiff, upon notice, might show himself within an exception. But in our opinion this case is not within the statute at all, being between copartners, touching their copartnership dealings, and constituting a trust, appearing upon articles under seal. Whether it would be so if such were not the articles, we more than doubt. But where there is an agreement under seal to account, a bill for an account cannot be barred, certainly before an action on the covenant would.

Nor does the Court think the lapse of time destructive of the plaintiff's rights. It would be were the transaction one of ordinary times and between citizens of the country. Several years were those of war. Upon the peace, the treaty gave the power to sue, it is true. But we (536) know that every resistance was made to the claims of British creditors, both by the debtors themselves and the citizens generally. Until the adoption of the Federal Constitution, in most of the states the courts refused to execute it, upon the ground that the British violated it by refusing to surrender the western posts. Respectable professional gentlemen throughout the country maintained and often sustained that position in court. In this State it was found necessary by the Legislature, as late as November, 1787, to enforce it by statute; and even after that the effect of confiscation was violently contested, and never settled until Hamilton v. Eaton, 1 N.C. 641, in this State, andWare v. Hylton, 3 Dallas, 199, went up from Virginia to the Supreme Court of the United States in 1796. This suit was not long delayed after those decisions. A delay thus accounted for by the course of public events cannot be construed into an abandonment or satisfaction of the plaintiff's demand.

The defendant has likewise insisted that there is no proof of the copartnership, or of the balance account which forms the basis of the present demand, and of the accounts directed. It seems that the originals of those documents have been lost out of the master's office during this protracted litigation. But a copy of the balance account remains, and is identified by the deposition of the master of Orange as having been admitted before him by the defendant Ragland to be a copy. But that it is a copy, and that the original was a genuine paper, is placed beyond doubt by the plea formerly put in by all the defendants. That plea states, as its very point, this account, and relies on it as a stated account between the parties, on which there was a remedy at law. There can be no higher evidence than this. It is not like a plea at law, where each (537) plea is independent. But here is a positive admission on oath; and to this purpose it is the same as if it were in the answer. From this document, if there were no other evidence, the partnership is clearly established; for the fund is stated, the debt to R. and E. McNair, and the several amounts and proportions of profits of each partner, as alleged in the bill. Besides this, the books of the firm contain evidence equally strong.

The order complained of must therefore stand, and is affirmed.

PER CURIAM. Petition dismissed.

Cited: Spencer v. Cahoon, 14 N.C. 81; Hobbs v. Bush, 19 N.C. 512.