Volume 1 — North Carolina Reports

It appeared by the pleadings and exhibits ia this case that Mrs, -Mitehdl was seized in tee of a house and lot ia the Town of Greensborough, gad died inféstate in the year 1855, and the defendant Mendenhall, was her administrator, and applied by petition to the County Court of Guil-ford for an order to sell the house and lot, alleging' that the personal property was insufficient to pay the intestate's debts; and such order being made tho premises wero sold and out ot the…

THIS was an Action of Trespass- quare clausum fre-git, tried before Seaweu, J. at Wayne Superior Court, where a Verdict was found under the Charge of the Judge, - in favour of the Defendant.

<p>DECLARATION.</p> <p>ARCHIBALD HAMILTON and John Hamilton, merchants, of Great-Britain, and copartners in trade, under the firm of Archibald Hamilton and company, complain of John Eaton, surviving obligor of Gabriel Long dec. citizen of and resident within the state and district of North-Carolina, and within the jurisdiction of this honourable court, in custody of the Marshall of the said district, &c. of a plea that he render to them, eight hundred pounds, proclamation money, of the value of 2,000 dollars, money of the United States, which to them he owes, and from them unjustly detains: for that, whereas the said defendant, on the eleventh day of August, in the year 1777, at the county of Halifax aforesaid, in the province and district aforesaid, one of the United States of America, in the southern circuit, and now within the jurisdiction of this honourable court, made his certain writing obligatory, sealed with his seal and to the court shewn here thereon, and the date whereof is on the same day and year aforesaid, whereby the said defendant did bind and oblige himself to pay to them, the said Archibald and John, the aforesaid sum of 800 pounds of the value aforesaid, whenever afterwards he should be thereto required.</p> <p>Nevertheless the said defendant did not, nor hath not paid to them, the said Archibald and John, the aforesaid sum of 800 hundred pounds of the value aforesaid, altho’ often required, and particularly on the tenth day of May, in the year 1789, at the county aforesaid, within the state and district aforesaid, and within the jurisdiction of this honourable court, but the same to them to pay, has hitherto altogether refused and still does refuse to pay, and detain the same to the damage of the said plaintiffs five hundred dollars, and therefore they bring suit, &c.</p> <p>I. AND the said John Eaton, by John Haywood, his attorney, comes and defends the force and injury, when &c. and craves oyer of the writing obligatory aforesaid: and it is read to him these words, to wit.</p> <p>KNOW all men by these presents, that we John Eaton and Gabriel Long of the county of Halifax and province of North-Carolina, are held and firmly bound unto Archibald Hamilton and Co. the county and province aforesaid, in the just and full sum of eight hundred pounds, proclamation money, to be paid unto the said Archibald Hamilton and Co. their certain attorney, their heirs, executor, administrators, or assigns: To which payment, well and truly to made, we bind ourselves, our heirs, executors, and adminisrator firmly by these presents, sealed with our seals, and dated this eleven day of August, Anno Dom. 1777.</p> <p>And he likewise craves oyer of the condition of the said writing obligatory, and it is read to him in these words, to wit.</p> <p>The condition of the above obligation is such, that is the above bound John Eaton and Gabriel Long do and shall well and true pay, or cause to be paid, unto the said Archibald Hamilton and Co. their certain Attorney, their executors, administrators, or assign the just sum of four hundred pounds like money, on or before, the first day of August next, with lawful interest from the date, then the above obligation to be void; or else to remain in full force and virtue.</p> <p>Which being read and heard, the said John Eaton faith, that the said plaintiffs ought not to have or maintain their said action against him, because he faith, that on the 4th day of July in the year of our Lord, 1776, and from thence continually afterward unto the thirtieth day of November, in the year of our Lord 178 there was an open war between the king of Great-Britain and the United States of America, and that on the said fourth day of July in the said year of our Lord 1776, the aforesaid plaintiffs, and each of them were residents and inhabitants of this state, and continued to reside and inhabit within the same, until the twentieth day of October, in the year of our lord 1777; on which said twentieth day of October, the said plaintiffs withdrew themselves, and each of their withdrew himself, from this state, and from the United States of America, to wit, at the county of Halifax in this state; and continually afterwards, from the day last aforesaid, until the termination of said war, the said plaintiffs and each of them, resided beyond the limits of the said United States, under the sovereignty and jurisdiction of the said king, owning and acknowledging their allegiance to him, and during all the time last aforesaid the said plaintiff or either of them, did not return into this state to be admitted as citizen or citizens thereof; and that during the time of the said war, between the said king of Great-Britain and the said United States of America, by a certain act of the General Assembly, held Halifax, on the eighteenth day of October, in the year of our Lord 1779, entitled, “ an act to carry into effect an act passed at Newbern in the year 1777, entitled, an act for confiscating the property of all such persons as are inimical to this or the United States, and of such persons as shall not within a certain time therein mentioned, appear and submit to the state, whether they shall be received as citizens thereof, and of such persons as shall to appear, and shall not be admitted as citizens, and for other purposes therein mentioned," reciting that whereas is enacted by the aforesaid act passed at Newbern, in November one thousand seven hundred and seventy seven, that all the lands, tenements and hereditaments, and moveable property within this state, and all and every right, title and interest therein of which any person was seized or possessed, or to which any person had title, on the fourth day of July, in the year 1776, who, on the said day was absent from this state, and every part of the United States, or who as withdrawn himself from this or any of the United States, after the day aforesaid, and still resides beyond the limits of the United States, shall and are hereby declared to be confiscated to the use of this state, unless such person, shall at the then next General Assembly, which should be held after the first day of November, in the year 1777 appear and be admitted to the privilege of a citizen of this state, and restored to the possession or property which to him once belonged within the same; and whereas divers persons who some within the descriptions of the aforesaid recited act, had failed or neglected to appear before the said General Assembly as last mentioned, or at any General Assembly since, and submit to the state whether they should be admitted as citizens thereof, and restored to the possessions which to then once belonged, whereby such certain persons therein after mentioned had clearly incurred and become liable to the penalties of the aforesaid first recited act: in consideration thereof, by the authority of the same General Assembly, it was therein enacted, that all the lands, tenements, hereditaments and personal property within this state, of divers persons therein particularly named, and amongst others of John Hamilton and Archibald Hamilton, by the names of John Hamilton and Archibald Hamilton, state of Halifax, and of all others coming within the meaning of the said confiscation act, and of that act passed at Halifax, and all and every the right, title and interest, which all, or each of the persons aforesaid may have had therein, on the said fourth day of July in the year 1776, or at any time since should be, and were thereby, declared to be confiscated fully and absolutely forfeited to this state, and should be vested in the hands of commissioners as in the said act directed to be appointed for the purposes therein after mentioned. And by the authority of the same General Assembly, it was further wherein enacted that commissioners should be appointed, by the county court in each county, who in their respective counties should have all power and authority, to take possession of all lands, tenements, hereditaments, monies, debts, whether due by judgment, bond, bill, note, account, or otherwise, and all other personal property of the person aforesaid, in the name and for the use for the state, which thereby were declared to be forfeited to the said state, and give receipts and discharges which should forever indemnify all persons delivering or paying the same, their heirs, executors or administrators, against any future claim, for the articles or money, mentioned in such receipt or discharges. And by the authority of the same General Assembly it was therein further enacted, that the said commissioners might order the several constables to summon any of the inhabitants in their respective counties to appear before them, at convenient times and places, to render on oath an account of such forfeited property, and that they, or a majority of them being present, should administered on oath or affirmation to the inhabitants so appearing, whereby each inhabitant, rendering an account, should swear, or affirm, that the account by him rendered, contained a true and full account to the best of his knowledge, of all the lands, tenements, hereditaments debts, monies, and all personal property in the county or elsewhere which belonged on the fourth day of July, in the year of our Lord 1776, to any of the (therein) before mentioned person or persons, on any time since, who came within, or are included by the descriptions, or either of them, recited in the said act or the confiscation acts passed at Newbern, in the year 1777, and that he had not disposed, or parted with the same, or any part thereof, to elude or evade the intent and meaning of the confiscation act, or of that act passed at Halifax, and further that the said account contained, to the best of his recollection, the full amount of all and every sum, and sums of money which then were by him due, and owing to any such person or persons, including interest, if any due, by bond, note or account, or by virtue of any trust whatever; and if any person summoned as aforesaid, should fail to appear, or appearing, should fail to render an account as above mentioned, on oath or affirmation, as the case might be, in such case the said commissioners or a majority of them should have power to commit such person, if present, to close gaol until he or she should comply with the law; and if absent, should issue a warrant, directed to any Sheriff or Constable, to apprehend and bring such absent person before them, at any place, on a future day, when, if he or she should refuse to render an account on oath or affirmation as aforesaid, he or she should also be committed to close gaol, until he or she should render an account on oath as aforesaid and the said commissioners were thereby invested with power to administer the oath, issue warrants and make commitments in manner aforesaid. And the said commissioners were thereby invested with full power and authority to demand, make distress for, and receive all sums of money due and owing by the inhabitants of their respective counties, and declared forfeited by the said act, and were thereby made liable to account for the same to the public treasurers of this state. And the said John Eaton further faith, that on the day of the making of the aforesaid act, passed at Halifax, and also from the day of the date of the said writing obligatory, and from thence continually afterwards, until this present day, he, the said John, hath been an inhabitant of the said state, being and residing within the same, to wit, at the county of Halifax aforesaid, and that after the making of the aforesaid act passed at Halifax, the court of pleas and quarter sessions for the said county, held for the said county, at the town of Halifax, in the said county, on the — day of - in the year of our lord 1780, duly appointed Samuel Weldon, William Wooting and William Montfort, to be commissioners for the purposes aforesaid, in the said act expressed, for the said county of Halifax, who then and there accepted the appointment, and having duly qualified themselves for the same, by performing and complying with the several requisites by law prescribed in such case, then and there took upon themselves the exercise thereof: and that the said commissioners, after their appointment and qualification as aforesaid, caused the said John Eaton to be summoned according to the directions of the aforesaid act, to appear before them on the fifteenth day of April, in the year of our lord 1780, in the county aforesaid, to give in on oath, an account, among other things, of all and every the sum and sums of money as aforesaid, by him due and owing to the persons-aforesaid; whereupon the said John Eaton, then and there appeared before the said commissioners and rendered to them, on oath, an account of the sum of £. 460, being the principal and interest then due, in the said writing obligatory above specified, and that afterwards, to wit, on the same day and year last aforesaid, in the county aforesaid, that he, the said John Eaton, by the commissioners aforesaid was required to pay them the said sum of four hundred and sixty pounds, according to the directions and intent of the act aforesaid; and that he the said John Eaton thereupon, then and there, paid to the said commissioners the aforesaid sum of £. 460, being the whole sum mentioned in the condition aforesaid, and all the interest therefore then due: and that thereupon the said commissioners, then and there, made and delivered to him the said John Eaton, a receipt and discharge of and for the sum aforesaid, by him said as aforesaid, according to directions of the act aforesaid: and this he is ready to verify. Wherefore he prays judgment, whether the said plaintiffs ought to have or maintain their said action against him; together with this, that he is ready to verify that the said John Hamilton and Archibald Hamilton above named in the said declaration, and the said John Hamilton and Archibald Hamilton, in the aforesaid act of the said General Assembly likewise named, are the same and not different persons.</p> <p>II. AND the said John Eaton further faith, that the said John Hamilton and Archibald Hamilton ought not to have and maintain their said action agaim him, because he faith that on the fourth day of July, in the year of our lord 1776, and continually afterwards, until the third day of September in the year of our lord 1782, a war was prosecuted and carried on against the United States of America by the king of Great Britain : And that in the time of the continuance thereof, by a certain act of the General Assembly of the state of North-Carolina, held at Newbern, on the fifteenth day of November, in the year of our lord 1777, it was amongst other things enacted by the authority of the same General Assembly, that all the lands, tenements, hereditaments and moveable property, within this said state, and all and every right, title, and interest therein, of which any person was seized, or to which any person had title on the fourth day of July, for the year of our lord 1776, who, on the aforesaid day, was absent from the said state and every part of the United States, and who then was still absent from the same, and then at any time during the war had attached himself to, or aided or abetted, the enemies of the said United States ; or who then had withdrawn himself from the said state, or any of the United States, and who then resided beyond the limits of the said United States, should be and are thereby declared to be confiscated to the use of the said state, unless such persons should at the next General Assembly, which should be held after the first day of October in the year 1778, appear and be by the said Assembly admitted to the privilege of a citizen of this said state, and restored to the possession and property which to him once belonged within the same. And the said John Eaton further faith, that afterwards, by one other aft of the General Assembly of this state aforesaid, held at Halifax, on the eighteenth day of October, in the year of our lord 1779, reciting the act last aforesaid, and that whereas divers persons, who come within the description of the aforesaid recited act, had failed or neglected to appear before the said General Assembly as therein mentioned, or at any General Assembly (then) since and submit to the state whether they should be admitted as citizens, thereof, and restored to the possessions which to them once belonged, whereby such certain persons in the said last mentioned act, therein after mentioned had clearly incurred and became liable to the penalties of the aforesaid first recited act, in consideration thereof, it was enacted by the authority of the same General Assembly, held at Halifax as aforesaid, amongst other things, that all the lands, tenements, hereditaments and personal property within the said state, of divers persons in the said last mentioned act named, and amongst others, of John Hamilton and Archibald Hamilton, then late of Halifax, and of all others who then came within the meaning of the aforesaid and first above mentioned, and of the said last mentioned act, and all and every the right, title, and interest, which all or each of the persons aforesaid may have had therein, on the said fourth day of July, 1776, or at any time (then) since, should be and thereby are declared to be confiscated, fully and absolutely forfeited to the said state, and should be vested in the hands of commissioners as therein directed to be appointed for the purpose therein after mentioned : and it was thereby further enacted, that commissioners should be appointed by the county court in each county, who should have full power and authority to take possession of all lands, tenements, hereditaments, monies, debts, whether due by judgment, bond, bill, note, account or otherwise, and other personal property of the persons aforesaid, in the name and for the use of the said date, which by the said act were declared to be forfeited to the said state and should give receipts and discharges which should forever indemnify and acquit the persons delivering or paying the same, their heirs, executors, and administrators, against any further claim for the articles or money mentioned in such receipts or discharges. And the said John Eaton further faith, that in the time when the said war was yet continuing, and upon the said fourth day of July, in the year of our Lord 1776, and continually afterwards, until the time of their departure front this state, herein after mentioned, the said plaintiffs, in the said declaration named, were residents, and each of them, was a resident, inhabiting and residing within the limits of the said state of North-Carolina, to wit, in the county of Halifax, and that act they the said plaintiffs whilst the said war was yet continuing, and after the said fourth day of July, in the year of our lord 1776, and before the making of the said acts herein before mentioned, or either of them, that is to say, on the first day of September, in the year of our lord 1777, at the county of Halifax aforesaid, did withdraw themselves, and each of them did withdraw himself, from this said state, and that they the said plaintiffs, and each of them, at the time of the making of the said first mentioned act, and also at the time of the said last mentioned act, and each of them, resided beyond the limits of the United States of America, and that they the said plaintiffs or either of them, at the time of the making of the aforesaid last mentioned act, had not, nor had either of them, appeared before any General Assembly of the said state, to be admitted a citizen or citizens thereof and to be restored to the possession and property which to them once belonged within the same ; nor had the said plaintiffs, or either of them, after their departure from this state as aforesaid, ever at any time thereafter, been admitted as citizens thereof, and restored to the possession and property which to them once belonged as aforesaid. And the said John Eaton faith, that at the time of passing the acts herein before mentioned, and each of them, and long before that time, that is to say, from the day of the date of the writing obligatory aforesaid, until the present day, that he the said John Eaton hath been continually an inhabitant and resident of this dwelling and residing within the same, to wit, at the county of Halifax aforesaid. And to the said John Eaton faith, that by reason of the premises, and by force of the acts of the General Assembly in such case made and provided, the debt aforesaid in the declaration aforesaid, and in the writing obligatory aforesaid above specified, hath been and is now confiscated and and absolutely forfeited to and vested in the said state : and this he is ready to verify. Wherefore he prays judgment whether the said John Hamilton and Archibald Hamilton ought to have or maintain their said action against him : together with this, that he the said John Eaton is ready to verify that the said John Hamilton and Archibald, Hamilton in in the said declaration, and the said John Hamilton and Archibald Hamilton likewise above named herein, and also in the act aforesaid, passed at Halifax, are the same and not different persons.</p> <p>III. AND the said John Eaton, for further plea in bar, faith that by the aforesaid act, passed at Halifax, reciting that whereas many persons, who before that the refused to take the oath of allegiance to the state and were compelled to leave the same, in consequence thereof, by virtue of an act of Assembly, passed at Newbern in April, in the year of our lord 1777, entitled, an act for declaring what crimes and practices against the state shall be treason, and what shall be misprision of treason, and providing punishments adequate to crimes of both classes, and for preventing the dangers which may arise from persons disaffected to the state, and of another act passed at Newbern, in November, in the year 1777, to amend the aforesaid act, had failed or neglected to fell or convey their real estates, agreeable to the said acts, and to appoint lawful agents and attornies to receive and give discharges for debts due and owing by the inhabitants of the said state, to persons who so departed therefrom, whereby many lands of the persons last described, were them yet undisposed of, and still continued to be and remain to the use of the same, and many well meaning people were defeated of an opportunity to discharge such debts due as aforesaid: in consideration thereof, it was enacted, that all such lands of the persons described in these said last recited acts, which had not then been sold and disposed of bona fide, for a valuable consideration, actually paid, and all debts, money and personal property belonging to the same, then not yet collected and appropriated, according to the directions of the said acts therein recited, should be, and thereby were declared to be, forfeited to the aforesaid state, and the commissioners aforesaid, were thereby directed to proceed on such real and personal estate, in like manner as on the estate of the persons therein first mentioned, any thing contained in the said recited acts, to the contrary notwithstanding. And the said John Eaton, further faith, that the said plaintiffs, and each of them, before the making of the said acts, passed at Halifax, had refused, and each of them had refused, to take the oath of allegiance in the said first recited acts prescribed, that is to say, on the - day of -, in the year of our lord, 1777, in the state aforesaid, at the county of Halifax: and that therefore, they the said plaintiffs were compelled, and each of them was compelled, to leave the said state, by virtue of, and in pursuance of the first of the said recited acts; that is to say, at the county of Halifax aforesaid; and that they the said plaintiffs at the time of the making of the said act, passed at Halifax, had not appointed any lawful agents or attornies, to receive and give discharges for the debts due and owing to them, from the inhabitants of the state aforesaid. And the said John Eaton, further faith, that he the said John Eaton, at the time of the making of the aforesaid act, passed at Halifax, and continually before that time, from the day of the date of the writing obligatory aforesaid, had been an inhabitant of the aforesaid state, living and residing within the same, to wit at the county of Halifax aforesaid. And so the said John Eaton faith, that by means of the premises, and by force of the acts of the General Assembly of the state aforesaid, in such cases made and provided, that the debt aforesaid, in the declaration aforesaid, by the said, John and Archibald Hamilton demanded of him was, and is confiscated and fully and absolutely forfeited to the aforesaid state of North-Carolina, and this he is ready to verify. Wherefore he prays judgment whether the said John Hamilton and Archibald Hamilton, ought to have or maintain their said action against him.</p> <p>IV. AND the said John Eaton, for further plea in bar, faith, that by the aforesaid act, passed at Halifax, reciting that whereas many persons who, before that time, refused to take the oath of allegiance, to this state, and were compelled to leave the same, in consequence thereof, by virtue of an act of Assembly passed at Newbern, in April, in the year of our lord, 1777, entitled, An act for declaring what crimes and practices against the state, shall be treason, and what misprision of treason, and providing punishment adequate to crimes of both classes, and for preventing the dangers which may arise from persons disaffected to the state; and of another act, passed at Newbern, in November, in the year 1777, to amend the aforesaid act, had failed, or neglected, to fell or convey their real estates, agreeable to the said acts, and to appoint lawful agents, and attornies to receive and give discharges, for debts due and owing by the inhabitants of the said state, to persons who so departed therefrom, whereby many lands of the persons last described were then yet undisposed of, and still continued to be and remain, to the use of the same, and many well meaning people were defeated of an opportunity to discharge such debts due as aforesaid; in consideration thereof, it was enacted that all such lands of the persons described in these said last mentioned acts which had not then been sold and disposed of bona fide for a valuable consideration actually paid, and act debts, money and personal property belonging to the same, then not yet collected and appropriated, according to the directions of the said acts therein recited, should be and thereby were declared to be forfeited to the aforesaid state, and the commissioners aforesaid, were thereby directed to proceed on such real and personal estate, in like manner, as on the state of the persons therein first mentioned; any thing contained in the said recited acts to the contrary notwithstanding. And the said John Eaton further faith that the said plaintiffs, and each of them, before the making of the said acts, passed at Halifax, had refused and each of them had refused to take the oath of allegiance, the said first recited acts prescribed, that is to say, on the - day of - in the year of our lord 1777, in the state aforesaid, at the could of Halifax, and that therefore they the said plaintiffs were compelled, and each of them was compelled to leave the said state, virtue of and in pursuance of the first of the said recited acts, that to say, at the county of Halifax aforesaid, and that they the said plaintiffs, at the time of the making of the said act passed at Halifax, had not appointed any lawful agents or attornies, to receive and give discharges, for the debts due and owing to them from the inhabitants of the state aforesaid: and the said John Eaton, further faith, that he the said John Eaton, at the time of the making of the aforesaid act, passed at Halifax, and continually before that time, from the day of the date of the writing obligatory aforesaid, had been an inhabitant of the aforesaid state, living and residing within the same, to wit, at the county of Halifax aforesaid. And so the said John Eaton faith, that by means of the premises and by force of the acts of the General Assembly of the state aforesaid, in such cases made and provided, that the debt aforesaid, in the declaration aforesaid, by the said John Hamilton and Archibald Hamilton demanded of him, was, and is confiscated, and fully and absolutely forfeited, to the aforesaid state of North-Carolina: and this he is ready to verify. Wherefore he prays judgment, whether the said John Hamilton and Archibald Hamilton ought to have or maintain their said action against him.</p> <p>REPLICATIONS.</p> <p>I. AND the said Archibald and John Hamilton, as to the plea of the said John Eaton by him first above pleaded in bar ; say that they, by reason of any thing in that plea alledged, ought not to be barred from having or maintaining their said action thereof against him. Because, protesting that, that plea and the matters therein contained are not sufficient in law to bar the said Archibald and John Hamilton from having or maintaining their said action against the said John Eaton, for replication they, the said Archibald and John Hamilton, say that true it is that, on the said fourth day of July, in the said year 1776, and from thence continually afterwards, until the said thirtieth day of November, in the said year 1782, there was an open war between the said king of Great-Britain and the United States of America aforesaid, and that on the said fourth day of July, in the said year 1776, the said Archibald and John Hamilton were residents and inhabitants, and each of them was a resident and inhabitant of this state, and continued to reside and inhabit within the same until the said twentieth day of October, in the year 1777 aforesaid. Yet the said Archibald and John Hamilton further say that by an act made and provided in a General Assembly of the state of North-Carolina, begun and held at Newbern aforesaid, in the said state of North-Carolina; and now in the district of North-Carolina; and within the jurisdiction of this court, after the said fourth day of July, in the year 1776 aforesaid, and before the time of making the said writing obligatory, (to wit) on the eighth day of April in the year 1777 aforesaid, entitled, “an all declaring what crimes and practices "against the state shall be treason and what shall be misprision of treason "and providing punishments adequate to crimes of both classes, and for "preventing the dangers which may arise from persons disaffected to "the state," (among other things) it is enacted, by the authority of the same General Assembly, that all the then late officers of the king of Great-Britain, and all persons (quakers excepted) being subjects of the said state, and then living therein, or who should thereafter come to live therein, who had traded immediately to Great-Britain or Ireland, within ten years then last part, in their own right, or acted as storekeepers, factors or agents here, or in any of the United States of America, for the merchants residing in Great Britain or Ireland, should take a certain oath of abjuration and allegiance therein mentioned, or depart out of the said state: and it is by the same act provided that all and every such person, and persons, should have liberty, and that they might also nominate and appoint an attorney or attornies, to fell and dispose of his, or their estates for his or their own use and benefit, as by the fame act (among other things) may more fully appear. And the said Archibald and John Hamilton further say that they, on the said eighth day of April, in the year 1777 aforesaid, and long before then, were, and from the time of their nativities respectively continually hitherto have been and first are, subjects of, and owing allegiance to, the said king of Great-Britain; and that they; the said Archibald and John Hamilton on the same day and year last aforesaid; and for a long time, (to wit) the space of ten years before the making of the same, and until the said twentieth day of October, in the said year 1777, were merchants and copartners, living in the then state, and formerly province of North-Carolina aforesaid, and had within, and during the said space of ten years last part, before the making of the same act, traded immediately to Great-Britain, (to wit,) at — in their own right, (that is to say,) at the state of North-Carolina aforesaid, and now in the district of North-Carolina aforesaid, and within the jurisdiction of this court. And after the said eighth day of April, in the year 1777 aforesaid, and before the said twentieth day of October in the said year 1777, (to wit,) on the same — day of - in the said year 1777, at North-Carolina aforesaid, no in the said district of North-Carolina and within the jurisdiction of this court the said John Eaton made his said writing obligatory in the said declaration mentioned, and by the same writing obligatory, he the said John Eaton, then and there bona fide contracted the said debt in the said declaration mentioned. And the said Archibald and John Hamilton further say that, after the said eighth day of April, in the said year 1777, and after the making of the said writing obligatory, (to wit) on the said twentieth day of October, in the year 1777 aforesaid, they the said Archibald and John Hamilton, then being merchants and copartners as aforesaid, and having lived, resided and inhabited, and then living, residing and inhabiting in the state of North-Carolina aforesaid, in the manner herein before mentioned, and having traded immediately to Great-Britain aforesaid, within and during ten years last past before the making of the same act as aforesaid, and then being the subjects of, and owing allegiance to the said king of Great-Britain as aforesaid. And the said John Eaton having contracted the said debt bona fide with the said Archibald and John Hamilton aforesaid; and the said Archibald and John Hamilton, being creditors in that respect as aforesaid, did withdraw themselves from the said state, and from the United States of America aforesaid, and they, and each of them did remove and depart out of the said state, (to wit,) to Europe, in conformity to the tenor, true intent and meaning of, and in obedience to, the same last mentioned act of the General Assembly; and continually afterwards from the said twentieth day of October, in the said year 1777, until the termination of the said war, the said Archibald and John Hamilton resided beyond the limits of the said United States, under the sovereignty and jurisdiction of the said King, owing and acknowledging their allegiance to him; and during all the time last aforesaid, they the said Archibald and John Hamilton did not, nor did either of them, return unto the said state to be admitted as citizens or a citizen thereof. And the said Archibald and John Hamilton further say, that afterwards such act of the General Assembly held at Halifax, on the eighteenth day of October, in the year 1779 aforesaid, entitled, an act to carry into effect an act passed at Newbern in the year 1777, entitled, an act for confiscating the property of all such persons as are inimical to this or the United States, and of such persons as shall not within a certain time therein mentioned appear and submit to the state whether they shall be received as citizens thereof, and of such persons as shall so appear and shall not be admitted as citizens, and for other purposes therein mentioned, and for other purposes," was made as in the same plea alledged, and that on the day of the making of the aforesaid act, at Halifax, and also from the day of the date of the said writing obligatory and from thence continually afterwards, until the day of pleading the same plea in bar, the said John Eaton hath been an inhabitant of the said state, being and residing within the same, (to wit,) at the county of Halifax aforesaid, and that after the making of the said act, passed at Halifax, the court of pleas and quarter-sessions for the said county, held for the said county, at the town of Halifax in the said county on the — day of —— in the said year 1780, duly appointed the said Samuel Weldon, William Wooting and William Montfort, to be commissioners for the purpose aforesaid, in the said act expressed, for the said county of Halifax, who then and there accepted . the said appointment, and having duly qualified themselves for the same, by performing and complying with the several requisites by law prescribed in such case, then and there took upon themselves the exercise thereof; and that the said commissioners, after their said appointments and qualifications aforesaid, caused the said John Eaton to be summoned, according to the directions of the aforesaid act, in the same plea in bar mentioned, to appear before them, on the said fifteenth day of April, in the said year 1780, in the county aforesaid, to give in on oath an account (amongst other things) of all and every the sum and sums of money aforesaid, by him due and owing to the persons aforesaid: whereupon the said John Eaton, then and there appeared before the said commissioners, and rendered to them on oath. an account of the sum of four hundred and sixty pounds, being the principal and interest then due on the said writing obligatory above specified; and that afterwards, (to wit,) on the same day and year aforesaid, in the county aforesaid, he, the said John Eaton, by be commissioners aforesaid was required to pay them the said sum of of £. 460, according to the directions and intent of the act aforesaid in the same plea in bar mentioned; and that he the said John Eaton thereupon then and there paid to the said commissioners the aforesaid sum of four hundred and sixty pounds, being the whole sum mentioned in the condition aforesaid, and all the interest thereupon then due : and that thereupon the said commissioners, then and there, made and delivered to him the said John Eaton a receipt and discharge of and for the sum aforesaid by him said as aforesaid, according to the directions of the act aforesaid in the same plea in bar mentioned. Yet the said Archibald and John Hamilton further say, that by the definitive treaty of peace between the United States of America aforesaid and his Britannic Majesty aforesaid, made and done at Paris, after the said fourth day of July, in the said year 1776, and after the time of making of the said writing obligatory, and after the departure of the said Archibald and John Hamilton, in conformity and obedience to the act of the General Assembly herein before pleaded, and after the passing the said act of the said General Assembly in the same plea in bar pleaded, (to wit,) on the third day of September, in the year of our lord 1783, it is (among other things) stipulated and agreed that creditors on either sides should meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts theretofore contracted, as by the same treaty, (among other things) may more fully appear. And the said Archibald and John Hamilton further in fact say, that they at the time of the making of the said definitive treasury, and for a long time before then, (to wit,) on the said — day of - in the said year 1777, were, and from that same day continually hitherto have been, and still are, creditors of the said John Eaton, by virtue of the writing obligatory in the said declaration mentioned, in manner and form as therein is declared, and on the side of his said Britannic Majesty, within the true intent and meaning of the said definitive treaty, (that is to say,) at the state of North-Carolina aforesaid, now in the district of North-Carolina, and within the jurisdiction of this court), and that they, the said Archibald and John Hamilton, at the time of the making of the said definitive treaty, at and before the passing of the said act of the General Assembly in the same plea in bar pleaded, and at and before the departing of the said Archibald and John Hamilton, in conformity to the act of the General Assembly herein before pleaded, by way of reply, and at and before the time of the making of the said writing obligatory in the said declaration mentioned, and at and before the time of the making of the said act herein before pleaded, by way of reply, and on the said fourth day of July in the said year 1776, and long before, then and from the times of their nativities respectively, were, and from thence continually hitherto have been, and still are, subjects of his said Britannic majesty, owing and acknowledging their allegiance and obedience to him. And that the said debt, in the said declaration mentioned, was contracted, and the said. writing obligatory therein also mentioned made and executed by the said John Eaton, bona fide, before the time of the making of the said definitive treaty, (to wit,) on the said — day of - in the said year 1777, and the same debt still remains wholly due and owing from the said John Eaton to the said Archibald and John Hamilton, and hath not, nor hath any part thereof, been paid or satisfied to them, or either of them, (that is to say,) at the state of North-Carolina aforesaid, and in the said district of North-Carolina, and within the jurisdiction of this court. And the said Archibald and John Hamilton further say that by the constitution ordained and established by the people of the United States for the United States of America, done in convention after the said third day of September, in the said year 1783, (to wit,) on the seventeenth day of September in the year of our lord 1787, it is (among other things) expressly declared that all treaties which were then made, or which should be made, under the authority of the United States, should be the supreme law of the land, any thing in the said constitution or laws of any state to the contrary notwithstanding, as by the same constitution more fully, appears. And the said Archibald and John Hamilton further say that, by an act made and provided in a General Assembly of the state of North-Carolina begun and held at Tarborough, now. in the district of North-Carolina aforesaid, and within the jurisdiction of this court, after the said third day of September, in the said year one thousand seven hundred and eighty three, and after the said seventeenth day of September in the said year 1787, (to wit,) on the eighteenth day of November, in the year of our lord 1787, and in the twelfth year of the independence of the said state, entitled, an act declaring the treaty of peace between the United States of America and the king of Great-Britain to be part of the law of the land, it is enacted by the authority of the same General Assembly, that the articles of the definitive treaty between the United States of America and the king of Great-Britain, were there by declared to be part of the law of the land. And it was and thereby further enacted by the same authority, that the courts of of law and equity were thereby declared in all cases and questions cognizable by them, respecting the said treaty, to judge accordingly; as by the same act more fully appears. Wherefore, for that the said Archibald and John Hamilton were merchants, and were and are subjects of the said king of Great-Britain, and creditors on his side as aforesaid; and the said debt was bona fide contracted before the making of the said definitive treaty, and the ordaining and establishing of the said constitution, and the passing of the said act declaring the said definitive treaty to be part of the law of the land: they, the said Archibald and John Hamilton, pray judgment and their said debt, together with their damages, occasioned by the definitive of the same, to be adjudged to them, &c.</p> <p>II. AND the said Archibald and John Hamilton, as to the said plea of the said John Eaton, by him secondly above pleaded in bar, say that they, by reason of any thing in that same plea alledged, ought not to be barred from having or maintaining their said action thereof against him; because, protecting that, that same plea and the matters therein contained are not sufficient in law to bar the said Archibald and John Hamilton from having or maintaining their said action against the said John Eaton; for replication they, the said Archibald and John Hamilton say that true it is that on the said fourth day of July, in the year 1776, and continually afterwards, until the said third day of September, in the said year 1782, a war was prosecuted and carried on against the United States of America by the king of Great-Britain: and that, in the time of the continuance thereof, such act was made and passed by and at a General Assembly of the state of North-Carolina, held at Newbern aforesaid, on the said fifteenth day of November in the year 1777 aforesaid, as in the same plea in bar in that behalf is alledged; and that afterwards the said other act was made and passed by and at the General Assembly of the said state of North-Carolina, held at Halifax aforesaid, on the said eighteenth day of October in the year 1779 aforesaid, as in the same plea in bar in that behalf is also alledged; and that in the time when the said war was continuing, land upon the said fourth day of July, in the said year 1776, and continually afterwards, until the time of the departure of the said Archibald and John Hamilton from the said state herein after mentioned, they, the said Archibald and John Hamilton were residents, and each of them was a resident, inhabiting and residing within the limits of the said state, (to wit,) in the county of Halifax, and that the said John Eaton, at the times of the passing the acts in the same plea in bar mentioned, and each of them, and long before that time, (to wit,) from the day of the date of the said writing obligatory, until the day of pleading the same plea in bar, hath been continually an inhabitant and resident of this state, dwelling and residing within the same, (to wit,) at the county of Halifax aforesaid. Yet the said Archibald and John Hamilton further say, that by an act made and provided in a General Assembly of the state of North-Carolina, begun and held at Newbern aforesaid, in the said state of North-Carolina, and now in the district of North-Carolina, and within the jurisdiction of this court, whilst the war was continuing, and after the said fourth day of July, in the year 1776 aforesaid, and before the said eighteenth day of October, in the said year 1779 and before the said fifteenth day of November, in the said year 1777 and before the time of the making of the said writing obligatory (to wit,) on the eighth day of April, in the said year 1777, entitled, an act declaring what crimes and practices against the state shall be treason and what shall be misprision of treason, and providing punishments adequate to crimes of both classes, and for preventing the dangers which may arise from persons disaffected to the state, (among other things) it is enacted by the authority of the same General Assembly, that all the then late officers of the king of Great-Britain, and all persons (quakers excepted) being subjects of the said state then living therein, or who should thereafter come to live therein, who had traded immediately to Great-Britain or Ireland, within ten years then last past, in their own right, or after as factors, storekeepers or agents here, or in any of the United States of America, for merchants residing in Great-Britain or Ireland, should take a certain oath of abjuration and allegiance therein mentioned, or depart out of the said state. And it is by the same act provided, that all and every such person and persons should have liberty, and that they might also nominate and appoint an attorney or attornies, to sell and dispose of his or their estate for his or their use and benefit, as by the same act (among other things) may more fully appear. And the said Archibald and John Hamilton further say, that they, on the said eighth day of April, in the year one thousand seven hundred and seventy seven aforesaid, and long before then, were, and from the time of their nativities respectively, continually hitherto have been, and still are, subjects of, and owing allegiance to, the said king of Great-Britain. And that they, on the same day and year last aforesaid, and for a long time (to wit) for the space of ten years before the making of the same act last mentioned, and until the said first day of September, in the said year one thousand seven hundred and seventy seven, were merchants and copartners, living in the then state, and formerly province of North-Carolina aforesaid, and had within and during the said space of ten years last past, before the making of the same last mentioned act, traded immediately to Great-Britain, in their own right (that is to say) at the state of North-Carolina aforesaid, and now in the district of North-Carolina aforesaid, and within the jurisdiction of this court: and after the said eighth day of April, in the said year 1777, and before the said first day of September in the same year, (to wit,) on the said — day of - in the same year, at North-Carolina aforesaid, and now in the district of North-Carolina aforesaid, and within the jurisdiction of this court, he the said John Eaton, made his said writing obligatory, sealed with the seal of the said John Eaton, and the date whereof is the same day and year; and by the same writing, he the said John Eaton then and there bona fide contracted the said debt, in the said declaration mentioned. And the said Archibald and John Hamilton further say, that whilst the said war was continuing, and after the said fourth day of July, in the said year 1776, and after the said eighth day of April, in the said year 1777, and after the making of the said writing obligatory, and before the said fifteenth day of October, in the said year 1779, and before the said fifteenth day of November, in the said year 1777, (to wit,) on the said first day of September, in the said year 1777, they the said Archibald and John Hamilton, then being merchants and copartners as aforesaid, and having lived, resided and inhabited, and then living, residing and inhabiting in North-Carolina aforesaid, in the manner herein before alledged, and having traded immediately to Great-Britain aforesaid, within, and during ten years last past, before the making of the same last mentioned act, as herein before alledged, and then being the subjects of, and owning and acknowledging allegiance to, the said king of Great-Britain as aforesaid, and the said John Eaton saying contracted the said debt bona fide with the said Archibald and John Hamilton as aforesaid, and the said Archibald and John Hamilton being creditors in that respect as aforesaid, did withdraw themselves, and each of them did withdraw himself from the said state, and remove and depart out of the said state, (to wit,) to Europe, in conformity to the tenor, true intent and meaning of, and in obedience to, the same last mentioned act of the General Assembly; and continually afterwards, from the said first day of September, in the said year 1777, and at the time of making of the said act in the same plea secondly above pleaded in bar first mentioned, and also at the time of making of the said act in the same plea secondly above pleaded in bar last mentioned, and at the respective times of the making of each of them, they the said Archibald and John Hamilton resided beyond the limits of the United States of America, under the sovereignty and jurisdiction of the said king, owing and acknowledging their allegiance to him, and they the said Archibald and John Hamilton had not, nor had either of them, at the time of the making the said act in the same plea secondly above pleaded in bar last mentioned, appeared before any General Assembly of the said state, to be, nor had they or either of them after their departure from the said state as aforesaid ever at any time after been, admitted a citizen or citizens thereof. And they the said Archibald and John Hamilton further say, that by the definitive treaty of peace between the United States of America aforesaid and his Britannic Majesty aforesaid, and done at Paris, after the said fourth of July, in the said year, 1776, and after the time of the making of the said writing obligatory, and after the departure of the said Archibald and John Hamilton, in conformity and obedience to the act of the General Assembly herein before pleaded, and after the passing of the act of the General Assembly in the same plea in bar secondly above pleaded first mentioned, and after the passing of the act of the General Assembly in the same plea in bar secondly above pleaded last mentioned, (to wit,) on the third of September, in the the year of our lord one thousand seven hundred and eighty-three it (among the other things) stipulated and agreed, that creditors on either side should meet with no lawful impediment to the recovery of the full value in sterling money of all bona fide debts therefore contracted, as by the same treaty (among other things) may more fully appear. And the said Archibald and John Hamilton further in fact say, that they, at the time of making of the said definitive treaty, and for long a long.time before, then, (to wit,) on the said - day of -, in the said year 1777, were, and from that same day, continually hithereto have been, and fill are, creditors of the said John Eaton, by virtue of the said writing obligatory, in the said declaration mentioned, in manner and form, as therein is declared; and on the side of his said Britannic Majesty, within the true intent meaning of the said definitive treaty, (that is to say,) at State of North-Carolina aforesaid, and now in the said district of f North-Carolina, and within the jurisdiction of this court: and that they the said Archibald and John Hamilton, at the time of the making of the said definitive treaty, and at and before the passing of the said act of the General Assembly, in the same plea in bar secondly above pleaded last mentioned, and at and before the passing of the said act of the General Assembly in the said plea in bar secondly above pleaded, first mentioned, and at and before the departing of the said Archibald and John Hamilton, in conformity to the said act of the General Assembly herein before pleaded by way of reply, by and before the time of the making of the said writing obligatory in the said declaration mentioned, and at and before the time of making of the said act of the General Assembly herein before pleaded by way of reply, and the said fourth day of July, in the year 1776, and long before, then, and from the times of their nativities respectively were, and from thence continually hitherto have been, and still are subjects of his Britannic Majesty, owing and acknowledging their allegiance him. And that the said debt in the said declaration mentioned was contracted, and the said writing obligatory therein mentioned was executed by the said John Eaton, bona fide, before the time of the making of the still definitive treaty, (to wit,) on the said - day of - in the year 1777, and and the same debt still remains wholly due and owing from the said John Eaton to the said Archibald and John Hamilton, and hath nor hath any part thereof been paid or satisfied to them, or either of them, (that is to say,) at the state of North-Carolina aforesaid, and now in the said district of North-Carolina, and within the jurisdiction of this court, And the said Archibald and John Hamilton further say that by the constitution ordained and established by the people of the United States for the United States of America, done in convention after the said third day of September, in the said year 1783, (to wit,) on the seventeenth day of September in the year of our lord 1787, it is (among other things) expressly declared that all treaties which were then made, or which should be made, under the authority of the United States, should be the supreme law of the land, any thing the said constitution or laws of any state to the contrary notwithstanding; as by the same constitution more fully appears. And the said Archibald and John Hamilton further say that, by an act made and provided in a General Assembly of the State of North-Carolina begun and held at Tar-borough, now in the district of North-Carolina aforesaid and within the jurisdiction of this court, after the said third day of September, in the said year one thousand seven hundred and eighty three, and after the said seventeenth day of September in the said year 1787, it on (to wit,) on the eighteenth day of November, in the year of our lord 1787, and in the twelfth year of the independence of the said state, entitled, an act declaring the treaty of peace between the United States of America and the king of Great-Britain to be part of the law of the land, it is enacted by the authority of the same General Assembly, that the articles of the definitive treaty between the United States of America and the king of Great-Britain, were thereby declared to be part of the law of the land. And it was also thereby further enacted by the same authority, that the courts of the law and equity were thereby declared in all cases and questions cognizable by them, respecting the said treaty, to judge accordingly; as by the same act more fully appears. Wherefore, for that the said Archibald and John Hamilton were merchants, and were and are subjects of the said king of Great-Britain, and creditors on his side as aforesaid; and the said debt was bona fide contracted before the making of the said definitive treaty, and the ordaining and establishing of the said constitution, and the passing of the said act declaring the said definitive treaty to be part of the law of the land: they, the said Archibald and John Hamilton, pray judgment and their said debt, together with their damages, occasioned by the detaining of the same, to be adjudged to them, &c.</p> <p>III. AND the said Archibald and John Hamilton as to the plea of the said John Eaton by him thirdly above pleaded in bar: say that they, by reason of any thing in that plea alledged, ought not to be barred from having or maintaining their said action thereof against him. Because, protecting that, that plea and the matters therein contained are not sufficient in law to bar the said Archibald and John Hamilton from having or maintaining their said action against the said John Eaton, for replication they, the said Archibald and John Hamilton, say that true it is that the said John Eaton, at the time of making of the said act at Halifax in the same plea in bar thirdly above pleaded, and at the time of making of the said act passed at Newbern, in November in the year 1777, and the said act passed at Halifax as aforementioned and continually before the said times respectively from the day of the date of the writing obligatory aforesaid, was, and had been an inhabitant of the said state, living and residing within the same, (to wit,) at the county of Halifax aforesaid. Yet the said Archibald and John Hamilton further say that, by an act made and provided in a General Assembly of the state of North-Carolina, begun and held at Newbern aforesaid, in the said state of North-Carolina, and now in the district of North-Carolina, and within the jurisdiction of this court, after the said fourth day of July, in the year 1776 aforesaid, and before the time of making the said writing obligatory, and before the passing of the said act of the General Assembly at Halifax, on the eighteenth day of October, in the year of our lord one thousand seven hundred and seventy nine, in the same plea mentioned, to wit on the eighth day of April in the year 1777 aforesaid, entitled, “an act declaring what crimes and practices "against the state shall be treason, and what shall be misprision of treason, "and providing punishments adequate to crimes of both classes, and for "preventing the dangers which may arise from persons disaffected to “the date,” (among other things) it is enacted, by the authority of the same General Assembly, that all the then late officers of the king of Great-Britain, and all persons (quakers excepted) being subjects of the said state, and then living therein, or who should thereafter come to live therein, who had traded immediately to Great-Britain or Ireland, within ten years then last past, in their own right, or acted as storekeepers, factors or agents here, or in any of the United States of America, for merchants residing in Great-Britain of Ireland, should take a certain oath of abjuration and allegiance therein mentioned, or depart out of the said state: and it is by the same act provided that all and every such person, and persons, should have liberty, and that they might also nominate and appoint an attorney or attornies, to sell and dispose of his, or their estates for his or their own use and benefit, as by the same act (among other things) may more fully appear. And the said Archibald and John Hamilton further say that they, on the said eighth day of April, in the year 1777 aforesaid, and long before then, were, and from the time of their nativities respectively continually hitherto have been and still are, subjects of, and owing allegiance to, the said king of Great-Britain; and that they, the said Archibald and John Hamilton, on the same day and year last aforesaid, and for a long time, (to wit) the space of ten years before the making of the same act, and until the time herein after mentioned, were merchants and copartners, living in the then state, and formerly province of North-Carolina aforesaid, and had within, and during the said space of ten years last past, before the making of the same act, traded immediately to Great-Britain, (to wit,) at - in their own right, (that is to say,) at the state of North-Carolina aforesaid, and now in the district of North-Carolina aforesaid, and within the jurisdiction of this court. And after the said eighth day of April, in the year one thousand seven hundred and seventy seven aforesaid, and before the time of the departure of the said Archibald and John Hamilton herein after mentioned (to wit,) on the same — day of - in the said year 1777, at North-Carolina aforesaid, now in the said district of North-Carolina and within the jurisdiction of this court, the said John Eaton made his said writing obligatory in the said declaration mentioned; and by the same writing obligatory, he the said John Eaton, then and there bona fide contracted the said debt in the said declaration mentioned. And the said Archibald and John Hamilton further say that, after the said eighth day of April, in the said year 1777, and after the making of the said writing obligatory, (to wit) on the - day of —, in the year 1777 aforesaid, they, the said Archibald and John Hamilton, then-being merchants and copartners as aforesaid, and having lived, resided and inhabited, and then living, residing and inhabiting in the state of North-Carolina aforesaid, in the manner herein before mentioned, and having traded immediately to Great-Britain aforesaid, within and during ten years last past before the making of the same act as aforesaid, and then being the subjects of, and owing allegiance to the said king of Great-Britain as aforesaid, and the said John Eaton having contracted the said debt bona fide with the said Archibald and John Hamilton aforesaid; and the said Archibald and John Hamilton, being creditors in that respect as aforesaid, they and each of them did refuse to take the oath of allegiance to the said state, in the said act prescribed, and did withdraw themselves from the said state and from the United States of America aforesaid, and, they, and each of them did remove and depart out of the said state, (to wit,) to Europe, in conformity to the tenor, true intent and meaning of, and in obedience to, the same last mentioned act of the General Assembly. And they, the said Archibald and John Hamilton further say, that by the definitive treaty of peace between the United States of America aforesaid and his Britannic Majesty aforesaid, made and done at Paris, after the said fourth day of July, in the said year 1776, and after the time of making of the said writing obligatory, and after the departure of the said Archibald and John Hamilton, in conformity and obedience to the act of the General Assembly herein before pleaded, and after the passing of the said act of the said General Assembly in the same plea in bar pleaded, (to wit,) on the third day of September, in the year of our lord 1783 , it is (among other things) stipulated and agreed that creditors on either side should meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts theretofore contracted, as by the same treaty, (among other things) may more fully appear. And the said Archibald and John Hamilton further in fa say, that they at the time of the making of the said definitive treaty, and for a long time before then, (to wit,) on the said — day — in the said year 1777, were, and from that same day continually hitherto have been, and still are, creditors of the said John Eaton, by virtue of the writing obligatory in the said declared mentioned, in manner and form as therein is declared, and on the side of his said Britannic Majesty, within the true intent and meating of the said definitive treaty, (that is to say,) at the state of North Carolina aforesaid, now in the district of North-Carolina, and within the jurisdiction of this court, and that they, the said Archibald and John Hamilton, at the time of the making of the said definite treaty, at and before the passing of the said act of the General Assembly in the same plea in bar pleaded, and at and before the departing of the said Archibald and John Hamilton, in conformity to the act of the General Assembly herein before pleaded, by way of reply, and at and before the time of the making of the said writing obligatory in the said declaration mentioned, and at and before the time of the making of the said act herein before pleaded, by way of reply, and on the said fourth day of July in the said year 1776, and long before, then and from the times of their nativities respectively, were, and from thence continually hitherto have been, and still are, subjects of his said Britannic majesty, owing and acknowledging their allegiance and obedience to him. And that the said debt, in the said declaration mentioned, was contracted, and the said writing obligatory therein also mentioned made and executed by the said John Eaton, bona fide, before the time of the making of the said definitive treaty, (to wit,) on the said — day of- in the said year 1777, and the same debt still remains wholly due and owing from the said John Eaton to the said Archibald and John Hamilton, and hath not, nor hath any part thereof, been paid or satisfied to them, or either of them, that is to say, at the state of North-Carolina aforesaid, and in the said district of North-Carolina, and within the jurisdiction of this court. And the said Archibald and John Hamilton further say that by the constitution ordained and established by the people of the United States for the United States of America, done in convention after the said third day of September, in the said year 1783, (to wit,) on the seventeenth day of September in the year of our lord 1787, it is (among other things) expressly declared that all treaties which were then made, or which, should be made, under the authority of the United States, should be the supreme law of the land, any thing in the said constitution or laws of any state to the contrary notwithstanding, as by the same constitution more fully appears. And the said Archibald and John Hamilton further say that, by an act made and provided in a General Assembly of the state of North-Carolina begun and held at Tarborough, now in the district of North-Carolina aforesaid, and within the jurisdiction of this court, after the said third day of September in the said year one thousand seven hundred and eighty three, said after the said seventeenth day of September in the said year 1787, on wit the eighteenth day of November, in the year of the and in the twelfth year of the independence’ of the said state, entitled, an act declaring the treaty of peace between the United States, of America and the king of Great-Britain to be left of the of the land, it enacted by the authority of the same General Assembly, that the articles of the definitive treaty been the United States of America and the king of Great-Britain, were thereby declared to be part of the law of the land. And it was also thereby further enacted by the same authority, that the courts of law and equity were thereby declared in all cases and questions cognizable by them, respecting the said treaty, to judge accordingly as by the same act more fully appears, Wherefore for that the said Archibald and John Hamilton were merchants, and were and subjects of the said king of Great-Britain, and creditors on his side as aforesaid; and the said debt was bona fide contracted before the making of the said definitive treaty, and the ordaining and establishing of the said constitution, and the passing of the said act declaring the said definitive treaty to be part of the law of the land; they, the said Archibald and John Hamilton, pray judgment and their said debt, together with their damages, occasioned by the detaining of the same, to be adjudged to them, &c.