re: book "Guide to Private Manuscript Collections in North Carolina State Archives" by Barbara T. Cain. Index. p.519 - Adair, William. efforts to recover land. 1168
p.306, relating to efforts by Adair to recover land by Henry McCulloh through chancery proceedings in North Carolina Courts : Gabriel Johnston William Adair John Rutherfurd Patrick Gordon ............................. Letter from Gov. Josiah Martin to William Legge, Earl of Dartmouth Volume 9, Pages 675 – 677 [British Public Record Office.America & West Indies: North Carolina. No. 220.] North Carolina, Newbern July 19th 1773. In February last at a Court of Chancery held here, on a decree being made in favour of the Defendant in a cause that had been some time depending between Mr Adair and Mr McCulloh, the complainants council moved for leave to appeal to His Majesty in Council, when it was ruled by the Court, after consideration of His Majesty's 42d Instruction, which relates particularly to appeals to and from the Governor and Council, as a Court of Error, that the Defendant should have leave to appeal provided he gave security to prosecute it and answer the condemnation, etc., within fourteen days. As it appeared to me that the design of the King's Instruction was only to secure costs and damages that should be awarded to the appellee, in case the first decree was confirmed, that the term of fourteen days related merely to praying the appeal, and that if security was given before the appeal was actually made it was fully answered.
I objected the hardship it would be upon Mr Adair's Attorney, (Mr. Rutherfurd ?) to be limited to so short a time, to procure competent security for so large a sum as One Thousand pounds sterling ------- in a Country where the Party was utterly unknown,------- and that in default thereof, the complainant who might perhaps be aggrieved, notwithstanding the judgment of that Court, should be precluded of His Right to appeal to Justice in the last resort, and I desired the sense of the Court, that was to rise before the expiration of that allotment of time, whether after it should elapse, if good security was offered, and it should be made to appear to me that it could not be sooner obtained I might accept it, it was decided that I could not. If however, my Lord, the circumstances had occurred, I should have certainly taken upon me, under a different construction of the Royal Instruction, to admit a proper security, for I am persuaded the Interpretation of the Court is not consistant with His Majesty's Justice, nor the meaning of the Instruction, which I shall be happy to learn with certainty from your Lordship.
I thought it proper, my Lord, to direct a minute of my Question to the Court to be entered on the Proceedings, that when they came before the Lords of the Council, it might appear there was a difference of opinion on this head, which may be attended with disadvantage to His Majesty's Subjects. I have the honor to be &c., JO. MARTIN.