Dan River, 8th December, 1782.
Sir:
I am favoured with your Letter by Mr. Dunn respecting the Judgment and Execution Mr. Frohock hath obtained against the Estate of Mr. McCullock. That Gentleman, when last at Salisbury, informed me of the Bond he had against Mr. McCullock for sundry services he had received no satisfaction for, which I make no doubt, is just, and recommended it to him to endeavour to make a recovery.
If Mr. Frohock has pursued the Law, Judgment and Execution ought to be recovered; but, from your representation, he has not, as recoveries against confiscated estates are to be had on the principles of a default; according to the Law it is necessary that the Petition be filed, and the default be taken the first Court, and the final Judgment obtained the next Court, which gives three Months intermediate from the default to the Judgment, in which the County Commissioners, or the Superintendent Commissioner, may have time to examine particularly into the Justice of the demand, and plead accordingly in behalf of the State; but this you are debarred of, which is not the meaning of the Law. As to the open account, no proof is valid by the parties’ own Oath, however apparently Just, but for £30 according to the Book Debt Law. If Bonds have been lodged in his hands, to the amount you mention, he may be amply paid; which at the time of trial ought to have been proved, and that they have not been delivered by him to the Commissioners. Upon the whole, Sir, there appears Error in the proceedings in the first instance, for which an appeal ought to have been prayed and had at the time of trial from the Court, which you are precluded from at present.
The only remedy to be had is by Certiorari, which must be obtained from one of the Judges of the Superior Court, and made returnable to the next Superior Court, giving Ten Days’ notice previous
to the applying for, and obtaining the same. In the meanwhile the Sheriff ought to be cautioned and forewarned by you, to postpone the sale until the matter is reheard in the Superior Court; which if set aside, the Sale will be a nullity, and the Sheriff persisting, after your interposition as Superintendent Commissioner, to sell, may involve himself into trouble and difficulties. This delay for the present will not injure Mr. Forhock’s just demand against that estate; but the Government and public ought to be fully satisfied as to the facts you mention, and the proceedings conducted regularly. I shall be sorry, however, if Mr. Frohock should be deprived of his right by any rigorous construction of the Law, having lost an only brother by the Enemy, and suffered much injury in his property near Salisbury by our Soldiery and others, together with his readiness to do public services, which entitle him to some public notice; these, notwithstanding, are not to be put in competition with public justice. You will, Sir, please to pursue the path of duty as you have begun.