</p> <p>IV. AND the said Archibald and John Hamilton, as to the said plea of the said John Eaton, by him fourthly above pleaded in bar, say that they, by reason of any thing in that same plea alledged, ought not to be barred from having or maintaining their said action thereof against him because, protecting that that same plea and the matters there contained are not sufficient law to bar the said Archibald and John Hamilton from having or maintaining their said action against the said John Eaton for replication they, the said Archibald and John Hamilton say that true it is that on the said fourth day of July, in the year 1776, and continually afterwards, until the said thirtieth day of November, in the said year 1782, there was an open war between the said king of Great-Britain and the United States of America aforesaid, and that on the said fourth day of July, in the said year 1776, the said Archibald and John Hamilton were residents and inhabitants, and each of them was a resident and inhabitant of this and continued to reside, and inhabit within the same until the said 20th day of October, in the said year 1777. Yet the said Archibald and John Hamilton further say, that by an act made and provided in a General Assembly of the state of North-Carolina begun and held at Newbern aforesaid, in the said state of North-Carolina, and now in the district of North-Carolina, and within the jurisdiction of this court, after the said fourth day of July, in year one thousand seven hundred and seventy-six aforesaid; and before the time of the making of the said writing obligatory, (to wit,) on the eighth day of April, in the said year 1777, entitled, an act declaring what crimes and practices against the state shall be treason and what shall be misprision of treason, and providing punishments adequate to crimes of both classes, and for preventing the dangers which may arise from persons disaffected to the state, (among other things) it is enacted by the authority of the same General Assembly, that all the then late officers of the king of Great-Britain and all persons (quakers excepted) being subjects of the said state then living therein, or who should thereafter come to live therein who had traded immediately to Great-Britain or Ireland, within ten years then last past, in their own right, or acted as factors, storekeepers or agents here, or in any of the United States of America for merchants residing in Great-Britain or Ireland, should take a certain oath of abjuration and allegiance therein mentioned, or depart out of the said state. And it is by the same act provided, that all and every such person and persons should have liberty, and that they might also nominate and appoint an attorney or attornies, to sell and dispose of his or their estate for his or their use and benefit as by the same act (among other things) may more fully appear. And the said Archibald and John Hamilton further say, that they on the said eighth day of April, in the year one thousand seven hundred and seventy seven aforesaid, and long before then, were, and from the time of their nativities respectively, continually hitherto have been, and still are, subjects of, and owing allegiance to, the said king of Great-Britain. And that they, on the same day and year last aforesaid, and for a long time (to wit) for the space of ten years before the making of the same act last mentioned, and until the said first day of September, in the said year one thousand seven hundred and seventy seven, were merchants and copartners, living in the then date, and formerly province of North-Carolina aforesaid, and had within and during the said space of ten years last past, before the making of the same last mentioned act, traded immediately to Great-Britain, in their own right (that is to say) at the state of North-Carolina aforesaid, and now in the district of North-Carolina aforesaid, and within the jurisdiction of this court: and after the said eighth day of April, in the said year 1777, and before the said twentieth day of October in the said year one thousand seven hundred and seventy seven, to wit, on the same — day of - in the said year one thousand seven hundred and seventy seven, at North-Carolina aforesaid, now in the said district of North-Carolina, and within the jurisdiction of this court, he the said John Eaton made his said writing obligatory in the said declaration mentioned, and by the same writing, he the said John Eaton, then and there bona fide contracted the said debt in the said declaration mentioned. And the said Archibald and John Hamilton further say, that after the said eighth day of April in the said year 1777. and after the making of the said writing, obligatory, to wit, on the said twentienth day of October, in the year 1777 aforesaid, they the said Archibald and John Hamilton, then being merchants and copartners as aforesaid, and having lived, resided and inhabited, and then living, residing and inhabiting in the state of North-Carolina aforesaid, in the manner herein before mentioned, and having traded immediately to Great-Britain aforesaid, within and during ten years last past before the making of the same act as aforesaid, and then being the subjects of, and owing allegiance to, the said king of Great-Britain as aforesaid, and the said John Eaton having contracted the said debt bona fide with the said Archibald and John Hamilton aforesaid; and the said Archibald and John Hamilton, being creditors in that respect as aforesaid, did withdraw themselves from the said state and from the United States of America aforesaid, and, they, and each of them did remove and depart out of the said state, (to wit,) to Europe, in conformity to the tenor, true intent and meaning of, and in obedience to, the same last mentioned act of the General Assembly, and continually afterwards, from the said twentieth day of October in the said year 1777, until the termination of the said war, the said Archibald and John Hamilton resided beyond the limits of the said United States, under the sovereignty and jurisdiction of the said king, owing and acknowledging their allegiance to him, and during all the time last aforesaid, they, the said Archibald and John Hamilton, did not, nor did either of them, return into the said state, to be admitted citizens or a citizen thereof: and the said Archibald and John Hamilton further say, that true it is, that afterwards, such act of the General Assembly of this state, held at Halifax, on the eighteenth day of October, in the year 1779 aforesaid, was made as in the same plea in bar, fourthly above pleaded, is alledged. Yet they, the said Archibald and John Hamilton further say, that by the definitive treaty of peace between the United States of America aforesaid and his Britannic Majesty aforesaid, made and done at Paris, after the said fourth day of July, in the said year 1776, and after the time of making of the said writing obligatory, and after the departure of the said Archibald and John Hamilton, in conformity and obedience to the act of the General Assembly herein before pleaded, and after the passing of the said act of the said General Assembly in the same plea in bar pleaded, (to wit,) on the third day of September, in the year of our lord 1783, it is (among other things) stipulated and agreed that creditors on either side should meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts theretofore contracted, as by the same treaty, (among other things) may more fully appear. And the said Archibald and John Hamilton further in last say, that they, at the time of the making of the said definitive treaty, and for a long time before then, (to wit,) on the said - day of - in the said year 1777, were, and from that same day continually hitherto have been, and still are, creditors of the said John Eaton, by virtue of the writing obligatory in the said declaration mentioned, in manner and form as therein is declared, and on the side of his said Britannic Majesty, within the true intent and meaning of the said definitive treaty, (that is to say,) at the state of North-Carolina aforesaid, now in the district of North-Carolina, and within the jurisdiction of this court: and that they, the said Archibald and John Hamilton, at the time of the making of the said definitive treaty, at and before the passing of the said act of the General Assembly in the same plea in bar pleaded, and at and before the departing of the said Archibald and John Hamilton, in conformity to the act of the General Assembly herein before pleaded, by way of reply, and at and before the time of the making of the said writing obligatory in the said declaration mentioned, and at and before the time of the making of the said act herein before pleaded, by way of reply, and on the said fourth day of July in the said year 1776, and long before, then and from the times of their nativities respectively, were, and from thence continually hitherto have been, and still are, subjects of his said Britannic majesty, owing and acknowledging their allegiance and obedience to him. And that the said debt, in the said declaration mentioned, was contracted, and the said writing obligatory therein also mentioned made and executed by the said John Eaton, bona fide, before the time of the making of the said definitive treaty, (to wit,) on the said — day of — in the said year 1777, and the same debt still remains wholly due and owing from the said John Eaton to the said Archibald and John Hamilton, and hath not, nor hath any part thereof, been paid or satisfied to them, or either of them, that is to say, at the state of North Carolina aforesaid, now in the said district of North-Carolina, and within the jurisdiction of this court. And the said Archibald and John Hamilton further say that by the constitution ordained and established by the people of the United States for the United States of America, done in convention after the said third day of September, in the said year 1783, (to wit,) on the seventeenth day of September in the year of our lord 1787, it is (among other things) expressly declared that all treaties which were then made, or which should be made, under the authority of the United States, should be the supreme law of the land, any thing in the said constitution on laws of any state to the contrary notwithstanding: as by the same constitution more fully appears. And the said Archibald and John Hamilton further say that, by an act. made and provided in a General Assembly of the state of North-Carolina begun and held at Tarborough, now in the district of North-Carolina aforesaid, and within in the jurisdiction of this court, after the said third day of September, in the said year one thousand seven hundred and eighty three, and after the said seventeenth day of September in the said year 1787, to wit, on the eighteenth day of November, in the year of our lord 1787, and in the twelfth year of the independence of the said state, entitled, an act declaring the treaty of peace between the United States of America and the king of Great-Britain to be part of the law of the land, it is enacted by the authority of the same General Assembly, that the articles of the definitive, treaty between the United States of America and the king of Great-Britain, were thereby declared to be part of the law of the land. And it was also thereby further enacted by the same authority, that the courts of law and equity were thereby declared in all cases and questions. cognizable by them, respecting the said, treaty, to judge accordingly; as by the same all more fully appears. Wherefore, for that the said Archibald and John Hamilton were merchants, and were, and are subjects of the said king of Great-Britain, and creditors on his side as aforesaid; and the said debt was bona fide contracted before the making of the said definitive treaty, and the ordaining and establishing of the said constitution, and the passing of the said act declaring the said definitive treaty to be part of the law of the land; they, the said Archibald and John Hamilton, pray judgment and their said debt, together with their damages, occasioned by the detaining of the same, to be adjudged to them, &c.</p> <p>DEMURRERS.</p> <p>I. AND the said John Eaton says that the plea aforesaid, by the said Archibald and John Hamilton, above in replying first pleaded, and the matters therein contained are not sufficient in law, to compel the said John Eaton to answer to the aforesaid declaration of said Archibald and John Hamilton, to which the said John Eaton has no necessity, nor is he, by the law of the land bound, in any manner to answer: and this he is ready to verify. Wherefore, for default of a sufficient replication of the said Archibald and John Hamilton</p> <p>in this behalf, the said Eaton as before prays judgment, whether the said Archibald and John Hamilton ought to have and maintain their said action against him, &c.</p> <p>II. AND the said John Eaton says that the plea aforesaid, by the said Archibald and John Hamilton, above, in replying second pleaded, &c. as above.</p> <p>III. AND the said John Eaton says that the plea aforesaid, by the said Archibald and John Hamilton, above in replying, thirdly pleaded &c. as above.</p> <p>IV. AND the said John Eaton says that the plea aforesaid, by the said Archibald and John Hamilton, above in replying fourthly pleaded &c. as above.</p> <p>I. AND the said Archibald and John Hamilton say that the plea aforesaid by them the said Archibald and John Hamilton in manner and form aforesaid first above in replying pleaded, and the matter therein contained, are good and sufficient in law to compel the said John Eaton to answer to the declaration of them, the said Archibald, and John Hamilton: which said, plea and the matter therein contained the said Archibald and John Hamilton are ready to verify and prove, as the court &c. And because the said John Eaton to that plea doth not answer, nor has hitherto any way denied it, the said Archibald and John Hamilton pray judgment, &c.</p> <p>II. AND the said Archibald and John Hamilton say that the plea aforesaid by them the said Archibald and John Hamilton in manner and form aforesaid secondly above in replying pleaded &c. as above.</p> <p>III. AND the said Archibald and John Hamilton say, that the plea aforesaid by them the said Archibald and John Hamilton in manner and form aforesaid thirdly above in reply pleaded, &c. as above.</p> <p>IV. AND the said Archibald and John Hamilton say that the plea aforesaid by them the said Archibald and John Hamilton in manner and form aforesaid fourthly above in replying pleaded &c. as above.</p> <p>W. R. DAVIE, pro Quær.</p> <p>At June term 1796, this cause was argued.</p> <p>I rise to enter into the argument of this important question, with all the diffidence, which the importance of the subject, and the shortness of the time allotted to me for the consideration of it, are naturally calculated to inspire; and my diffidence is increased, when I consider that the investigation necessarily involves in it an enquiry into the constitutional powers and authorities of the late confederation and of our own state government an enquiry which cannot be other than an important one at any time. Yet, when I take a review of the subject, and deliberately consider the arguments which may be properly offered on both sides, I derive much confidence from a conviction that my client’s defence is a substantial one; and flatter myself it will so appear to your Honors, nif I can have the happiness to make myself intelligible in the manner I with.</p> <p>In examining this question, altho' the right of making the confiscation by our state legislature is not denied by the pleadings: yet with the view to shew the extent of that right, and to give the greater force to arguments which I shall draw from it, I beg the indulgence of this court, while I take a summary view of the doctrine, as explained by the most respectable writers on the laws of actions, and as recognized by the laws of England. I then contend that a sovereign state may rightfully confiscate debts due from its citizens, to the subjects of its enemy.</p> <p>To prove this I will consider, 1st. the nature of war.</p> <p>Vattel, page 519, § 138, says, “the business of a just war being 'to suppress violence and injustice, it gives a right to compel by 'force him who is deaf to the voice of justice; it gives a right of 'doing against the enemy whatever is necessary for weakening him, ‘or disabling him from making any farther resistance in support of 'his injustice: and the most proper methods may be chosen, pro'vided they have nothing odious, be not unlawful in themselves, or ‘exploded by the law of nature.” If this is the case, it follows of course, I humbly conceive, that a debt may be confiscated: for by that the state deprives the enemy of one great mean of supporting the war against her. The amount of debts due to British subjects in the several states at the commencement of the war with Great-Britain would have made no inconsiderable sum to be carried into the opposite scale; by depriving the enemy of this, which we do by with holding it from his subjects, we lessen his strength and add to one own: or at least we prevent the diminution of our own very considerably. For how would it have weakened and distressed us to have paid up debts to such large amount, at that particular time, in specie, (which was the only money that the creditors would receive) which would immediately have been carried out of the country, and we deprived of any benefit arising from the circulation of it among us? I presume that such a collection, could it have been made would have taken every penny of the specie then in circulation: and it is unnecessary for me to dwell on the inconveniencies and distresses the carrying it out of the country would have put our government to, at that time; every body knows the difficulties under which we had to struggle for the want of specie; altho’ we were not drained of it as we should have been, had these debts have been paid up. By withholding these debts, many whose greatest property consisted in them, might, from motives of interest, remain among us and join in the defence of our liberties; and the enemy from the cries and importunities of the creditors, who deserted and left their debts unpaid, might be the more readily brought to the sense of justice towards us; which, the elegant author I have quoted says, we have a right to compel him to, by any just means in our power. If the right to confiscate debts is denied; what would not be the inconvenience and injustice of it? We should have to defend the property of our very enemy; for the property of the debtor to the amount of the debt, in fact, belongs to the creditor. It is, at least the fund out of which it is to be paid, and upon which it is secured; the debtor protests and insures that fund, against the creditor, who contributes nothing to its protection; but, on the contrary, by his conduct, makes that protection and insurance more difficult and expensive. In fact, it is against him alone that any exertion for the protection is necessary to be made. It cannot be denied but property of every description, other than debts, may be confiscated: and, if so, it is surely just that debts also should be; otherwise one party, whose property in the enemy’s country confiscated of debts would have a material advantage over the other, who had property of other kind in the enemy’s country, which might and would be confiscated.</p> <p>Having observed this much, with the view to shew that the right of confiscating debts is a right which every nation may lawfully ex exercise against its enemy, on the breaking out of a war, in conformity to those general rules before mentioned from Vattel: I will now trouble the court with a few cases, to prove more particularly that debts may be confiscated.</p> <p>Vattel, p. 484, § 77, says, “among the things belonging to “the enemy are likewise incorporeal things; and all the rights, ti“tles and debts, excepting however those kind of rights granted “by a third person, and in which he is so far concerned that it is “not a matter of indifference to him by whom they are possessed. “Such, for instance, are the rights of commerce. But, as debts are “not of this number, war gives us the same right over any sum of “money due by neutral nations to our enemy, as it can give over “his other goods.” The same doctrine is said down 3d. Grotius 143, and goes to shew beyond question that, by the law of nations, a debt may be confiscated as well as any thing else; even if that debt is due by a neutral nation to the enemy. And if so, much more ought it to be the case, when due by one of our own citizens, who is in our own country, and himself and property subject to no other power but the laws of our own government.</p> <p>This right of confiscating debts is recognized by the law of England, which must also be the law here. Parker’s reports of Exchequer cases. 27. “Attorney-General vs. Weeden and Shales. In this “case, upon long debate, it was resolved 1. That choses in ac“tion, which belonged to an alien enemy, were forfeitable to the “crown, Maynard’s Edward 2, inter memorand. scaccar, 41.</p> <p>“2. That this ought to be found by inquisition to make a title “to the king, and that this was an inquisition of entitling and not "of instruction, Page’s case, 5, Co. 52.</p> <p>“3. That the peace, being concluded before the inquisition was “taken, discharged the cause of forfeiture.</p> <p>“4. That the inquisition, taken afterwards, did not relate to</p> <p>'set up their forfeiture; for the cause was but temporary, and that 'cause being removed before the king’s title was found, the fin'ding after should not relate.” Here the doctrine, contended for by the defendant, is fully established; for it shews the right to make confiscation, although it was considered not</p> <p>to have been made in this case: because the requires were not performed until the peace when the right ceased. But, in our own case, I apprehend every necessary requisite was performed. The act of Assembly raming the party, and what property should be confiscated, of itself was equal to an inquest of entitling—and any further inquest, that might possibly be necessary for any purpose, in the case, could not be considered in any other light, than that of an inquest of instruction; which could not affect the right, and is only had for the purpose of assisting the officers of the revenue. This was answered in our case, By the commissioners, who were appointed by the act, to collect the debts &c. especially, as the debt was actually paid into the hands of those commissioners.</p> <p>In the courts of law of England, it is a good bar of the plaintiff’s action, to plead that he is an alien enemy. 1 Hale, 95, 1 Bacon’s abridgt. 84, 85, Cro. Eliz. 182. And every bar is perpetual, 6 Rep. 7, Ferrar’s case, ib. 46. Higgins' case.</p> <p>This also shews that a debt may be confiscated; for if this is a good bar to the action and that bar is perpetual, it must be on the principle, that it is unlawful for the defendant to pay the debt to one who is an enemy, and who will use it to the injury of the state, whose subject he is; but it surely does not discharge the debtor, for that would operate as a benefit to the individual, and not to the community at large; for which there is no reason, and therefore the debt must belong to the state, which is placed in the shoes of the original creditor, and then he is properly barred from a recovery.</p> <p>This right of a sovereign state is not usually exercised in England; because their Magna Charta provides in another manner for them. That is by putting them in sequestration, until it should be known how their merchants are treated in the enemy’s country, and that if they were well treated, these should be so too. This Magna Charta is a kind of constitutional act, and therefore cannot be considered to extend in its operation to this country, as we have a written constitution of our own; and we have not thought proper to introduce such a principle as this into the constitution, it follows that the sense of the people was against it.</p> <p>But, this right of a sovereign state is recognized by the present judges of England. H. Black. 135, 149, 3, Term Rep. 731.</p> <p>This is a regulation calculated to suit a mercantile country like that of Great-Britain; being instituted for the convenience and protection of their merchants, and the support of their trade; that trade from which they themselves derive such national support, and without which their same as a nation, would not perhaps, even at this day, have far extended beyond the limits of their own little island. Even this regulation proves, that the right I contend for may be exercised, if the government think proper, and that it did exist before Magna Charta. If so, it must now exist here. This regulation is not used in England now, because by treaties with the European powers, the merchants on the breaking out of a war are allowed certain number of days to withdraw themselves and their effects, &c Sullivan's Lectures, 527. But no such treaties are opposed to the right in our case; and in our case the right remains therefore as it was originally, cleared of all objections of this first. If it is said to be unjust, and that it affects the sacred obligation of contracts; I answer that there is no more injustice in the state seizing on our kind of property than another. In either case, the person whose property is seized, has an equal claim on his own sovereign for compensation for his loss; and as to its affecting private contracts, the creditor having by his own conduct put himself out of the protection of the law which made the legal obligation of the contract, he is no more deprived of his right in the case of a debt, than in the case of any other property, which is taken from him. For in either case, he is disabled to sue for redress; and if the law did not provide in some manner for the case of the debtor, he would be the sufferer instead of the creditor; as there would be no one to whom he could lawfully pay his debt: and it is just and right that he should be authorized, by same competent authority, to discharge his contract when it became due; as the right to pay it to the original creditor is taken away. This mode of affecting the right to choses action, by acts of the legislature, is frequently exercised in England.</p> <p>1. It is done by acts of attainder, 4, Bac. Abr. 214.</p> <p>2. It is also done on conviction for treason or felony. 2, Bac. Abr. 577.</p> <p>3. Also by outlawry. 3, Bac. Abr, 734, 4, Ib. 214.</p> <p>4. By bankruptcy, by force of the acts, although the debt be due in a foreign country. 4, Term Rep, 182. H. Blackst. Rep. 131, due in a foreign country in notis.</p> <p>5. It was also done, ipso facto, by the south sea act; which vested the whole estate of the directors, in the hands of commissioners for the payment of their debts. 1 P. Williams, 895.</p> <p>In these cases of forfeiture the debt is so compleatly vested, that the assignee of the king may sue in his own name. 4, Bacon, 214.</p> <p>Having now established unquestionably, as I humbly conceive, the right of the state to confiscate the debt: I will proceed to shew, in the next place, that they have made such confiscation, fully and absolutely. But the only parts of the confiscation acts, which I shall beg the attention of the court to, at present, are the 2d section of the act of 1779, entitled, “ an act to carry into effect, a former "confiscation act, &c.” in which it is enacted, ‘that all the lands, ‘tenements, and personal property, within the state, of a number 'of persons by name and among the rest the present plaintiffs and ‘of all others, who come within the meaning of the confiscation ‘and this act, and all and every the right, title and interest, which 'all or each of, the said persons may have had therein, on the 4th ‘day of July, 1776, or at any time since, shall he, and hereby are 'declared to be confiscated, fully and absolutely forfeited to this 'state: and shall be vested in the hands of commissioners, as in 'this act directed, to be appointed for the purpose herein after 'mentioned and the 3d section of the same act which among other things, says “the commissioners shall have full power and authori ‘to take possession of all lands, tenements, hereditaments, monies, ‘debts, whether due by judgment, bond, bill, note, or otherwise, 'and all other personal property of the persons aforesaid, in the name and for the use of the state; and shall give receipts and discharges, which shall forever indemnify and acquit the persons de'livering or paying the fame, their heirs, executors and adminis-‘trarors, against any future claim, for the article or money menti'oned in such receipt and discharge,” This act is sufficiently full and explicit to veil the property of this debt in the state: and I feel satisfied that I have now established both the right to make the confiscation, and the legal exercise of that right, in the manner set forth in the defendant’s pleas. Here, I might rest the case until the counsel for the plaintiff should shew some legal ground, upon which this debt, which was thus legally divested, has become since reverted in his client: so as to entitle him to recover, notwithstanding this act. But in this case, the debt was actually received by the state, and thereby became extinct, as between the original creditor debtor. To prove this, it is only necessary, I conceive, to state again what I have already proved, that is that the state had right of confiscation, and that they exercised that right. For then it follows necessarily, that the state, having taken the creditor’s right to herself, has lawfully a right to receive the debt of the debtor; and therefore, the debt was lawfully paid. And, if once law fully paid, it is surely entirely discharged as much as it could be, in case of a payment to the creditor himself, or any assignee of his, or any other person lawfully authorized to receive; whether under authority from him, or any other competent authority; the contract was entirely at an end, there being after this payment, neither debt, debtor, nor creditor. This appears to me, to be such a necessary and clear conclusion that it would not need the aid of authority. I shall therefore adduce only one, in support of it, and that is Bynk. 2, J. P. L. 1, c. 7. who says: “what I have said of things in action, being rightly confiscated holds thus, if the prince really 'exacts from his subjects, what they owed to our enemies. If he 'shall have exacted it, it is rightfully paid. If he shall not 'have exacted it; peace being made, the former right of the cre'ditor revives accordingly, It is for the most part agreed among na‘tions, that things in action being confiscated in war, the peace be'ing made, those which are paid are deemed to have perished, and 'remain extinct. But those not paid revive, and are restored to 'their true creditors.” After having shewn the confiscation and discharge of the debt, in this manner, I shall proceed to consider the operation of the 4th article of the treaty of peace, relied on in the replication, as a repeal of the confiscation acts.</p> <p>1. This 4th article may be considered as standing alone, and unconnected with any other article of the treaty.</p> <p>2. As connected with the two following clauses.</p> <p>As standing alone, whether it be a repeal of the act of 1779 or not, depends upon what ought to be considered the meaning of the word creditors; which is of doubtful signification as used in this place. It may mean those who were creditors at the time of the treaty, their debts not being transferred from them by confiscation to the state, and then remaining unpaid: or it may mean those who had been creditors and were then unpaid, although their debts might have been transferred to the state by confiscation.</p> <p>To give to this clause the meaning first mentioned, will entitle creditors of the first class only to recover. But to give it the other, those of each class, and of course, the present plaintiffs, will be entitled to recover; if the payment to the state does not alter the case, which it undoubtedly does: for surely it is not reconcileable to our understandings, to call those creditors whose debts have been once legally discharged. Which of those two meanings is to prevail, must depend upon the true rules of found construction.</p> <p>1. I conceive then, that the date, having lawfully acquired those debts by a clear title, is entitled to retain that acquisition, until as clear a relinquishment be shewn. Vatt. 645 , § 21.</p> <p>2. Where a treaty will admit of two different constructions, that which changes the present state of things is to be rejected; and that in favour of the possession to be received; this is the clear opinion of Vattel, 399, § 305.</p> <p>If the present plaintiffs can recover, under the authority of the treaty, the state of things in our country is changed in this respect. At least the money which the plaintiffs seek a recovery of, was legally and absolutely in our possession ; as much so, as property of this kind could be in any case. The very money was in our treasury; and, if they are now to recover it of the defendant, it must be taken out again to reimburse him. If this is not changing the state of things as they existed at the time of the treaty, I confess I am ignorant of what would.</p> <p>3. In cases of doubt, the construction ought to be against the proposer of the article. Vattel, 651, & 32. Gro. c. 20, & 26. This is a clause inserted, beyond doubt, at the instance and for the benenefit of the other party; it is not reasonable to suppose, that we should voluntary propose such a one, which is thus calculated to confer such a benefit on them at our expense. If it was incumbention them to express themselves more explicity, and they have not done so, it is their own fault and not ours. Is it fair or just to extend this construction the length contended for, to the advantage of the proposer of the article, when it will lead to such absurdities, and when, if that had been the real intention of the parties, they might and ought to have expressed themselves, in such a manner as to have left no room for doubt ? How easy would it have been, to have said that these recoveries should be effected, in all cases of a debt due at the commencement of the war, not with standing the confiscation laws, &c, That would have put the business, so far as it</p> <p>regarded the intention, at least beyond doubt. Surely, if their meaning had been, what is contended for, the words I have mentioned, or some other more fully to express that meaning, would have been used. But our commissioners never would have acceded to such an article: they knew too well the limits of their authority, to agree to any thing of the kind as will plainly be seen when the following clauses of the treaty are considered. I say our commissioners had no authority to enter into a treaty that would have the extensive operation which it is pretended this 4th article ought to have. Some of the states could not pass retrospective laws; and of course congress, their deputies or delegates, could not do any act which would have such an operation on rights legally acquired, under the laws of any state; nor could a majority of the states exercise such a right. How then could congress, which is a representation of the states and for a particular limitted purpose? Congress had the right to make treaties for the United States beyond doubt. But those treaties were to operate as compacts, and the faith of the several states stood pledged for the performance of them, so far as congress acted with good faith and within the limits assigned to them by the spirit of the confederation. If they, by their treaties interfered with the internal police of a particular state: as they were only chosen to manage the general concerns of the union, and not of a particular state, that state was not bound until she passed act to adopt the treaty as a part of her laws; congress, knowing this, would not stipulate positively to do any thing which should interfere with the laws of any state; but in such cases would only agree to recommend to the several states what they wished done; which in most cases would have the same effect. But it would not in all; nor could it in any, without the consent of the states explicitly given, by passing laws in conformity to it. This it will be seen is the part congress of their commissioners did act with regard to this very business, in that part of the 5th article of the treaty, which is recommendatory. And this leads me to consider this 4th article,</p> <p>2. As connected with the two subsequent articles, the 5th and 6th.</p> <p>This appears tome to be the true way to consider it: and this will be the more necessary, when we consider the short, vague terms of this 4th article: and give to the other two, the construction that is reasonable when compared with the 4th. By a different mode of construction one article might militate directly against another; and it would be impossible to account for the true meaning of every part of the treaty satisfactorily. The propriety of this mode of construction is so self-evident, that I shall produce but a single authority to support it. Vattel 383, § 285, “we ought to consider the whole dis'course together; in order perfectly to conceive the sense of it, and 'to give to each expression not to much the signification it may receive 'in itself, as that which it ought to have from the thread and spirit of the discourse.”</p> <p>Viewing these three articles together then, as they all relate to one general subject, it is plain that they import a full confirmation of all our confiscation laws. It is not stipulated that one of them shall be repealed or impaired in the least, only to far as the recommendation might have such an effect. How is it then that a debt legally confiscated and vested in the state by an actual payment into the treasury, can be considered as given up, of the act of 1779 repealed ?</p> <p>If the 4th article is considered to stand alone, then such a construction as is contended for, would appear more reasonable: but why should we resort to this article alone, to be informed of the intention of the contracting parties. Were the other two inserted for no purpose? They, in my opinion, fully explain the 4th; because they shew that it was not the intention of our commissioners to do any thing which should repeal an act of the legislature of any state, and that they only intended to give a right to recover such debts as were then due and unpaid; not being claimed by any state as her property, which would take in in debts in most of the states (for few of them I believe actually confiscated those debts, altho’ most of them passed laws for their sequestration) which not affecting the original creditor’s right absolutely, would of course be properly the subject of a treaty, and come under the operation of this 4th article. If this was not what our commissioners intended, why do they stipulate for recommendation to the several state legislatures for repeal of the confiscation laws? why do they require congress earnestly to recommend to the state legislatures to provide for restitution &c? why do they agree that other persons than those particularly described should have leave to go to any past of the United States, to remain twelve months unmolested, in their endeavours to recover their estates, rights and properties? why was it necessary to stipulate that this class of persons should pay the bona fide price, for which their property sold, on the same being delivered up by the legislature? and why was it necessary to state in the 6th article, that there should be no further confiscation, and no further loss &c.? If the confiscation laws were repealed; there could not be any further loss, and in fact there had been none, as the creditor was to recover the full value of his debt, and if the commissioners had a right to repeal a law of the state, why have they not done to positively in the cases where they have agreed to recommend only? for they have in that case equally shewn their willingness to restore the property as in the case of the debts: but so far from that, where any part of the contrast of our commissoners, was likely to affect existing laws of any of the states, they have only stipulated that congress should recommend a repeal of those laws to as to make them conformable to such agreement: which is all they have done or had the right to do. Our commissioners knew that it would not do to go further than this, if they had the right even. The states never would have consented to such a thing in the then situation of their affairs, and the people would have revolted at the very mention of a thing so shocking to their feelings, at that particular period, when the sufferings and miseries of the war were fresh in their minds. If say other than real British subjects were intended to be benefitted by the 4th article, it could only mean that no further impediments than those already created by the acts of the legislatures, should be imposed. If this is not what was intended, and on the contrary, they intended by these general words, to repeal every law of the states, which raised such an impediment, they must surely have acted on the supposition that they were cloathed with authority to effect such a repeal, or they were not acting with good faith, and if this was the case, how can we account for their stipulating to recommend only in every case, where a repeal is mentioned? If they had a right to repeal our laws in one case, to they had in another and there was as much reason for their doing it in one case as in the other; if we suppose a complete restitution was desired and intended as far as they were enabled to make it. If this idea, that our laws were confirmed by the treaty itself, the commissioners having gone in the principle of their not possessing authority to effect a repeal of them absolutely, is not made already sufficiently plain and evident, other proofs of it are not wanting.</p> <p>1. The commissioner, on the part of Great-Britain, himself, so understood it: he attempted to get something more done for this class of people; but our commissioners, for the reasons already mentioned, refused to go any greater lengths to favor them. As a proof of this, I beg leave to refer to the correspondence on the subject between the commissioners on both sides, as it is stated by Mr. Jefferson when secretary of state, in his correspondence with Mr. Hammond, the British minister, p. 71, No. 8, 9, 73, 10, 76, 11.</p> <p>2. It was also to understood by the ministry and members of parliament in Great-Britain, in the year 1783, when the preliminary articles were under consideration. Ibid 32, 33.</p> <p>And these proofs are of such a nature as to carry entire conviction to my mind. Can any reasonable man suppose that our commissioners intended by this 4th article, to repeal every law of the states which confiscated these debts, when they all join in declaring that they have no right to repeal any one of those laws, because congress, from whom they derived their authority, had no such right? and when the British commissioner, on that declaration being persisted in, at length, agreed to accept such terms and such alone, with respect so the refugees, as our commissioners professed they had a right to agree to; and when the British ministry and the Parliament, who, we must suppose, would judge full favourably for themselves, declared they were satisfied that our commissioners had gone the full length of their authority, and did not pretend to require any think more of us, with respect to confiscations, than what the recommendations would probably effect. It is clear then they treated with us on this principle: and if we act up to that, altho' possibly the commissioners might have possessed greater powers than they thought and declared they did, yet we are surely not bound to extend the contract further than it was originally intended by the parties or both sides, when acting on this principle, thus fairly declared and understood at the time. But the true meaning of this 4th article is I humbly conceive, this: those who were real British subjects, residing in Great-Britain when the war commenced, should meet with no legal impediment to the recovery of their just debts &c. that in such debts as then existed, not forfeited and vested in the state by any act of the legislature, although the right to recover them had been taken away during the war, by the creditors becoming an alien enemy, or by some positive statute, disabling him to sue, or sequestering his property: nor were they to be impeded in their recoveries by the operation of tender or pine barren laws, or paid off with depreciated paper money, at its nominal value. These were the impediments that opposed themselves to the recovery, and these it was necessary to remove, and in the manner they have been removed by this 4th article, in order to give that full recovery which was had in view, and in fact it is nothing more than saying, we will be friends just hostilities shall cease: and courts of justice shall be opened for all just recoveries, on both sides. And although this might seem unnecessary in some degree, yet it is usual in such treaties, and serves to ascertained to the creditor beyond doubt, the right to sue on the return of peace which right, it is necessary, should be declared by some publish act of the before it could be noticed in the courts of law, although it should be otherwise ever so well known. But nothing of all this goes to show what shall be recovered that, I apprehend would have been expressed in stronger and more explicit terms, had it been the intention of the parties to regulate it in this clause. That was an office left however, for the 5th article to perform, which says, with regard to persons of the description of the present plaintiffs, for they cannot be considered real British subjects, I conceive, that they shall have leave to remain among us twelve months, endeavouring to recover their estates, rights and properties, under the recommendation of congress. These words of themselves are so full and expressive, as to take in debts and every other species of property, to which they might set up a claim and if so they are doubly provided for in the case of debts, if they are also to be included in the 4th article. But this cannot be the case, for why was it necessary to make any distinction at all, if every description of subjects were equally alike to be benefitted? To construe the treaty in such a manner, as to work, a repeal of the act of assembly, would be derogatory to the independence of the state, and productive of injustice and oppression. On the other hand, to preserve the independence of the state, and say that the treaty does not reveal any of her acts, and yet a very numerous class of creditors will be provided for, in the 4th article, which thus removes the impediment to the recovery of those debts, which had never actually been confiscated. To construe the treaty as is contended on the other side, those who have paid must pay again; for in this sense of the word creditors, as much as any other persons, the plaintiffs much be creditors.</p> <p>But every treaty ought to be according to the fundamental law and constitution of the country for which it is made.</p> <p>Vattel, 352, & 228, “thus also an oath cannot render treaty and that is not so; justify a treaty that is unjust in itself; nor law obligation to fulfill a treaty lawfully concluded, when a cause pretended where its observation would be unlawful. As for instance, if the ally, to whom succours have been promised, undertakes a war that is manifestly unjust. In short, every treaty prejudice to the state, every treaty made for a dishonest cause, or contrary to the fundamental laws, being null in its own nature; the oath that may have been added to such a treaty, is also null, and falls when the act it was intended to strengthen.” The same doctrine is laid own in p. 192, § 265, p. 296, § 154, p. 297, § 156.</p> <p>And in p. 637, part of § 10, this author says, “when a limitted power is authorized to make peace, as he cannot of himself grant every condition, in order to treat on sure grounds with him, it must be required that the treaty of peace be approved by the nation or power, which can make good the conditions. As for instance, in treating of a peace with Sweden, if a defensive alliance and a guarantee be required for the condition, this stipulation will be of no effect unless approved and accepted by the diet; which alone has the power of imparting validity to it. The kings of England conclude treaties of peace and alliance, but by these treaties they cannot alienate any of the possessions of the crown, without the consent of parliament, neither can they, without the concurrence of the same body, raise any money in the kingdom. Therefore, when they negociate any treaty of subsidies, it is their constant rule to communicate the treaty to parliament, that they may be certain of its concurrence, to make good such agreement.”</p> <p>If therefore of two constructions, the one be against the fundamental law, and the other consisdent with it; that which is repugnant to the fundamental law, must be abandoned, and the other received; otherwise the treaty itself must be abandoned. And the construction contended for here, seems to be against our constitution.</p> <p>1. The General Assembly have no power, but what is given to them by the people, declared in the constitution. In limiting this power, they have said, that no man shall be deprived of his property, but by the law of the land.” Bill of Rights, § 12,</p> <p>2. From, the nature of a debt, being a thing which becomes obligatory only by the expressed consent of the individual to be charged you cannot say that a man shall be a debtor and pay the debt, who is not a debtor.</p> <p>3. By the law of nature, the legislature is under an obligation to perform what it has promised; and the person promised, has a right to that performance therefore it has no right to make void, what it has engaged to support. And we have already seen, that it has engaged to support the payment, here pleaded as an extinguishment of the debt. Can the legislature now, after the debt is extinguished upon its own principle, pass a law to revive that debt, nullify the obligation of its promise, upon the faith of which the debtor has parted with his money? That it has no such right might be proved, and the impropriety of exercising it, made evident, by stating to your Honours, the numberless instances of the most horrid injustice and hardship, that it would be productive of but I conceive it to be too plain to admit of doubt, and therefore I shall take it for granted, that such a right does not exist in the legislature; and if so, much less was it in congress or their commissioners. Congress was a mere executive body; possessing no other powers, but such as are generally executed by the executive branch of a government. This is the light in which the commissioners viewed it, as I have before shewn; this is the light in which the British government viewed it, as I have also before shown and it is further manifested by their long detention of the Western Posts, because those acts of Assembly, which opposed the operation of the 4th article of the treaty, were not repealed. This is the light in which congress uniformly viewed it, when they required of the states, at different periods, to repeal those laws which opposed the treaty. And this is the light, in which I conceive every candid mind must view it, when he deliberately examines and considers the articles of confederation. As to the 6th article of the constitution of the United States, it surely never intended to give greater efficacy to the treaty, than it had before. What reason was there, for making it, more binding on the states under the new government. than it was under the old? We had received no new consideration from the other party, for such an extension of the obligation on our part would it have been suspected at the time the constitution was adopted in our state, that it would have this operation; that single article would have raised from every quarter the most insurmountable obstacles to its adoption the fail is, this article was inserted as one of course, to put the treaties that had been made under the old government in statu quo. For without such an article, it would have been very questionable, how far those treaties would be binding upon us, under the new government. And as to the act of Assembly of 1787, making the treaty the law. of the land; I have always understood, that this act was passed in conformity to a requisition of congress, to afford a proper pretext for demanding a surrender of the Western Posts, which were withheld on the presence that the treaty had not become the law of the land; not having been ratified by the several state legislatures, but that it by no pleas was intended to extend the length contended for, by the plaintiffs. Had that been the intention of the legislature, can it be doubted but that something more would have been expressed in the act as to that part of the treaty, at least, which is recommendatory only; it would have been necessary, I humbly conceive, to have framed a law entirely different from that which passed, both as to the title and substance of it; and this the journals of that Assembly shew us was attempted, (not that I know or believe that it was the with of a single member) but it does appear that the first bill introduced on the subject, was entitled, “ a bill to repeal such laws as militate against the treaty of peace made with Great-Britain,” p. of the Senate Journals, and 9 and 17 of the Commons. This bill seems was dropt after one or two readings, and the other was afterwards brought in and passed; which sufficiently shows the intention the Assembly, and which has been further manifested, at various, times since, by their proceeding further to carry the confiscations into effect, and to bring suits under them; one of which is now depending in Newbern superior court. But, in fact this act would not be a repeal of the confiscation laws only in such cases where the treaty contains an absolute stipulation; and that I have attempt to show, was not intended in the case of the present plaintiffs; or as to them, it was only recommendatory; and I rest satisfied, at this act making the treaty the law of the land, has done nothing for them. But suppose it should be considered as a repeal, it cannot be extended to the re-obligation of the defendant. For 1. A subsequent law repugnant to the former, cannot be so construed as to do away a right lawfully acquired, under the former law in of this, I shall read 2 Bacon, 75, the substance of a case rerted in 2 Mod. 310, determined upon the statute of frauds and injuries in England, that the clause which enacts that no action shall be brought, &c. to charge an executor, &c. extends not to promises made before, tho’ to be performed after, the making of the statute; for it would be against natural justice, that a promise made upon good consideration, would be destroyed by the retropect of a law, which none could divine would be made.’</p> <p>2. It has been always held that every thing which was done under a law whilst it was in force, was valid altho’ the law should be afterwards repealed, 4 Bacon, 638. 'If a statute be repealed, all acts done under it, whilst it was in force, are good.' Jenk. Cent. 3 Pl. 6. Then, here is at once an insurmountable objection to plaintiffs’ recovery. It is admitted that the state had the right confiscate and direct the payment of the debt into the treasury the money is paid in accordingly, before the repeal takes place; is payment then was something done under the law of confiscation whilst it was in force, and is valid agreeably to the principle which I have established; therefore the cannot affect it.</p> <p>3. If the statute of repeal is against common right and reason, it is void. 4 Bacon, 635. 8 Rep. 118. This repeal, if it is one in reality, is surely against common right and reason. When the debt or paid his money to the state, it was in consequence of the legislature declaring to him that he should be discharged from paying: gain to the plaintiffs; and relying on that, he makes the payment and has a right to the discharge; for it is admitted that the legislature was competent to pass a law of this kind, transferring the right receive the debt to the state, and if so, the payment was as got as if it had been made to the plaintiffs themselves: and it would be equally unjust to make the defendant pay it again. If he is compelled to do so, it may much distress him now, when the sum is very considerably increased by the accumulation of interest and costs. therefore do conceive, that on this principle also the plaintiffs ought to be barred of a recovery; and upon the grounds, as I have occu pied so much of the time of the court, I will submit my client’s case to the consideration of your Honours: as to you any recapitulation them might appear to be more tedious than necessary.</p> <p>IT is acknowledged that the bond in question represents a debt bona fide contracted before the ratification of to treaty of peace; that the defendant is a citizen of the United State and that the plaintiffs are subjects of the king of Great-Britain.</p> <p>The obligation of contracts is not only founded on moral principles, but that necessity of individual confidence, to essential to the well being of man, and indispensable to the existence of human society. Thus, one of the first objects of government in every country has been to establish some civil or judicial mode of deciding of controversies, and enforcing the performance of contracts. So that, between individuals of the same community, the moral, is scarce distinguishable from the legal, obligation; and the collected power of the society immediately follows to enforce it.</p> <p>By the law of nations, contracts between individuals of different communities shall meet with no legal impediment to their execution time of peace, and shall have the benefit of the constituted authorities of those communities to enforce them; and it is consider at present, as a maxim uncontroverted, that a war of itself does extinguish the rights, or dissolve the obligations, which existed before the commencement of it, between members of the different bellirent societies; although, during the continuance of the war, rights of bringing suit is suspended. Thus, if this case stood us the common or general ground, there would certainly be no objection to the recovery of the plaintiffs, raised upon the relation of parties or the intervention of a war.</p> <p>But, to this action the defendant has pleaded four several p of bar, grounded upon the confiscation laws of this state.</p> <p>1. A payment to the commissioners, under the act of October 1779, with their receipt and discharge.</p> <p>2. The act of November 1777, and the two first sections of the of Assembly of 1779; alledging that thereby the debt was confiscated, and absolutely forfeited to the state of North-Carolina.</p> <p>3. The third plea rests on the fourteenth section of the act of October 1779; alledging that the plaintiffs refused to take the oath of allegiance, and were compelled to leave the state by virtue of the acts of 1777; and that they had not appointed any lawful attornies or agents &c. to receive and give discharges for debts; that therefore, &c.</p> <p>4. The fourth plea is in substance the same with the second, though in a different form.</p> <p>To these pleas the plaintiffs have replied, the act of Assembly of April 1777; averring that they were then, and had been from their respective nativities, subjects of the king of Great-Britain, and that were at that time merchants within the meaning of said act, and that they departed out of the date, in conformity to the said act of Assembly. To this is also added the fourth article of the treaty of 1783; saying that they were creditors on the side of his Britannic Majesty; and therefore &c.</p> <p>Although the case made in the pleadings appears to be generally that of an open and solemn war between two independent nations, yet I admit that the following important facts also appear, and that recourse must be had to them as the key of explanation to the confiscation laws, viz. that the colonies, now United State’s, were formerly a part of the British Empire. That they, being disgusted with e government, remonstrated to the common sovereign on the conduct of the British Parliament; that their injuries remained unredressed, and Great-Britain proceeded to enforce her usurpations by arms; and these measures produced defensive operations on the part of America, until the fourth of July 1776, when congress tho't proper to declare the colonies free and independent states. This again produced a new order of things. The states immediately proceeded to form constitutions, and afterwards to enact laws. The commercial and political dependence of the colonies upon Great-Britain, as the mother country, had connected the interests of numbers with the old government; these of course had determined to remain under it, and the fourth of July became the epoch of discrimination. As these people had interest, by which they might naturally be influenced, so they had rights which were not to be violated. There could be no question on principle, as to the right of remaining under the old government; the great question was the right of change. Such was the state of things, when North-Carolina began to legislate on the subject of confiscation.</p> <p>The whole case may be safely considered as reduced to two general heads.</p> <p>1. Whether the debt in question, is within the purview and operation of the confiscation laws?</p> <p>2. If this debt is within the operation of those laws, whether the pleas of the defendant are among the impediments removed by the treaty of peace?</p> <p>In order to form a satisfactory judgment on the first point, it will be necessary to take a general view of the system of the confiscation laws; that their policy and relation may be properly understood; so that, when those pleas come to be considered on detached parts of the acts, we may be furnished with some rule of construction, which being formed from the whole law, will equally apply to all its parts. I shall pursue this part of the enquiry with a pleasure derived, not only from the discharge of my duty as a lawyer, but from the hope that I shall be able to show, that even amidst the conflict of political opinions, and the violence of a revolutionary war, the legislature of this country acted with dignified moderation, and an inviolable attachment to the principles of natural justice.</p> <p>The first legislative act on this subject, passed April 1777*, the 5th, 6th, 7th, 8th sections respect the present question, (they were read.) The parts of the act arose out of the peculiar circumstances this country, and were dictated by the wisest policy, and are perfectly conformable to the principles of natural law. The writers on this subject say,† that a nation has a right to form, and to perfect its constitution; that it may reform its government, and even change its constitution; but the rights of the dissenting citizens are reserved to them, “viz. to retire elsewhere, to sell their lands, and take with them effects."</p> <p>1. The court will observe that by the act of Assembly, persons of the description of the plaintiffs have their election to remain as members of the new state, or retire into the bosom of the old government.</p> <p>2. They may dispose of their estates.</p> <p>3. They may export the amount of it in produce.</p> <p>4. They may appoint attornies to sell, after their departure, &c.</p> <p>These form the outlines of the terms of the separation; and may be considered as a full expression of the mind of the sovereign power; but neither the debts created before, nor even by those sales are within the purview of the act.</p> <p>The debts are not mentioned; much less are they required to collect them before their departure, &c.</p> <p>All compulsory collection was impracticable. No courts existed to enforce the demand of the creditor, &c.</p> <p>The legislature met again the same year, and in November, passed another act,‡ nearly to the same effect.</p> <p>The clauses remarked upon in the act of April 1777, are re-enacted in toto with the addition of section 9th, imposing certain disabilities on persons suffered to remain in the state, and enacting a new discrimination between those who departed within the time allowed and those who remained after that time: the latter could not depart without leave of the executive, under the severe penalty of confiscation. The penalty was not inflicted for departure, but departure without permission.</p> <p>The 7th and 10th sections, repeal the penalties for returning.</p> <p>The proviso of the 6th section, is again a solemn recognition of the law of nations, and the immutable principles of justice.</p> <p>Here the same remarks recur, which have been already made on he same sections in the act of April 1777; and let it be noted, that the right to sell is expressly to the parties, and their attornies after their departure, that this admits a subsisting debt, either due by the vendee or the agent. That old or previous debts are not mentioned, that the attornies are neither authorized nor required to collect the debts; that as the debts are neither mentioned nor contemplated, no time was fixed for their collection.</p> <p>It was before mentioned, no courts existed. Courts were now ejected, but those persons and their agents were excluded from the benefit of those courts, as will appear by the worst of the court law.† The next act,‡ in order, on this subject, was passed the same session, this act has been emphatically stiled in subsequent acts, the "confiscation act,” it is indeed the basis of all the subsequent confiscation laws. (Here the law was read.)</p> <p>It may be remarked, that the descriptions contained in the preamble, do not include the case of those compelled to remove under the laws of the state. The expressions, “withdrawn to attach,” “withdrawn to avoid, &c. “beyond the bounds, at the beginning, &c.” are not intended to include them.</p> <p>The reasons stated in the latter part of the preamble shew clearly that those persons were not contemplated.</p> <p>The enacting clause, § 2, makes alike distinction between withdrawing voluntarily, and a compulsory departure, that is to say, the case of merchants expressly called upon, and that of a common citizen or subject, independent of the several cases expressly made, which are those of a voluntary withdrawing or absence; the provisionary clause of the same section, requiring them to appear at the next Assembly, proves beyond dispute, the meaning and extent of the law. Not availing themselves of this means of restoration, was to be the ground and criterion of confiscation.</p> <p>This shews the whole aspect of the act, and limits the sphere of its separation.</p> <p>The fourth section makes them and their case an express exception the act. This act was not necessary, to complete both justice and policy, with regard to them: all real estates unsold after three months, was to be considered as confiscated and forfeited to the state. The debts as I have shown, were not contemplated.</p> <p>This act evidently intended to include all those cases which not had been acted upon by former and existing statutes.</p> <p>While this act forms the basis, it also furnishes a rule of explanation to all the subsequent acts; as will appear, not only by established rules of construction, but the plain tenor of those laws.</p> <p>The next act,* which operated upon confiscated property, by being acted upon, passed in October 1779, and is the act alluded to in the second and third pleas of the defendant. The court will observe, on the reading of this act, that it has proceeded on the acts of April 1777, and the act of November 1777, chapter 17, clearly distinguishing the two cases I have stated to the court. (Here the 1st, 2d, and 3d sections were read.)</p> <p>The fourteenth section is intended to operate on the case of the persons who separated from the new community, under the acts of April 1777. (Here the law was read.)</p> <p>The preamble shows the purview and intended operation of the 2d and 3d sections, clearly limitting them to the objects of the act, chapter 17, November 1777.</p> <p>It is a rule of law that all acts or statutes, relating to the same subject, are to be construed as one act, and a consistent construction if possible, given to every part of them. Thus the whole confiscation a laws must be considered as one legislative act, making one confident system.</p> <p>The construction authorized by this rule, and the only consistent construction that can be given to this part of the act, I take to be this: that the real estates of those persons the therein named, who had been compelled to leave the state, under the acts of 1777, and which they had neglected to sell, should be sold with those confiscated, under the act of November; and that their being named here, should operate as an office found, as to those lands formerly owned by these persons,</p> <p>It does not include their debts, because the state had required them sell and depart.</p> <p>It could not proceed on their adherence to the old the government, because they had made it high *reason to return to the new state.</p> <p>Thus, a compliance with the act of was impossible-and the case of debts, if will be observed, is intended to be provided for in the fourteenth section.</p> <p>The real states unsold were already confiscated something in the nature of an office was all that remained necessary.</p> <p>It follows then, by fair and legal inference, that where the word occur, it must be supposed to refer to persons under different descriptions, of which there were many named in the act.</p> <p>The fourteenth section† has taken for its basis, the provides of the expulsion acts, as they are usually called of 1777: and assigns, two causes of confiscation, former act, viz.