HISE v. FINCHER AND WIFE.

[10 IREDELL'S LAW, 139.]

REVOCATION OF WILL MUST BE SHOWN BY SOME OVERT ACT apparent in an other writing or on the paper itself, and can not be established by parol proof merely.

WHERE ONE ORDERED BY TESTATOR TO BURN WILL DECEIVES HIM by pretending to burn it, while it is in fact preserved, there is no revocation. APPEAL from the superior court of law of Burke county. The will propounded by George W. Hise was, on the trial, admitted to have been executed by the testator, George Hise. The caveators opposed its probate, on the ground that it had been revoked. To establish a revocation, they called a witness, who stated that George W. Hise, the propounder, had made to him the following declaration concerning the paper writing in issue: "My father was lying sick in bed, and requested us to bring him the will; the will was brought to him, and he requested us to throw it into the fire and burn it; but I held the will and another paper in my hand at the same time, and, for the purpose of deceiving my father, I threw the other paper into the fire in his presence, instead of the will, and put the will in my pocket." The jury found the revocation. The other facts appear from the opinion.

Avery and Gaither, for the plaintiff.

N. W. Woodfin, Craig, and J. W. Woodfin, for the defendants. By Court, RUFFIN, C. J. Upon the supposition, that the evidence of George W. Hise's declarations were admissible to affect the interests of the other devisees, the court is of opinion, that there was, yet, error in the effect given to them, as establishing, if true, a legal revocation. The act of 1819, revised statutes, chapter 122, sections 12 and 13, contains substantially the same provisions on this subject with those of statute 29 Charles II., and therefore is to receive the like construction. No devise of lands nor will of personalty, is revocable, otherwise than by some other will, or writing declaring the same, or by burning, canceling, tearing, or obliterating the same by the devisor or testator, or in his presence and by his direction or consent, and all devises of land and bequests of personal estate "shall remain and continue in force, until the same be burnt, canceled, torn, or obliterated by the devisor or testator, or in his presence and by his consent and direction, or unless the same be altered," etc. It is obvious, that the main purpose of the act is to alter the rule of law, by which the revocation of

a written will, duly attested, could formerly be established by parol proof merely; and that is done, by requiring the intention to revoke to appear, not merely from the mouths of witnesses, but also by some overt act, apparent in another writing, or on the paper itself, alleged to have been revoked. It is to be done by another will or writing, or by the destruction of the paper by burning, canceling, tearing, or obliterating. Now it is impossible to say here, that the paper was burnt, canceled, torn, or obliterated. It is true a great fraud was practiced on the dead man by his son's pretending to burn the will, while he in fact preserved it; that is, if it can be assumed upon the evidence, that such were the facts. But the very question is, whether upon this parol evidence, by itself, an intention to revoke can be found, or, if the intention be granted, whether the law will allow such intention to burn and revoke to be, in fact and law, a burning and revocation. The statement of the question seems to furnish an answer to it in the negative. The statute positively requires things to be done, and not merely said or intended to be done.

The court can not dispense with those acts, upon the ground, that, in requiring them, the statute put it in the power of a bad man to deceive and defraud a testator. That was for the consideration of the legislature; which body has, nevertheless, used language on the subject which is clear and explicit, and which, therefore, the judiciary must observe, though, in a few very extraordinary cases, it admits the possibility of fraud and imposition. For it is clear, the legislature deemed it the better policy to submit to that inconvenience, in a solitary instance, now and then-since human sagacity is not competent to guard perfectly against fraud of every kind-than to let in the more extensive and frequent mischief, arising from perjuries committed in proving verbal directions to burn or cancel a will, and a supposed belief of the testator that it had been done. We conceive the words of the act are diametrically opposed to the hearing of any evidence of the kind, and that, to effect a revocation of a will, there must be deeds, within some one of the definite words used. The counsel opposed to the will have adduced but one case having any analogy to the present, and that is very slight. It is that of Bibb v. Thomas, 2 W. Black. 1043, where the will was slightly torn by the testator, and thrown by him into the fire and slightly burned, and it was held that it was revoked, notwithstanding another person took it out of the fire, and preserved it, without the knowledge of the testator. But

the reason given for it was, that the case fell within two of the specific acts described in the statute, namely, tearing and burning; for, though the burning was very slight, yet, having come from the act of the testator in throwing the paper on the fire, with intent to burn it, that was sufficient within the statute. In Doe ex dem. Reed v. Harris, 6 Ad. & El. 209, Lord Denman, in speaking of that case, expresses a doubt whether the proof there would now be deemed sufficient. But it is not necessary to question it at present, as our case is essentially different in the very facts on which Bibb v. Thomas was put, since here neither tearing nor burning happened in the slightest degree.

The

And on the contrary, the case of Doe v. Harris is directly in point to the question before us. There, an old and infirm man threw his will, inclosed in an envelope, into the fire, and a devisee in the will snatched it off, a corner of the envelope only being burnt, but promised the testator to burn it, and pretended to have burnt it. Yet the court was unanimous that the will remained in full force, and that very devisee recovered under it in ejectment. It was so held, by force of the words, requiring the palpable acts of burning, and so forth, in exclusion of intentions and unexecuted attempts, shown merely by parol, which it was the policy of the law not to hear by itself. judgment in that case proceeds, we think, upon a sound interpretation of the statute, and it is decisive of the question here. Indeed, Mr. Justice Williams, in his argument, puts, by way of illustration, the very case stated in this bill of exceptions. His words are these: "It is argued, that, if a testator throws his will on the fire, with the intention of destroying it, and some one, without his knowledge, takes it away, that is a fraud, which ought not to defeat his act. But so it might be said that, if a testator sent a person to throw it on the fire and he did not, the revocation was still good. Where would such constructions end? The effect would be to defeat the object of the statutes, which was to prevent the proof of cancellation from depending on parol evice." That case is the stronger, because, in a subsequent case, the court held, upon the same facts, that as to copyhold lands, which are not embraced in the statute of frauds, this will was revoked: Doe ex dem. Reed v. Harris, 6 Ad. & El. 209.

