McNorton v. Robeson. is not in the hand writing of John Kea. The allegation also states other matters which the parties say they were at the bringing of this suit able to prove, which it is not material to mention, as no evidence is given respecting them. There is no affidavit in support of the allegation, except that of McNorton, the husband of the party Lydia, who swears that he believes the several matters set forth in the allegation to be true. John A. Robeson, the surviving executor, put in a counter allegation, in which he states, that the will was executed by John Kea, and that upon the trial of the issue, the fact was fully proved by himself and others, and that many witnesses were examined to the hand writing of the said Kea; and that all the next of kin of John Kea were parties to the issue, including the three neices, Lydia, Elizabeth, and Sarah King, who appeared and were made parties in the County Court by their father and guardian, Solomon King; and that the cause was prosecuted both in the County and Superior Courts, with earnestness and vigor on both sides, and without collusion in any respect between the parties or either of them on the opposite sides. In support of the allegation on that point, Robeson exhibits a transcript of the appointment of Solomon King to be the regular guardian of his two younger daughters, Elizabeth and Sarah, by the County Court in February 1832; and also the transcript of the record of the Court, in which it appears, that the will was propounded by the legatees named in it and was "contested by Lydia King, Elizabeth King, and Sarah King, by their guardian Solomon King, and by Kinchen Kea," and by others; and that Solomon King prayed the appeal and entered into the bond for its prosecution. Upon the hearing in the Superior Court, the Court refused to call in the probate and dismissed the allegation, and the cause was brought here by appeal. McNorton v. Robeson. Strange, for the plaintiff. W. H. Haywood, for the defendant. RUPFIN, C. J. The cause wholly fails, so far as it is sought to have a retrial of the issue on newly discovered evidence. The testimony of the Messrs. Davis is entirely inconclusive; and, besides, it is fully explained and repelled by other persons, who were in the room with Robeson and Jones at the time to which they refer. Some witnesses have been examined as to the handwriting of the signature to the will, who give the opinion, that it was not that of Kea, the party deceased, and some express doubts of it. But evidence of that kind will not suffice; for, it is only further evidence to the same point, which was in contest on the trial, and of the same character with that then given. The rule is correctly and forcibly laid down for such cases in Peagram v. King, 2 Hawks. 295, that it is not sufficient, that the newly dis covered evidence goes to repel the adversary's charge, but it must destroy his proofs; and that is explained in the same case when it subsequently came up, 2 Hawks. 605, to mean, that it must show the former verdict was obtained by surprize and perjury. Indeed, the argument here put the appellant's case entirely upon the ground, that these persons were infants at the trial and were not parties to that proceeding. But it is a mistake to say, they were not parties. The record shows they were; and they appeared by their father, and it is certain that he prosecuted the case on their behalf bona fide, and the present allegation contains no suggestion to the contrary. The argument proceeds on the technical ground, that there is no citation on file for them, nor order of record appointing a guardian ad litem, and therefore that they were not "in any proper manner" made parties. However that might be a ground for a writ of error in a proceeding according to the course of the common law, it McNorton v. Robeson. cannot be listened to as the foundation of an application of the kind now before us. That must rest upon merits; and it cannot be granted, unless it be shown, that the former proceeding resulted wrong and that the interest of these persons was not duly defended by those who undertook it. If this were the sole ground for impeaching the former trial, to which these persons were, at all events, nominal parties, and of which they do not pretend they had not personal knowledge at the time, it may be well asked, why they delayed this application for more than seven years-for a longer period, it is to be observed, than would bar a writ of error. But, in truth, if this were a writ of error, this would not be a reason for reversing a judgment. In probate causes there is, properly, no plaintiff nor defendant, but all persons are actors and it has never been the course in this State to have a previous order appointing a prochein ami to prosecute a suit of any kind for an infant. The Court has a control over persons, who undertake to sue for an infant; and if he be an improper person, or brings an improper suit, the Court will remove him and appoint another to carry on the suit, and make the first pay the costs improperly incurred. But it is not error, even if the ap. pearance of an infant defendant be entered by guardian, before obtaining a rule of the Court for it, but only a misdemeanor in the attorney. 1 Cromp. 158, 2 Sellons Pr. 135, 141. The appearance must, indeed, be entered, as being by guardian, or prochein ami, and not by attorney; but, though it be regular to have a rule for the purpose, the rule does not form a part of the record, technically speaking, as it is ultimately enrolled. When the infant appears to act in the cause by proehein ami or guardian, it is sufficient; for it must be supposed that he was duly appointed and approved by the Court, or he would have been, otherwise, removed. State v. Ellison. Viewing the case in any light, therefore, we can see no reason to disturb the probate, and the sentence of the Superior Court must be affirmed. PER CURIAM. Judgment affirmed. THE STATE TO THE USE OF ALFRED M. TREDWELL vs. HENRY A. ELLISON & AL. Where a defendant has been arrested upon mesne process and gives bail, and, after judgment, the bail surrenders him to the sheriff, out of term time, no execution having been issued on the judgment nor any committur prayed by the plaintiff, if the sheriff releases him upon a bond to appear at Court and take the benefit of the insolvent law, the sheriff is liable for au escape. The Act, Rev. Stat Ch 58, in this respect, only applies to cases where the debtor, upon surrender of his bail, is ordered into custody by the Court. After such surrender, if the creditor, upon reasonable notice, will not charge the party in execution, either a habeas corpus or a supersedeas would be issued by the Court The case of Smallmood v. Wood, 2 Dev. & Bat. 356, cited and approved. Appeal from the Superior Court of Law of Beaufort County, at the Fall Term, 1848, his Honor Judge SETTLE presiding. This is an action of debt on the bond of the defendant as sheriff of Beaufort, and the breach assigned is the voluntary escape of one Davis, a debtor to the relator. The case is this. After judgment in an action by the relator against Davis, his bail surrendered him to the defendant in vacation; and he took from Davis a bond in the penalty of $429 53 payable to the relator, reciting that the State v. Ellison. relator had recovered judgment against Davis in the Coun ty Court for $281 76, and the latter had been surrendered by the bail, and with the usual condition for the ap pearance of the debtor at the next County Court to take the oath of insolvency; and the sheriff then set Davis at liberty. At the next Court, Davis appeared and was admitted by the Court to take the oath, though it was op posed by the relator. Evidence was given that when Davis was surrendered, he had property to the value of $30. The relator moved the Court to instruct the jury that he was entitled to recover such damages, as, in the opinion of the jury, he had sustained from Davis being let at large. But the Court directed the jury to find for the defendant, and they did so; and the relator appealed from the judgment. Shaw, with whom was J. H. Bryan, for the plaintiff, submitted the following argument: The right of the debtor in this case to tender to the defendant his bond with sureties, and of the defendant to take it and set him at liberty without putting him in prison, is claimed by reason of the words, "or be in custody by surrender of bail after judgment," which words are found, for the first time, in the 7th Sec. of the Rev. St. Ch. 58, and were not in the Act of 1822; and the defendant's right to do so is denied by the plaintiff; because, although these words are in the Rev. Stat., there are other words also therein set or placed both before and after them, and placed not merely in accidental juxta-position; so that these words are not to be read by themselves, as if they stood alone, but with these others that stand in connexion with them, and thus it will appear what is that state or condition of the debtor meant by the Legislature-or what is the kind of custody in which he must be, and from which by their provisions he is to be not only liberated, but so discharged therefrom that he cannot thereafter be arrested |