</p> <p>1. Not disposing of their real estates.</p> <p>2. Not appointing any attornies to collect their debts, &c.</p> <p>The first is perfectly consistent with the provides in both acts of Assembly.</p> <p>The other is evidently founded on mistake. The act gives them leave to appoint attornies to fell and dispose of their estates, but not a word is said about receiving and giving discharges for debts-the following, or latter part of the provisional clauses, saying that if any real state shall remain unfold, “the same shall be forfeited, &c,” shews clearly the reason and object of appointing these a ents; and they were only allowed three months after the departure of the principal to sell lands.</p> <p>The enacting clause is expressly limitted by the purview of the proviso it recites; the legal and true construction of it must follow the object and tenor of the act of 1777, and the rights secured under the provifo, are facred from the operation of this clause.</p> <p>Let me only add, that the 20th section† promises an indemnity. The legislature certainly had in view, the possibility of its being otherwise settled by treaty.</p> <p>These are, the several acts of Assembly, relied upon by the defendant; we will now consider the first plea, on case made in the pleadings, independent of the treaty of peace.</p> <p>I. It will be recollected, that the plaintiffs were persons within the year letter of the act of April 1777, being “merchants who then traded, and had traded &c.” Sound policy and the safety of the state, required that these people should be separated from us; and the principles of natural justice required also, that although they might be personally inconvenienced, their natural rights should not be violated.</p> <p>The proviso contained in the 6th section, is a solemn recogntion of the principles of natural law,‡ and this act of national justice reflects the highest honor upon the legislature of this country.</p> <p>As soon as these people made their election, and figured their intention to remain under the old government, by refusing to take the oath of allegiance prescribed by the acts of 1777, they became immediately aliens to the new government, and their real estates were subjected instanter to all the consequences of alienage. In order to prevent this mischief, which would have been attended with such glaring injustice, agreeably to the principles laid down by Vattel, their personal rights were respected by the legislature, they are authorized to sell, &c. &c. that is the right of citizenship, is pro hac vice continued. They have liberty to escort the whole amount in produce, (naval stores excepted.) This very justly assumes the appearance of liberality and moderation, while the measure was dictated by the wisest policy. The exportation of money or specie might have been a ferious injury, before the extent of paper credit was known; the other mode, in many instances, enabled our citizens to pay for their purchases, while it furnished a market for their produce, which had already accumulated on the hands of the planter, and threatened him with an entire loss.</p> <p>It may be important to mention here, the motive which doubly influenced the legislature to be entirely silent on the subject of debts. The effects of the war were already felt; the citizen would not have been in a condition to pay-and even a partial collection must have drained the country of all the specie it possessed. It is but a justice due, however, to the legislature, to show that this regulation was extremely beneficial to the merchant. Money must have been raised with difficulty, in so short a period, the exportation of produce was in the line of his business, and might enable him to fulfil his foreign engagements; the case of the merchant appears to have been particularly considered, and those mischiefs, naturally that consequence of political revolution, and to destructive to trade, and so distressing to this useful description of men, were averted and alleviated as much as possible.</p> <p>In this analysis of the clause, the collection of their debts is never brought into view, nor does the expression, or any thing tantamount occur. The words “and after satisfying all just demands," “to export the amount &c.” evidently relate to the sales of their estates, and is to be considered in the light I have already stated it, as an act of policy and justice; nor will they be considered as obliged to export the whole amount, although that priviledge was granted.</p> <p>This construction, in addition to the weight it acquires, from being consistent with reason and natural justice, on which the Assembly appears to have acted, is warranted by the whole latter part of the</p> <p>clause, “if any real estate should remain unfold &c.” This operated by way of penalty in this instance, and is a full expression of the legislative mind; and the penal part of the act will not, on any principle, be carried beyond the letter, or what is much stronger, the particular case stated by the legislature itself.</p> <p>These observations are made to show the true ground on which these people flood, and their rights, as recognized by the legislature, and sovereignty of this country.</p> <p>The result is, they departed with all the rights of alien enemies, according to the laws of nations, with the following additional rights and privileges.</p> <p>Their persons were protected from military arrest, during their stay.</p> <p>Their property from capture on exportation.</p> <p>Their real estates from escheats, by the privilege of sale.</p> <p>Their personal estates to be managed by their attornies or agents, and under the implied protection of the government.</p> <p>Their debts not being mentioned, may be considered as untouched, and are clearly included under the situation of their personal state.</p> <p>It remains now to be shewn, that the debts of persons thus situated, are not within the purview of those sections of the act of October 1779*, relied upon in this plea. (Here the clauses were read.)</p> <p>1. It has been observed, that the first part of this act, that is here clauses, have taken for their ground, the act of November 1777, chapter 17.*</p> <p>2. That the descriptions, mentioned in the preamble and enacting clause, do not include the case of persons compelled to depart the act of April.</p> <p>3. That this law evidently operated only on those cases which had not been before acted upon.</p> <p>4. That these persons are expressly excepted from the benefit of that act, and of course from its penalties which were made the express consequence of non compliance: and this was the case, whether they removed themselves, or were removed by the compulsory auhority of the magistracy.</p> <p>The clauses of the act immediately under consideration, expressy refer to the act, chapter 17, and are built upon it. They are therefore, by every rule of law to be considered together as one act. That the only consistent, and of course legal, construction that can be put upon the 2d and 3d sections, as they may regard the plaintiffs, is the construction I before submitted to the court, viz, that they operated as an office found as to the real estate unsold. That where the words debts or monies occur, they must refer to the cases of persons differently situated.</p> <p>Again, the fourteenth section expressly contemplates the debts and case of the plaintiffs, which shews that the legislature considered them as two district subjects or cases, and that the plaintiffs were not within the purview of the 3d and 5th clauses.</p> <p>However general the expressions may be, it is clear they cannot over the case of the plaintiffs, while the act of November forms he rule of construction, and a rational consistency is required in the several parts of the same act. To argue otherwise, would be to turn the acts of 1777, those acts of justice and beneficence, into a snare to these people, and to attribute to the legislature, a species of speculative policy, equally unworthy and unmerited; while they themselves were asserting the rights of man, and solemnly avowing their reverence for the principles of natural justice.</p> <p>II. If however, this point should be adjudged against the plaintiffs, not remains to be considered, whether the payment made to the public commissioners is not among the impediments removed by the treaty of peace.</p> <p>Before we enter upon the examination of this part of the case, it may be proper to consider some general objections made by the counsel for the defendant, to the authority of the treaty. It is alledged that congress were a mere executive body, a fort of council who could only recommend; that the articles of confederation conferred no absolute powers, and that the validity of the treaty depended upon the sanction of the individual states. It follows from the very nature of a confederacy, which is formed by an association of sovereignties that there must be a certain distribution of the sovereign power, between the constituent states and the confederacy. Thus the individual states retain those portions of sovereignty, which are necessary for their internal government and police; and congress became the exclusive deposit of those powers, which were necessary for the preservation of the Union, their common defence, and the regulation of their affairs with other nations; and it will clearly appeal by the instrument itself, that the power of making treaties was exclusively lodged in the congress of the United states. By the article, each state retains every power, jurisdiction and right which is not, by this confederation, expressly delegated to the United State in congress assembled, and by the 9th article, the congress of the United States in congress attempted, have the sole and exclusive right and power of determining on peace and war, offending and receiving ambassadors, and of entering into treaties and alliances. Congress then had the sole and exclusive power of making this treaty on the part of the United States; and were alone competent to this act of sovereignty: no power of this kind remained with the states. From what data is it then inferred, that treaties of this kind depended upon the sanction of the states, for their legal validity: The means of carrying treaties into effect, it is true, remained in many instances, at that time with the states. Congress had full power to make such contracts, but they had not the same degree of power over the means of execution. Thus in 1787, there existed no federal judiciary, and the comparative authority of laws and treaties depended upon the sense or judgment of the state courts: and hence resulted the necessity of those repeated applications from congress to the states, requiring them to carry the treaty into complete effect which had then become the supreme and positive law of the land.</p> <p>It is also contended, that if congress had power to bind the state by a treaty as to some things, it was acknowledged and understood by them and their agents, that they had no power to repeal or otherwise affect the confiscation laws: and Mr. Baker relied upon some resolutions of congress, the journals and correspondence of the negociators, and the opinion of members of the British parliament as satisfactory evidence of their assertion. It would perhaps be sufficient answer to all this, to say, that these documents relate to the object of the 5th article, which, as will be shewn presently never contemplated debts. But without drawing into question such evidence as the progress of a negotiation, where simulation and secrecy must act a considerable part, I beg leave at once to oppose, to all this, the letter addressed by Congress, to the state in April 1787, in which they declared and demonstrated that Congress alone possessed the right, not only of making, but of intrepreting, restraining, or counteracting the operation or execution of treaties “which on being constitutionally made, became by the confederation, a part of the law of the land, and as such, independent the will and power of the legislatures."</p> <p>To this, the court will permit me to add the opinion of Mr. Jefferson. “It results,” say he†, “from the instrument of confederation, among the states, that treaties made by congress, according to the confederation, are superior to the laws of the states.” This is not offered as an authority by which the court are positively bound, but but as the opinion of a respectable civilian, delivered upon an occasion of great importance, and where the present question was directly under consideration; and this opinion he asserts, was support by the general sense of the states, and of those gentlemen who were of the profession of the law.</p> <p>Whatever doubts may have been entertained by some men, respectable for their learning and talents, whether the treaty could have been executed by the vigour of its own authority, it appears to be generally admitted, that by the instrument of confederation along the states, the treaties made according to that confederation, became superior to the laws of the individual states.</p> <p>Treaties derive their authority as law, from being the act of the sovereign power. The safety and prosperity of the nation are involved in this high act of sovereignty, and thus from necessity, treaties have always been considered as paramount to ordinary laws. Every community possessing sovereign power, may enact laws to bind is own members, but rightfully they have no authority to bind others. Thus treaties acquire their authority from the joint assent of the sovereign power of those nations making such treaties, and to the citizens or subjects of those nations, they become positive law," law of the most sacred obligation, and of the highest importance to the tranquility, the happiness and security of the human race. Vattel, p. 11, 12, sections 24, 27, Vattel, 2, b. c. 12 & 163, Burl. vol. c. 9, & 6, ibid, c. 14, & 3.</p> <p>Thus, a treaty partakes both of the supremacy of a law, and the obligation of a contract. The act of Assembly mentioned in the pleadings, and the constitution of the United States have left no doubt the subject of the treaty being now the supreme law of the land.</p> <p>It is upon this double ground of its supremacy as a law, and its operation as a compact, I contend, that all acts of the state and its own members, with respect to debts of this description, were not only repealed, but even to be considered as a nullity, and as if they ever had existed, with respect to the creditor.</p> <p>The words of the 4th ‡article of the treaty, are, “it is agreed that creditors on either side, shall meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts heretofore contracted.”</p> <p>This article, the counsel opposed to me has thought proper to consider, in two points of view, viz. as standing alone, and 2dly, is connected with the 5th and 6th articles. And it is alledged, that the true operation of this article depends upon the found construction of word "creditor,” which is said should be confined to the creditor of such debts as were due at the time of making the treaty. The word creditor is indeed a relative term, and must suppose an existing debt. Those debts of which a person would be a creditor under the treaty, received however, a precise and definite description, by the latter part of the article, in the words “all bona fide debts heretofore contracted.” If the article had been drawn</p> <p>up in the words mentioned by the attorney general, doubts might have arisen with regard to the effect of confiscation, or sequestration on and payment. But the phraseology adopted by the commissioners has excluded all doubt, the sole designation being the creditor of a of debt heretofore bona fide contracted.</p> <p>It has also been observed, “that the words legal impediment, should be restricted to disabilities to sue, the right of bringing suit, not the right of recovery," this is an unfortunate critism, as the very tenor of the article imports the recovery of the full value in sterling money, and embraces immediately the right of recovery, and the attainment of substantial satisfaction, for all debts bona fide contracted. The law of Nations restored the right of suit, and the treaty expressly gives the right of recovery, notwitstanding any impediments enacted during the war.</p> <p>To illustrate the construction imposed by Mr. Baker, he infers that the words “either side” mean on one side, creditors resident in Great-Britain at the commencement of the war. There is certainly nothing connected with the expression that will warrant such an inference. The phrase creditors on “either side,” appears to have been selected, because it drew a plain and clear line, between the creditor and debtor, contemplated by the treaty. All distinctions of British subjects taken from their residence, are blended in the common designation of a creditor, on the side of his Britannic Majesty. It is no longer a question, whether the creditor resided in Europe or the West-Indies, or in the districts in the possession of his Majesty’s arms in America. Some reliance is also placed upon the words “sterling money,” as evidence that the debts contemplated, were such as were due to merchants or others, resident in Great-Britain, that the debts now in question, is proclamation money. This objection is easily answered, the colonies had emitted paper money of different denominations, and proclamation money had no particular value, but the current rate of exchange. The United States had issued paper money which had depreciated to nothing: hence it became necessary to have reference to some established standard of value, to avoid e misfortune of mere nominal recoveries, in the paper money of the states.</p> <p>These remarks were concluded by an assertion that the article was vague and uncertain, and that its application to any case should therefore be attended with great caution. As this was not shewn, I can only answer, that it appears to me, the terms used in this article are the most comprehensive and unequivocal that could possibly be adopted, both the contracting parties appear to have been defirous to exclude all ambiguity, and the possibility of misconstruction: “all debts heretofore contracted,” avoids all distinction that might create disputes and intangle justice, and entirely excludes every enquiry relative to confiscation or forfeiture in any form or shape whatever, the sole description being that of “bona fide debts heretofore contracted.”</p> <p>Thus, therefore this article operates equal on all contracts which had originated before that time, and all the impediments to their recovery, which had arisen out of the war; there is no exception as to the nature of those impediments, whether they depended upon the act of the state itself, as a mere act of confiscation, or upon the state and one of its members, as a payment with a receipt and discharge; and when an act, says Vattel,* “is conceived in clear and precise terms, there can be no reason to refuse the sense which the treaty naturally presents.”</p> <p>Some rules of interpretation have been applied to this article, which I will take proper notice of, while I examine this article, by those maxims laid down by the most eminent writers. But I hope this will not be taken as an admission, that there is any thing doubtful or equivocal in the text, or that the court are at liberty to depart from the rule last mentioned.</p> <p>The impediments contemplated by the treaty varied in the different states, and even in the same state. Some cases were only acts of sequestration, in their mere declarations of confiscation, in some they amounted to confiscation and collection or payment. This latter impediment existed in the principal debtor states, the payment which had been made to the public was merely nominal, and if it had been otherwise, the creditor had no certain relief against the states; these circumstances must have been known and considered by the commissioners, indeed they had every reason to believe that this would be</p> <p>the principal existing impediment in Virginia and this state. Is there any reasonable ground to infer that this impediment, the most prominent feature in the group, should have passed unnnoticed, and considered as an exception? If, says the same author†, "there is an obscurity, we should seek for what was probably in the thoughts of those who drew it up, and interpret it accordingly."</p> <p>It is also objected, that the state stood as assignee of the creditor, that the payment to the state, was as good as to the original creditor, and the debt being so paid is extinguished, and there was neither debt, debtor nor creditor at the time of making the treaty.” This jingle of words imposes for a moment, on the ear; but when examined, is found to be no more than a conclusion drawn from premises neither proved nor granted. If the state had really been the assignee of the original creditor, a payment to her would certainly have been good against my clients: but the only assumes the authority to receive without the consent of the obligee, and a payment to her is no more than a payment to an officious stranger, which depends for its validity on the subsequent assent of the creditor; it may be said that this assumption of power to collect debts, is among the rights of war. To which I answer, that the rights of war, when exercised, always depend as to their final validity, on the state of things as settled by the treaty of peace. Thus perhaps, if the debts had never been mentioned, and certainly, if those payments had been sanctioned by the treaty, as in the cases which arose of the treaty between England and Denmark, anno -, as appears by the cases of Weymburg against Touch, 21 Car. 2, in Canc. and Trower against Haffold, 1 Ca. in Ch. 173, the payment would eventually have been sustained in this court as a legal payment: but when the contrary is expressly stipulated, the payment becomes of no validity, and it follows of course, that there is now both debt, debtor and creditor. It appears from the authorities I have read and the nature and obligation of treaties, that the commissioners of America had power to bind the nation collectively and individually. The payment under the act of Assembly, was a transaction between the state and one of its own members, that is to say, between the defendant and the defendant, represented in a moral capacity, who, as to this question, should be considered at one person. That in the treaty, the state and its member hold this honest language: we agree there should be no lawful impediment, or in plain language, the manner of payment and discharge we had fixed upon, during the war, without your consent, shall be considered as a nullity, whatever form if may assume. Thus the treaty works not only as a repealing law, operating a repeal eo tempore of all existing laws to the contrary; but by way of compact also, wherein one of the contracting parties does agree, that the things done under those laws should be considered as void; or in the language of the treaty, "no impediment.” The result is no more than this: the state remains under a moral obligation to reimburse the citizen, as it expressly agreed by the law of 1779, what it really received; and the individual is in statu quo with respect to his creditors. Treaties are considered as the voice of necessity: the state and its member admit the payment was originally more matter of form that substance; a mere family accommodation, which could be easily again adjusted in the same manner. Trifling circumstances, like these, would never be seriously opposed to the obligations of private faith, the claims of natural justice, and the peace and safety of the United States.</p> <p>It is objected that this construction involves a sacrifice of private rights: and, therefore this construction should not be extended to include this case. Let it be observed that the construction we contend for, is not what is understood as the extensive, that it is the natural and common, import of the words* with regard to a natural and necessary object: it is not bringing an expected case within the mere meaning of the contract, it is not a reliance upon any thing so uncertain and evanescent as the spirit of the article, which may depend entirely upon the ideas of the commentator of the meaning of the enactor: we rely on the plain and common import of the words. Let it also be remembered, that these rights, if they may be so termed, were certain rights acquired by the war, and therefore properly the subject of treaty. That the real rights of individuals, properly acquired, may be sacrified by the public on such occasions, is testified by numerous examples and authorities. And as this sacrifice was merely nominal as to the American citizen, should he never be reimbursed agreeable to public faith, it is not to be presumed that this matter was considered by the commissioners as a thing of any consequence, or an exception. On what ground of justice could they make an exception of it? It must also be remembered, that this was a part of the price of peace, and the independence of America. No humiliating terms. It is only in affirmation of the law of nature, and of nations, that individuals should honestly pay their debts, that the inconvenience of wars should cease with them, and that both governments should mutually contribute to the establishment of justice and moral order.</p> <p>And again if, in general, the rules of construction of treaties, confine the expression, used by the parties, to the object meant to be acted upon; then in treaties of peace, the war, and the affairs and transactions arising out of it, are the natural and certain objects upon which the treaty is intended to operate, unless the contrary clearly and expressly appears; then from the rule it must follow that impediments created during the war must have been the peculiar and immediate objects of this article*. This is according to the rule “giving the expressions the sense most suitable to the subject.”</p> <p>Another ground taken by the counsel for the defendant, was this: "that at most the treaty was a mere repeal of the existing laws, that it could not effect the payment, that being already done under the law, was certainly valid.” The doctrine that a simple repeal of a a law does not nullify the acts done in consequence and by virtue of the act is admitted: but the court will recollect, that I rely not alone on the supremacy of the treaty as a law, but upon its operation as a compact, the nature of which I have already illustrated. I suppose it was intended to be inferred from the remainder of this objection, and the observations made upon it, that this clause would be satisfied by limitting its operation to any impediment arising from any law then in being, or hereafter to be passed to the prejudice of the creditor’s right. This is giving the objection its whole force, and perhaps more than was intended.</p> <p>It is answered, that obstacles existing, not those which might probably exist hereafter, acts of war and violence, not of policy and peace, are the subjects upon which this article is to operate. It is not to be fairly inferred that they would pass over an existing mischief or impediment, to provide against a possible or eventual one; that they would, sedulously insert an article to nullify acts of the legislature, which were thenceforward at all events to be a dead letter. To repeal a law which not only already had its itself, and was by the general operation of the treaty, arrested as to all future operation, instead of doing away the impediment it had produced; to a matter past, instead of a thing existing; to a thing of no consequence, abstracted from the effect it had produced, and leaving that effect to exist, in all its vigour and consequences. This interpretation, drawn from the natural connection and relation of things and existing circumstances, forces itself irresistably upon the mind, and is agreeable to the most approved authorities.*</p> <p>It is also asserted, that this construction of the article is contrary to the maxim contained in Vattel, § 305: as it would change the present state of things. That enlightened writer there says, that “in case of a doubt, the presumption is in favour of the possession,” but here, may it please your Honors, is no doubt, a clear precise and express stipulation. In the same section it is stated, “that the case of him who seeks to avoid a loss, is more favourable than that of him who desires to acquire a gain!” the case of my clients might rest on these lines alone. Shall the plaintiffs loss a debt bona fide contracted for which the defendant had real value, or shall the defendant gain the advantage of discharging that debt, by the nominal process of paying it to the public in depreciated dollar bills ?</p> <p>If the leading object in treaties of peace, is to heal the wounds inflicted by the wars, and where it is practicable not only to effectuate justice, but to restore things to their ancient order, and the former conditions of peace; then it must have been an important object with the plenipotentiaries to place individuals in state quo with regard to each other; to put the attainment of justice in the power of the creditor; and to restore private confidence to essential to the happiness of mankind, and the prosperity of an infant country like the United States.</p> <p>The writer to which I have so often referred, also says, that “as soon as we know certainly, the reason which has determined the will of him who speaks, we ought so to interpret his words, as to apply them in a manner suitable to that reason,” Now the reason in this case is evident, the Americans were largely indebted, particularly in Virginia and this state to the British merchants: the states had attempted to confiscate and collect those debts, even in money depreciated to nothing. Justice was to be done to the bona fide creditor, and this was completely effected by removing those impediments which had a arisen by the interference of the state, during the war: and this rule goes the full length of the present case.</p> <p>An authority has been produced to shew that a statute against right and reason is void. And it is alledged that the treaty must operate this injustice: and it is against right and reason, that a man should pay twice, with interest and costs. There is nothing either unreasonable or unjust in the present case. The creditor trusts upon the reasonable expectation of being fully and punctually paid; and very honest man deems it mere justice to pay his debts; therefore between the creditor and debtor, this is surely “light and reason,”</p> <p>As to the payment made to the public.</p> <p>The state foresaw that this debt might become the subject of treaty or negociation, in which the right of the creditor would be saved, and expressly engaged by the 20th section of the act of 1779,* to reimburse the debtor. Take this act and the treaty of peace together, consider them as one act: the result is, if you will pay these debts into our treasury, if by the treaty of peace, you should be obliged to pay them to your creditor, we will indemnity you; and thus complete justice is done to all parties.</p> <p>An objection is also stated on the authority of Vatt. p. 651, § 32, alledging, “that Great-Britain, must have been the proposer or this article, being for her benefit, and the terms upon which she granted our independence.” It should be observed, that these observations are not perfectly correct: the article itself is mutual, and</p> <p>may be said to move from both; and made for the benefit of “creditors on either side.” But the authority is this, that in case of doubt, the interpretation goes against him, who gave law in the treaty. If the documents, adduced by the Attorney General, on Saturday, are entitled to credit, then, the United States, not</p> <p>Great-Britain, gave the law on making of the treaty, and the interpretation of course should be against the citizens of the United</p> <p>States upon his own doctrine. But the fact is, that either, when plaintiff has the right to claim the full benefit of this article, for</p> <p>at is mutual: and it is a maxim of the common law, as well as common sense, that the words of a grant shall be construed most stronger against the grantor, and that a promise shall be construed in that sense, which the promisor had reason to believe it was received.</p> <p>Thus America may be conceived to have said: relinquish all claim the sovereignty of the United States, and acknowledge our independence; we ask no more, all debts shall be honestly paid; we contending for the establishment of our political rights, not for the destruction of moral obligations.</p> <p>It is also a maxim in the construction of treaties,† “that if he, who can and ought to explain himself, has not done it, it is his own ofs, he cannot be allowed to introduce subsequent restrictions, which he has not expressed.” Although this article is obligatory on both sides, this promise was known to proceed from the side of America, of her commissioners intended to make this case an exception, why did they not say, provided this article shall not extend to payments of this kind: the import of the words is general, and as I have shewn, plainly covered every case. If this was to be an exception, the necessity of its being exprerred, was glaring and evident; it was therefore certainly necessary; otherwise in the language of Vattel, "there can be no cure convention, no firm and solid concession; if they may be rendered vain by subsequent unmentioned limitations.”*</p> <p>On every occasion where a person has, and ought to have shewn his intentions; it is a rule that we must take that for true against him which he has sufficiently declared. I have already submitted my observations on the plain and natural import of the words: they certainly contain a sufficient declaration of the intention of the contracting parties.</p> <p>There are some common law rules, which will also apply to this case. There, that construction is always sustained, which insures the greatest simplicity and certainty; and that construction is always rejected, which would be predicated upon indefinite and undiscribed wrongs. Thus when one party gives a general warranty; the common law will not extend the warranty to make the warrantor answerable for illegal claims, or tortious acts. Upon this rule he is not supposed to warrant against the lawless acts of individuals, nor will the law presume that such acts will be committed. Thus the existing impediments the effects of a violent war, were the objects upon which this treaty were to operate, the commissioners would not presume, nor will the court now, that upon the return of the blessings of peace, such acts of violence would never again take place.</p> <p>Again, to suppose that congress meant by this treaty, couched in such general language, that an existing impediment should remain would be supporting them to act with that kind of subtle and knavist duplicity, which the law will neither presume, nor admit. Nations, says Vattel,†, are not less obliged than individuals, to act with candour and rectitude, and have regard to equity in their transactions with each other. It is true, he admits “that the powerful 'sometimes openly abandons the honest, for what appears to be the 'useful; but it frequently happens for the happiness of the human 'race, that this pretended utility becomes fatal to them, and they 'are severely punished for such mockery of morality and justice.”</p> <p>The ancient and intimate connection, between the United State and the British government, as one great family, connected by the ties of blood, impressions of interest, and habits of intercourse, must have formed strong and powerful inducements to the members of both governments to heal the wounds of the war, to obliterate past differences, so as to re-establish that good understanding and friendship, that would ensure perpetual peace and harmony. They are the objects so strongly expressed in the preamble of the treaty they are not a mere formula, as in common cases, but a natural sincere and honest expression of the public mind and sentiment. The important and interesting circumstances, also furnish a rule of construction recognized by the law I have already read, and requires of us to determine any question arising upon this treaty, upon this most liberal principles of equity and reciprocity.</p> <p>I have only to add on this part of the case, that if treaties are to construed favourably, as writers term it, surely it is the dictate of equity and more consonant to justice, that the state should reimburse the debtor, who isi ts own member, the nominal sum he paid, than that a bona side creditor should lose his whole debt; that private faith should not be affected by political wars, that individuals should not suffer by the lawful exercise of their natural and political rights. Certainly nothing can be more repugnant to justice, than that the strongest moral obligations should be dissolved by a nominal process, a process that resembles magic, more than reality; that a mere assumption of power, should annihilate obligations, which in moral sense are immutable.</p> <p>2. Thus far the article has been considered, as if it flood alone. The court will permit me now to make a few remarks, on the doctrine held by the other side, considering this article connected with the 5th and 6th; and this mode, the counsel infers, is proper on that rule of interpretation, founded upon the connection of the discourse. Where articles or clauses relate to the same subject, they must and sought to be construed together; their operation should be consistent, and their construction governed by the same principle: but 5th article is a special provision for debts, has a single aspect, and bands is simply by itself. The 5th and 6th articles have quite different objects, as will be seen by looking into them. It is said that words “provide for the restoration of all estates, rights and properties,” admit the right of confiscation and include debts. This expression occurs four times in the 5th article: the last affixes a precise meaning to these terms, viz. “Congress shall also earnestly recommend that the estates, rights and properties of such last mentioned persons shall be restored to them, they refunding to any person who may be now in possession, the bona fide price, when any has been given, which such persons may have paid on purchasing any of said lands, rights or properties since the confiscation." Thus the estates, rights or properties here meant were clearly such as could have been sold by the public, and possessed by some individuals at the peace, for which he might have paid valuable consideration. No man will surely pretend to say, that this could be the case of a debt under the laws of this state, or any of the United States. It is plain that this whole article contemplated the lands, slaves and other property which had been sold by the commissioners: the debts had been already fully provided for in the preceding article.</p> <p>It is said there is no difference between debts and other property. There are many important differences, besides the striking one stated in the treaty, the debts were attempted to be collected by the public; the lands were sold to individuals for valuable consideration, they had probably passed through various hands, and become the subject of improvements, and of course of attachments; justice as well as policy, forbid that such property should ever be returned: it was said that this property was of trifling value compared with the debts. This is a great mistake, the lands alone in this state were equal in value to ten times the amount of debts due to British subjects, and this property congress had clearly no power to dispose of, the sovereignty of the soil being vested exclusively in the respective states.</p> <p>It is also said, that this article makes three descriptions of men with different rights. That the plaintiffs are in the third, and most unfavoured class, that the court are bound to regard a distinction made by the treaty itself. This conclusion is the most strained and in correct, that has been made on the part of the defendant. It is first recommended, that they shall provide for the restitution of all states, belonging to real British subjects; 2d. for the restitution of the estates, of persons resident in districts, in the possession of his majesty’s arms, and who have not borne arms against the United States.</p> <p>3. And that persons of any other description shall have free liberty, &c.</p> <p>The first description plainly includes all persons born in the allegiance of the king, of Great-Britain, and who had not abjured the same, and taken the oath of allegiance to the states?</p> <p>As to the second class: it was known that the enemy’s principal posts commanded considerable districts of country, beyond the immediate works of the place, as at Charleston and New York: that in these, numbers of inoffensive citizens were suddenly involved in their country’s misfortunes, without the means of escape or removal: that many were chained to the spot, by the claims of a helpless suffering family, who depended upon them for sustenance. They not borne arms, and only yielded a passive submission to the of war; reason appeared to impute no crime to people of this description, and they certainly merited some consideration, and in the treaty are placed on a footing with real British subjects. A certain delicacy seems to have dictated the terms used in describing the third class, “persons of any other description.” This, without using, mortifying or distinguishable terms, included the fugitive from justice, and the blood-stained traitor, or in other words, the citizen who had borne arms against the United States, in contradistinction to the citizens of the 2d class who had not. The plaintiffs never were citizens of the United States, no crime attached upon them. they were born in the allegiance of the king of Great-Britain, and when called upon by the law of the state to make their election they solemnly refused to abjure the same, thus they were, and continued to be real British subjects, and are plainly neither included in the 2d, nor 3d classes of the 5th article.</p> <p>The 6th article is a common and necessary stipulation of reciprocal amnesty, and predicated upon the spirit and policy of conciliation, and the justice of shielding individuals from suits and prosecutions, for the common violence of the war. Such a stipulation was proper and necessary, whether the treaty flood with or without the 4th article, and has indeed no connection with it,</p> <p>We will now proceed to consider the 2d, 3d, and 4th pleas, as standing upon the acts of Assembly.</p> <p>The second plea is grounded on the act of November 1777, ch. 17, and the two first sections of the act of October 1779, alledging that hereby the above debt was confiscated and fully forfeited to the state, that therefore, &c.</p> <p>It has been already observed, that the act of November 1777, ch. 17,† does not contemplate the case of the plaintiffs. “All persons who had removed themselves, or had been removed under the compulsory authority of the laws, or who had removed to avoid taking the oath of allegiance,” are expressly excepted, and are clearly out of the purview of the act.</p> <p>The people of the above description had been solemnly called upon to make their election. That election was irrevocable, they were obliged to depart, and it was made death by the same law to return. While this law remained unrepealed, if they returned, they forfeited their lives and fortunes; and supposing the other act to comprise them, if they remained in foreign parts, they forfeited their estates. To avoid this injustice and absurdity, the proviso of the 4th section excludes them positively from the purview and operation of the act.</p> <p>This construction must govern the operation of the act of October 1779. The clauses relied upon in this plea, are expressly grounded upon this act*. This is clearly shewn by the preamble. The plaintiffs, with a number of others, are named in the second section, of that act, as having incurred the penalties of the act of 1777, the fact was notoriously otherwise, and so it stands upon the pleadings, and the only rational construction that can be put upon this part of the act, as it regards the plaintiffs, is the one I have already submitted to the court, in the argument on the first plea: of which I beg leave to avail myself; only mentioning that the conclusions were, that the act could not comprehend this debt.</p> <p>That the legislature had rendered a compliance with the act of November impossible.</p> <p>That this act could only operate as an office found, with respect to the lands unsold.</p> <p>And that where the words "debts or monies” occurred, they must be applied to the case of others.</p> <p>It is only necessary to repeat, what has already been proved in the argument; viz. that it could not mean the money owing to them, because it required them to sell and depart.</p> <p>It could not proceed on their adherence to the old government; because they had made it high treason to return to the new community.</p> <p>All compliance with the act of November 1777, was rendered impossible: their real estates unsold, were already forfeited or confiscated; nothing more was necessary, except directing a sale, and this was ordered in this act of October 1779. This construction gives it operation with regard to them, and the only consistent and legal operation it can have, where the words “monies and debts” occur in this act, it must be supposed to apply to some of the others named in the act, who were in a different situation, of whom there were many, and this satisfies the act without inconsistency or absurdity.</p> <p>Again, to have required of these people to have collected their debts, would have been demanding of them to perform what the laws had rendered impossible. The courts of justice were shut or suspended from 1773, until November 1777, and the first act that established them excluded the plaintiffs from the benefit of the coercive authority of the laws. Thus there were no courts at the time of their departure, and none afterwards in which they could sue. On what grounds will it then be argued, that these people were to collect their debts before their departure, or how will it be shewn that their agents could effect it afterwards?</p> <p>The 14th section of the same act*, intending to provide for the case of the plaintiffs, shews clearly that they were not included in the former part.</p> <p>III. The third plea of the defendant rests on the 14th section of the same law; averring that the plaintiffs refused to take the oath of allegiance, and were compelled, to leave the state by virtue of the act of 1777, and that they had not appointed any lawful agents to receive and give discharges for debts, that therefore, &c.</p> <p>[The Section alluded to was read.] The provisoes of the expulsion laws of 1777, are the express ground of this section, and the preamble assigns two causes of confiscation, “failure to sell their real estates, and the omission to appoint attornies or agents to receive and give discharges for debts.”</p> <p>The first reason is perfectly consistent with the provisoes in both of the acts of Assembly. The other is evidently founded on mistake. The act gives them leave to appoint an attorney to sell and dispose of their estates; but not a word is said about “receiving and giving discharges for debts.” The object of appointing those attornies and their duty are already pointed out by the final part of the clause, viz, “and if any real estate,” remains, &c.</p> <p>The enacting part of this clause even detachedly considered, upon its own letter, admits of no other construction. 1st. 'The lands not bona fide sold for valuable consideration actually paid.' This part of the clause has received a fixed construction in our courts, in the suits of N. Long, commissioner, against Hill, in Halifax superior court. The counsel for the state relied upon this part of the act; it being in evidence that Hill gave a bond to M’Clellan, for the consideration money, which was unpaid before M’Clellan’s departure, who was the original owner, and one of the persons named in the confiscation act of 1779: the court said the act would not warrant such a construction; that the bond was a payment, and that it was not necessary the money should be paid upon the bond; it therefore follows if it was not necessary to pay, it was not necessary to receive.</p> <p>This might give a rule of construction for the remaining part of the clause, were it necessary. But this part of the law, has such apointed and express reference to the acts of Assembly of April and November 1777,* that it must necessarily be expounded and controuled by them; the words are, 'that all debts, not yet collected and 'appropriated according to the directions of the said acts shall ‘be confiscated; then limit the operation to the requisitions of those preceding acts, and it follows, “if those acts required debts 'to be collected, and they were not collected, then were they con‘fiscated; if the monies were to be particularly appropriated, and 'they were not so appropriated, then was the money confiscated.’ Wherever the party contravened the direction of the act he incurred confiscation, but not otherwise; the acts† will speak for themselves. (Here the acts were read.)</p> <p>The honour of this country is greatly indebted to that correct and enlightened mind that drafted the first confiscation laws, and formed them so perfectly upon the principles of natural justice, that their influence was felt through the whole system afterwards, whatever shape or form these laws assumed; so that even in the present case, where it was plainly attempted, the arm of confiscation seems to have been palsied, when it attempted to violate property confided to the faith of our government.</p> <p>It has been shown in the argument on the first plea, that the principal could not collect because there were no courts to inforce payment, and it becomes necessary to observe more particularly here, that by the 101st § of the court law, the same act which opened the courts, excluded the plaintiffs from the benefit of it:‡ thus the collection became impossible. The state shut the courts against the agents also of these people, declaring they should not have the benefit of the laws to inforce payment, shall she then be made to say, “you shall forfeit these debts, because you did not collect them?” This would be imputing a degree of absurdity and injustice to the legislature that cannot be admitted.</p> <p>I take it to be the same thing to refuse them the assistance of the laws, and to say they should not collect. When the law requires any thing to be done, it supposes all the ordinary means in the power of the party, and particularly that its own assistance is not to be refused.</p> <p>If the legislature intended that their agents should collect, they would certainly have so expressed it in the same clause which they inforced the sale of lands, where if it had been the intention of the legislature, it would certainly have appeared; the law and usage of nations preserved the obligations of their contracts, altho’ they suspended suit and collection; the merchants were not to presume any thing contrary to the usage of nations, where in a case like this it was not otherwise declared.</p> <p>The plain import of this clause‡ is this, their attorney may dispose and sell their states, but there is no attorney to collect their debts, nor can it be implied from any part of the act, while every reason militates against it.</p> <p>The law of nations suspended the right of suit.</p> <p>The act of April could not require it, because at that time there were no means of collection.</p> <p>The act of November could not require it, for the same session suspended that right by law.</p> <p>Collection of debts is not an act of mere volition: time and means are both necessary. It is plain that debts were not contemplated, that they were not within the purview of this law, therefore, out of the operation of the 14th § in question, which is plainly bottomed upon the acts of 1777, by which it is expressly directed and controlled.</p> <p>IV. The 4th plea is in substance the same with the second, though in a different form. The arguments submitted upon that will therefore apply to this plea, and I shall not trouble the court with a repetition of them.</p> <p>2d. POINT.</p> <p>If however, these pleas are sustainable by the act of Assembly, it remains to be considered, whether those matters pleaded in bar, are not among the impediments removed by the treaty of peace.</p> <p>Much has already been said on the import of the 4th article of the treaty, the precision of the terms in which it is couched, and the latitude of their operation, and it is only necessary to narrow their aspect, to shew that they include the matters stated in the 2d, 3d, and 4th pleas of the defendant.</p> <p>This treaty, which all agree, was binding before in a moral sense, is now to be executed by the vigour of its own authority, and being the supreme law of the land, all laws that contravene the treaty are thereby repealed.</p> <p>A mere repeal of the confiscation laws would have altered the situation of the debtor and original creditor very little, and must have fallen greatly short of the purposes of justice, and the objects of the treaty, thus it became necessary to go farther and remove "all impediments to the recovery of the debts.";</p> <p>If this expression should be limitted to impediments created by laws existing at the peace, it would follow, that in all instances where there was a bare legislative act of confiscation, unattended by collection, payment or discharge, that the impediment of confiscation being removed, the debtor and original creditor were again in statu quo. This is expressly conformable to the doctrine laid down by Bynk 2 j. p. lib, 1, c. 7, “If the prince really exacts from his subjects what they owed to our enemies; if he shall have exacted it is rightfully paid. If he shall not have exacted it, peace been made, the former right of the creditor review." Thus, according to this celebrated jurist, in all cases where the money was not actually paid, the original right of the creditor would be reviewed, had the treaty contained no stipulation to that effect.</p> <p>If this expression embraces all impediments created during the war, then every existing obstacle, every lawful impediment, enacted as created by the individual states, or the United States, are swept away. The impediment created by payment to the public commissioners was, in fact, the only one that rendered such a stipulation absolutely necessary; the acknowledged law of nations, would have been competent to give relief to the creditor, against the case made by the defendant, in the 2d, 3d, and 4th pleas.</p> <p>Again, if in cases of payment and discharge, this construction should be held to operate a sacrifice of individual rights, and this should be considered as an objection in that case, no such difficulty occurs here: the sovereign power might rightfully relinquish its own claims to the debt. It appears to me that no question can be made; out the treaty does away all impediments arising from any law then existing, to the prejudice of the creditor's right. This is no more than a stipulation on the part of the states, that they would relinquish all claims to debts due before the war, to British creditors. This, as I have said, they would rightfully do, if they could do any thing: they were competent at least, to restore what they had taken, and to stipulate that no future law should be made to affect their recovery.</p> <p>It been said, in the argument on the 1st plea, that the terms used in the treaty are clear, precise and unequivocal; comprehending every case in which justice could be interested. The mode of expressing is the most happy that could be conceived, by which a few words answer all the purpose of as many sentences in other cases. If it was a mere sequestration, then the subject sequestered is restored, if it was such an act of confiscation, as might be said to divert the right of the creditor, the public claim is relinquished: the original right of the creditor is revived and recognized. Whatever the public right or claim was, or by whatever means it was acquired, it shall be no bar to the creditor's recovery of the full value of his debt: and thus, the creditor, with regard to his debtor, is put perfectly in the situation he was before the war.</p> <p>Having considered the merits of those. pleas severally, there are some general views of this subject, which, as they appertain to all the pleas I have postponed to this stage of the argument, viz. whether the acts of 1777, and the compliance of the plaintiffs, ought not to be considered in the nature of a compact, and how far the state of North-Carolina was bound by the existing law of nations?</p> <p>The propositions of the legislature, in the laws of 1777, and the consequent acts of the plaintiffs, should be considered as creating a solemn compact,indissoluble but by the consent of both parties.</p> <p>The natural, and even civil rights of persons, on a separation or dissolution of the community, are in many respects, different from those of alien enemies, as will be shewn presently; these rights appear to have been considered and respected by the sovereignty of this country.</p> <p>The 5th and 6th § of the acts of 1777, contain the stipulations and terms of the state. They are shortly these:</p> <p>You may become a member of the new community, if you will solemnly and publicly abjure your allegiance to our former sovereign, and take an oath of allegiance to the new government.</p> <p>If you elect to continue under the old government, you must depart within 60 days.</p> <p>You shall have liberty to sell and dispose of your estates, while you stay.</p> <p>You may export the amount in produce.</p> <p>It is expected that you will honestly pay your debts.</p> <p>You must not export naval stores or provisions: they are contraband.</p> <p>If 60 days should be too short a time to sell and dispose of your estates, you may appoint attornies to sell and dispose of them, after your departure.</p> <p>But if any real state remains unsold for more than three months after your departure, the same shall be forfeited to and for the use of the public.</p> <p>And if ever you return, you shall be adjudged guilty of treason, and shall suffer accordingly.</p> <p>If you will neither take the oath, nor peaceably remove yourself, in conformity with the act, the county court shall send you by force to the West-Indies, at your own expence.</p> <p>The election of the party, under this act, made it at the same moment, binding upon himself and the state, in the nature of a firm solemn compact, irrevocable in its very nature, but by mutual consent; decided and immutable in its consequences as to him, and certainly reciprocally so as to the state.</p> <p>Then by taking the oath, the state conferred the rights of citizenship, and he subjected himself to the obligations of a citizen; obligations he could not dispense with afterwards.</p> <p>If he once departed, his election was made forever, for any thing that appeared; and it became death to return.</p> <p>In this case, the state on her part, entered into several stipulations.</p> <p>Those that are express I have already mentioned, there are others that are necessarily implied; for example:</p> <p>It is expressed that they shall depart in sixty days, it is also implied that they shall not be made prisoners of war during their stay or departure.</p> <p>It is expressed, that they may export the amount of their sales in produce: this also includes an exemption from seizure on the high seas, although not expressed.</p> <p>Naval stores and provisions are excepted; these were therefore to be considered contraband; and it follows from this exception, that all other produce might be freely and lawfully exported.</p> <p>In like manner, in the clauses contemplating the property of the merchant, it is said: if your real estates remain unsold for more than three months, it shall be forfeited, This case being stated, is to be taken as a full expression of the mind of both parties, as to the extent of forfeiture, and it is then clearly inferred that all other property, and particularly their debts, remained untouched, because unmentioned, No other conclusion could have been formed, and they must have made their election, and departed under this impression, that their debts were consided to the protection and faith of our government and laws; and in this light it becomes binding and obligatory on the public. This is agreeable to Mr. Paley's maxim, a promise, says he*, is to be performed in that sense in which the promisor apprehended, it was received by the promisee at the time such promise was made.</p> <p>This act was passed after the declaration of independence, when this state had fully assumed the faculties of a moral person or a body politic; when she was fully capable of binding herself and the citizens; when she had taken her place and rank among the nations of the earth; when she claimed those rights, which appertained to nations from others and became subject to similar obligations. These engagements required no particular diplomatic ceremony; they were an immediate act of the supreme authority itself, and must therefore be considered as an explicit and solemn pact between those people, and the sovereignty of this country. A mutual compact in which, these people having performed their part, by removing themselves out of the state, the legislature or the state could not retract its consent, or discharge itself from the obligation she had voluntary entered into, without the violation of every sentiment and principle of faith.</p> <p>This statement receives great weight from an act of the legislature, of November 1777, in the 101st § of the court law. This act describing these people, declares they shall not have the benefit of that law, but that all right of commencing and prosecuting suits shall be, and are thereby suspended, and shall remain suspended until the legislature shall make further provision therein. To prohibit the recovery of a debt, presupposes the existence of a debt. The rights of the creditor are here solemnly recognized, as well as those principles and usages of the law of nations, I have so often mentioned. This furnishes a strong and incontrovertible evidence of the sense of legislature at that time, of the nature and effect of the compact with these people.</p> <p>Again, as the legislature, in stating the terms of their separation, was silent on the subject of their debts. The fair construction is, they were to be considered under the protection of those laws, that were equally obligatory on both, viz, the law of nations. Some writers lay it down, as a positive rule of law, that the right of bringing suit is only suspended during the war. Vattel, indeed, mentions it as a usage introduced among nations, with the progress and extention of commerce.* We may be indebted for the observance and general introduction of this rule among nations†, to modern commerce, with many other blessings, attendant on improved society and civilized life: but it has certainly a higher sanction in its conformity to the eternal and immutable principles of justice.</p> <p>The moral ground stated by Vattel, is that stangers might trust foreign subject only from a firm persuasion that the general custom would be preserved. How much stronger is the case of the plainstiffs! The dissolution of a government is never to be presumed; they were members of the same community; their contracts were bottomed on the strongest ground of private and public confidence; when they parted, it was fairly and necessarily implied from the terms of separation, that their contracts, independant of the law of nations, were to be held sacred from all the consequences of the war. A fortiori, they were at least to be left on the foot of the prevailing usage of civilized nations, at the time that the United States assumed their place among those nations.</p> <p>According to Grotius‡, the debts of individuals are not discharged by war. These are not acquired by the right of war. The right of collection or demand is only suspended. This doctrine is also sanctioned by the opinion of Barbeyraeǁ, whom Vattel respects, as of himself of good authority. These writers consider war in the language of the treaty, as a mere temporary impediment, which being removed, the debts retain their full force and obligation. This was without doubt, the idea of the parties; it corresponded with the state of things at the time, and the conduct of the legislature, at that period, appears to have been expressly predicated upon the acknowledged law of nations. When the first act passed, there were no courts in which these debts could be demanded. When the second passed the courts were erected, but the same act expressly excluded the plaintiffs from the benefit of those courts; very justly and doubtless on the principles above stated from Grotius.</p> <p>In addition to these, I beg leave to add one more authority, not of so much celebrity as those I have already quoted, only because it is not so ancient. This authority is the opinion of Chancellor Wythe, in the suit, Page's ex'rs. against Pendleton and others, and although it may want the rust of time, it acquires additional weight from being given in a case arising out of the same war, and under circumstances nearly similar to the case at the bar.</p> <p>This great man, so celebrated for his learning and judgment, holds his clear and decided doctrine; that the rights or laws of war and peace now established among nations, were as vigorous between the United States and Great-Britain, after the declaration of independence, as they could be between nations who had never been dependent upon each other; that upon their becoming distinct politic bodies, the rights and laws of nations immediately attached upon them. Indeed it would be difficult to shew any reason, why a community who claimed the rights of nations from all others, both for herself and her citizens, should hold herself discharged of all obligations to them is their subjects. Mr. Wythe has considered the war as a temporary impediment, in the same light that Grotius and Barbeyrac have done; is merely suspending the forensic assertion of the rights of alien enemies.</p> <p>It should also be remembered, that the late war between Great-Britain and America, must be considered as a civil war. These wars originating in different causes, with particular objects, have been considered by all writers, in a light widely different from those annually denominated solemn wars.</p> <p>This position draws several important consequences after it. The revolt of America, however laudable in the attempt, and glorious in the event, was a rising of a certain portion of the people, against the established supreme authority of the nation: thus every revolt supposes a superior during the revolt. The political connection is supposed to exist, it would be a solecism so say that the inferior dissenting power could make laws to bind the superior. Again, during a revolt, all power is, of course, assumed or usurped. This usurpation of assumption can never constitute a right; hence, it is clear, that until the treaty of peace, the American states could not rightfully legislate for themselves, much less for the British empire, and this was the reason that the first article of the treaty, acknowledging the sovereignty and independence of the United States, and to expressly relinquishing all claim to the government and territorial lights of the same, became an object of vast importance to America.</p> <p>Lastly, it is a prejudice, too common with us, to connect the departure of these people in 1777, who only exercised their natural rights, with the subsequent conduct of those who became cities, and afterwards barely deserted us in the gloomy periods of the war: but no two cases can be more widely different.</p> <p>All writers, on the subject of government*, agree that a nation may change its constitution, by a majority of votes, whenever there nothing in that change contrary to the fundamental principles of the original act of civil association; and in this case, all are bound to confirm to the resolution of the majority. But when the question is to quit the form of government, and adopt another fundamentally different, as for instance, to change that of monarchy for a republic, although the majority may rightfully effect the change as to themselves, the minority are under no obligation to submit to the new government, but may retire with their property and effects. These distinction are founded on the broad basis of the rights of man, and the great policy of public peace and safety.</p> <p>Thus stood the rights of my clients, had no compact, no treat ever existed, But in addition to the act of the legislature, which have stated to the court, it must also be noticed that the final separation of Great-Britain, and the United States, into two distinct and independant nations, was by mutual agreement. The basis, of rather preliminary of this national compact, was the declaration of independence: the consummation was the treaty of peace. Then taken together and not separately form the real act of separation and in construction by a settled rule of law, are to be considered together. In the one, the great national rights are asserted, and ceded and acknowledged in the other. Here also the rights of the citizen and subjects of the two nations are recognized and confirmed. Viewing this compact as a law, it is only declaratory, or in affirmance of the law of nations and the universal principles of nature justice. Viewing it as a convention, it is adding the warranty of the United States, to the legal claims of my clients.</p>