Judgment reversed and venire de novo.

REVOCATION OF WILL: See Floyd v. Floyd, 49 Am. Dec. 626; Cooper's Estate, 45 Id. 673, note 675; Marston v. Marston, 43 Id. 611; Bennett v. Sherrod, 40 Id. 410, note 411; Wiggin v. Swett, 39 Id. 716, note 724; Malone's Adm'r AM. DEO. VOL. LI-25

v. Hobbs, Id. 263; Brown's Will, Id. 174, note 176; Dickey v. Malechi, 34 Id. 130, note 139; Bohanon v. Walcot, 29 Id. 630, note 635; Sneed v. Ewing, 22 Id. 41; Wells v. Wells, 16 Id. 150; Graves v. Sheldon, 15 Id. 653, note 659, where the subject of implied revocation is discussed at some length; Greer v. McCracken, 14 Id. 755, note 761; Gains v. Gains, 12 Id. 375, note 377, where this subject is discussed at length.

THE PRINCIPAL CASE IS DISTINGUISHED in White v. Casten, 1 Jones, 201.

CABE V. JAMESON.

[10 IREDELL'S LAW, 193.]

ACCORD AND SATISFACTION EXECUTED, THOUGH IN PAROL, IS GOOD DEFENSE to an action on a covenant in a sealed instrument, which sounds altogether in damages, although secured by a penalty.

DEBT on a covenant. Defendant's intestate, Douglass, contracted by deed to purchase from the plaintiff a tract of land. The covenant was executed by both parties, and each was bound to the other in the penal sum of three thousand dollars. The breach assigned was that the intestate did not perform his part of the contract, and the damages sought were for his failure to do so. The defendant relied on the plea of accord and satisfaction, and proved that when called upon by the plaintiff to perform his contract, the defendant declared his inability to do it, and offered to pay to the plaintiff one hundred dollars on account of his disappointment, which offer he accepted as a satisfaction. The court instructed the jury, that if they believed this testimony they should find for the defendant. Verdict for the defendant.

N. W. Woodfin and J. W. Woodfin, for the plaintiff.
Gaither, for the defendant.

By Court, NASH, J. As a general proposition it is true, that where a certain duty arises under a sealed instrument, merely accord and satisfaction by parol is no sufficient answer, for a deed ought to be avoided by a matter of as high a nature: Blake's Case, 6 Co. 44. As in an action of debt upon a single bill, for the payment of money only, for there the debt is ascertained: Preston v. Christmas, 2 Wils. 86. But when the covenant sounds altogether in damages, though secured by a penalty, accord and satisfaction executed, though in parol, is a good defense. This doctrine is clearly established by the case of the State v. Cordon, 8 Ired. L. 179. There the action was in debt, on a guardian bond, and satisfaction pleaded. Upon settling his accounts,

the guardian fell largely in debt to his ward, the relator, and, in satisfaction, transferred, by assignment to him, several promissory notes on third persons, which were accepted in satisfaction of the balance. This court decided, that the suit was substantially for damages, that the duty did not accrue to the relator in certainty by the bond, but from a wrong or default subsequent, which gave him his action to recover damages from the defendant, and consequently a plea of satisfaction of those damages is good. This case covers the whole ground, taken on the defense.

Judgment affirmed.

ACCORD EXECUTORY IS NO BAR: See Mitchell v. Hawley, 47 Am. Dec, 260, note 263; Brooklyn Bank v. De Grauw, 35 Id. 569, note 571, where other cases are collected.

In Mitchell v. Hawley, 47 Am. Dec. 260, it was decided that an accord and satisfaction can not discharge a specialty, although they will discharge damages arising from a breach of the specialty.

PERRY V. PHIPPS.

[10 IREDELL'S LAW, 259.]

ONE HAS NO RIGHT TO KILL DOG ON OWNER'S PREMISES, on the pretense that he is a nuisance, because he has on former occasions bitten other persons.

PERSON IS LIABLE FOR KILLING DOG ON OWNER'S PREMISES, after the owner has driven the dog away, so that there is no longer any danger of his biting him at that time.

TRESPASS for killing a dog. The pleas were, that the dog was a nuisance, and that any person had a right to kill him; and that the defendant killed him to prevent him from worrying and biting him. The jury found for the plaintiff. The other facts appear from the opinion.

Boyden, Clarke, and H. C. Jones, for the plaintiff.

Bynum and Craig, for the defendant.

By Court, RUFFIN, C. J. We doubt not that a dog may be a nuisance, so as to authorize any person to kill him, as if he be mad and at large; for, in such a state, he is no longer mansueto naturæ, and the consequences of a bite from time to time, to either man or beast, may be so dreadful and so general, as to justify his destruction as soon as possible. But dogs are in many respects useful, and, with many persons, favorite animals; and we are not aware, that fierceness, merely, and attempts to