Thomeguex v. . Bell , 1 N.C. 64 ( 1794 )

The plaintiff's counsel opposed it, on the ground that this act being in direct contradiction of one of the most wholesome maxims of the common law, ought to be strictly construed. That plaintiffs alone were mentioned in it: and it ought not to be extended to defendants by implication.

He cited a saying of Lord Coke, in Slade's case, 4 Rep., 95. Jurare inpropria causa est soepenumero hoc seculo, precipitium diaboli, addetrudendas miserorum animas ad infernum. Defendants have been uniformly admitted to the benefit of this act. The objection has never been made before: the practice of the Court has been the other way. Let the defendant be sworn. He proved his set-off, which consisted of a tavern bill, partly by the testimony of a witness, and partly, a sum under £ 30, by his own oath.

To the set-off there was a replication of the act respecting ordinaries, 3, 179, 10, 15, 392: which was insisted on by the plaintiff.

The Court, McCOY, J., alone, in the charge, told the jury it was doubtful whether the act contemplated a case like this viz.: that of a person constantly residing in a town, and occasionally calling at a tavern. His Honor said the act was perhaps intended only to operate in case of seafaring men and transient persons. The jury would do well to consider of this.

They allowed the set-off. * * * At the succeeding term, the first question was incidentally mentioned from the bench, in another cause.

(65) ASHE, J., inclined to think the book debt act did not admit of so liberal a construction, as to admit defendants to the benefit of it.

WILLIAMS, J., seemed clearly of the contrary opinion.

See 1 Rev. Stat., ch. 15, sec. 6.

Cited: Webber v. Webber, 79 N.C. 575.

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