<p>DEBT, and non est factum pleaded. The jury being sworn, this, special case was made, viz. “The jury being sworn in this " case, a paper writing was produced in the words and figures fol-" lowing, that is to say,</p> <p>Ten days after this 22d, June, 1793, I promise to pay to William Cutlar, or order, for value received, one hundred & seventy-five pounds, ten shillings, currency. Witness my hand & seal, day & date first above written. £. 175, 10. JOHN HALL, (Seal.)</p> <p>“ On the back of said paper writing, were the following endorsements, viz.</p> <p>“ It appeared on inspection of the paper, that there was not a subscribing witness to it, but that there was a seal; and the plaintiff's counsel offered a witness to prove the hand-writing of the defendant, to support the action. To this, the defendant’s counsel objected, as insufficient in law to support the action.</p> <p>“ The court therefore directed the witness to be sworn, and a verdict to be taken, and reserved the question of law, on the above objection, for further consideration.</p> <p>" It was further objected in the case, that an action of Debt cannot be maintained, on the writing produced; whereon also the court took time to advise: and it is agreed, in case the court shall be of opinion, that, on either of these objections, the plaintiff ought not to recover, then a nonsuit shall be entered.</p> <p>“ But, if the court should be of opinion, that both these objections are invalid in point of law, then judgment to be entered for the plaintiff."</p> <p>The witness not only proved the name subscribed, but also the word seal, written in the circumference of the seal and scratched with a pen, to be in the hand-writing of the defendant.</p>

