Pitt County NcArchives Court.....Atkinson, Vs. Foreman 1811-18
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 8, 2008, 12:55 pm

Source: North Carolina Reports
Written: 1811-18

July Term 1811.

BENJAMIN ATKINSON v. ROBERT FOREMAN.

From Pitt.

1. A petitioned the County Court for leave to keep a public ferry, B opposed 
the petition, but the court allowed it. B has not the right to appeal to the 
Superior Court, under section 32 of the act of 1777, ch. 2, which gives the 
right of appeal in all cases where the party is "dissatisfied with the 
judgment, sentence or decree of the County Court."

2. In all cases where a party has a right to appeal, and the Legislature has 
not prescribed the form of the appeal bond, nor declared to whom it shall be 
made payable, it is the duty of the County Court to prescribe the form and 
direct to whom the bond shall be made payable.

Benjamin Atkinson petitioned the County Court of Pitt for leave to erect and 
keep a ferry across Tar River, at a place where he owned the lands on each 
side of the river. The granting of this petition was objected to by Robert 
Foreman; and the County Court having heard the allegations and proofs of the 
parties, allowed the prayer of the petition. From this decree of the County 
Court, Foreman prayed an appeal to the Superior Court, which was allowed, and 
he gave bond with security to prosecute the appeal. Tn the Superior Court a 
question was made and sent to this Court, Whether, if the County Court, grant 
to an applicant leave to keep a public ferry at a particular place, another 
person who claims the right of keeping a ferry near that place can appeal from 
the decree of the County Court. On this question the judges of this Court 
differed in opinion.

Hall, J. Section 32, ch. 2, Laws 1777, declares, "That when any person or 
persons, either plaintiff or defendant, shall be dissatisfied with the 
sentence, judgment or decree of any county court, he may pray an appeal from 
such sentence, judgment or decree to the Superior Court of Law of the district 
wherein such County Court shall be." This is a very general expression, and 
would seem to authorize an appeal in every case whatever that can come before 
a county court, unless the appeal be taken away. It is true that in some 
instances, where by subsequent acts the jurisdiction of the county courts has 
been increased, the right of appeal has been expressly given by such acts; and 
the act which gives the court jurisdiction of the case now before us, as well 
as some others, is silent with respect to appeals; and this circumstance is 
much relied on. We apprehend that the Legislature, by giving the right of 
appeal in those acts, did so from abundant caution. Certainly no argument can 
be drawn from the reason of the thing against an appeal in the present case. 
It is a dispute about property, and it is of as much consequence that justice 
should be legally administered in this case as in any other. The expression in 
the act of 1777 is so general as to embrace all cases that can come before a 
county court, whether it had jurisdiction of them at the time of the passage 
of that act or acquired it since. Suppose the Legislature had not given an 
appeal in express terms by the act of 1785, ch. 2, which gives to the county 
courts jurisdiction in actions of ejectment; would there not be as great or 
greater reason why there should be appeals in such cases than in actions of 
which jurisdiction was given to them by the, act of 1777, ch. 2? The 
Legislature did not think proper at first to trust them with the trial of 
actions of ejectment, on account of their difficulty; but since they have 
given to them jurisdiction of such actions, the reason is stronger why there 
should be an appeal. Were not this reasoning correct, it would be difficult to 
say on what principle this Court have at this term decided the case of S. v. 
Washington (a slave), post. 100. In that case the County Court refused to 
grant an appeal; the owner of the slave stated that fact on affidavit, and 
prayed from one of the judges of the Superior Courts a writ of certiorari, 
which was granted. A question was made upon the return of this writ, and sent 
to this Court for decision, Whether an appeal in that case was a matter of 
right, and this Court decided in the affirmative. It is worthy of remark that 
neither of the acts of Assembly which relate to the trial of slaves gives an 
appeal from the County to the Superior Court in such cases. The decision had 
for its basis the wide and general expression used in the act of 1777, 
authorizing appeals from every sentence, judgment or decree of the county 
courts. It is true that in that case one of the Court dissented from the 
opinion delivered, not because the clause in the act of 1777 was not broad 
enough to comprehend the case, but for reasons drawn from the different acts 
of Assembly relating to the trial of slaves. In an anonymous case, 2 N. C., 
457, that came before the Court by way of appeal from an order of the County 
Court authorizing one of the parties to keep a ferry, no question seems to 
have been made, nor doubt entertained by the bar or bench, as to the legality 
of such appeal. Other cases might be shown from which we might infer what the 
opinions of other judges were, who have gone before us, although the question 
was not made and solemnly decided by them. In Hawkins v. Randolph, 5 N. C., 
118, brought, to this Court some terms ago from the Superior Court of 
Hillsboro, where the question was, Whether a party dissatisfied with the order 
of a county court relative to a road had the right of appealing, it was urged 
that there was no person to whom bond with security could be given for 
prosecuting the appeal with effect; but it was answered that if a party has 
the right to appeal, it is the duty of the County Court, although there be but 
one party to an order made by them relative to a road or ferry, to point out 
the mode in which security for the appeal shall be taken; for if the act be 
substantially complied with, it is sufficient. By the act of 1762, ch. 5, any 
person dissatisfied with any order made by the County Court relative to a 
guardianship, with which he may have been interested, or to which he may think 
himself entitled, has the right of appealing, and yet he is directed to give 
bond with security for prosecuting his appeal with effect. The same 
inconvenience would apply in that case; there is no person, or there may be no 
person but one interested in or a party to such order. But it is the duty of 
the court to comply with the act, by directing the manner and form in which 
such bond shall be taken. And so it is in the case before us. If, however, 
that objection be good, it cannot apply here; for there are two parties before 
the Court, one of whom has appealed, and from whom bond has been taken. 

It may be said that the county courts are better judges of roads, ferries, 
etc., in their several counties, than the Superior Courts; that questions 
arising upon the acts of Assembly which regulate them are generally questions 
of fact, of expediency, of convenience or inconvenience to the people of the 
county. Be it so: when such be the questions, the Superior Courts will 
interfere very reluctantly. But it must be admitted that questions of law will 
sometimes arise also. Besides, has not experience taught us that an unpopular, 
obscure individual, though he may have the better side of the question, has 
too much cause to dread a conflict with a wealthy, popular antagonist?

By all the other Judges. It was decided in this Court, at June Term, 1806, in 
Hawkins v. Randolph, 5 N. C., 118, that an appeal would not lie from an order 
of the County Court disallowing a petition for laying out a road. This case is 
not distinguishable in principle from that. The appeal must be dismissed.*

Cited: S. v. Bell, 35 N. C., 378.

Overruled: Smith v. Harkins, 39 N. C., 491.

*In 1813 the General Assembly passed an act amending the acts relative to the 
laying out of roads and the establishment of ferries.

This act prohibits the County Court from laying out any public road or 
establishing any ferry, unless upon petition in writing of one or more persons 
in court filed, and notice thereof given to all persons over whose lands the 
road proposed to be laid out is to pass, or to the person whose ferry 
theretofore established shall be within two miles of the place at which the 
petition prays another ferry to be established. This act gives the right of 
appeal to any person dissatisfied with the judgment, sentence or decree which 
the County Court shall pronounce upon such petition.

Additional Comments:
North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme 
Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 
1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. 
Uzzell and Company, State printers and binders, 1910.

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