Cumberland County NcArchives Court.....David Hay, John Adam V. 1819 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Guy Potts http://www.genrecords.net/emailregistry/vols/00017.html#0004214 January 13, 2009, 6:17 pm Source: Nc Reports Written: 1819 John R. Adam v. David Hay From Cumberland May Term 1819 In an action against a Common Carrier on the Cape Fear River, there was a verdict for the Plaintiff, and defendant moved for a new trial, supporting his motion by an affidavit that he expected to prove by the witnesses whom he examined on trial, a custom among the owners and freighters of Boats on the River, which would have excused him from the liability of a common carrier: That he was disappointed in their evidence and thereby surprised: That since the verdict he had discovered witnesses who he believed would prove the custom, and that he did not know of their testimony until after the verdict. Motion for a new trail disallowed. The Defendant was sued as a common carrier on the River Cape Fear, between Fayetteville and Wilmington. There was a verdict for the Plaintiff, and a rule for a new trial was obtained upon the following affidavit, to-wit, "The Defendant swears that he had been induced to believe that the witnesses whom he summoned to prove the custom of the owners and freighters of boats upon the river, would have sufficiently proved the custom, so as to excuse him as a carrier; and that he was surprised at the trial, to learn that they would not. That since the trial he has discovered witnesses who he believes will prove the custom, and that he did not know of their testimony until since the trial." The rule for a new trial was discharged, and the Defendant appealed to this Court. Daniel, Judge: We do not see any facts disclosed in the affidavit to induce us to grant a new trial. We know of no custom which could excuse the Defendant from the operation of the law governing common carriers. If such a custom do exist, and it would aid the Defendant, it is strange he should have been unable to prove it on the trial, as the Court was holden in the town where the greatest part of the commercial transactions on the Cape Fear are carried on. Let the rule be discharged. File at: http://files.usgwarchives.net/nc/cumberland/court/davidhay743wl.txt This file has been created by a form at http://www.poppet.org/ncfiles/ File size: 2.6 Kb