<p>An action lies for deceitfully asserting that an unsound mare is sound, and fraudulently encouraging the plaintiff to buy her.</p>

<p>A anlstitr.ie never liable to conscription, being 50 years of age, is not discharged from the service by the conscription of his principal under the act of Congress of 4th January, 1864.</p>

SIR Simon Clark brought an action on the case, vs. S. for saying of him the following words, viz. Sir Simon Clark kept Faulkner, the Jesuit in his house a week, knowing him to be a Jesuit &c. and a verdict was found for the plaintiff, with £. 100 damages—and now moved in arrest of judgment: 1. Because, it is not averred when these words were spoken.

IT was agreed, in this case, that when a suit is at issue in chancery, as that court cannot call a jury to its bar to try it, the Chancellor ought to deliver the issue propria manu in the King’s Bench, who are to try it by a jury, and on the verdict ought to give judgment and make return thereof to the chancery afterwards.

<p>THIS was an action of debt brought in the Superior Court of Law, for the district of Hillsborough, on a writing obligatory executed by the defendant on the 9th day of December, 1778, to Robert Hogg and Samuel Campbell, merchants and copartners; by which he bound himself to pay them three years after the date thereof, but if a peace should be concluded sooner between Great-Britain and America, then six months thereafter, £95 15s 1d. sterling money.</p> <p>The declaration, states that on the day of in the year of our Lord, 1780, Robert Hogg died, having made and duly published his last will and testament in writing; and thereof appointed James Hogg, William Hooper, and James Burgess, executors; that on the 21st day of December in the same year, by indenture bipartite, bearing date the same day and year between James Hogg of the one part, and Samuel Campbell by the name and description of Samuel Campbell of New-Hanover, of the other part; the said Samuel Campbell, by and with the content of William Hooper and James Burgess, for and in consideration of four negro slaves, that same day sold and delivered to him by James Hogg, and in consideration of divers other matters and things thereafter to be performed by the said James Hogg, for the use and benefit of the said Samuel Campbell, did transfer and set over all his, the said Samuel Campbell’s right, title, and interest; that is to say, one moiety of all debts or sums of money remaining due, and owing to the Copartnership of Hogg and Campbell, or the Survivor thereof, or to the representatives of the deceased partner, for or by reason of the said Co-partnership, from whomsoever the same was due, upon account, bill, bond, note, agreement, or other writing, and all the claim and interest of him the said Samuel Campbell to the said debts: To have, hold, receive, and take the said debts, and every of them to the said James Hogg, his heirs, executors, &c. without account to the said Samuel Campbell: And he the said James Hogg, by the said indenture, did covenant with the said Samuel Campbell, that he would take upon himself the payment of all debts due by the Copartnership to divers persons, and would at all times thereafter indemnify the said Samuel Campbell, his heirs, &c. from all actions, suits, &c. that might or should be brought against him, by reason thereof; and that he, the said James Hogg, would discharge and keep harmless the said Samuel Campbell, his executors, &c. of, and from all the debts which at the time of the death of Robert Hogg were due from the Copartnership, and which at the making of the said indenture were then due and owing on account of the Trade and Copartnership, between the said Robert Hogg and Samuel Campbell.</p> <p>After the execution of this indenture, Samuel Campbell attached himself to the British enemy, and left this country, and was thereby rendered incapable of carrying on suits at law. At an Assembly, held at Fayetteville, on the 18th November, 1786, an act was passed, entitled, “An act to enable the executors of Robert Hogg deceased, to maintain and defend suits, under the regulations therein, mentioned which, after reciting that it had been represented and proved to the General Assembly, that the said Samuel Campbell, while he was a citizen of this state, and before he withdrew from his allegiance to it, did assign, and set over, for a good and valuable consideration, all his right, title, and interest, in and to all the debts due to all the said Copartnership, to James Hogg, one of the executors and devisees of the said Robert; and that the said Samuel, by withdrawing himself, was disabled by himself or by others, to bring suits in his own name, and that by the death of Robert Hogg, the only mode of maintaining suits for the recovery of debts due to the said Copartnership, agreeably to the laws then in force, must be in the name of the said Samuel Campbell, surviving Copartner of Hogg and Campbell; and that thereby the executors of the said late Robert Hogg, were utterly prevented from recovering the just debts due to the Copartnership so aligned, and were disabled to carry the Will of the said Robert into execution, and to pay his just creditors. It is therefore enacted, that the said James Hogg, William Hooper and James Burgess, be, and they were thereby authorised and empowered to maintain suits as well in law as in equity in the names of them the said William Hooper, James Hogg and James Burgess, stiling themselves executors of the said Robert Hogg, and in the names of the survivor or survivors of them, to sue for, and recover all monies due to the Copartnership, in their names as executors, and to have recoveries as fully and as amply in the same manner as Samuel Campbell himself could, if he had remained a true and faithful citizen of this state, and had never assigned his interest in the Copartnership to the said James Hogg.</p> <p>After the passing of the act of Assembly, William Hooper and James Burgess, died; and on the 20th day of April, 1796, James Hogg, as the surviving executor of Robert Hogg, dec. brought this suit, to which the defendant pleaded “ Gene“ ral issue, set-off, and notice of set-off, payment “ at and after, &c.”</p> <p>In the year 1789, the defendant recovered against Campbell, the sum of £500 for Negroes, of the defendant, said to have been carried away by Campbell, when he attached himself to the enemy. At the trial of the cause, the plaintiff produced the bond declared on, as also the deed of assignment, and the act of Assembly, mentioned in the declaration, and on this rested his case. The defendant offered the judgment recovered by him against Campbell, as a set-off, which was objected to by the Counsel for the plaintiff: the objection was sustained by the Court, (Haywood and Stone, Judges, at April term, 1797,) and the plaintiff had a verdict for the value of the sterling money, mentioned in the bond, but the jury having given, no interest, the plaintiff moved for, and obtained a new trial, and the cause being tried at April term, 1799, the Jury found the bond declared on, to be the act and deed of the defendant, that the sterling money therein mentioned to be of the value of £212 15 9, and assessed the plaintiff’s damages to £119 3 9 and costs: subject to the opinion of the Court on the following questions, viz.</p> <p>1. Whether the bond declared on, is within the description of these debts, which James Hogg is entitled to sue for, under the act of 1786?</p> <p>2. Whether the bond declared on, is within the description of these debts assigned by Samuel Campbell to James Hogg, by the deed of assignment recited in the declaration?</p> <p>3. Whether the defendant is entitled to a deduction of the judgment aforesaid as a set-off against the amount of the sum found by the jury.</p> <p>Upon which questions the cause now came on to be argued.</p> <p>All demands which are unliquidated, and which found only in damages, are incapable of being set off: those demands for which an action of debtor indebitatus assumpsit will lie, can only be set off. Principal and essential requisite to a debt, in order to its being set off, is that it should be mutual. Cowper’s Reports 56, Iredell’s Rev. 172: The debts here claimed are not mutual. The debt claimed by the plaintiff, was contracted with the partners as joint merchants: The judgment obtained by the defendant, and now offered as a set-off, is obtained against Campbell in jure proprio, for a tort done to the defendant in carrying away his Negroes, a transaction which cannot by any means relate to the partnership concerns, and which took place after the death of Robert Hogg, the other partner, and the consequent dissolution of the partnership. There is no instance of a set-off having been allowed, where the debt demanded is not due to the same persons precisely as the debt to be set off is due from. If this judgment shall be allowed to be set off, the deceased partner, Robert Hogg, would be subjected to pay a judgment recovered against Campbell for a wrong of his own. If one man receive rent for another, after his death, by appointment in his life time, and then be sued by the executors, he cannot set-off a debt due from the deceased; because the deceased never had any cause of action against him, Bull, 180; and so here the defendant never had any cause of action against the plaintiff’s, and therefore ought not to be allowed to set off this judgment against him. With regard to the party against whom it may be set off, I take the distinction to be this. Where the debt offered to be set off is recoverable and payable out of the same fund that the debt to be recovered in the action goes to increase, it may set off. Where two plaintiff’s sue, and the sum offered to be set off can be recovered of one of them only, it cannot be set off; or where one sues, and the sum offered to be set off is due from that one and another, it cannot be set off; because in either case, the two actions cannot be reduced to one, by a set-off, without doing an injury to a third person, by subjecting him to the effects of an action, to which, before the act of set-offs, he would not have been subject. The act did not mean to extend the action of the defendant to a person not liable to it, without the act; but only to give him the effect of an action against the plaintiff, to which the plaintiff was liable without the act, but not subject to by way of set-off; and the law is so, with respect to partnership dealings; the defendant cannot, by execution upon a judgment against one partner in his private capacity, seize and fell the whole partnership effects; he can only seize and fell the share of the partner against whom he has judgment, and the vendee becomes tenant in common with the other. If he cannot affect the other’s share by judgment and execution, surely he cannot do it by set-off, which is in lieu of an action. Salk. 392. It is true, indeed, that by the death of Robert Hogg, the remedy to recover the partnership debts survived to Campbell; but it is the remedy only which did so, the interest of the deceased did not. It is a rule in the Law Merchant, that jus accrescendi inter mercatores locum non habet. 4 Term, 123, 5 Bac. Abr. 580, 589. The interest of Robert Hogg, upon his death, survived to his executors, though the right to recover and get in the debts due to the partnership, survived to Campbell, who, by no conduct of his own, could burthen the share of his deceased partner with any incumbrance other than that to which it was subject at his decease. Though Campbell’s share might have been liable had no assignment been made, yet as it was assigned, and for a valuable consideration, and that assignment legalized and confirmed by the act of Assembly, before the defendant obtained his judgment against him, his share passed to the assignee, and is not subject in his hands to this demand. From the time of the assignment, Campbell had neither interest in, or remedy to recover this debt. He and his property are liable to the defendant’s action on the judgment, and the defendant is liable for the bond to the action of other persons, where recovery will go to increase the fund of the assignee, which is not liable to pay the debt due to the defendant, and therefore the plaintiff is not such a person against whom the defendant's demand can be set off.</p> <p>The debt here offered to be set off is not unliquidated, but is reduced to a certainty by judgment. All the cases cited by the plaintiff’s counsel in support of the position that unliquidated damages cannot be set off, do not apply to this case. It is wholly immaterial whether before judgment the demand was for damages uncertain or not. Whatever may have been the origin of the defendant’s judgment, when the damages were ascertained and judgment rendered for them, they thenceforward were of equal dignity with a debt due by bond. Every set-off is in lieu of an action; and when the sum offered as a set-off can be recovered in an action of debt, &c. it may be set off: And there can be no doubt but an action of debt will lie on the judgment against Campbell.</p> <p>I admit that mutuality of debts is necessary, in order to a set-off; but the legal interest is only to be considered in a court of law : The assignment at belt vests but an equitable interest in the assignee; and the interest in his hands is subject legally to all the incumbrances it was before, had the assignment not been made. The share of the debts assigned is still legally considered due to the assignor. The assignment to third persons, operates nothing; and so far as it regards the legal interest of the parties, leaves them precisely in the same situation they were in before it; and laying aside the act of Assembly, a judgment recovered against Campbell might be set off against a debt to be recovered by himself: That act, for the furtherance of justice, has vested the executors of the deceased partners with the right of suing; but the debts recovered do, in contemplation of law, belong to Campbell. The executors by legislative creation are the representatives of the copartnership, and acting for it in the place of the surviving partner, and are subject to all such demands and actions as he is, and of course to an action for this debt, and consequently to the set-off. Viewing the case in this light, both the interest of Campbell, and Campbell himself by his representatives the executors, are now before the court. This ought to be considered as the action of Campbell, to recover a debt which, both now and when recovered, the law deems payable to himself; consequently the debt sued for, and the debt offered as a set-off, are mutual debts within the meaning of the act of Assembly, and are clear of the objection endeavoured to be raised for want of mutuality. The act of Assembly is in derogation of the common law, and ought to be construed strictly. 5 Bac. Abr. 650, 10 Mo. 282. By it, the executors of Robert Hogg are empowered to sue, naming themselves his executors; but they do not sue as executors, they are put in the place of the surviving partner—they represent him ; they are enabled to recover, not for the purpose of paying over to the assignee or his representatives, but for the purpose of paying the partnership debts; they are, for any thing expressed to the contrary in this act, to pay the balance to the person entitled by law to receive it, and that person is the surviving partner. They can only recover in cases where he might, were he not disabled; and they are subject in like manner as he would be were the suit brought in his own name.</p>

<p>This was a writ of certiorari from this Court, sued out by Capt. Brawley in order to review the decision of Chief Justice Pearson on a writ of habeas corpus at the suit of Tobias Rosier «against John M. Brawley, a captain in the army of'the Confederate States, complaint ng of being illegally restrained of his liberty by Capt. Bran ley. It ap,-« "peared on the trial before 4 tie Chief Justice, that the petitioner had been enrolled under the act of Congress of the 17th of February, 1804. as one of the senior reserves,' he being then between the ages of 45 and 50, and that he became 50 years old on the — - of October, 1864, and he was discharged.</p>

IN debt, the plaintiff declared on a bill bearing date in paroch. Santæ Mariæ de arcubus in London; and upon oyer of the deed, it bore date at Hamburgh, and the writ was in the Detinet tantum.

<p>A Collector of arrearages is not a good witness, to proved fraud against a defendant charged with fraudulently buying a Sheriff's property.</p>

<p>This was an appeal from an interlocutory order made by Sees, J., at Fall Term 1862, of Rowan Superior Court, dissolving an injunction granted in the vacation before.</p> <p>The order in the court below was made on motion upon the coining in of the answer. Every part of the bill and answer ne jessary to the, foil understanding of the case is stated in the opinion of the court, except that the answer contains a positiv^and direct denial of any fraud or imposition on the plaintiff and of any agreement or understanding that the conveyance was not to be an ‘absolute sale.'</p>

MOTION to dismiss an original bill in Equity, which had been drawn by the Master of the Court, and signed by him as Solicitor. urged, among other reasons, that such a practice, if tolerated, would have a most fatal effect upon the administration of justice, whose very sources it had a tendency to corrupt; that it was in truth, to constitute the Master Solicitor and Judge in the very same cause, thereby holding out a temptation to iniquitous judgment, irresistible to many…

IN Ejectione firmœ, on a special verdict, the case appeared to be this: John Upley, being seized in fee of a house, on the 26th of May 25 Eliz. by his last will and testament, disposed of it in this mannar: Item, I give and bequeath my house to Ann, my wife, to dispose at her will and pleasure, and to give it to any of my son, which she pleases. argued that, by these words, the wife had a fee, and is liable to no one: but may dispose of the house to whom she pleases.

<p>THE question in this cause was whether a man who had married the widow of the lessor of the plaintiff's ancestor, was a competent witness in favour of the plaintiff.</p>

<p>THIS was an action of ejectment, brought to recover possession of a tract of land in Rockingham county, to which the plaintiff claimed title as follows:</p> <p>A writ was sued out, from the County Court of Rockingham by one Gains, against Nicholas Larrimore, returnable to August term 1791, and continued from thence until Febuary term 1794, when judgment was rendered for the plaintiff.</p> <p>A writ of sieri facias then issued against the chattels and lands of the said Nicholas, upon which writ the Sheriff made a return in these words, “levied on lands, and sold for ten pounds.”</p> <p>The plaintiff then produced a deed from the Sheriff to William Lacey, dated 3d. February 1795, and another from the said Lacey to the plaintiff.</p> <p>The title set up by the defendant was as follows: that on the 13th. Sept. 1792, Nicholas Larrimore, for valuable consideration, conveyed the land in dispute to his son Hance Larrimore, who on the 30th. May 1794, conveyed the same to John Hamilton, the defendant.</p> <p>Though the deed from Nicholas to his son purported to be made for valuable consideration, no proof was made of the payment of any money; on the contrary it appeared that the son’s circumstances had been uniformly low, and that he possessed no means of gaining a livelihood, distinct from those furnished by the father.</p> <p>It was proved that the nominal price of the land, paid by the son according to the deed, was double its real worth, and that the father had been under great anxiety and alarm, by reason of the suit brought against him by Gains; moreover, the father remained in uninterrupted possession of the land until December 1797, long after the sale by the Sheriff, &c.</p> <p>The material question for the determination of the jury was whether this deed from the father to the son, under all its circumstances, was fraudulent or not.</p> <p>It was contended for the plaintiff, that the transaction was attended with all those marks and badges by which fraud is distinguished. 1. The possession not accompanying and following the deed, which was absolute. 2. The near relationship of the parties. 3. The want of a consideration. 4. The suit pending against the father, at the date of the execution of the deed, concerning the event of which he had expressed so much anxiety, and lastly that all the rest of the property of Nicholas was claimed by his other children; so that this was in truth a conveyance of all his property. For the plaintiff were cited the following authorities, Stat. of Eliz. 2 Bac. 604. Twine's case, 2 Rep. 81. 2 Bulstrode 218. Cowper 432.</p> <p>In the progress of the cause several points of law arose upon which the Court delivered their opinion. The first question was whether the execution, upon which the land was sold, should have been returned, to complete its validity?</p>

<p>t/OUrts of Equity have uo jaridiiction to reform a xnarriage settlement by which property is conveyed to the seperate use of the wife, when the bill alleges no fraud, imp i&itiou, error or mi-take, ta. respect of the contents of the deed or its execution, ami there is no allegation that, any provision of the deed has been found to be hurtful to the fund, prejudicial to the interests of the parties, or of marked inconvenience ni execution. . ,</p>

IN covenant. The case was this. The master of a vessel covenanted to sail with his freight by the first fair wind, and the other party to pay the freight. The master brought his action for his wages, and alledged that he had performed the voyage.

<p>The interest of a purchaser of land when Hie purchase money is iioi. paid, and the title is retained as a security for its payment, is considered and treated a-' an equity of redemption. 11</p> <p>The purchaser of an equity of redemption at Sheriffs sale, has a right to call for the legal estate upon discharging such part of the mortgage debt as remains unpaid.</p> <p>In sales of land under execuiion, there is a distinction betwem the case?.1 in whieh the defendant has an interest subject to execution, and cases where he has not such interest. In the first mentioned canes, the purchaser becomes the' owner of the defendant's interest — if it be an equity, upon discharging the-incumbrances on it, he hua a right to call /or the legal estate. In the lan.t mentioned cases, the purchase! only succeeds to the equity of the debtor, to the extent of holding it as a security for the money paid.</p> <p>An equity of redemption can not be sold under an execution for fLs mortgage debt.</p> <p>Where land is sold, and the purchaser gives a bond with a security for the payment of the purchase money, and the title is retained as a further security lor its payment, the surety for the original purchase money has the first equity to be indemnified, and his claim is preferred to that of a purchaser of an equity of redemption at Sheriff's sale, or of any incumbrancer, who comes ki by assignment, or otherwise; and the question of notice has no relation to such cases, because neither party has the legal estate.</p> <p>The eases of Green vs. Crockett, 2'Dev. and Bat. Eq. 390, Taylor vk Gooch, 4 Jones 436, Camp ys. Cox, 1 Dev. and Bat. 52, Polk vs. Gallant, 2 Dev. and Bat. Eq. 395, cited and approved.</p>

<p>* The nature and facts of this case are stated in Judge Rattle’s opinion.</p>

<p>TRESPASS was brought for chasing his sheep, with a dog, on his own land. The defendant justified that the plaintiff’s land is joining a common, and that the plaintiff’s sheep were strayed on the defendant’s lands, and that he with a dog, chased the sheep out of his own land, and the dog, in pursuit of the sheep, contrary to the defendant’s will, followed the sheep on the plaintiff’s land: and thereupon there was a demurrer.</p> <p>argued, that it is a good justification. For a man has not such a command over his dog, as to prevent him from entering his neighbour’s land—especially when he pleads that it was against his will; as 22 E. 4. 8. In trespass for ploughing the plaintiff’s land, the defendant says that the plaintiff’s land is contiguous to his; and while he was ploughing his own land, his horses became unruly, and violently carried the plough on the plaintiff’s land, contra voluntatem suam. And this was held a good justification. It is so likewise, in this case. To this same point is also 21 E. 4. 64. 43 E. 3. 8. If a man does a lawful act, which afterwards becomes unlawful, it is damnum sine injurla. 21 H. 7. 28. If my sheep are mixed with others, I may chase them all to sever mine; and this is no trespass. And it was thus adjudged in Jermyn’s case, 18 Jac.</p>

<p>where a Will ot LaljdaP* pears to hava been attested by two witnesses, and the certificate of probate was'proved by one, it will be intended pri. proved hyh.m. ⅛⅛⅛ coUm? ot tlt!e>aud h' accompanied with 7 years4 possession, will ripen into a perfect one.</p> <p>The death of a tenant4 hefbre seven years, will not impede the progress of the Act af Limitations, provided the possession is continued a sufficient length at ⅛⅜⅜⅜ a iter ItiU death, by his hews or others claiming under him. , ‘</p>

<p>Certiorari denied, on an affidavit that a combination to harrass the deponent, prevails in the county wherein he is sued, so that he believes he cannot have a fair trial.</p>

<p>A MAN, in consideration that I. S. would marry his daughter, promised him £. 1400 after the marriage, upon request. The plaintiff in an action brought on the promise, alledged a request, without any notice of the marriage.</p> <p>argued, that notice, of the marriage ought to be alledged. He took the distinction where an act is done by a stranger, there the plaintiff ought to take notice as well as the defendant. But it is otherwise where one may take notice, and not the other. This distinction is elucidated in 8 E. 4. 1. And he said, if one bargains and sells a reversion, the bargainee shall have the rent without attornment, or notice; but it is otherwise of a pœnalty, of which there ought to be notice, as appears, 5 Rep. Mattey’s case. 8 Rep. 90. Francis’ case. It was adjudged in the case of Stephen Gurney, that when a lease for years was made to I. S. rendering rent, and a future lease for years made to I. D. to commence at the expiration, forfeiture, or surrender of the first lease, and I. S. surrender to the lessor I. D. if he has no notice of this surrender, shall not forfeit his lease for non payment of rent.</p>

A CONTINUANCE of the cause was moved for on behalf of the plaintiff, who was absent; but from what cause did not appear; his witness had been summoned, as appeared by the return of the subpoena, but was also absent.

EACH county has two forts of gaols. A gaol for the prisoners which are taken by the sheriff, for debt; and this gaol the sheriff may appoint in any house, or wherever he pleases. The other gaol is for the breakers of the peace and matters of the crown, which is the county gaol.

<p>A pro rata Le recovered from die ship-ger, if he a-goods to the underwriter, alter the voyage is broken stranding of the vessel.</p>

IN debt, on the statute of 29 El. 4. the words of which are “upon extents and executions, the sheriff shall take 12d. of and for every 2os. where the same exceeds not £. 100, and 6d. of and for every 2os. being over and above the said sum of £. 100. Provided, that this act shall not extend to any fees to be taken for any execution, to be had within any city on town corporate.

THE plaintiff’s counsel, stated this to be an action founded, 1st. on an express warranty, 2d. on an implied warranty, 3d. on deceit in a sale.

TO prove a partnerlhip deed, the plaintiff’s counsel called the subscribing witness, who said the did not see the deed executed; but that William Neale brought it to her, and desired her to put her name thereto as a subscribing witness, which she did: none of the other defendants being present.

