Beall and Scott vs. Powell.

1st. Because the notice of the signing of the bill of exceptions was not served, within the time prescribed by law.

2d. Because copies of the writ of error and citation were not served on the defendant or his counsel, within the time prescribed by the rules of this Court.

3d. Because the Clerk of the Superior Court did not certify and send up a complete transcript of the record within the time prescribed by the rules of this Court.

And protested against joining issue on the 8th ground of error assigned; because founded on no exception to the decision of the Court below, but on exceptions to the decree rendered by the Jury.

The facts were, the bill of exceptions was certified and signed on the 13th of March, 1848, and on the 24th of March, 1818, service of the writ of error, citation and notice, was acknowledged by the attorney of defendant in error. The bill of exceptions was filed in the Clerk's office on the 15th March, 1848, and the certificate of the Clerk, attached to the transcript of the record, was dated on the 28th March, 1848.

CONE, for the motion.

ROCKWELL, Contra.

By the Court.-WARNER, J. delivering the opinion.

[1] The 4th section of the Act organizing this Court, requires that notice of the signing the bill of exceptions, shall be given to the adverse party, or his counsel, within ten days after the same shall have been done; and also, that the Clerk of the Superior Court shall certify, and send up to this Court, the entire record of the cause below, with the bill of exceptions, within ten days af ter he shall have received the original notice, with the return of service thereon. The 21st rule of this Court, requires that the writ of error and citation, shall be served on the defendant in error or his counsel, within ten days from the signing and certifying of the bill of exceptions.

It was the manifest intention of the Legislature to prevent delay in the final disposal of cases in this Court, and we shall endeavour faithfully to give effect to such intention, by requiring a

Beall and Scott vs. Powell.

strict compliance with the law and rule of Court, in that regard. The Act of 1847, only extends the time within which, the bill of exceptions shall be drawn up and submitted to the Judge for his certificate and signature, the payment of costs, and the giving bond but does not alter the Act of 1845, which requires the notice to be given within ten days, or the time within which the Clerk of the Superior Court shall certify and send up the record to this Court.

:

[2.] A writ of error will not be allowed for the correction of a matter of fact, found by the verdict of a Jury in the Court below. The 4th Section of the Act, organising the Supreme Court, declares, “Any criminal cause may be carried up to the Supreme Court, on a bill of exceptions in writing, specifying the error or errors in law complained of, to be drawn up by the party, &c." "Any cause of a civil nature, either on the law or equity side of the Superior Court, may in like manner, be carried to the Supreme Court, on a bill of exceptions specifying the error or errors complained of, in any decision or judgment, to be drawn up by the party complaining, &c." The 5th section declares, "Upon the decision of said Supreme Court, on matters of law or principles of equity, which may arise in the bill of exceptions, the Court shall cause to be certified to the Court below, such decision, &c. Sec. 1st, 3d Article of the Constitution declares, "the Supreme Court shall have no original jurisdiction, but shall be a Court alone for the correction of errors in law and equity, from the Superior Courts of the several circuits." We cannot suppose it was even intended, that a writ of error should lie from the Supreme Court to correct matters of fact found by the verdict of a Jury in the Superior Courts, that a writ of error will only lie to the decision or judgment of the Superior Courts, for the trial and correction of errors in law and equity. If the verdict of a Jury should be contrary to evidence or contrary to law or the principles of equity, the party complaining thereof can move for a new trial in the Superior Court, and a writ of error would lie to the decision of the Court granting or refusing such new trial.

Let the writ of error be dismissed.

Graybill and Butts vs. Warren.

No. 56.-JOHN GRAYBILL and JESSE G. BUTTS, Ex'rs. &c. plaintiffs in error, vs. JESSE T. WARREN, defendant in error.

[1. Whatever produce accrues upon a specific legacy, as interest, reut, hire, or in any other form of profit, from the death of the testator, and nothing more or less, belongs to the legatee, and that, whether the enjoyment of the prin cipal is postponed or not.

In Equity, in Hancock Superior Court. Demurrer, decided by Judge SAYRE, April Term, 1848.

At the October Term, 1847, of the Superior Court of Hancock county, Jesse T. Warren, defendant in error, filed his bill in Equity vs. John Graybill and Jesse G. Butts, plaintiffs in error. The said bill alleges, that in the year 1832, one Jeremiah Warren, of said county, died, leaving a will, the 7th item of which reads as follows: "I give to Jesse T. Warren, son of Jesse Warren, deceased, one negro boy, named Mat, which negro is not to go into his possession until he arrives at full age-twenty-one." That the residuary clause of said will is in the following words: "I give to Jesse G. Butts, and John Graybill, jointly, negroes, Coleman, Mary and her three children, and Pat and John, one choice horse, and four milch cows and calves, two beds and furniture, and all my household furniture except my clock, two spinning wheels, two pair of cards, and four thousand dollars in money, if the money is in hand, if not, the amount in notes, the above, also the tract of land I purchased of Parker, which land is not to be sold for the debts of them, nor shall the negroes be sold by them, or subject to pay any debt of their contracting-the money to be loaned out at interest for the support of the negroes, and if they can at any time be freed by the laws of the country, it is my will it shall be done.

