Sep. 1791.some loss in establishing the reasonable time within which an endorsee must give notice to his endorser in order to charge him. WILLIAMS, Judge, in the first case above referred to, says, "it has been determined in our Courts, that a year shall be the longest time allowed for Vide post the giving this notice." In the case of Gardiner v Jones, 2 Murph 21, 308, 429, DANIEL, Judge, says, "In this State no fixed rule has been es 362. tablished, within what time notice of a demand and non-payment should be given But in that case, fifteen months were held to be too long. Subsequent cases have shewn a disposition in the Courts to adopt the strictness of the English law, at least in banking and mercantile transactions. In the State Bank v. Smith, 3 Murph. 70, where a note fell due on the 11th, and notice was not given to the endorser who lived in the same town, until the 17th of the same month, the endorser was held to be discharged by the delay. It was said by the Court, that even if they should allow three days of grace, yet notice should have been given on the 15th, and the delay till the 17th was too long. In Brittain ex'r of Brown v. Johnston, 1 Dev. R. 293 The Court (after an advisaria) say, that "where the parties all reside in the same town, and are engaged in mercantile pursuits, or have transactions with a bank," the Court "have considered themselves warranted in requiring the utmost dili,ence in such circumstances." But the same case decides, that among farmers resident in the country, less strictness is required, and that ten or twelve days delay was not too long. Yancy v. Littlejohn, 2 Hawks 525, holds, that where the parties all resided in the same village, four months delay would discharge the endorser. The correct principle deducible from a view of all the cases seems to be, that the question of reasonable diligence (which is to be determined by the jury, under the directions of the Court) must be ascertained by a consideration of the pursuits and residence of the parties respectively. Brown's ex'r v. Johnston, 1 Dev. 293. That a witness may be introduced to explain the condition of an assignment, is established by the case of Wright v. Latham, 3 Murp. 298, in which it was decided by HALL & HENDERSON, Judges, agains TAYLOR, Chief-Justice, that parol testimony was admissible to prove a contract variant from what the law implies upon a common endorsement.

M'Kinnie's ex'rs v. Oliphant's ex'rs.

Per WILLIAMS, the only Judge in Court, trover, trespass, deceit, or any other action of the like nature, will lie against executors, where the thing itself has been used so as to go into and increase the testator's estate, so that the benefit thereof comes to the possession of the executor, otherwise where the thing is destroyed, as if a (4) man take my bullock and eat him. The case of Hambly & Trott, in Cowper, is not law; and further, I never knew a case in Cowper to be received as law in our Courts.

NOTE--Vide Decraw v. Mone's ex'rs, post 21. Clark v. Hill, post 308. Avery v. Moore's ex'rs. post 362. In the last case cited, the article of property for which the action was brought, did not go into and increase the estate of the testator; but it was decided that that made no difference. The Editor has it from good authority, that the expression attributed to Judge WILLIAMS in this case, that he "never knew a case in Cowper to be received as law in our Courts," is a mis fake, and was never used by him,

Blanton v. Miller. Ejectment.

Sep.1791.

Ruled per WILLIAMS, that the Court have never departed from this rule-where the party hath lost his deed, or is out of possession thereof, he himself, and no other person for him, must make oath of the loss, before he shall be permitted to read a copy, because no other can safely swear of his want of possession: and so the (4) Plaintiff was called, though it was urged to the Court he was in a foreign country.

NOTE-Vide Wright & wife v. Bogan, in note post 178. Park v. Cochran & others, post 410. Nicholson v. Hilliard, 1 Car. Law Rep. 255.

SALISBURY, SEPTEMBER TERM, 1791.

State v. Mann.

Per WILLIAMS, the meaning of the word command, as applied to the case of principal and accessary, is where a person having control over another, as a master over his servant, orders a thing to be done.

Madox v. Hoskins.

The Defendant had purchased a negro of Ward, who pretended a title under the Plaintiff, and called a man who also had purchased one other negro of Ward, who claimed it in the same manner-objected, he is interested in the question. To this it was answered, that the casc of Farrel & Perry, in Halifax, October, 1790, had settled this point, and had determined that the objection must be as to his interest in the event of the cause. But per WILLIAMS & MACAY, Judges, where a man is plainly interested in the event of a question, he hath been excluded by all authorities. And per WILLIAMS, I remember something of that case at Halifax, but the circumstances must have been different from this.

NOTE.-Overruled, vide the references in the note to Farrel v. Perry, ante 2.

HILLSBOROUGH, OCTOBER TERM, 1791.

State v. John G. Blount & Thomas Blount. Whenever one person has the money of another, and knows what sum he ought to pay, he must pay interest for the same. They had received of the State at different times for the purpose of discharging the debt due from this State to the Government of Martinique, by commodities to be purchased and shipped, the sum of thirteen hundred

Oct. 1791. pounds-eleven hundred pounds they laid out accordingly, the rest they never applied; and the question now was, whether interest should be allowed. Mr. Moore urged it was to be considered in the nature of a loan, and insisted that in all cases where a man retains another's money, the amount whereof he knows, interest (5) ought to be allowed, and cited 3 Wils. 205. 2 Re. Re. 761. 1 Bur. 151. 2 Bur. 1085. Doug. 724. And per curiam, Wherever the party knows what sum he ought to pay, there he ought to pay interest: here they well knew how much of the money they had appropriated to the purposes they received it for, and for the balance they ought to pay interest; and it was allowed by the jury accordingly by way of damages.

This case may have been decided in April, 1792, the original note has no date to it.