<p>This was an action on the case brought by Mitchell against Bell, an attorney in the superior court of law for the district of Halifax, in which the jury at October term, 1799, found the following verdict: “We find that the defendant did assume and assess the plaintiff’s damages to 32l. 6s 7d. subject to the opinion of the court on the following case: That in the year 1792, the defendant, as attorney at law, instituted a suit on behalf of the present plaintiff Thomas Mitchell, against Dred Taylor, executor of Henry Taylor, deceased—living William Lancaster, the other executor; that Dred Taylor afterwards died, leaving Hardy Hunt and Henry Hunt his executors; that a scire facias issued at December court, 1792, against Dred Taylor’s executors, and made them parties to the said suit—living William Lancaster, the executor of Henry Taylor—that at the time the scire facias was returned, Bell, the defendant, who was the plaintiff’s attorney in the aforesaid suit, promised the plaintiff, that in case he was nonsuited, thereby meaning cast or in any way defeated, that he the said Bell would pay all costs-that the present plaintiff was cast in the county court of Franklin, as appears by the record filed, and paid costs amounting to the sum of 32l. 6s. 7d. and if the law is for the plaintiff, we find for the plaintiff; otherwise for the defendant.”</p> <p>This case was brought before the Judges at their meeting this term for determination.</p>

EJECTMENT, Roundtre entered a tract of land, lying in Granville county, on Shocko Creek, and ran the said tract out in the following manner: Beginning at a tree on the bank of Shocko Creek, running South - poles to a corner, thence East - poles to a corner, thence North - poles to a corner on the creek, thence up the creek to the beginning, &c. By a mistake, either in the Surveyor, or in the Secretary who filled up the grant, the courses were reversed, beginning on said…

<p>DETINUE. This was a case agreed, viz, the plaintiff had brought a suit in detinue for a negro in possesion of the defendant, and after issue joined, the defendant restored the negro to the plaintiff; if the court were of opinion that the plaintiff could proceed for damages and costs, or costs alone ; then there should be judgment for costs: if otherwise a nonsuit should be entered.</p>

IN this case, the defendant in the county court did not plead the first term: no judgment was taken. The second term the defendant, by his attorney in fact, moved to dismiss the cause for want of a declaration; Whilst the court was considering the case, the attorney for the plaintiff entered judgment by default; the court ordered a nonsuit, and the plaintiff appeared; and this term cause was shown against striking out the default and after much argument:

' This was a writ oí' certiorari at the suit of Lieutenant John N. Prior, Enrolling officer of the 8th Congressional' district, directed to'Chief Justice Pearson, for the purpose of reviewing'a judgment.given by him in a writ of liabeas corpus sued by Robert H. Smith against Joliñ N. Prior.

<p>The record in this case stated it to be an action on the case for assumpsit, for use and occupation of land brought in the Superior Court of Law for the District of Edenton, At April term, 1800; there was a verdict for the plaintiff for £7 10. subject to the opinion of the Court, whether the plaintiff can recover in this action for the use and occupation of land.</p>

IN this case there was a default, and at this May term 1789, at Newbern, on executing the enquiry, the note produced, appeared to be for the payment of £. 60, specie, in tobacco at the specie price, if not paid within two months; but if within two months, then at 40s. per hundred for tobacco. The note was made in December 1783.

THE court, after argument, said they had considered the case, and were of opinion, and so laid down the rule, that where a party lives out of the state, the adverse party may give notice to such absent party, or his attorney in court, as he may choose.

The plaintiff filed this bill to recover .dower In the lands ■of which heríate husband, William A. Patton, died, seized •and possessed. . ' ■There was no controversy except about a piece of land i-ndled the tan yard lot, and some tracts of land devised to her late husband by James W. Patton, deceased. . ’ ’ The materia] facts respecting the tan yard lot are: in 1 '-■til, William A. Patton, Washington Morrison, James A. Patton and Samuel G-. .Kerr, formed a partnership for…

This was a writ of error, brought in the Superior Court of Law for the District of Edenton, to reverse the judgment of the County Court of Tyrrell, in a cause between the above mentioned parties.

THE executor of an infant promised to pay the debt of the infant, in consideration that the other would suspease his suit until Michaelmas. (Nota that the debt of the infant was for apparel and stuff taken from a merchant). And it was argued that is not a good consideration: as every consideration, ought to be an inconvenience to one of the parties, or a benefit to the other, 17 E. 4. 5.

THE defendant had been tried in the County Court, upon an indictment for an assault, and acquitted; and the Court, thinking that the prosecution was malicious, adjudged the prosecutor to pay the costs.

PARSON Boston was sentenced in the spiritual court for adultery, and deposed that a general pardon came out, pardoning the crime of adultery. It was adjudged that the crime being pardoned, the judgment thereupon shall be pardoned and destroyed, and his deposition void.

This was a writ of certiorari, at the suit of Thomas S. Wood, to review the judgment*of Heath, J., in a writ of habeas corpus, sued ‘out by*him for the purpose of being-released from the custody of the defendant,' an officer of the Home- G-uard. Judge Heath ordered the petitioner to be. remanded into the custody of the officer. All the facts are stated in the Opinions of the Judges.

THIS ejectment was brought to recover a tract of land lying in Stokes County; to which the plaintiff claimed title, first, under a grant from the State to Blackburn, dated 3d. April 1780. A deed from Blackburn to Coffee, dated 16th, October 1785; a judgment recovered by the plaintiff against Coffee, before a Justice of the peace, dated 14th. June 1795, and an execution issuing the same day; a levy made on the lands in question, on the 30th.

This was a writ of error, brought in the Superior Court of Law for Edenton District, to reverse the judgment of the County Court of Pasquotank in a cause between the above mentioned parties.

<p>THIS case was that of a gift of one Glover to his daughter, of a negro woman, reserving the use of that negro during his life. Judgment was obtained against Glover, and an execution levied on the negro. Potter became the purchaser; Tims intermarried with the daughter of Glover, and after Glover’s death, brought suit for the wench and her children. On a verdict for the plaintiff, the question, as to the children born during the life estate, was reserved.</p> <p>The following cases were relied upon for the defendant. Tissin or Tisser, 1 P. W. 500, Nichols vs. Osborn, 2. P. W. 419, Taylor vs. Johnston, Ibid. 506. Choworth vs. Hooper, 82, Brown’s reports det. 1780, 2 Black, 390. Puffendorff, Lib. 2, Ch. 4. p. 11 . 2, P. W. 42. 1, P. W. 572.</p> <p>The counsel for the plaintiff combated these authorities by showing that the principles upon which they were determined would not apply to the present case. That the devise over in the case of Tisser depended on a contingency, &c. In some of the other cases it depended upon a condition. That in the case of money, interest was the sole produce or profit; the principal not impaired thereby; otherwise of a negro: where a use is reserved or devised, the property certainly passed and vested in the donee, as remainderman; the intermediate estate is satisfied by the labour, &c. &c. the doctrine of Puffendorff related to the rights of war, &c. &c.</p>

<p>THIS was the case of a promissory note, under seal of water and paper. The note was given to one Halfey, who endorsed it to some other person, &c. &c. to the plaintiff. As this was an action on the case, Williams for defendant, objected to the instrument being offered in evidence to the jury. It was permitted to go to the jury, and the question referred—and afterwards on argument (the note had not the expression “ witness my hand and seal") Williams said the instrument was before the court, &c. and relied on Wood 246. M‘Lain insisted delivery was necessary and not proved and cited Gilb. E. 101.</p>

ELVOLRY was in execution at the suit of one Short, and he entered into an obligation to the marshal, Sir George Reynel, to be a true prisoner and not to escape. Elvolry, after this escaped, and the marshal put the obligation in suit. Elvolry pleaded, that the obligation was made for care and favor, and therefore is void, by 23 H. 6. p. 147.

ONE granted a rent charge to Stiles for his life out of B. acre. The grantor made a lease of this land to Barry; and it seemed that the land was really not worth so much by the year as the rent amounted to: and Stiles to have the rent, sued in the court of Request, and surmised in his bill, that he had lost the benefit of his grant, because he could not avow and sue for it at common law.

WILLIAM SHELLY made a feoffment to divers feoffees, to the use of the feoffor for life, with divers remainders over. Provided, that if the feoffor, during his life, tender a ring or a pair of gloves, or any sum of money, to any of the feoffees, or any of their heirs (ipso Gulielmo declarante that his intention is to alter the use, and make those uses void) then these uses would be void.

<p>In, May 1842, Jonathan L. Carson and George M. Carson conveyed, to William M. Carson lands, slaves, and other personal property, by a deed which recites that it is made in consideration of the sum of one dollar, and the further consideration of the good will and “ affection the' grantors have for. Almyra Carson, the wife of William Carson, and the children of th8 said Almyra and William namely, John, Martha M, Mary M, Matilda A, and William, and such as they may have hereafter” After 'describing the property and limiting it to the grantee, his heirs, administrator, &c., the-deed declares “that the said William shall hold and possess the property for the sole and separate use of his wife, the said Almyra,- and the children aforesaid, and such as may be born and begotten by the said William hereafter, “and shall have power to receive and appropriate the proceeds, &c., towards the mainten anee of- his said wife and the children aforesaid, and.such as he may- have hereafter, and shall have power to apply the samé towards the education-of the said children, and as they come to years of maturity to advance the same with such part of the said property .and. its increase as to him shall seem meet,” “ and it is also provided, that in ease the said Almyra shall depart this life before the said William, then her interest in said property of all kinds is to cease and determine, and the said Williatofsball not only have power by deed to advance his said children out of said property in his lifetime, but he is hereby fully authorized at his death, by last will and testament, to devise and bequeath the said property and its increase to his wife and such of his children, as he shall deem right, and in-case he shall dio without a last will -and testament, then the said property, if his said wife be alive, shall be divided according to the laws regulating descent and dower, and the laws distributing personal estate; and the said William-is nst to be liable to account to his-said children. It being the true intent of this conveyance to proyide for the wife of the said William and ‘his present and future children, and to allow him to-apply the property at his discretion to the benefit, support, nurture, education, and advancement of said wife and his present and future children.”</p> <p>Mrs. Almyra Carson died in 18 and William M, Carson married again and had two children of the second marriage, the defendants, George S. and Catharine.</p> <p>On. the Oth day of January, 1860, William ..M. Carson, by a deed purporting to be in consideration of the natural love and affection he bore to bis son, John, (a son of Al-myra,) and for the purpose of advancing his son,, and to be made in execution of tbe power given to him by tbe deed from Jonathan and George Carson to him, conveyed to bis son a part of the property real and personal, and on the •same day, John Carson re-conveyed the same property to William M. Carson, in consideration of the natural love and affection he bore to his half-brother and sister, in trust-for his half-brother and sister, George S and Catharine. In 1362 William M. Carson died testate. By his will ho devised and bequeathed the property .conveyed to him by John, to George S and Catharine Carson, and appointed John'his executor, who qualified and sues as such.</p> <p>The other parts of the will are not here noticed because-the court declines in the present stage of the cause to decide the questions arising thereon. ,</p>

<p>This was a writ of error brought in the Superior Court of Law for Edenton District, to reverse the judgment of the County Court of Currituck, rendered in a cause between the above mentioned parties. The plaintiff brought a writ of waste in the words following to wit:—State of North-Carolina, to the Sheriff of Currituck County, Greeting: You are hereby commanded to summon Simon Wilson and Franky his wife, that they be before the Justices of our county court of Pleas and Quarter Sessions, to be held at the Court-House of our said county, on the last Monday of February next, to answer unto Silas Bright, an infant, &c. by Aaron Bright, his father and natural guardian, in a plea why in the houses, lands and woods, in the county of Currituck aforesaid; which in right of the said Franky, they hold for the term of the life of the said Franky, by the devise of Silas Bright, deceased, they have made waste, spoil, and destruction to the disinheriting of him the said Silas, against the provisions of law, and to the damage of him the said Silas, five hundred pounds, herein fail not, &c. which being executed and returned to February term, 1797, the defendants appeared and pleaded "the General issue, with leave to give the special matter in evidence," and the cause was continued from term to term, till May term, 1798, when a Jury being impannelled and sworn, found the defendants guilty of having committed waste in the premises charged in the plaintiff’s declaration, and assessed the plaintiff’s damages to £ 133 8d, and costs, whereupon the defendants prayed, and were allowed a writ of error, and by their attorney assigned the following errors, to wit: "That in the record and proceedings aforesaid, and also in giving the judgment aforesaid, there is manifest error, to wit: that the declaration aforesaid, and the matters therein contained, are not sufficient in law for the said Silas Bright to have and maintain his aforesaid action thereof against the said Simon Wilson and Franky his wife—there is also an error in this, to wit: that by the record it appears said, a form that the judgment aforesaid given, was given for the said Silas Bright; whereas by the laws of the land, the said judgment ought to have been given for the said Simon Wilson and Franky his wife, against the said Silas Bright; and the said Simon Wilson and Franky his wife, pray that the judgment aforesaid, for the errors aforesaid, and other errors in the record and proceedings aforesaid, may be reversed and annulled, and altogether held for nothing, and that they may be restored to all things they have lost by occasion of the said judgment.</p>

<p>If a deed be executed by an attorney, his power must be produced. Instruments that are required to be recorded, are sufficient evidence for the party, when the original is lost, and complete evidence for strangers. As to instruments not required to be recorded, the Register’s certificate is of no validity.</p>

THE record in this case stated, that at a court held for Craven county, on the second Monday of September, in the year of our Lord one thousand seven hundred and ninety-eight, William Shephard, by Thomas Badger, Esq. his attorney, produced to the court the following notice against Isaac Guion, late Treasurer of Public Buildings in Craven county, viz. “Newbern, 24th July, 1798—Sir, I received your note and should have no objection to your continuing to have the management of…

<p>IT was admitted on both sides, that the testator died during session, and before the ratification of the act, for that the question was when the act should begin, to operate.</p> <p>on the authority of many cases he produced, to show that all acts of the British parliament take effort as effects from the first day of the session, and therefore fic bic.</p> <p>relied on the words and spirit of the Constitution,† that the signing of the Speakers is necessary to give the act the sanction of a law.</p>

THIS was an action of assumpsit founded on a written promise of indemnity made under the following circumstances. The plaintiff was Sheriff of Rockingham County, when a writ of fieri facias against the property of Nathaniel Williams came to his hands, upon which he made a levy, and appointed the day of sale.

DETINUE, for a negro formerly the property of John Ferrell, the plaintiff's grand-father, who claims him under a gift which was clearly proved.

<p>THIS was a bill of injunction granted, after a former bill of injunction for the same cause had been dismissed, for not having been served on the defendant in time; for which cause these was a plea in abatement, and on argument the court ordered the plea to be overruled.</p>

<p>THIS was an Action on the Case, tried before Camerov, J. at Rutherford Superior Court, and founded on tbe Act of Assembly passed in 1796, to prevent the removal of debtors; brought against tbe Defendant’s testator in his lifetime,-—for removing one R. Holford from Rutherford into Burke county,—he being indebted to tbe Plaintiff. The Plaintiff called four witnesses. They were sworn; and, at the request of the Defendant’s Counsel, were sent out of Court. The Plainúíf’s Counsel examined three of them to prove that Ihfcrd was indebted to him by a note and on a judgment before a Justice of the Peace ; and that the Defendaiu’s testator had removed Holford from Rutherford into Burke. No evidence was offered, on the part of the Plaintiff, to prove that Holford had resided in Rutherford six months, or any other length of lime, before the removal--had taken place.</p> <p>The Defendant’s- Counsel asked the Plaintiff’s Coun-.peVif they intended to offer any further evidence in the cause. They replied that they should not offer any further testimony; and proposed submitting the case without argument! This was declined by the Defendant’s Counsel; and having informed them that no evidence could be offered on the part of the Defendant, requested that the Plaintiff’s Counsel would open their cause to the Jury. The Plaintiff’s Counsel refused to make any remarks to the Jury; and desired the Defendant’s Coun-gel to proceed in submitting such observations as they thought proper to make to the Jury. The Defendant’s Counsel then addressed the Jury; and, after making some remarks on the Plaintiff’s evidence to prove the debt due by Hoford to the Plaintiff, and the removal of Halford by the Defendant’s testator, observed to the Jury, that if both of these points should be in the Plaintiff’s favour, he could not recover under the evidence submitted to them by the Plaintiff; because he had neither proved, or offered to prove, that Halford had resided in Rutherford county for six months, the time prescribed by the Act on which the action is brought, before his removal, by the Defendant’s testator, from Rutherford into Burke.</p> <p>The Plaintiff’s Counsel, then interrupting the Defendant’s Counsel, addressed the Court, and stated that they could prove .he fact ol Halford’s residence for six months in Rutherford before the removal into Burke, either by the remaining witnesses not in Court, or by some other person who had not heard the trial ,* and prayed leave to offer such evidence. This was objected to by the Defendant’s Counsel. The Court refused the introduction of any further testimony in the cause.</p> <p>The Defendant’s Counsel having finished his remarks, the Plaintiff’s Counsel then, by permission of the Court, addressed the Jury; and argued that they might well be satisfied that Halford had resided six months in Rutherford previous to his removal, from the date of the note and judgment, and from some other' circumstances disclosed by the testimony. The Court stated to the Jury what a Plaintiff, suing on the Act in question, should prove, to entitle himself to recover; and left it to them ‡0 say whether the Plaintiff in this action had brought his case within the Act in question. They found a verdict for the Defendant. The Plaintiff's Counsel moved for a New Trial, on the ground that they bad a right to the benefit of the testimony which they wished to offer respecting liolforcPs residence before his removal; notwithstanding the time when, and the circumstances under which, they had offered it.</p> <p>The Court overruled the motion for a New Trial; from which judgment, the Plaintiff appealed to the Supreme Court.</p> <p>The Case was submitted without argument.</p>

<p>EJECTMENT. In the trial of this cause, a question, arose upon by a deed of bargain and sale, made to the lessor of the plaintiff, by his father, in the year 1771, of the premises in question, which conveyed the whole estate absolutely to the bargainee; but in the premises of the deed there is an exception of the grantor’s life time in any part or parcel of the land; though this exception is not in the habendum. Whether the lessor of the plaintiff took a fee by this conveyance, as a life estate was reserved to the grantor.</p> <p>laid it down as an established rule of law that a fee cannot be created by deed to take effect or arise in futuro : and here he said, the grantee was not to take till after the grantor’s death.</p> <p>entered into a discussion of the doctrine of uses, to shew that the use might be limitted to take effect in this manner by the stature of uses*; although it would not have been good at the common law.</p>

<p>THIS was an action of debt upon the statute of usury, commenced in the County Court of Glasgow, to which the defendant pleaded nil debit, and stat. lim.—The plaintiff had a verdict in the County Court, and the defendant appealed to the Superior Court of Law for the district of Newbern, at March term, 1799; the cause was tried, when the Jury found a special verdict, in the words fol lowing, to wit: "That the defendant does owe "the sum of two hundred and thirteen pounds ten "shillings and six pence, and that the plaintiff "instituted his action within the time limited by "law, subject to the opinion of the court upon "the following points reserved, viz.</p> <p>"1st. Whether this action is subject to the ope"ration of the act of Parliament passed in the "xxx 1st year of Elizabeth, chap. v, and on a "question arising out of these facts, which the "Jury find, to wit: That on the thirty-first day "of January, one thousand seven hundred and "ninety four, the said William Carter, was in "debted to the said John B. Brand, in the sum of "one hundred and six pounds eleven shillings and "nine-pence; for which judgment had been "obtained, and execution thereon had issued. “which execution the Sheriff had levied, and "had appointed the said thirty-first day of Janu"ary, to fell the property levied on, to satisfy the "same: and on that day the said John B. Brand "did agree that the said sale should be postponed "eighteen days, in consideration that the said "William Carter would pay him the said John, “ten dollars more than the legal interest arising on "said sum; and afterwards the said John B. Brand "to wit, on the eighteenth day of February, next "following, did receive from the said William "Carter the amount of the said judgment, and "also the said sum of ten dollars more than legal "interest as aforesaid, for the said postponement "and forbearance.” And the question submitted to the Court, is whether the case upon these facts "within the statute of usury. "If the opinion of "the court upon the law and facts above stated is "in favor of the plaintiff, they find for the plain"tiff, and asses six-pence damages and six-pence "costs; but if the opinion of the court should be "in favor of the defendant, they then find for the "defendant.”</p>

THIS was an action upon the case, for money had and received, by the defendant to and for the use of the plaintiff, upon the following case. The plaintiff and Lee Dekeyfer made a race to be run the four mile heats, between the Hyder Ali and the Centinel for £. 500: which was staked by each party in the hands of the defendant, to hold the same, 'till the event of the race was determined. The horses were started fairly.

THE Defendant had been convicted at the preceding term, of murder, upon the following indictment, to wit: State of North-Carolina, “ Newborn District. March Term, 1792.

The plaintiff charges in her bill that at the time of her marriage with tier iate husband,§13 ry.-in Smith, she was the owner of a tract of land in Johnston county, ti-hich her husband wat» desirous of selling, and at his request she .ves*of equal value with her land, or in some other way to meare her from loss.

<p>This Cause was tried before Cameron, J. at Rutherford Superior Court. It was an Action of Trespass, Assault and Battery, and False Imprisonment. Joseph J . 1 J r Hamilton, a Justice of the Peace, came to the house of his brother, the other Defendant, and sent for Pope. After he arrived, the two HamUtons took a purse and put $12, together with two quarter-pound weights into it, and gave it to a female slave belonging to A oble Hamilton, one of the Defendants. They directed her to g° to a certain place on the river, not far distant. She 1 . . to the place; the Defendant and Pope lying in not far off. The Plaintiff came to her a short time after-wards. As soon as he came up, a Negro fellow, who was also in ambush, caught him, and called for the others ; who came to his assistance. Joseph Hamilton arrived first; and the purse, with the money and weights in it, were on the ground. He picked it up, and struck the Plaintiff with it, and injured him considerably. Pope, the witness, prevented Hamilton from any further abuse at that time. Thev then tied him and kept him in cus-todv two days and nights ; part of the time tied, and the balance of the time "under guard. 'The Magistrate* Joseph Hamilton, issued a Warrant, and Pope executed it the morning after he was taken. They then proposed a compromise ; and took a conveyance lor his Land and all his personal property ; stated to be worth between one and two hundred pounds.</p> <p>The Plaintiff was poor; had a wife and small family of children. While he was in custody, they threatened to strip and whip him unless he would comply with their demands, by conveying his property to Noble Hamilton. LTpon the conveyance being made, the Warrant was destroyed and the Plaintiff discharged. When Joseph Ha-millón first came, he interrogated Plaintiff as to his business. He said the servant owed him a small sum of money, which he had come to get.</p> <p>The witness, Pope, who was deputed bv the Defendant, Joseph Hamilton, to act as a constable on this occasion, proposed to return the Warrant before the said Joseph ; but he refused, to take cognizance of it. Two Justices of the Peace lived within a short distance of the place where the Plaintiff was held in custody; and one Justice of the Peace came to the place while he was so in custody; but the Plaintiff was not carried before any Justice of the Peace.</p> <p>- The Defendants were proved to he wealthy men. On the argument of the cause, the Defendant’s Counsel argued in mitigation of damages, that the Plaintiff was guilty of a Telony, by receiving the money Skc. put into the bag by the Defendants. In charging the Jury, the Court held, that it was essential to the commission of a felon}', that the things taken, should betaken without the consent of the owner. But that if the Plaintiff had been actually guilty of a felony, in receiving the money put into the bag, yet if the Jury believed that they, the Defendants, had exceeded and abused their authorin', they were, nevertheless, liable to the Plaintiff: and it was their exclusive province to assess adequate damages. The Jury found for the Plaintiff, and assessed his damages to ^400.</p> <p>The Defendant’s Counsel moved for a New Trial, on the ground that the damages were excessive ; and that1 the Court misdirected the Jury, in stating that if the Plaintiff had received from the Negro, the money put into the bag by the Defendants, for the express purpose of being given to the Plantiff, that he was not guilty of a felony in receiving it. The Court overruled the motion for ⅜ New Trial. From which Judgment the Defetid-ant appealed to the Supréme Court.</p>

THIS was a motion made in Salisbury Superior Court of Law, March Term, 1800, for the allowance of a writ of error upon a judgment obtained by Murchie, the surviving partner of James Galloway and Co. vs. Leake, Executor of Rose, in the County Court of Rockingham.

THIS was a case in equity from the district of Newbern. The bill states that the complainants are the brothers and sisters of Alexander M'Auslan, late of Newbern, dec. who died intestate, possessed of a large personal estate, without issue, leaving Sidney M'Auslan, since married to Furnifold Green, one of the defendants, his widow.

THIS was a writ of error brought to reverse a judgment rendered in the County Court of Chatham. The defendant had entered into a recognizance for the appearance of Mask, to abide the order of the County Court on a charge of bastardy and Mask sailing to appear, a fcire facias was sued out against the defendant, to which he pleaded in abatement, that the recognizance was taken by a single Justice, whereas the act of Assembly requires the presence of two. Demurrer and joinder.

<p>This was a case in equity from Salisbury District; the record states, that at September Term, 1799, the complainants obtained a decree against the defendants, and had legally served them with a writ of execution of the said decree, as appears from the return made on said writ by the Sheriff of Lincoln—it further states, that William Beaty, one of the defendants, hath absolutely refused, and still doth refuse to perform the said decree: and the question reserved for the opinion of the Judges at their meeting this term, was, what process is proper to enforce compliance with a decree made by the Superior Courts of Equity.</p>

This was a writ of certiorari at the suit of .Major Mai-lett, for the purpose of reviewing the judgment of Gilliam, J., in a writ of habeas corpus sued, out by Murdoch White.. . • The writ of habeas corpus was applied for and issued on the 22nd November, 18(54.

Iredell, Associate Justice. Sitgreaves, District Judge. THE Jury found a special verdict, the substance of which is, That John Minge, the grandfather of the lessor of the Plaintiff, was seized in fee of the premises described in the declaration ; that being so seized, he duly made his last will and testament on the 26th of November, in the year 1760 ; that the said John Minge departed this life in the year 1772, and his son David, the devisee, became seized of an estate tail…

<p>THIS was an Action of Trespass, tried before Se aweu, t at \yaylie Superior Court. A Verdict was-rendered 1 for the Defendant, under the Charge of the Court. An ⅜ • ¶ i c* /⅝ • p 13 t0 the oupreme Court, on a motion ror a New Trial, which was refused. 4 f</p> <p>Michael Herring was the owner of a patent, covering the whole of the land in dispute. He conveyed to Keetley, r ' , r under whom the Defendant claims, by deed of the 6th of February 1778, calling for its “ Beginning at a pine tree of Jacob Herring anid George Graham’s land, and running with George Graham's line, and the same course continued to a corner,- including 100 acres of land running a North course to the patent line.” This deed begins at the letter D, in the DIAGRAM hereunto annexed, and continues with Graham's line O, N, M, and to L. If the same course, be co|f&nued to the letter T, and a North line to U, it will contain 100 acres. No marked trees are found on the line T, U, nor any marked corner at T. The Plaintiff proposed to show, by parol evidence, that a marked line from L to K was the true line of the Keetley deed. But the Court charged the Jury, that as po corner was actually named in the deed, no parol evidence was admissible to establish a line, in contradiction to the deed, which would give less than 100 acres.</p> <p>by deed of the 18th of May 1805, which, after several lines, called for '■'■Richard Keetley's corner, a pine; then with Keet-lei/s line South 98 poles to a pine standing by the side of Grady Herring's fence.” The Plaintiff proved, that at the time of this conveyance Michael Herring and his son Graddy Herring, to whom the deed was given, actually run to K and thence to L, where there had stood the pine by Graddy Herring's fence. The son of Richard Keetley was present at this running, and made no claim beyond it. It was also proved, that Keetley sent his son to show his line; who had showed the line K L. The marked line K L is two years younger than the deed from Herring to Keetley, and some years older than the deed to Plaintiff. The Plaintiff proved a possession between the lines K L and T U for more than seven years after his deed from Michael Herring, and the Defendant proved an agreement in 1803 between Keetley and Herring at ¡he period of Herring's entering upon the land in dispute, to straighten each one’s fence, and to occupy each a part of the lands of the other. Keetley died in 180G. The fences continued as fixed in 1803 until the present parties differed and this suit was brought; and the Defendant insisted that Herring's possession was not adverse to Keetley's. The Defendant also attempted to show a possession between the lines. One witness who did not speak with confidence, thought the corner pine at L, then a decayed $tump, was within the Defendant’s fence. A witness for the Plaintiff stated positively that the stümp was without the Defendant’s fence. The Court charged the Jury, that the Plaintiff had not shown a sufficient colour of title. That as Michael Herring, under whom the Plaintiff claimed, had himself sold to Keetley, and the true line of the Keetley deed was T U, no sufficient evidence ivas given by the Plaintiff to extend his line beyond that line.</p> <p>PÍA GRAM.</p> <p> </p>

<p>A buya land from B and pays the price, and directs B to convey to a trustee for the sole and separate use of his A's wife and children. Bexecutes a deed with the intention of conveying the land accordingly, hut from the ignorance of the draftsman, the deed was inoperative. Afterwards A conveyed the land to secure the payment of a debt to 0. By virtue of an execution against C his interest in the land is sold, and B bought from the Sheriff and took a deed from him, for the price of $15®. A at the time of his purchase from B was greatly indebted and some of the debts which he owed then are still due. B and his wife may maintain a suit in equity to compel B to convey to her sole and separate use.</p> <p>The deed from the Sheriff to B is a security for the sum paid by B $150 and r.'oi for tiie amount of the debt due to 0. ,</p> <p>The case of Rhem vs. Tull 13 Ired. 57, cited f.nd approved.</p>

CASE on a foreign bill of exchange, protested for non acceptance. The defendant suffered a default: on executing the writ of enquiry,a question arose, whether the plaintiff was bound to give notice to the defendant, that his bill had been dishonoured before he could bring suit? and by the Court, the defendant, by suffering a default, has admitted the declaration to the amount of the bill.

This was a writ of habeas corpus sued out by Haswell for the purpose of being released from service in the regular army as a conscript. The facts appear from the opinion.of the Court.

<p>THIS was an original bill, brought by Peter Mallett and Edward Jones, Esquires. Attornies in fact for the complainant, who is an inhabitant of the Island of Jamaica. The bill states, that the complainant and the defendants are the natural children of Goodin Elletson, formerly of Bladen county, who was possessed of a large estate, consisting of lands and negroes; and being to possessed, on the 29th of July, in the year of our Lord 1783, made his last Will and Testament in writing whereby he devised all his estate, both real and personal, to be equally divided between and among them, the said Janet, Roger, and William Spendlove, his natural children, share and share alike, and to their heirs, &c. forever.</p> <p>The bill further states, that after the death of Goodin Elletson, the defendants possessed themselves of his whole estate; that a Court held for Bladen County, in February 1790, made a division of the negro slaves of the testator, and allotted twenty-six negroes as the proportion of the slaves which the complainant was entitled to under the will aforesaid.</p> <p>The bill then states, that the said slaves allotted to the complainant, were hired by the County Court of Bladen to the defendants, for one year, and an order was made by said Court, directing the defendants to hire out said Negroes each and every year, and to make return of the hiring to the next succeding court. This never was done by the defendants, but they kept possession of the slaves and worked them for their own use and benefit.</p> <p>The bill then states that the defendants have waited all their own estates both real and personal, and that the complainant is convinced it is their intention to send off or dispose of such of the slaves as they can, before they can be recovered from them in the usual course of law; and that they have now no visible property, whereby the complainant or any creditor can have satisfaction for any recovery to be had or made of them. The bill then prays a decree for the said slaves and the profits of their labour, and prays a writ to the Sheriff of Bladen, or to such other person as the court shall direct, empowering and directing him to take into possession, all and singular the negroe-slaves divided and allotted to the complainant as his share and portion of the Negroes of the estate of the late Goodin Elletson, dec. and their increase; to be hired out, and to be subject with the profits thereof to such order and decree as the court shall make in the premises; on condition to be released if the defendants shall give security in such sum as the court shall direct, to be accountable for the delivery of the said slaves wherever a recovery should be had.</p> <p>An Affidavit was made by the said Attornies in fact to the truth of the said bill.</p> <p>The defendants filed a plea and demurrer to the bill; but the question for the consideration of the Judges, was, whether or not it was proper to direct the issuing of the writ prayed for by the complainant commanding the Sheriff of Bladen county to take the said slaves into his possession and to hire them out, &c. unless the defendants gave bond and security for the delivery of them on the determination of the suit.</p>

AFTER argument in this case by Williams for the plaintiff and Duffy for the defendant, and time taken for consideration, the case was stated and the opinion of the court delivered by Taylor, J. as follows.

CERTIORARI. At the trial Davie, for the plaintiffs, offered to read a deposition taken in Philadelphia. objected, unless notice could be proved to have been given to the defendant, of the time and place at which the deposition was taken.

IN this case it is said that relief may be by tenure, and distress is incident thereto: But it may also be by custom, but then without custom, one cannot distrain for it. Therefore if one pleads relies due by custom, and does not alledge also that distress is due by custom, it is bad—as in this case. 10 Rep. Godfrey's case allows this.

* This was an appeal from the judgment of Reade, J., at Fall Term of Haywood Superior Court, 1864.

Indictment for fraud and misdemeanor, in the words following, to wit: AT a Court begun and held at the City of Raleigh, on the tenth day of June, in the year of our Lord one thousand eight hundred, and in the twenty fourth year of the independence of the State, before the honorable Spruce Macay, John Louis Taylor, and Samuel Johnston, Esquires, Judges of the Superior Courts of Law and Courts of Equity, of and in the said State, assigned by letters patent under the great seal…

DETINUE for a Slave, named Ben. Plea, “ General issue.” The Plaintiff claimed under an instrument of writing executed to her in 1795, by her father Thomas Cox ; which instrument comprehended four other slaves and half a town iot> It purported to have been made in consideration of love and affection and of five pounds.

<p>THIS case came now to be argued again by the Justices.</p>

ACTION on the 5 El. 9. p. 304. against I. S. and counted that I. S. came to Rich, a matter in Chancery, habentem authoritatem to take affidavits &c. and made a false affidavit but did not alledge that the affidavit was in Chancery, in Cur. Cancellar, as he ought to.

APPEAL. The transcript of the record was carried up thirteen days before the Superior Court. 2, 1777, 2, 84, 314. The judgment was affirmed, on the second day of the term; unless cause be shewn to the contrary, on the argument day.

<p>TeBtator by one c’.ause in bis will gires to bis wife all bis property of every species whatever, during her life.</p> <p>Another clause, says that any children born during his marriage with his said'wife shall be co-equal heirs withber. The testator dies without having had any .children born during his marriage. '.</p> <p>The wife takes an absolute estate in all his propeoty.</p>

MR. Solicitor-General Jones had drawn a bill of indictment for burglary against the defendant: and at the moment it was about to be sent to the grand jury, and the book was handed to the witnesses: called the attention of the Court to the table: observing that one of the witnesses about to be sworn, was a negro slave; that although the defendant was a negro, yet, he being a freeman, it was perhaps improper that a slave should testify against him.

CASE sur assumpsit. The plaintiff went to trial; proved his debt but could not give evidence to repel the plea of the statute limitations: and suffered a nonsuit. He afterwards offered an affidavit that one of his witnesses, whose testimony he would have been able to prove a re-assumption within three years, was at his counsel's elbow a little before the cause came on, but was out of the court-house at the time he was called.—Whereupon he prayed that the nonsuit be set aside.

CASE on a promissory note. The plaintiff proved that the subscribing witness was not in the state, and offered to give evidence as to his hand-writing. But it appearing that the witness resided in the state, and was occasionally absent:

<p>This was an appeal from the decision of the Court of •Equity of Rutherford county, held by Howard, J., at September Term, 1863, refusing to dissolve the injunction heretofore granted.</p> <p>All the facts upon which the judgment of this court-pro-■eeeoed are stated in the opinion of the court.</p>

<p>Where the 'Sheriff sells an entire, tract ⅛1’ taxes on the whole, when foJone'thirA Part> the sale is void.</p>

THE defendant omitted to plead plene administravit, and judgment being obtained, the plaintiff took out an execution de bonis testatores. On nulla bona being returned, he took out an execution de bonis propriis. The defendant prayed and obtained a writ of supersedeas quia erronice emanavit to the last execution.

