#### Thomas L. Cowan* v. William Davidson.

From Rowan.

Dec. 1830.

■Where it was agreed to abide by the decision of the Supreme Court, upon a case stated, an averment of a breach of that agreement was supported by proof of the decision of the Supreme Court, upon a consideration of the w'-ole cas<', although the judgment of that Court was not fin d, but a new trial was gianted.

The case of Davidson v. Beard (2 Ilawhs 520) approved by Hiia Judge.

This was an action of assumpsit upon the following •written agreement:

“ The underst- nd-ng between Messrs. Thomas L. Cowan and Wil-c< Ham David,mi, relative to cer.an executions of Mr.Ctncan’s h vied “ on certain negroes, upon which Mr. Davidson has a mortgage: It is ,e agreed, that if the lien of either of Cowan's exocutu-us hinds the “ property, notvvthstanding the mor'r age, th n Mr. Davidson is to “ pay off and discharge the executions creating such lien — if the mort. « gage be inva'id then Mr. Davidson is to surrender the negroes to “ the Sheriff ot Fit wan to he s' id under the executions. if Messrs. “ Henderson and / Jl kirtin disagree in their opinion, Vi.cnarv.se “ agreed is to he submitted b a Judge, with liberty for either patty ** to appeal to the Supreme Court —April 26th 1821.

“ P S. The above st:pu!aduns, it is agreed), shall extend and enure “ to all executions now out and unsatisfied.”

The Plaintiff averred that Messrs. Martin and Ilender-..son had disagreed, that a case bad been stated for ¡he opinion of the Supreme Court, that the decision of lite Supreme Court was in his favor, and that the Defendant had refused to abide by the decision, either- by paying the Plaintiff the amounts of his executions, or by surrendering the negroes to be sold,

Plea — general issue,

*534Qn jjl(1 trial the Plaintiff proved that Messrs, llendm'-son and Martin having disagreed in opinion, the case of Davidson v. Beard, ("reported 3. Hawks 530,) was prep!U.e,¡ †0 obtain that of the Supreme Court. He the,n produced a certified copy of the record of that cause in the Supreme Court, and proved the amount of his judgments against McCulloch. The Defendant proved, that after the new trial which was granted in the Supreme Court in the case of Davidson v. Beard, that case was remanded to the Superior Court of Mecklenburg, and was still on the docket of that Court. For him it was contended, that the case of Davidson v. Beard, being decided on a motion for a new trial, was not a final decision of the main question between him and the Plaintiff.

His Honor Judge Don Need instructed the jury, that if the case of Davidson v. Beard was intended by the parties tobe the case prepared for the Supreme Court, under the contract, and if it contained the points in controversy between them — it was not material that in form the judgment of that Court should be final in that suit.

A verdict was returned for the Plaintiff, and the Defendant appealed.

*

This case was decided at the last term of this Court, hut was omitted in its proper placs - (he R ; orter was reminded of it uy the case of Hargrave v. Davidson which follows.

Hall, Judge.

As far as I am capable of understanding tiie question litigated between the parties, it is this ; whether the mortgage, under which the Defendant claimed, or the executions, under which the Plaintiff claimed the negroes levied upon, gave the preferable title. It has been decided in Davidson v. Beard, (2 Hawks 520) the decision in which suit, it appears, was to decide the controversy between the parties, that the execution levied on the slaves gave a preferable right to any claimed by the Defendant, under the unregistered mortgage. It is true., that a new trial was granted in that case, as the consequence of that opinion; but the question of law was completely settled, as it was decided upon a case agreed. Of this opinion was the Judge below, and I think the *535pule for a new trial, against that opinion, ought to bo discharged.

It may have been the case, or it may be the case, if the former suit has not yet been decided, that the Judge on the second trial may give an opinion, in favor of the rights claimed under the mortgage; but such opinion is subject to the opposite party’s right of appeal to this Court, where the law of the case has been otherwise held, as before stated.

Per Curiam. — Let the judgment of the Court below be affirmed.