NOTE-Vide Hunt v. Jacks and London surviving partners, &c. post 173. The English authorities upon the subject of interest, are very much at variance with each other: (Note to De Haviland v. Bowerbank, 1 Camp. N. P. Rep. 52) and the later decisions appear to be incompatible with our notions of justice. Vide Com. on Con. 2d vol. p 178-9 of the 3d Amer. ed. The most proper rule seems to be, that laid down in Hunt v. Jacks and London surv. partners, &c, "That whereever the debtor knows precisely what he is to pay, and when he is to pay it, the jury may give interest by way of damages."

Strudwick v. Shaw.

In 1728 the land in dispute was granted to A, who in 1730 conveyed to B, who soon afterwards went to England. B sold to C, who in came to this country, but soon went back again. In

suit.

C returned to Carolina, where he remained, and in 1787 brought One D settled on the lands in question in 1751, lived upon them thirteen years, and died in possession, leaving a son. The son assigned to some person, who assigned to the Defendant, who had lately procured a grant. Under these circumstances, it was held, that the Plaintiff's jus possessionis was lost.

In the year 1728, the premises in question were granted to one Foster; in 1730, Foster conveyed to Governor Burrington, who soon afterwards went to England In the year Burrington sold, and conveyed to Strudwick, by à general description of all his lands in NorthCarolina. Strudwick came to this country in the year

but soon went to England again, and in the year returned to Carolina, where he remained, and in 1787 brought suit.-One Hopkins settled on the lands in question in 1751, and lived upon them 13 years, when he died in possession, leaving a son. This right of possession was afterwards assigned by him to some person, who assigned it to the Defendant, who, under this right, had lately procured a grant from the State.

The argument of Davie for the Defendant-The Plain- Oct. 1791. tiff has shewn a title as his Counsel alleges, to the premises mentioned in the declaration, and the location being settled by former determinations, shall not be brought into question at present: but there are several material objections against the Plaintiff's recovery.

1st. It does not appear that there has been any actual possession in the lessor of the Plaintiff, or the persons under whom he claims since the year 1728; therefore, if the Plaintiff ever had a right to recover in an action of ejectment, that right has been lost by his laches.

The nature of the title to lands is such, as to make it (6) divisible into three distinct species of property, or kinds of right. It may consist of the naked possession or a right of possession, or a mere right of property. The first may happen, where a person in this country should enter upon a woodland, though granted estate, and settle and cultivate it, and thus actually occupy, without the shadow of right or colour of title, as it is called in our Courts. The second will take place, where the patentee submits to the unsanctioned occupation of the settler, who has the actual possession, while the right of possession resides in the person to whom the land was granted. The third species of property will be found, where the grantee may have "the true ultimate property of the lands in himself, but by the intervention of certain circumstances, either by his own negligence, the solemn act of his ancestor, or the determination of a Court of justice; the presumptive evidence of that right is strongly in favor of his antagonist, who has thereby obtained an absolute right of possession." 2 Bl.Com.1 95, 196, 197. Co. Lit. $45, 385. Gilb. Ten. 18.

Ejectment being a possessory action, it lies only where the lessor of the Plaintiff could rightfully enter, and the title to support a recovery must therefore be inseparably connected with the right of possession, and must have this ingredient at least. The title of the Defendant is entirely out of view. It is an old maxim that a man must recover by the strength of his own title in ejectment, not in consequence of any weakness in that of his adversary. Every Plaintiff in ejectment, says Lord MANSFIELD, in the case of Atkins v. Horde, must shew a right of possession, as well as a right of property; therefore, the Defendant need not plead the statute, and the

Oct. 1791. Plaintiff must shew that his lessor had a right to enter: and this can only be effected by proving a possession within seven years in the Plaintiff, his ancestors, or the persons under whom he claims, and such possession must be an actual possession. 1 Burr. 119. Runn. 112, 113. By the statute of 21 Jac. 1 ch. 16, "None shall make an entry into land, but within twenty years after their right or title shall first descend or accrue." Our own act of limitatious only alters the phraseology to “shall thereunto enter or make claim," and shortens the limitation to seven years: so that the English decisions may be considered authorities as to the operation of this part of the statute; and it will appear by all these, as well as the opinions of every writer on the subject, that where there hath been no possession during the time limited in (7) the statute, either in the lessor, his ancestors, or the persons under whom he claims, the Plaintiff in this action will be nonsuited, unless his case may be brought within some of the exceptions allowed by the act of Assembly. The action of ejectment is only competent where the Plaintiff may enter; and the right of entry is, in this case, completely taken away, by the statute, and the claimant, by such default, utterly excluded and disabled from any entry, or claim to be made, after the seven years are expired. This is not only the plain letter of the law, but the construction has been uniform. Runn. 14 to 17. Salk. 205. 5 Bur. 2635. 6 Mod. 44. Cas. K. B 573. 2 Keble 127. 1 Bur. 119.

Thus the neglect of the Plaintiff, in this case, to enter. or make claim, as I take it, has wrought an actual bar; not by the Defendant acquiring title, but by his losing or destroying his own right of action; and to the authorities already adduced, may be added the case in Strange 1142, and the law as stated in 2 Black. 196, 197, 198. The law presumes that the tenant in possession, either had at first, a good title, in consequence of which he entered on the lands in question, or that since his entry he had acquired one; and therefore, after so long an acquiescence, his possession shall not be disturbed, without enquiring into the absolute and real right of the property, unconnected with the right of possession.

He said that the legal notions of possession in this country have been extremely vague and indefinite, but he did not recollect any case in which this doctrine had been settled with due precision. The constructive pos