SCIRE facias to revive an action of detinue: Davie, for the defendant, pleaded, in abatement, that this action could not be revived against representatives.

TRESPASS To clausum fregit, and non culpabilis pleaded. To prove the entry, a negro slave was called and offered to be sworn. But, the Court [Williams, J. saying he never heard such a thing asked: Haywood, J. tacente] refused to admit the witness; although the defendant was stated to be a negro, 2, 1777, 2, 42, 307.

INDICTMENT for arson. Mr. Solicitor General Jones, praying that a witness might be sworn. Davie, who, was of counsel for the prisoner, asked what use was expected to be made of his testimony? whereupon the Solicitor-General informed the court that the gentleman at the table, was the magistrate who had committed the prisoner: and he was introduced to give evidence of the prisoner’s confession or admission, previous to his committment.

UPON an action of detinue, tried at April term, 1796 a verdict was found, subject to the opinion of the court upon the following case.

THE defendant offered to prove a set-off, under the book debt act. 1756, 4, 171. The plaintiff’s counsel opposed it, on the ground that this act being in direct contradiction of one of the most wholesome maxims of the common law, ought to be strictly construed. That plaintiffs alone were mentioned in it: and it ought not to be extended to defendants by implication. He cited a saying of Lord Coke, in Slade's case, 4.

Robert Kincaid by his will gave real and personal property to bis wife for life or widowhood, tbe real property being land owned in fee by tbe testator, and made divers dispositions thereof to take effect after tbe death or second marriage of his'widow.

<p>Larceny or se, der the’-lct" of 1779, can-mined ⅛'a slai-e, where the owner, through his a-tc^ andasaorta-though tion; ..... such consent tyasgiven for the purpose of appreilending lit where the Defendants bring a slave such assent of the owner, but in pursuance of a plan matured before the assrobgive», if the Jury are satisfied that both Defendants were privy to the felony, and equally concerned, they may properly convict them. . • -7</p> <p>A New Trial was however granted as to one of the-;Defendants, because the Charge - of the Judge stated generally, thathf he aided and consented, he was equally guilty with the other, without distinguishing the different parts of the transaction, viz. before the owner’s assent given, and afterwards, whereby the Jury might have convicted liim solely for acts after the assent of the owner was given'; and it is impossible to say, upon what of the evidence the verdict was founded.</p> <p>Is a person who is an aider and abetter under this Act of Assembly, entitled to the nefit of clergy ? Query. -</p>

<p>Any remark mtide by a Judge, on the trial <.f an issue.by a jury, from , which the jury may infef what hia opinion is, as to the sufficiency or insufficiency of the evidence, or any part ot it pertinent to the irsue, is trror — and the error is not cometed ty his telling the jury that it is their exclusive province to determino on (he sufficiency Vr insufficiency of criden.e, and that they arc not bound by his opinion in regard then lo. .</p> <p>It is error to ¡cave to the jury the derision of a fact on which tfie admissibility of evidence depends. But if the party excepting could not pos-' gibly he injured by it, it is dot a ground for a venire de novo.</p> <p>The casts of Ratliff vs. Huntly, 5 Ire., §45. and Mom ones. Stubbs, 9 Trg,, 45, died or,d approved. •' <</p>

<p>ON a question for the opinion of the court, respecting the taxation of costs, it was determined,</p>

THIS was an action upon the case, on a promissory note of the testator. At the appearance term, Moore, who had been for many years employed by Stanly in all his suits, and also, after his death by the executor, entered his appearance, and pleaded the general issue, although no declaration had been filed.

<p>The bill was filed in the Court of Equity lor Buncombe county, by the administrator of Jesse Whitaker, to annul a contract- made by the intestate shortly before his death, for ths purchase of’ a tract of land to be conveyed to him by the defendant William E. Brown, in consideration of-certain notes and bonds which were to be delivered to the vendor, and a sum of money. One of the bonds had been delivered to the vendor. The facts of the case are .stated in the opinion of the court.</p>

The condition of the obligation was, that the plaintiff should have free egress, ingress and regrets in the house of I. S. The defendant pleaded that he had egress, ingress and regress, without saying free ingress &c. It is a bad bar. The plaintiff replied that he had shut all the outward gates. In this case the plaintiff has a right to part of the house, viz. to the chambers; therefore he ought not to be barred of his entry.

INDICTMENT for an assault and battery. At the trail defendant prayed a continuance, on account of the absence of in material witness. He was asked what that witness would prove? and on answering that he intended to prove by the testimony of that witness that the prosecutor had given him very great provocation.

EJECTMENT. This action was brought for the recovery of a valuable house and lot, with a wharf and other appurtenances, situate in the town of Newbern. The defendant pleaded not guilty, under the common rule. He held under a title derived from the state, by a deed, from a Superintendant Commissioner of confiscated estates.

One said of Button, a Justice of the Place: Mr. Button, five or six years ago, had two servants prosecuted for stealing of sheep: and he desired me not to prosecute them. Crew moved in arrest of judgment that these words are not actionable: for an honest man may be prosecuted. Besides it is not averred that there were any sheep stolen. T. 36. El. B. R. Ball’s case.

COVENANT, viz. the plaintiff freighted his vessel to the defendant, and by a charter party indented, he covenanted with the defendant and A. that his vessel would fail with the first fair wind for Cadiz. And the defendant and A. jointly and severally covenanted with the plaintiff that if the vessel should go the intended voyage, and return to the Downs, he should have from them, so much for the freight; but in case she went to Amsterdam, they would pay him so much more.

<p>Payment of the money due on a bill of exchangef promisary note or bond, for the payment of money, negotiable as a bill.' &c., by the person liable to pay, to him who has bona fide possession of the instrument, as a purchaser of it, though without endorsement, discharges the debt. ■ ' ■</p> <p>Authority from the husband to'his wife to sell a negotiable bond and de-lnrer it to the purchaser, may be infeprnd from circumstances.</p>

Walden and Gesner, sheriffs of Coventry and Lichfield, brought debt against Ursy and Ursy, for £. 7 o 6d. for fees for apprehending T. who was condemned to pay the defendant £. 181, on a writ to them directed out of this court. They pleaded that by 28 El. no sheriff &c. shall take for serving any execution, more than is limited in the statute, viz. 1s. for every 20s. where the sum does not exceed £. 100, and 6d. for every 20s. over and above the said sum of £. 100.

This was an indictment against the defendant for buying of, and receiving from a slave, belonging to F. B. Mooré, a certain quantity ot corn, against tbe' act of tbe G-eneral Assembly, (Rev. Code, ch. 34, sec. 85,) tried before Heath, J.,at Iredell Superior Court, Fall Term, 1864.' On tbe part of tbe State, there ¿vas evidence tending to show that tbe slave, in the night time, carried a bag of' corn near to the defendant’s bouse, and threw two stones on tbe roof of tbe…

Davie for the plaintiff, moved that a commission de bene esse might be read upon the plaintiff's affidavit, that the deponent was sick and unable to attend. The defendant objected to this: and

<p>PETITION. The following case was reserved for the opinion of the Court, viz.</p> <p>“ John Speir of Pitt county, in his last will and testament, a “ mong other things, bequeathed as follows, to wit:</p> <p>“ Item, I give and bequeath all the rest of my negroes and their in “ crease, to be equally divided among my children, the survivor or survivors of them, and their heirs forever.</p> <p>“ The testator died, leaving his wife and three children, two of “ the children, viz. William and Elizabeth, died intants and un " der age.</p> <p>“ The question is, whether the mother (Penelope, now wife of “ James Gorham) upon the death of the said two children, was “ entitled to any, and if any, what part of the said children’s share of the legacy abovementioned?</p> <p>“ We agree to submit the above question to the decision of the “court, and that they may thereupon make such decree upon the “ above petition, as to them shall seem just.</p> <p>“ Newbern, November 22, 1780.”</p>

<p>"William A. Patton, Washington Morrison, Samuel G-. Kerr and James A. Patton entered into partnership iñ 18G0 for the purpose of tanning leather, making shoes, ¿ce., and William A. Patton, conveyed to his three partners three-fourths ox a piece oí land in fee, to be used together with' the other fourth part reserved to himself, by the firm, tts.^ tali yard, and it ivas so used during the existence of the partnership. In 1863 William Patton died, and the plaintiff became his administrator. He filed ■ this bill against the surviving partners for an account praying among other things that they should pay to• him such part of the pro1 ceeds of Cue sale of the tan yard'lot as belonged <o the estate of hue intestate. The'defendants submit the question to the court, whether the money belongs to the heir or admin -strator of the intestate.</p>

Marshall, Chief Justice. Potter, District Judge. DEBT on a judgment received by the Plaintiff against the Defendants, in the Supreme Court of Massachusetts.—Among other points involved in the case, was the much agitated question as to the effect which a judgment obtained in one state, should have when suit is instituted upon it in another state.

<p>THE defendant, at November term, 1778 was indicted for murder: He pleaded not guilty, and of manslaughter.</p> <p>On being asked what he had to say, &c. he prayed the benefit of clergy—which being granted,</p> <p>The Court gave judgment that he be burnt on the brawn of his left thumb, and discharged:</p>

Action on the case for a promise. The plaintiff counted that one John Green, was indebted to the defendant £. 30, that the defendant sued him &c. so that he was out-lawed: and at Trin. 18 Jac. took a cap. utlagat. against him, and directed it to the sheriff.

REPLEVIN. Nash, for the defendant, moved that the writ bequashed: it having irregularly issued. It appeared by affidavits filed, that the defendant and her late hushand had been in quiet possession of the slave, who had been taken in pursuance of this writ, for several years. And that it was merely in order to try the right of the parties to him that the writ had been sued out.

This was im indictment against the defendant for per-, mitting his slave to go at large as a free person, and for permitting him to keep bouse as a free person, exercising bis own discretion in the employment of his .«time. 'Both offences were' 'charged in one Court. The trial was before Hhaxii, J., at Mecklenburg Superior Court, Fall Term, 1884.

<p>THE prisoner had been tried in the County Court of Person, on a charge of giving or procuring to be given to William Cocke and several of his family, to wit, Sarah, Polly and Susanna, all of the same county, a poison supposed to be arsenic, with an intent to kill the said persons, and was found guilty of the fact by the jury impannelled and sworn to try the issue; on which conviction, the justices present, passed the following sentence, " That the prisoner Sue, is guilty of " death under the Act of Assembly in that case " made and provided, and that the said Sue, on " Monday the 14th day of April, 1800, be taken " to the place of execution, and between the hours " of 11 and 4 o’clock of that day, she be hanged " by the neck until she be dead.”</p> <p>On the first day of the Superior Court of Law held for the district of Hillsborough, on the 6th day of April, 1800, by his Honor Samuel Johnston, Esq. Duffy, on an affidavit, stating the trial, conviction, and sentence passed by the Court of Person, on the said slave Sue, moved for and obtained writs of Supersedeas, Certiorari, and Habeas Corpus, directed to the Sheriff and Justices of the said County, in consequence of which, the Sheriff of Person brought up the said slave to the Superior Court, together with the record of her trial, conviction, and of the sentence passed on her; and Jones, Solicitor General for the State, moved that she should be sent back to receive the sentence of the County Court, which was opposed by Duffy for the prisoner, who contended that the County Court of Person had no authority to pass sentence of death on the prisoner, the crime of which she was convicted, being one of such a nature as was not by the Laws of the land, punishable with deaths and he cited Iredell’s Revisal, Laws of N. Carolina. Act of 1794, chap. 11, Sec. 1, which enacts " that it shall hereafter be the sole duty of " the Jury sworn on the trial of any slave or slaves, " to give a verdict of guilty or not guilty, on the " evidence submitted to them by the Court, " and on the verdict so given in by the Jury, it " shall be the duty of the County Court when " sitting on the trial of any slave or slaves, or of " three Justices when they shall be sitting on any " such trial, to pass judgment and sentence on the " slave or slaves so tried before them, agreeable " to the verdict of the Jury, and the Laws of the " Country." This act, he contended, gave the Court no power to inflict any other or more severe punishment on a slave when convicted of an offence, than by the Laws of the Country, a freeman would be subject to on conviction of an offence of the same nature ; that the offence of which the prisoner was convicted was such a one, as if committed by a freeman would not subject him to the loss of his life; that the Legislature had no intention to punish slaves in a more sanguinary manner than freemen convicted of the same offence ; and that a supposition to the contrary, was a charge against the Legislature of violating the laws of humanity.</p> <p>It was contended by Jones, Solicitor General for the State, that there was no doubt but that the General Assembly intended to make a difference in the trials of slaves and of freemen ; that this intention was apparent and obvious, by having reference to the several Acts of the Legislature prescribing the mode and regulating the trials of slaves, particularly one passed in the year 1741, Iredell’s Rev. 94, ch. xxiv, entitled " An act " respecting servants and slaves,” in the 48th sec-" tion of which act, it is enabled, " that every " slave committing such offence, (meaning conspi-" ring to rebel, make insurrection &c. as men-" tioned in the 47th section), or any other crime " or misdemeanor, shall forthwith be committed “ by any justice of the peace to the common jail " of the county within which the said offence shall " be committed, there to be safely kept; and that “ the Sheriff of such County, upon such commit-" ment, shall forthwith certify the same to any " justice in the commission for the said Court, for “ the time being, resident in the County, who “ is thereupon required and directed to issue a “ summons for two or more Justices of the said “ Court, and four freeholders, such as shall have “ Slaves in the said County; which find three “ Justices and four freeholders, owners of Slaves, “ are hereby empowered and required, upon oath, “ to try all manner of Crimes and Offences that “ shall be committed by any Slave or Slaves, at " the Court-House of the County, and to take for “ evidence, the confession of the offender, the “ oath of one or more credible witnesses, or such testimony of Negroes, Mulattoes, or Indi- “ ans, bond or free, with pregnant circumstances, “ as to them shall deem convincing, without the “ solemnity of a Jury; and the offender being “ then found guilty, to pass such judgment upon “ such offender, according to their discretion, " as the nature of the crime or offence shall re- “ quire ; and on such judgment, to award execu- “ tion.” He contended that the subsequent acts of the Legislature, respecting the trials of Slaves, by no means restricted that discretionary power which the Act of 1741 gave to the County Courts in passing such judgment upon Slaves as the nature of the crime or offence of which they might be convicted, required; that the expression contained in the Act of 1794, declaring it to be the duty of the County Court sitting on the trial of any Slave or Slaves, to pass judgment on the Slave or Slaves so tried before them, agreeable to the verdict of the Jury, and the Laws of the Country, means those laws only which have been passed to regulate the trial of Slaves, not the laws of the country the benefit of a trial by which freemen claim and are allowed; that the public good frequently required that Slaves should be punished by death for offences, which if committed by freemen, would be so dangerous in their consequences, and therefore not in them deserving so severe a punishment—that the great misfortune of having Slaves among us cannot now be remedied, and the Legislature, from the laws they have enacted on the subject, appear to be impressed with the necessity of punishing crimes and offences committed by them with great severity; which seems to be the reason why the punishment of offences committed by them, is left in the direction of the Court before whom they are tried, whom the Legislature thought would be competent to decide how far the public good might require, that particular offences should be punished with more severity than others —that the County Court having exercised the discretion which the act of 1741 gave them, by sentencing the prisoner to be punished with death; that the Court ought to presume it done for the public welfare, and not reverse their judgment and sentence.</p> <p>This case being wholly new, his Honour Judge Johnston desired that it should be adjourned to the meeting of the Judges at this term, when it came on to be argued by Jones, Solicitor-General for the State, and Duffy for the prisoner, both of whom argued as in the Superior Court of Hillsbo-a rough, and cited the same Acts of Assembly, and which renders repetition of them here unnecessary.*</p>

<p>The question in a criminal prosecution, being the same with a civil cause, in which the witness is interested, goes generally to his credit; unless the judgment in the prosecution can be given in evidence in the cause where he is interested.</p>

HENRY had sued Smith in the County Court of Craven. Smith neglected giving bail, and was committed. moved to have him brought into court, suggesting that he was a minor, and that the property for which her was sued had not been delivered to him.—Which,

<p>I ■ The bill was filed in Chatham Court of Equity alleging ;that in 1853, the plaintiff purchased a tract of land in-i'Moore county, of Jesse Bryan, at a q/nblic sale made in ;. that comity. That the defendants were present at the sale 1 j _*vw — ¿1 — ci :jx- _j? _ B. Ritter against Brjan, issued from the County Court, on a judgment obtained in 1851, which Worthy knew to be unsatisfied, but that in order to defraud the plaintiffs, lie declared to the' people assembled there, that the execution was satisfied, and. the other defendants.heard his declaration and concurred in it for the same fraudulent purpose, thus inducing the plaintiffs to buy. That JohnVR. Ritter one of the defendants, had obtained a judgment against said Bryan in Moore County Court, in 1851, and executions regularly issued thereon from term to term, (and were put into the Sheriff's hands,) until the land was sold’in 1857 by virtue of one then in the Sheriff’s hands, and John Ritter became the purchaser, who afterwards conveyed to Thomas Ritter and he to Seawell. All of /the conveyances are charged to have b.een made for the purpose of defrauding the plaintiffs and obscuring their right and obstructing their remedy ; and the plaintiffs insist that the defendants are trustees for them. The prayer is, that the “ defendants John and Thomas Ritter and Seawell. may surrender up said deeds to be cancelled,” and for such'other and further relief, &c. ■</p> <p>It appeared that though writs of fi. fa. issued from term to term- from the rendition of the judgment until the sale by the Sheriff, .no one appeared to be an alias on Its face.-</p>

<p>This was an indictment' against Ellick, a slave, for the murder of another slave,. Cornelius, tried before Fkench, J., at Fall Term of Granville Superior Court, 1864.</p> <p>Micajab, a slave, a witnea» on the part of the' State, gwore that one uight in the last summer, be bad a quarrel with-the prisoner, about the prisoner’s .having been attacked by a dog, a week before. lie and the prisoner fought — he thretf the prisoner down, and seeing the pris-erter feeling for his knife, lie left him — shortly afterwards he saw the prisoner seated on the door sill with the deceased ; he heard some words pass between the two, büt did not hear what they were. He saw the prisoner get up, and immediately afterwards the deceased arose, and as he rose, prisoner made a thrust at him with both hands, and witness saw the blow strike on the left side of deceased, who, immediately after receiving the blow, reached his hand inside the dpor and took a stick and knocked-prisoncr down. rfhe deceased died of the wound. The stick which the deceased used was admitted by the .State to be a deadly weapon. Other witnesses for the State swore to the same general eífect as Micajab.-</p> <p>Witnesses were examined on the part of the prisoner, who testified to the facts stated-in the opinion of the Court.</p> <p>The counsel for the prisoner requested the Court to charge the jury, that.if they had a rational doubt from the evidence, whether the killing ivas done with malice, that the prisoner was entitled to the benefit of that doubt, and they should find the prisoner guilty of manslaughter only. The Cpurt refused to give the instruction. The .counsel for the prisoner further requested the Court to charge the jury, that if the fatal blow was given by the f prisoner, after he was stricken with the stick by the der . ceased, that it was manslaughter, only. The Court declined to give the instruction, because there .was uo evidence to sustain it. The Court instructed the jury, that apon the evidence of the witnesses on the part of the State, or of th* prisoner, the killing was 'murder.</p> <p>The counsel for the prisoner excepted to the charge of the Judge.</p> <p>The jury found the prisoner guilty. And from judgment accordingly the prisoner appealed.</p> <p>Eaton for the prisoner- — In substance and effect the Judge instructed the jury that according to the whole of the testimony and that of each witness, this was a case of ■ murder, and that there was no evidence, however slight, tending to prove a legal provocation. It is insisted, in behalf of the prisoner, that the charge is erroneous,, and. that it is in conflict with the act of! 796, and the views of this Court in the case of the State vs. Allen, 8 Jones, 257. In that-case the Chief. Justice, in delivering the opinion of the Court, uses these words : •“ A Judge is not at liberty to eaepress an opinion as to the sufficiency of the evidence. When there is a defect, or entire absence, of evidence, it is his duty so to instruct the jury ; but if there be any competent evidence, relevant and tending to prove the matter in issue, it is l' the true office and province of the jury to pass upon it; although the evidence may be so slight that any one will exclaim, ! certainly no jury will And the fact .upon such insufficient'evidence/' still the Judge has no right to .put his opinion in the way, of the free action of the jury, even should ho deem it necesr sary to do so, in order to. prevent them from being misled by the arguments of counsel or their own' want of apprtf-hension.”</p> <p>Before commenting on the evidence set forth in the bill of exceptions, I will malee a remark or two on the law of murder and manslaughter in connection with this case. .If a distinction of any practical importance is to be recognized between homicide committed with malice, and á killing where the fatal.act is the result of a sudden transport of passion which maylbe regarded as an incident tc human infirmity, if there be any substantial difference between a killing from the wickedness of the heart, anda killing under the influence of the ordinary frailties of our «ature, it must follow, upon principle, that an assault with a deadly weapon will extenuate a homicide to manslaughter, even though the party, slaying may use a deadly weapon himself.</p> <p>What is an assault ? ' If A advances in a threatening attitude towards B to-strike him, and is stopped just be-* fore he is near enough for his blow to take effect, it is an» assault. Stephen vs.-Myers, English Common Law Reports, vol. 19, page 414. --This case is cited as authority by enlightened elementary writers. Seo Arch. Crim. Pleading, 411; G-reenleaf on Evidence, 3 vol,, 51. It is also referred to with respect and approbation by Judg« Gaston in the case ®f the State vs. Davis,. 1 ire., 125. If the law is truly stated in the case of Stephen vs. Myers it must follow,.upon principle, that if A reaches after a stick and turns round to strike B with it, who is already within. striking distance, it is an assault, though B may strike, him before he can aecomplish his purpose.</p> <p>There is evidence in the statement, of the witness, Harriet, tending to «how that the deceased Committed an assault. with a deadly weapon, upon the prisoner imrnedi-' atcly before the mortal wound was given. She says, <£ths prisoner sat on the door sill by the deceased. Witness beard some words pass between them, but does not recollect whdt they were,' The prisoner got up first. Cornelius rose up and reached his hand inside the door and got his stick.- As ho was turning round prisoner struck him on the left side. Witness heard the rip.” The'prisoner, to use the language of the Court in the case of the State vs. Allen, has a right to insist that the testimony should be taken in the point of view most favorable to him ; and that if, in any aspect of the evidence, it; is consistent with his bqing guilty of manslaughter only, there was error in the manner in which the case was put to the jury. In reference tp the evidence of Harriet, if she had been the only witness, the proper charge would have been that if the prisoner had reasonable- ground, to believe that the deceased reached after the stick and turned round to strike him with it, it was manslaughter.</p> <p>Such an instruction would have, been proper upon the whoje of the evidence together. That the deceased reached his hand inside of the door for his stick (admitted to be a deadly weapon) is proved by Micajah, G-eorge and Harriet. That¿t was his purpose to strike the prisoner with it, is proved -by Micajah and George, both of whom say, that he knocked him down- throe times with the .stick. Jack also proves that the deceased struck the prisoner with it. Micajah and George state that the stick was reached for*aftcr the wound was inflicted on the deceased, but Harriet’s evidence, if believed,.shows that it was before. Whether the reaching for the stick was before or after the wound was inflicted, was a question of fact and not a question of law ; a question for the jury, and not one for the Court. A jury may believe a witness in part, and disbelieve other parts of his testimony, as founded in mistake or perjury. They -may, and often do, Relieve one witness as to a part of a transaction, .ami reject bis statement, and adopt, that of another witness-astp other parts of the transaction. Suppose that they should believe Harriet as to the time when-the stick was reached after. Suppose they should then reject the improbable statement of George, as to the conversation which'preceded any acts of violence on either side, They might well do so, for he says “ he hoard prisoner say to deceased you have all laid up to whip me about that dog,” to whom the deceased.replied, ‘ • whom do ymi mean by you all?” Prisoner replied, 1 mean you, and nobody else, and I will fix you for it now.” Suppose then, that they should believe Micajah, (Norge and Jack as to the purpose for which the stick was obtained and used, we then have this case : A reaches after a. deadly weapon to give B, who is very near him, a violent blow. B anticipates him, and stabs him with a dirk in the left side, whereupon A, nut deterred .by the wouipl, knocks B down three times with a bludgeon. Here would certainly he a case in which the party slaying cannot be guilty of any thing more than manslaughter. The question is, not wheth'er an intelligent jury would come to the conclusions on the facts of the case which I have mentioned, or whether the weight, of the evidence would warrant them in so doing, hut whether they had not a right, as triers of the facts, to como to such conclusions, or whether, irt other words, there was tiny proof, however slight .'tending to establish these view's of the transaction.</p> <p>I have said that Harriet’s evidence, if believed,.shows that the reaching after the stick was before the wound •was given. It is true, that she does not. in the case made eutby the Judge, say, in so many words, that it was before, but it is clear that such was her meaning. She mentions that fact before the other. In common-conversation* and in almost every narrative, we mention facts in the orjler in which they occurred in point of time, and if we do not do so we show in what order wé mean to state them as having occurred, 'because, without any explanation, the presumption is, that they occurred in the order in which they are stated. It would be in a case like this, either gross ignorance or palpable perjury, in a witness, not to mention facts in the order of time in which' they took place, and to make no explanation as to when they occurred, so that the real order of events may be accurately understood.</p> <p>In the ease of the State us. Allen, the Chief Justice says that suppose the jury should disbelieve Magee and Hicks, and should believe Hobgood. These were the witnesses present at the killing. It does not appear from the case that either was impeached, and the probabilities-were strongly against Hobgood’s evidence containing the true view of the transaotion. Suppose that in our case the jury should'disbelieve all but Jack and Harriet. An intelligent jury, with a correct exposition of the law from the bench might, in that event, well acquit ®f murder. The prisoner has a right to have the case decided in this Court, as if the J udge had pronounced it murder, according to the evidence of each witness.</p> <p>The charge .of His Honor is still more gpen to just exception in another particular of deep and vital importance. It invades (of course unintentionally) the right of the jury to determine upon the credibility of the witnesses. He says that, “ upon the evidence of the witnesses upon the part of the State or the prisoner, it was a case of murder,” without saying whether they should believe the witnesses or not, or using any words • of equivalent import. ‘The omission is a grave and serious one, and renders the instruction clearly and fatally erroneous. A jury being told by the Court that, upon the evidence on both sides, it was a case of murder, would consider their task a mere matter of form, and would think that they had nothing to do in the matter but merely to retire for a few moments, and then rotura with a verdict of guilty, in conformity with the views, of the Judge, whatever notions they might have as to the facts of the case or the credibility of the witnesses. I deny the right of a Judge in North Carolina to charge in this manner, no matter what may be the evidence in.the causo.</p> <p>In my Opinion the Judge ought to have instructed the jury, in substance, as follows : If the jury shall believe,that the deceased re&ehbd alter his- stick just before the mortal wound was inflicted, and the prisoner had reasonable ground to believe that he: did so for the purpose of striking him with the stick, then it was a case of manslaughter. 'He certainly ought to have told them that it was their exclusive right to pass on the credibility of the witnesses.</p> <p>1 will, with the indulgence of the Court, add a word or two on the doctrine of. reasonable' doubt, I am aware that tins Court, sustained, as I admit, by high authority, and probably.decming itself bound/ by it, has held that the doctrine applies merely to the fact of killing. If the question is not, in the view of this Court, too far settled by antV. irity, n :w lo be reviewed in 1-be light of principle, I would, with great deference, suggest that the rule, that doubt must be followed, by acquittal, results from the humane, maxim, that it is better that ten guilty persons 'shall escape than that one innocent man shall suffer, and that the principle on which the rule is grounded is as much applicable to tbe grade of tbe homicide as it is to the*fact of tbe homicide.</p>

Ejectione Armæ. The plaintiff had judgment in the Common Bench, and the defendant brought error in the King's Bench, where it was affirmed. Error was brought in Parliament, and the Chief Justice, as the practice is, carried the record there. Now, by the death of King James, the Parliament was dissolved, and the plaintiff prayed execution. The writ of error is abated by the act of God, and not that of the party.

<p>THIS was an action of trespass for killing a slave, the property of the plaintiff, who had been hired to the defendant. The jury found a verdict for the plaintiff, under the direction of the court, stating to them that in point of law the defendant was liable, if the facts charged in the declaration were established by satisfactory evidence. The objection taken at the trial was, that the offence charged amounted to felony, the civil remedy for which, although the defendant had been indicted and was acquitted, was nevertheless merged in the crime. And now upon a motion for a new trial it was argued by,</p> <p>I contend that the plaintiff is not entitled to maintain this action, and that if it will lie, by the general principles of law, yet the writ in this case was prematurely sued out, being done before the determination of the criminal prosecution against the defendant. By the act of 1774, cap. 31, the offence of killing a slave, the property of another, if committed under such circumstances as, in the case of a freeman, would have amounted to murder, was punishable upon the first conviction, with twelve months imprisonment, and by paying the owner the value of the slave: upon a second conviction the offender was punishable with death. By the act of 1791, cap. 4, the punishment is altered to death upon the first conviction, and the crime is placed in all respects, upon the same footing with the murder of a freeman. Thus if the offence amounted to murder, the civil remedy is merged in the felony; if it amounted to any inferior species of homicide, the offender must be absolutely acquitted upon the indictment, and could not have been found guilty in this action, where the killing must have appeared to the jury wilful and malicious; and, if so, the offence is felony. The policy of the law in this respect is wisely directed to the public security, by compelling those who have been injured by means of a felony, to prosecute the offender criminally. But if the party may obtain a recompence by a civil action, very many offences will remain unpunished. If it shall be answered that the party plaintiff has in this case prosecuted criminally, and thereby entitled himself to sue, yet at all events, he should have waited the final determination of the charge, before he instituted the suit; 1 Bac. Abr. 64, in notis.</p> <p>The rule laid down of the other side is an useful and politic one, when applied to cases within the reason of its operation, but manifestly leads to unjust consequences, when extended to others which are not intended to be affected by it. The law has in view, that there should be every reasonable motive to incite men to the prosecution of those by whom they have been injured, by an act amounting to felony, in order that the public justice may be satisfied; but when this is done, there is neither reason nor justice in withholding from the injured party the satisfaction which the offender is able to make him. If a person guilty of felony be pardoned or burnt in the hand, he is afterwards liable to the action of the individual; 1 Bac. Abr. 64. Why should he not be equally liable after an acquittal, where the prosecution has been bona fide? The jury have found the trespass and assessed the damages, and the court will not disturb the verdict, unless some plain rule of law demands it. As to the suit having been brought before the determination of the criminal prosecution, that is right or wrong according to the event. If a conviction had taken place, then the court would have made the payment of the value of the slave a part of their judgment, and of course the present suit would not lie; but as the defendant was acquitted, it does not signify when the suit was brought.</p>

IN account the defendant pleaded that he had accounted before with the plaintiff in Cumberland &c. and this plea being rejected, there was judgment, quod computed. moved that it was a good plea, and prayed that it might be allowed 45 E. 3. 24. 34 H. 6. 23. the secondary, shewed to the court, that it was refused, being a foreign plea.

DEBT on an obligation for £. 1000. The plaintiff declared on a deed bearing date the 30th of November. 20 Jac. The defendant had oyer and it was entered in hæc verba. It was to stand to the award of Mr. Rich, in all controversies between the plaintiff and the defendant on the first day of June.

THIS was an action of debt on a sealed note, to which the defendant pleaded on the docket among other pleas, “set off: but no plea was drawn out at large and filed.

<p>The bill charges that a corporation was created by the General Assembly ot this.State for the purpose of working the Coal and Iron Mines at Egypt, in Chatham county, by the name of “ the Governor’s Creek Coal and Iron Manufacturing and Transportation Company,”' that they engaged extensively in the business for which they were created, and the original plaintiff William II. McLane, was employed as mining engineer and manager in 1852, and has continued to act as such until November 1862, he being also a large shareholder — and the largest shareholder who Is a citizen of the Confederate States — that, nine-tenths of the stockholders are citizens of the United States : that’ the Company are indebted to Mm in the sum of $4,<?70, or thereabouts,- for arrears of salary and advances made by him, that suitable buildings had been erected by him by order of the stockholders, for the. officers of the company, and that §ne of them has been occupied by him, by assignment of the .company, as a dwelling house ever since it was built, and is now occupied by him ; the plaintiff was served with -process from tne District Oour-t of the Confederate States for the District of North Carolina, to appear at said Court to be holden at Goldsborongh, on-of November, 1861, to make a disclosure of all he knew concerning the company and its affairs : he appeared at Court and filed his garnishment. Such proceedings -were had that an order was made by' the District Judge at Chambers, that the plaintiff should ho removed from his office of manager, and a successor appointed, and in obedience thereto, Manning, the receiver, appointed J. N. Clegg manager. Clegg was afterwards removed by order of the Court made without not’oe of any proceeding intended to be had in the matter, and the defendant Drown and Mal-lott appointed managers. The plaint:ff charges that in the proceedings of the District Court, tne requirements of the sequestrationt act were not pursued, and that no decree sc-’ qucstrutlng tho Egypt property has ever been made. -Ho charges that secret information Las been given by one of the defendant-», not saying which defendant, nor what the information was, nor that it wan fabe, and he also charges that tie "defendants Blown and Mril'i-tt/L/.ve from the first Court held in November 1861 to the last of November 1862, been unceasing in -their efforts to have hi u (the plaintiff) removed, witl:out cause, and solely with the view of being pat into the management, themselves.” The bill contains no other charge cr insinuation of fraudulent con-duci'or bad motives on the part of the defendants. It then charges that an order was made by the District Court at November Term 1862, that the defendant,should be turned. out of poaseasicn of the house-in which heRwells, and that notice in due form of law had been given to. him that the order would be executed oh the Monday next following the clay on which the hill was presented to the Judge. The prayer is for an injunction.</p> <p>An injunction was issued in pursuance of the order of a Judge in'vacation. At the return term the defendants demurred to the bid and the cause was transferred to this Court by consent.</p> <p>During the pending of the suit the plaintiff died and Rachel McLane. Ids administratrix, was made plaintiff.</p>

<p>Present, Van Ness, Judge.</p>

<p>had been employed by the plaintiff to commence and prosecute an action for him. Upon the death of one of the executors of the person against whom the suit was brought, Bell directed a scire facias to be issued against his executors, to make them parties to the suit, instead of proceeding against the survivors. Judgment was accordingly obtained in that form, and was by the County Court afterwards arrested for the same cause. About the time the scire facias was issued, Mitchell who had been before unsuccessful in the same cause, expressed to Bell his apprehensions of the event; upon which Bell promised him that if he should be nonsuit or cast in the suit, he would reimburse him all the costs. Upon this promise the present action was brought, and the facts being proved as above, the jury found a verdict for the plaintiff, subject however to the opinion of the court upon the law. The case was argued by Falkner for the plaintiff, and Plummer for the defendant.</p>

<p>EJECTIONE firmæ of the manor of Feifield, and he declared on a demise of Dr. Stewart, of the manor of Feifield and shewed an ejectment of the manor, and the jury found the defendant culp. quoad messuag. curtilag. parcel maner. predict. The ejectment was brought against husband and wife, and the wife alone found culp. And it was well enough, for if any one be found culp. it is sufficient. But it was moved in arrest of judgment, that the ejectione firmæ was brought of a manor and the defendant pleaded non culp. and the jury found him culp. quoad messuag. unum curtilag, and for the rest non culp. and they are found culp. only of a parcel of the manor, and the action is only for the manor and not of any acres. But if the ejectione firmæ had been for so many *acres of the manor, and the defendant had been found culp. of any number of acres, it would have been a good verdict, upon which judgment might have been given. But when the demand is of a manor, if he be not found culp. of the manor, he is not guilty at all. In the Common Bench, P. 10 Jac. in evidence to the jury on a writ of entry sur disseisin, Delabar vs. Huldson. The demand was of a manor, and non diffeisivit was pleaded by the tenant. The demandant gave in evidence that the tenant had entered on the demesne of the manor, and had ousted him. The tenant’s counsel required the demandant to prove that it was a manor, and that the tenant had received attornment of the tenants, for without tenants it could not be a manor: and the demandant failing to prove it to be a manor, was nonsuited. And per Finch; Recorder of London, who moved in arrest of judgment: This case was an ejectione firmæ of a rectory, and non culp. pleaded; it was shewn in evidence that the defendant took the dismes; but the plaintiff could not prove that the defendant entered in the glebe lands, and it was resolved, that the taking the dismes was not an ejectment of the rectory; and the plaintiff was nonsuited. Here when it is said that he is not culp. it is meant of the manor and not of the messuage or curtilage.</p> <p>The ejectment is of a manor; the verdict culp. of a messuage and curtilage parcel of the said manor. There is a vast difference between a writ of entry sur disseisin, and an ejectione firmæ, in the one the land is demanded: in the other only, consequently, recovered. It has been said that a man cannot have an ejectione firmæ de uno domo, et pomer. because domus may be a barn, or a mill, and pomer. a garden (orchard, I believe.) With regard to the case of the dismes, if it be law, it does not come up to this. For perhaps he had right to part of the dismes only, and therefore when he brought ejectione firmæ, it was wrong; because a part of the dismes, is of another nature and name. If a man brings debt on the statute 2 E. 6. as proprietor of a rectory, and he proves only that he has a right to part of the tithes, he shall not recover. But here it is found parcel of the manor, Allen and Hay's case, 34 or 32 Eliz. on a writ of entry sur disseisin de uno messagio cum pertinentiis: it was found that the tenant was seized of a house, and purchased another adjoining it of the father in-law of the demandant; and the tenant pulled down both houses and built another on the land he had purchased, and added to it six feet, so that the house he bought contained only ten feet, and now it had sixteen; so that the demandant had only title to part *of the house. Yet the judgment was, that he should recover the house: and, on a writ of error, it was affirmed. The nature of a manor is to contain houses, with lands which are the demesnes, and services, and if the defendant be found culp. of any of these it is well; but it would be otherwise, if it was not a manor. As in 1 H. 7. 29. There one pleaded a gift in tail of the land, remainder to the King, E. 4. and shewed a deed of office with the land; and prayed the help of the King: but he shall not have it, for the land is not part of the office, and is of another nature. But, in this case, the verdict has found that it was a messuage, part of the manor; that it was devised; that entry was made and the plaintiff ousted. A manor contains all these things, and it matters not whether the parcels be expressed or implied. I pray judgment for the plaintiff.</p> <p>The Recorder. The case I have put, was not for part of the dismes, but of a rectory with the dismes. The case of Allin and Hays disfers. If I be disseised of a manor, and the disseisor severs the rent from the services as in 9 E. 4. I ought to make demand, according to my right, and in respect to me it is a manor adhuc. A man demands a manor and so many acres part thereof, it is well demanded.</p>

In Equity. UPON completing depositions, the party taking the same may give notice to the opposite party to attend before the Master, for the purpose of being present or proving the notice given of the taking of such deposition-and the Master upon the return of the notice served, is to examine the evidence offered, respecting service of notices and also hear and consider any objection made against the same.

