Lincoln County NcArchives Court.....Jacob Shufford, Thomas Willson V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 3, 2009, 6:39 pm

Source: Nc Reports
Written: 1819

Thomas Willson v. Jacob Shufford

From Lincoln

November Term 1819

A processioner reported to the County Court that he had been called upon by A. 
to procession his land; that B. had attended; that he began at a corner, and 
run one line, when B. forbade the processioning. Upon this report, the Court 
appointed five freeholders to go with the processioner, and procession the 
land. They returned to the Court a report of their proceedings, and a motion 
being made to set their report aside and quash the order of the County Court 
appointing them, the motion is allowed; because the processioner did not in 
his report to the County Court set forth the lines in dispute, nor the 
circumstances on which the dispute was founded, so as to enable the Court to 
decide which party prevailed, whether the lines have been established 
correctly, and who shall pay costs.

It is only by comparing the report of the processioner with that of the 
freeholders, that the Court can determine which party prevailed in his claim.

Maxwell Willson, one of the proeessiouers for Lincoln county reported to the 
County Court, in July, 1814, "that he had been called upon by Jacob Shufford 
to procession a tract of land; that Thomas Willson attended, and he began at a 
post oak, and run S. 57 1/2 W. 92 poles to pointers, where said Willson 
forbade the processioning." Upon this report being made, the Court appointed 
five freeholders to go with the processioner, and procession the land; and the 
processioner and freeholders made a return of their proceedings to October 
term, 1814; and therein set forth that they met on the premises on 20 
September, and after surveying the line in dispute, and hearing the evidence 
on both sides, they had decided, and had processioned Shnffords' land 
according to the following courses, viz. Beginning," &c.

It was moved on behalf of Willson that this report should be set aside, which 
motion was disallowed, and he appealed to the Superior Court; and the motion 
coming on to be considered in that Court, it was ordered and adjudged that the 
said report be set aside, on the ground that it did not set forth the lines in 
dispute between the parties, nor the circumstances on which the said dispute 
was founded, so as to enable the Court to decide whether the processioner and 
freeholders have established the lines correctly. From this judgment Shufford 
appealed to this Court, where the report was set aside, upon the ground that 
the processioner had not made such a report to the County Court, as justified 
that Court in appointing five freeholders to procession the land. 

Henderson, Judge: By the act of 1779, ch. 11, it is directed, that where a 
line is disputed, and the processioner is forbidden by either party to proceed 
further in running and marking the same, the processioner shall report the 
same to the County Court, truly stating all the circumstances; whereupon the 
Court shall make an order that five freeholders shall procession the laud, 
&c.; and that the costs shall be paid by the party against whom the decision 
shall be made. In this case the processioner states, that after having began 
at a post oak and run a certain course and distance to pointers, he was 
stopped by Willson; upon which the Court made the order in question.

We think that the order for appointing the five freeholders to procession the 
land should be quashed, on the ground that the report of the processioner is 
insufficient to warrant such an order. By comparing his report with any return 
the five freeholders might make, it would not appear which party prevailed; 
for when the processioner stopped, he was perfectly stationary. It does not 
appear where he was going from the pointers, nor does it appear to what part 
of his proceedings Willson objected; whether it was as to the beginning, the 
line he had run, or the line he was about to run. Indeed, it rather appears 
that there was no objection to what he had done, (for he was not stopped in 
doing it), but rather to what he was about to do. What that was he does not 
state. Had he been stopped in running any line, or forbidden to proceed on one 
he was about to run, which he pointed out in his report, it would then be 
within the act. Therefore, as what was the disputed line does not appear in 
his report, which we consider as the declaration, or rather the pleadings of 
the parties, setting forth their respective claims, there was nothing to 
justify the order of processioning, and the order must be quashed; and more 
especially as it is by comparing the report of the processioner with the 
report of the freeholders, that the Court can say which party prevailed in his 
claim; for it is from that the costs are to be adjudged. It is true the 
freeholders report that Shufford prevailed; but how do they know that, but 
from the verbal information of the processioner, or some other person. 
Besides, it is their business to report their proceedings, and for the Court 
to judge who prevailed, by comparing their report with their records. But 
their report is rather to be understood that Shufford prevailed in the claim 
he set up before. What he set up before the processioner, they, as a body, did 
not know, nor had they any means of knowing. 

The order must therefore be quashed, and Shufford must pay the costs.


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