All the remainder of my property, I will to be managed by my executors for five years, in a profitable manner, having regard to humanity in their treatment, not hiring them to any persons who will abuse them. If they cannot have them freed by the laws of our country in that time, they are to be equally divided between my brothers and sisters and their heirs, except Eppa Warren, and James Warren, and Elizabeth Smith, and Susan Johnson, as I do not wish them to have any part in said division; and

Graybill and Butts vs. Warren.

I do hereby constitute Jesse G. Butts and John Graybill, executors to this my last will and testament, &c., "that the said executors were, in said year, qualified as executors, and took possession of all the property of the said Jeremiah Warren, deceased: that in January, 1833, one Lott Harton, of said county, was appointed guardian of the complainant, and on the day of such appointment, said Butts and Graybill, the Executors, delivered over to said Harton, guardian as aforesaid, the said negro boy Mat, as the property of complainant: that the said Harton hired out the said negro boy Mat, during the years, 1834, 35, 36, 37, 38, 39, the several sums of hire for said years, amounting to $477 621: that the said executors, on the 9th day of September, 1839, gave their receipts to said Harton as guardian, for the said amount: that in January, 1840, said executors again took possession of said negro boy Mat, and hired out said boy, during 1810, 41, 42, 43, 44, 45, and 46, for large sums unknown to the complainant, and of what sums of principal for each year above charged, and in what sums of interest accrued thereon, and in all, to what amount of monies the said executors may be in receipt of for the hire of said boy Mat from 1834, to 1847, the complainant prays the defendant may be compelled to answer: that the complainant is the legatee mentioned in the 7th item of said will, he being the son of, and claims to be entitled to all the profits, rights, and interests accruing under the said 7th item of the will: and prays that the defendants may be compelled to account for the hire of said negro from 1834 to 1847.

To which bill the defendants, by their counsel, at the said October Term, filed a demurrer on the following grounds:

1st. Complainant does not state when he arrived to the age of twenty-one years, or that he ever has arrived to such age.

2d. By complainant's own showing, the said negro boy Mat, was not to go into his possession until he arrived to the age of twentyone years, and he is not entitled to the hire of said negro previous to that time, it being a legacy, the time of the payment of which being postponed, the interest thereon, up to the time when its payment was due, belonged to the residuary legatee.

The complainant's counsel, having announced that they would move to amend the bill so far as to insert an allegation of the complainant's having arrived to the age of twenty-one years, defendant's counsel abandoned the first ground of demurrer.

Graybill and Butts vs. Warren.

Said cause was argued at the said October Term of said Court, 1847, and after the argument of counsel, the Court, at the April Term, 1848, of said Court, decided that the demurrer be overruled, and that the defendants be required to answer as to the value of the labor of the slave, Mat, realized by them, to which decision of the Court, counsel for defendants excepted, and alleged error:

1st. Because said decision is contrary to law.

2d. Because, when any legacy is given to be paid at a future day, it does not carry interest before the legacy is due.

3d. Because, by the showing in the Bill of complainant, the testator did not stand in loco parentis, and by the will, no hire was due to the legatee until he arrived at the age of twenty-one

years.

JOHNSTON & THOMAS, for plaintiff in error.

LEWIS & BARNES, for defendant in error.

JOHNSTON, for plaintiff in error:

It is a general principle, that a legacy payable at a given time, whether vested or not, does not carry interest till that time; for interest is for delay of payment. The only exceptions to this rule, are, 1st, Where the testator is the father of, and 2d. where he stands in loco parentis, to the legatee: 3d, where there are express words giving interest, and 4th, where the legacy is the res idue. Eoden 3, Ex. 324. 1 Chitty's Eq. Dig. 643. 2 Kinne's Com. 94. Heath vs. Perry, 3 Atk. 102. Ves. 16. Tyrrell vs. Tyrrell, 4 Ves. 1. Atk, 716. 2 Mod. Ch. Prac. 98 to 106.

Cricket vs. Dolly, 3 Heard vs. Greenbank, 3

2. All these authorities speak of legacies, making no distinction between specific and general legacies as to the question of interest. Ward on Legacies, 295.

3. Every devise of land is specific. And if one gives a legacy charged upon land which yields rents and profits, and there is no time of payment mentioned in the will, the legacy shall carry interest from the testator's death; not so, then, if a time of payment is mentioned. Hannock vs. Harton, 7 Ves. 399. McKinnon vs. Thompson, 3 Johns. Ch. Rep. 308. 2 P. Wms. 26.