INDICTMENT on the 21 Hen. 8, 7, 183. It appeared in evidence, that the prisoner was a clerk to the prosecutor (a merchant) whose store he attended: that he had sent a parcel of goods from the store, to a person who resided at a distance, with directions to sell them: that he had not communicated this transaction to the prosecutor, or any of his other clerks, and had made no entry of it in the books. contended that he could not be found guilty on this indictment. 1.

<p>Note.—An Act of Assembly passed this year, after the foregoing decision, explaining the former law on this subject, and making various regulations respecting the payment of State witnesses. Vide Acts of 1800, chapter 17.</p>

Ejectione formæ. It was shewn that one Povise was seized in his demesne, as of fee, and being so seized on the 7th of October 20 Jac. made a lease to the plaintiff, of the lands for which the ejectment is brought, for three years; that he entered and was possessed until the defendant ousted him.

<p>In obedience .to the decree made at tho hearing of this case at Tune Term, 1863, (see the report of it 6 Jones’ E<p. 283.) the Clerk made his report, and the defendant excepted, because he was 'charged with, the sum for which the slaves would have sold in Confederate notes, as so much money.</p>

<p>The legislature of this state cannot define and punish crimes committed in another state.</p>

GULIELM TUMPLIN, being possessed of divers chattels, died intestate, and administration was committed to Mayow, who was his maternal uncle; afterwards Thomas Tumplin endeavoured to obtain a revocation of the administration in the arches; but is was there confirmed. Afterwards he appealed to the King in Chancery, who refered it to the Commissioners Delegates: and the reason which Serj.

The Defendant was indicted at Hillsborough Superior Court, April Term, 1800, for an assault upon one Absalom Knight, with an intent to kill and murder, and upon the trial of the issue of traverse, the Jury found the Defendant not guilty of an assault “with an intent to murder, but guilty of an assault, and the Court fined him twenty shillings.” The question reserved for the consideration of the judges in this case was, whether, as the defendant had been indicted for an…

<p>This cause was removed from the Court of Equity of Duplin county to tjiis Court for trial.</p> <p>Mary Rhodes died in tbe year 1832, having, a -short time before, made her-will, hy which she gave to Mary ¿fane Pickett, the daughter of the testatrix’s niece, Mary Pickett, some property; and then bequeathed as follows:' ■?/ I give to all the rest of my nieces Mary Picketts children tliat she now has or may hereafter have Maria and Jim to sliare equally, the above negroes to remain in the hands of the manager of my will &c.”</p> <p>When the will was made Mary Pickett had three children, Mary Jane and two sons. No others were born during the life of the testatrix ; hut, after' the testatrix's, death, she had five children, some of each sex.</p> <p>The words and the punctuation of the will are copied with exactness in the foregoing quotation.</p> <p>The plaintiffs are the survivors of the two sons of Mary Pickett who were in existence when .the will was made, and the administrator úi¡c ether, who died'after testatrix’s death. They claim tin; whole of the legacy, on, the ground that the word “ nieces ” should he read as if written niece's, and the words “she may hereafter have" should be construed as if the words “during my lifetime” were added. The defendants are the children of Mary Pickett, born after the death of the testatrix. The sons claim that the legacy‘should he divided among all the children of Mary Pickett: the. daughters claim the whole legacy, by force of the word meces. Mary Pickett was the niece of the testatrix, and is so described in a preceding part of the will.</p>

<p>In the case of a paper not negotiable, the holder must apply in a reasonable and on failure time, and also give notice of non-payment in a reasonable time, thereof, if a loss happens, must sustain it.</p>

<p>THIS was an action of Trespass vi et armis. tried be-r ’ fore Lowrie, J at Bladen Superior Court. The Defendants pleaded jointly, not guilty, justification, &c. The Tury found a verdict of Not Guilty, as to all; and uapon. ' motion by the Plaintiff for a New Trial, it was overruled by the Court, and an Appeal taken to this Court.</p> <p>... r , , , The material circumstances of the case were, that the £)efenc]ant Saltar, who was a regular Patrol, associated ’ ° with him the other Defendants, Allen, Bryan and Single-tary, who were not Patrols, and went to the plantation of Mnior Owen, where they found in an outhouse, the negro J J ’ ° Simon, whom they called upon for a pass, which he produced, written in these words : “ Pass Simon, or let Simon pass Monday morning.” It was in the hand-writing of 1 ... . , , the Plaintiff’s wife, but in bis name. Saltar told the negro the Pass was not a ProPer one-> and ordered him to strip, on which he attempted to escape, and Allen, who stood in the door, caught him, which enabled Saltar to seize and throw him. But Saltar alone was not strong enough to hold him down, and calling for aid, Allen and Single-tary struck him, and at length, their united efforts and blows, with a stick and with their fists, subdued the negro, and he was whipped.</p> <p>A Physician proved, that the temporal artery was divided, and that the negro was much weakened by the loss of blood, from the effect of which he could not probably Recover in less than three or four weeks ; but the wound was not so serious as to do any permanent injury. It appeared, however, on the part of the Defendants, that the negro was engaged in some business in a smithery, within a few days after he was whipped. The only proof against Bryan was, his having gone to the plantation of Owen with Saltar.</p> <p>The Judge instructed the Jury that the pass was nota proper one; or at least was not sufficient to preclude Sal-tar from examining the negro, or from using such force as was necessary to compel him to submit to an examina" tion; and that Saltar had a right to command the assistance of the other Defendants for that purpose. Still, however, it any of them transcended the necessary limits, and wantonly beat the slave, they became trespassers ab initio.</p> <p>The application for a New Trial, being to the discretion of the Court, they will not award one, where the injury done is of a slight and trivial nature. Supposing the Defendants to be guilty, very small damages would compensate the Plaintiffs, who lost , • r i. i i. r , ’ the services of the slave only tor a tew days.*</p> <p>2- But Bryan is wholly innqcent, and has been properly acquitted: He ought not again to be put in jeopardy ; and a New Trial must be granted or refused as to all the Defendants. Where trespass is brought against two Defendants, one of whom is found guilty, and the other is acquitted, a New Trial cannot be granted On the motion of the convicted Defendant.†</p>

<p>THIS was an Action of Detinue brought by the Plaintiffs, Administrators of Hilary Butts, deceased, in Salisbury Superior Court of Law, to recover a number of Negroes in the possession of the Defendant. The Jury sworn to try the issues joined between the parties, found the following verdict: “ We find that Hilary Butts, in his lifetime, was possessed in his own right of the Negroes Mary, Phœbe and Lydia, and of the Negroes Bacchus, and Nat , children of the said Mary, as in the Plaintiff’s declaration mentioned, and that the said several Negroes were taken away by force from Hilary Butts, by persons unknown to this Jury, and that the Defendant does detain the said Negroes, of the value of, &c. We, the Jury further find, that the Plaintiff’s claim to the said Negroes, under letters of administration granted to the Plaintiff Mary Scruggs, wife of Richard Scruggs, by Theophilus Lundy, Register of Probates in the County of Effingham, in the State of Georgia, bearing date the 1st day of December, 1783. We also further find that the said Negroes were in this State in the life-time and at the time of the death of the said Hilary Butts. If the law be for the Plaintiff, we find for the Plaintiff, and assess the damages, &c. and if the law be for the Defendant, we find for the Defendant.”</p> <p>The question reserved for the opinion of the Court is, whether letters of administration granted in the State of Georgia, shall be valid, and entitle the Administrators to recover in this State, property which was in this State, at the time the intestate died, under whom the Plaintiffs claim.</p>

SCIRE facias to revive a judgment. Plea, that the defendant had formerly been arrested on a Ca: Sa: for the same debt. Demurrer and joinder. The plea relied upon by the defendant, furnishes no legal objection to the present mode of proceeding. It may be true, and yet the plaintiff be entitled to another execution for his debt.

HEDLEY, Serj. The condition is given to the Queen, and is well performed: she has gained the fee simple, and the lease is good. The reasons to the contrary are, that by act of Parliament he forfeited all his lands &c. and that all conditions are not given to the Queen. The Templers’ case 17 E. 2. Provisions given to the Hospitaliers to be held in the same manner as the Templers &c. Still frankalmoign is not transferred by these general words.

This was a suit brought in the Court of Equity of Cumberland county.. The bill states that the plaintiffs' have their places of business in the.town of Fayetteville, and reside with their families'in the county of Cumberland, in the neighborhood of said town. The plaintiff, Worth, is a commission merchant, and agent of the Capo Fear Steam Boat Company.

drew a note payable to Tisdale, one of the firm, or order: he indorsed it to the plaintiffs, who brought the present suit against Wheaton and obtained a verdict. that the note was made payable by D. Wheaton and J. Tisdale, under the firm of Wheaton and Tisdale, to J. Tisdale, whereby the said James became the payee and payor:—that the said James could not have maintained a suit to recover the contents of the note; neither can Blake and Green, as his assignees; for he cannot…

THIS Action was brought against the Defendant, endorser of a note made by Lands dale, and payable in January 1814, but by the endorsement made payable in J rj of the same year.

This was a scire famas to show cause why an execution should not issue on a forfeited recognizance, and.was tried before .Eka.dk, J., at tke Superior Court* of Buncombe . county, Term 1864, on tbe plea of nul tiel record. „ The State gave in evidence a record of the Superior Court of Law of Buncombe county, setting forth that at Spring Term of that Court, £ February 5th, 1864, . W.- M SHIPP.

IN ejectione firmæ, in evidence to the jury: there were three several parcels of land lying in one county, and Lady Argot having right thereto, (as she supposed) leased them to the plaintiffs, who brought the action, and the land was in the hands of three several lessees of Cheney. Lady Argot made a lease and delivered it as an escrow to I. S. and made a letter of attorney to him, to enter on the premises in her name and deliver the deed to the lessees as her deed.

<p>This was an Action on the Case brought in the Superior Court of Law for Wilmington District, on a note, to which the Defendants pleaded general issue, set-off, and statute limitations.</p> <p>The Jury find the Note was executed by Caleb Grainger, on the 13th July, 1785, for the sum of one hundred and thirty pounds 4s. 3d. they also find that by an injunction issued 7th July, 1787, by order of the Hon. Samuel Ashe, Judge in the Court of Equity, and an order of the said Court, that the Note aforesaid was lodged in the hands of the Clerk and Master in Equity, and that it appears to them that thereby the Plaintiff was hindered from bringing suit on said note, that he afterwards brought suit on the 14th February, 1791; we further find that there is due to the Plaintiff, on a note, the sum of £ 150 10 id.</p> <p>The question arising on this special verdict, was whether the Plaintiff's demand was barred by the act of limitation.</p>

THE plaintiff had been summoned a witness in a cause, wherein the defendant, being the party cast, became liable to pay the costs; in order to recover the amount of her ticket, she warranted him before a Magistrate, from whose judgment an appeal was taken to the County Court, and the cause was thence brought in the same way to this Court. Pleas, general issue and set-off.

This was an action of Debt brought in the lifetime of the Plaintiff’s testator, to recover the penalty of fifty pounds, created by Chapter 4 of Acts of 1791, against those who should harbour or maintain any runaway slaves : To this action the Defendant pleaded general issue, statute of limitatations.

<p>Whenever a ses^'promis" tsory note for the accommo-tlatjon of the lice of non.payment.</p> <p>When a note abíe^tAe^" Staie Hank, it must be presented there when it falls tlue,otherwise the endorser is discharged; and that even although, the maker of the w!thsuchpre! sentation.</p> <p>torneyem-" ployed by the owner of a note to sue on an endorse11 ta eat, itdis-charges the endorser.</p>

In Equity. THE Complainant, since the beginning of this term, had obtained an injunction again; the defendants, on a bill returnable to September court: and on the first of the Equity days, read an affidavit of the Deputy-Sheriff, stating that he had informed the complainant, forty days before the term, that he had the execution in his hands, requesting him to point out property, on which it might be levied.

<p>The following case was agreed to by the Counsel of the parties : Lester was elected Treasurer of Public Buildings by the County Court of Surry, at Term, 1796, under the act of the General Assembly, passed in the year 1795, who gave bond and security for executing his office, and continued in the same, till 1798, when the Court of Surry proceeded, under the Act passed at the Session of the General Assembly in the year 1797, to the election of a Treasurer of Public Buildings, when Joshua Freeman, the present Plaintiff, was elected by a majority of the Justices of said County, and entered into bond and security for the performance of his duty.</p> <p>Freeman gave Lester ten days notice, that under the last-mentioned Act, he should at the next Court to be held for said County, move for judgment and award of execution against him, for all monies which he had received, as the former Treasurer, and which he had failed to account for and pay over to his successor in office. It is admitted by Lester, that he received the sum of two hundred pounds from the Treasurer of the State, to be expended according to the directions of the act 1795.</p> <p>The County Court gave judgment for the sum of two hundred pounds, with interest, agreeable to the Act of 1797, from which judgment Lester appealed to the Superior Court for the District of Salisbury.</p> <p>The question arising on this statement is, whether, after Lester had been appointed under the act of 1795, the act of 1797, vacating his office, was a constitutional law or not.</p>

This was an Action of Detinue brought in Newbern Superior Court of Law, for a Negro man named George. Pleas not det. and stat. lim.

<p>EJECTMENT. The Jury brought in the following special verdict.</p> <p>“The Jury sworn, find that John Hardiway died, seized in fee “of the premites in question, that he executed his will in due form “of law, in these words, “In the name of God, I John Hardiway, “of the county of Brunswick, being in perfect sense and sound me“mory, do make this my last will and testament, revoking all others. “My soul I commit to Christ, who redeemed it, my body to be de“cently buried, and for my estate that God has blessed me with, I "give as follows, to wit, I give to my daughter Frances Caudel the “following negroes, Little Tom, David, Burnett, Harry, Sue, Sterling, to her and her heirs forever. Item, I give to my son “Marcus Hardiway, the following negroes, Great Tom, Isabel, Sam, “Little Hannah, Bob, Frank, to him and his heirs forever. Item, “I give to my daughter Sarah Hardiway, the following negroes, “Nat, Lucy, Lydia, Jane, Sall, Senos, to her and her heirs fore“ver. Item. I give to daughter Nancy Hardiway the following “negroes, Patty, Claris, Let, Little Peg, Old Hannah, Old Lewis, “Item. I do also give to my son Marcus Hardaway, One Horse, “known by the name Dick, and one feather bed, and to my daughter “Frances Caudel, the filly known by the name of Mark Anthony. I “tem, the rest of estate, negroes, stock and house furniture, to be “equally divided between my wife Mary Hardiway and my son “Hartnell Hardiway and daughter Rebecca Hardiway. I likewise “do appoint my son Marcus Hardiway and William Caudel my ex"ecutors, whereunto I have set my hand and fixed my seal, this “ninth day of December, in the fourth year of our commonwealth.”</p> <p>“Test,</p> <p>“William Harrison,</p> <p>her JOHN HARDIWAY. (L. S.)"</p> <p>“Rose X Stewart,</p> <p>Mark.</p> <p>“James Owen.</p> <p>“That he died in the year 1779, leaving Marcus Hardiway his “eldest son and heir at law, and one of his executors. That Marcus “Hardiway died, having entered on the premises, that the plaintiff is “lessor of the coheirs of said Marcus: they farther find that the de“fendants are lessees of the widow Mary Hardiway, since Mary Clark “and her children Hartnell Hardiway and Rebecca in said will men“tioned.”</p> <p>The question is, whether under the word of the will, the widow Mary Hardiway, Hartnell Hardiway, and Rebecca Hardiway, under whom the defendants claim, take any, and what part of the real estate? The testator’s intention to dispose of all his property, is manifested by the introductory as well as residuary clause. Estate is a technical expression, to which a plain and definite meaning is affixed. It comprehends the right a man has to real as well as to personal property, and even by grant of a man’s estate, all shall pass what he can grant, a fortiori by devise. Woods inst. 117, 129. The words “all a man’s estate,” have been held to carry a fee, without any words of limitation or perpetuity. 1 Wils. 333, It is now clearly settled that the words all his estate, will pass every thing a man has, unless accompanied with a local description. Farther, if the word estate does not, in the present case, it will be wholly inoperative, since whatever else the testator had is specifically bequeathed, or covered by negroes, stock and house furniture.</p> <p>The introduction is material: nor that, independantly of other circumstances, it is sufficient to change the construction of a device, but as it assists to shew the intention of the testator. Cowper, 299. The case of Turner vs. Moore is to nearly alike in its circumstances, that it ought to govern the decision of the present; and with regard to the authority of that case, there can be no doubt, as it was decided by lord King, whose decree was affirmed by lord Talbot. Cases temp. Talbot, 284. He also relied upon 2 Term Rep. 411, 6 Mod. 106. Salk. 236. 3 Mod. 45. 2 Vest. 564. 2 Peere Williams, 525. 2 Evu. C. A. 329. H. Bl. Rep. 223.</p> <p>argued that the heir at law could not be disinherited without express words, that the generality of the word estate, was limitted by the subsequent word, which shew what the testator meant by using it. That residue must be of something which went before, but lands are no where mentioned in the will, he cited and relied upon 2 Eq. Cas. abridg. 328. 2 Sla Ray. 1324.</p>

WARD brought an action, against Kedswin, in the detinet, and counted, that on such a day and year, the defendant apud London, in parochia sanct. Mariæ de arcubus, in warda de cheap, confessed se obligari to the plaintiff by his writing obligatory, quod reddat so much Hamburgh money, equal to so much English money, &c. The defendant prayed oyer of the obligation and had it.

<p>AT this term, this cause was by consent of the counsel of both parties, reconsidered—and after a very lengthy argument:</p>

SCIRE facias on a bail-bond. Plea, nul tiel record. The writ had been originally issued in debt, and in conformity therewith the Sheriff had taken the bail-bond. In the County Court, the writ had been altered from debt to case, to which latter action the subsequent proceedings corresponded. For the defendant it was argued, that these variances were fatal; and,

Thm ea*so ..'{..a vaiu-ved Columbus Oouidy, to iDin Court for trial. I! tli ouii.y for Tim bill out’ 832, Boborfc 'P fiv.y, b ier oi hue other ’.¡veilft, which the luuhund ofíhe f.'ine phlnCff, and the-, plainiiiTrh’oc, leaving t: lust will tint! f has been proved ;¶ of which tho plaintiff Mary L; tho executrix.

Ejectment in Salisbury Superior Court. The following case agreed by the Counsel of the parties: On the 8th day of December, in the year of our Lord 1772, Henry Eustace M’Culloch, sold for and in consideration of the sum of pounds, three hundred and thirty-one acres of land, being the land in question, to Frederick Michael, father of the Defendant; that said M'Culloch executed a bond to said Michael, at the time of the said sale, in the words following, to wit: “ Know all men…

<p>This was a Scire Facias brought by the Plaintiff William Alston vs. the Defendants, in Hillsborough Superior Court of Law, as bail of Reuben Searcy, to which the Defendants, amongst other things, pleaded “ Nul tiel record.” The question made was, whether the omission of 2s. 8d. charged on the ca. fa. vs. the principal, was such a variance between the judgment and the scire facias as would sustain the plea of "Nul tiel record."</p>

<p>This was an action of Covenant, in which the first count was founded upon a deed of bargain and sale, conveying 250 acres of land, and describing the boundaries. The deed was in the usual form, but contained no clause of warranty. On the trial it was proved, that on a survey of the land, there was a deficiency in the quantity of 5¼ acres, for which the Jury assessed damages. The second count was on another deed of bargain and sale of 183 acres, the boundaries of which were described. This deed contained a clause of warranty, in these words: “And the said R. Dickins and “W. Wait, and their heirs, and every of them, all and every “other person or persons, and their heirs, any thing "belonging or claiming in the premises above mentioned, or any part “thereof, by, from or under them, or any other person or "persons, shall and will warrant and defend the said "premises to the said Ricketts and his heirs.” On the trial it was proved, that the boundaries described in this count comprehended 23 acres of a tract of land, of which A. Hester was seized in fee, and was in actual possesssion of, at the date of the deed, made by Dickens and Wait. For this deficiency the jury assessed damages also.</p> <p>The defendants pleaded, amongst other matters, that before the commencement of the suit, the plaintiffs had conveyed the land to R. B.</p> <p>The questions sent up for the opinion of this Court, were, Whether an action can be sustained on either count of the declaration? And, whether the plea is a valid bar?</p>

section 9th. The motion was founded on an affidavit filed at the May term, 1800, of the County Court, stating in substance, that the defendant at the return term, about fifteen months before, had employed an attorney, who, he expected, would avail himself of any legal defence there might be to the action :- that the pleas had been entered, without the intention of waving the benefit of any act of limitation that might apply to the case ; but that the plea of the act referred…

<p>Action on a bond. The writ was filled up, "that they answer unto him of a plea of debt of 1000 dollars," (the penalty of the bond): plea in abatement, because the writ did not run in the actual form, “in the debet and detinet:" general demurrer.</p>

<p>The defendant and his two brothers carried on business as merchants, in the state of Maryland, under the firm of John Goulding, and brothers, and in the year 1791, gave the plaintiff the promissory note, on which this action was brought, for a debt the said partnership, signed John Goulding, & Brothers, the stile of the firm. The defendant (being the only partner in this state) was sued alone: he pleaded in abatement to the action, that this contract was entered into, in the state of Maryland, and that the other partners who were living, and not named, ought to be made defendants. To this plea there was a general demurrer.</p> <p>Graham, in support of the demurrer, relied wholly on the fifth section of the act of Assembly of this state. 1789, 57, 688.</p> <p>Woods and Martin, contended that this case came within the rule of lex loci, and that to allow this act the operation insisted on for the plaintiff, would substantially alter the contract.</p>

Murder on the high seas. Mr. Attorney of the U. S. Hill, offered to give in evidence, the examination of the prisoner, before his commitment. objected to this: 1. Because the prisoner at the time of his examination, was under impressions of fear. 2. Because the examination was not subscribed by the prisoner.

This was an Action on the Case brought in Morgan Superior Court of Law on a Note in the words following: I promise to pay, or cause to be paid unto William Wofford, Esq. or to his assigns, the full and just quantity of fix hundred gallons of good whiskey, on or before the 15th day of June, which shall happen in 1792, to be delivered at the subscriber’s still house in Burke County, it being for value received of him this 1st day of November, A. D. 1790. Signed, James Greenlee.

<p>That ⅛« force of arm% is «. g*ood return upon pi’°'</p>

THIS was an action on the case for overflowing the plaintiff’s land, by means of a mill-damerected by the defendant.

<p>It if* not “burglary to break-and- enter ¡¡a smoke house tUirty-five'steps from a fl welling house, the dwelling house having no inclosure'around it.</p> <p>A log cabin belonging to the owners of'» tobáceo .faotory, in which the Superintendent 'of the factory usuallj’ slept, is a dwelling house, in which burglary may be committed.</p> <p>The canee of State vs. Langford, 1 Dev. 2B3, State vs. Jenkins, 6 Jones, 430; and State »i. Curtis, 4 T)ev, and Bat. 222 oitrt o;-l ippm-'d.</p>

<p>No cases in relation to the entry of va cant land are bv theicS" 1779, except those which arose from the ance°ofthe land offices, In all other enterérraust*" prevail.</p> <p>Limitation3 °f whether with lour of titIeC° can have no influence m such cases, for those Acts are founded upon apresumption once existed, lost^butTn a fcaveat, both parties admit. the land to be Vacant, and the question shall a titfobe made? An or-(lei* ior ii *L;@YLh~ re facia* de no-tbct'which^61 stated caveator bada preference, as trv'°wBs -bet a sale, and Sred'onVuch verdict m fa-vour of the enterer</p>

DEBT on bond. To prove the execution of the bond, the plaintiff's counsel offered a deposition of the subscribing witness, who resided at Newbern, about 130 miles from Raleigh. It appeared that the witness had been subpœnaed by the plaintiff, but did not attend, and that he was at home in good health.

<p>Testator bcquoaths stives trt A, B and 0. Ho directs A, B and C, to purchase a tract of land, on which thes’avus are. to live, and to cnlti-vato it. The executors are diriered to pay to- A, &c., §500 for the purpose of stocking the land.</p> <p>This is a quasi emancipation, and is void, independently of the act of 1860, ch. 37.</p> <p>Testator gives to his wife all his slaves except those bequeathed as above stated, and concludes his provision for her by giving her all his “ property and estate of every kind and description" “ which is not hereinbe-fore, or hereinafter excepted or disposed of." This is a special residue, and the slaves intended to be given to A, &c., and the legacies intended for their benefit belong to the next of kin of the testator, (his widow having died) after payment of his debts; for the payment of which they constitute the primary fund.</p> <p>The cases of Lea vs. Brown, 3 Jones Eq., 141, Kirkpatrick vs. Rogers, 7 Ire., Eq. 44, and Swann vs. Swann, 5 Jones Eq., 299, cited and approved.</p>

ACTION of covenant. The substance of the declaration was, that Andrew Cranston by deeds of lease and release, bearing date the third and fourth of February in the year 1758, in consideration of ten pounds paid to him by Hugh Montgomery, in behalf of Mary Montgomery, daughter of the said. Hugh, and now the wife of Anthony Newnam, did convey, in see simple, a lot in the town of Salisbury, to the said Mary.

This cause came before the Judges on the following statement, agreed upon by the Counsel of the parties : John Walker and Daniel Bernard were seised on the 23d October, 1783, as jointenants, and by the operation of the act of 1784, became tenants in common, in fee simple, of four lots and one half in the town of Wilmington, described by the numbers 227, 226, 232, 231, and 236, and upon the petition of the said John Walker, for a partition of the said lots, the following…

<p>THIS was' an action of assumpsit, tried before Sea-tvELL, J. at Craven Superior Court, where a verdict, un-¿gj. the charge of the Court, was found for the Defend- ° ant. The facts were, that a quantity of merchandize was shipped for the Plaintiff at New-Tork, to be delivered at A'ewbern, on board a vessel of which the Defendant was Captain. He signed a bill of lading in the usual form, containing no other exception than that of the dangers of the sea. The merchandize received damage on the voyage^ ancj Ccmrt,, in its direction to the Jury, stated to them, that if the damage was occasioned by the unskil-fulness of the Pilot, after he came on board, the Captain' . . was not liable, A motion was made fora New Trial, on the ground of misdirection, and the Judge doubting the correctness of the opinion he had given, sent the case to . „ tills v^OUlt#</p> <p>and the Court held it unde? advisement till this Term.</p> <p>that he ought no't to be made liable for the unskilfulness of the Pilot, whose qualifications and appointment are decided on by public authority.* That the Defendant was compellable to re* ceive the Pilot on board; for if he had neglected to do so, and any accident had happened to either vessel or carr go, no recovery could be eifected on the policy of insurance—the owner always undertaking, in such case, that the ship is sea-worthy i that she has a sufficient crew, and a Captain and Pilot of competent skill.† Not to take a Pilot on board, is gross negligence in the Captain ‡ and it would seem inconsistent, when he does take one, qualified according to law, that he should be made liable for. his acts. The Pilot, while on board, has the exclusive direction and control of the ship. He is master pro hac vice; and in conformity with this principle, it has been decided, that where a vessel ran foul of another and injured her, that the master of the vessel do.ing the injury, was not liable to the owners of the other vessel, because there was a Pdot on board at the time.§</p> <p>It would certainly be more just, that the Pilot who occasioned the injury, should be made responsible to the Plaintiff, than the Captain who has been in no fault. If, however, his contract is relied upon, the answer is, he entered into that as agent for the owner ; he is called in the bill of lading, “ Master for the present voyage,” and no, inference arises from it that he was any thing more. Wherever a person enters into a contract as the known agent of another, he is not personally liable, but only the principal.ǁ The owner might have discharged the Mas-II ter at any time after signing the bill of lading, even before the commencement of the voyage ; and to make him liable for the loss of goods, after his authority to take care of them was at an end, would place a Master of a vessel in a very perilous situation.</p> <p>1. Without any bill of lading or express undertaking a carrier for hire is an insurer, and responsible for every loss, except by the act of God, or the public enemies*— for robbery, fire, leakage, ikc.† Negligence does not enter into the grounds of the action. It is not sufficient for the carrier to disprove actual negligence, and to shew all possible care ; everv thing is negligence which the law does not excuse.‡ In the case of Forward v Pittardy Lord Mansfeld says, “ There is a nice distinction between the act of .God, and inevitable necessity.” “ The carrier is liable in this case, inasmuch as he is liable for inevitable accident § The Defendant, then, is liable in this case, as a carrier, although the loss happened u by inevitable accident.”</p> <p>2. But the Pefendant has engaged, in this bill of lading, that the goods shall be delivered to the Plaintiff, or his order, in the same good order in which they were received, “ the dangers of the seas alone excepted.” Thp goods were not so delivered, and the Defendant is therefore liable in damages to the Plaintiff, unless the loss be covered by the exception in the bill of lading. No force however irresistible, no accident however inevitable, can excuse him, unless it be included in the words “ dangers of the seas,’’ the only exception to his liability in the bill of lading.ǁ “ When the law creates a duty or charge, and ^le party is disabled to perform it, without any default in him, then the law will excuse him ; but when the party, by his oxvn contract, creates a duty or charge upon himself, he is bound to perform it, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract“ Where a covenant is express, there must be performance, nor shall it be discharged by any collateral matter whatever.¶ It is clear, that the loss in this case, is not by a peril of the sea.**</p> <p>But it is said, that the Master signs this bill as the agent of the owners, and therefore we must look to them, pot him, in this case. The rule is not, that any agent is not answerable, but is only where the agent, at the time of the contract, discloses the name of his principal;* and this bill of lading does not disclose the name of the owners :† So that jf he were an agent, he would not he dis charged.</p> <p>But the Defendant signs as the principal party to the bill of lading. No agency appears on the bill. He signs for himself, and you cannot look out of the bill of lading. But he cannot sign as agent; because if he did, no action could be sustained against him on the bill, under any cir-cuinsumces, whereas a multitude of cases shew that such an action can be sustained.</p> <p>But it is said, a Pilot was on board, whom the Master was compelled to receive, and upon whom tne law casts the absolute control of the ship. If the Master of the vessel be the principal in the contract, this cannot excuse him, even if it were correct; but the position is not correct. The law does not compel the Master to receive the Pilot, but only to pay him. He may refuse him if he please. ‡</p> <p>The Pilot has not a superior authority in the vessel above that of the Master. u The Pilot is one who hath the control of the vessel under the Master. § case of Snell v. Rich, ǁ is no doubt a correct decision, but is ^ not at ail applicable to this case. There, an action on the. case was brought against the Master, for carelessly running down another vessel. The Master was not on board-, and the vessel was under the command of a Pilot, who was Master pro tem. Hfere, the Master is sued on his contract, and is answerable at all events, besides those excepted. Every thing done in the voyage is for Ais discharge—*to fulfil his contract-—for his benefit. The Pilot ¡g^ therefore, a person employed by Ak, and he is ao-swerable for any injury happening through the Pilot.*</p> <p>* deny that the Master would be discharged, although he should cease to be Master before the completion, or r 7 . even commencement of the voyage. He is Hable in that case as in others Thus is the lessor bound to pay rent and rebuild, although the building be destroyed by fire or • 11 1 J tempest.†</p>

In Equity. ON exception taken to the defendant’s plea, grounded on the 4th section of 1789, 23, 677, respecting the limitation of time, for ringing suit against administrators and executors.

THE defendant imparled in an Ejectione firmæ, and afterwards pleaded: That the land is of ancient de mesne &c. unde intend. quod curia non vult cognosc. &c. prayed judgment fi actio. The plaintiff demurred.

SIR SIMON brought an action on the case for these words: You have talked with a jesuit, in your house a week, knowing him to be a jesuit. It was objected that before the 27 Eliz. this was no offence; and an indictment for harbouring a jesuit ought to contain that the defendant harboured him after the statute, and 40 days after; and if the jesuit was sick, so that he could not travel, he might remain here, and it is not felony to receive or assist him.

DEBT was brought for a certain sum of Hamburgh money, of the value of &c. English money, and it was in detinet, pro eo quod defendens cognovit se teneri to the plaintiff in the parish de St. Mariæ de arcubus, in cheap. On oyer it appeared that the deed was dated at Hamburgh. Thereupon the plaintiff demurred. 1.

<p>The Superior Court has no jurisdiction to decide whether a deposition be regularly taken,'except on appeal from the Clerk's dacision, in pursuance of see. 63, eh, 81,- Rev. Code, or when it is offered to be read ia evidence on á trial; therefore, an. appeal un ier ch. 4, sec. 23, of Rev. Code, from the decision of a Judge on that question, does not lie to tha Supreme Court, unless the record shows that the Judge had acquired jurisdiction in one of these two 'ways.</p>

<p>A bcqmst to grandchildten,or children and grandchildren, ‘to ¡nomint’ with 'a direction for equal division amoug them, is a gift to them per capita.</p> <p>The caaes of Hill vs. Spruill, 4 Ire., Eq. 244, and Harris vs. Philpot, 5 Ire., Eq. 324, cited and approved, and the case of Spivey vs. Spivey, 2 fro., Eq. 100, cited and distinguished. *</p>

ACTION of Detinue for a Negro slave named Doreas.—The plaintiff proved that some time in the year 1804, the defendant, in conversation, said that he had settled his dispute with the plaintiff; that he had let the plaintiff have the negro in question for 100 dollars, which he owed the plaintiff; and as the Negro was small, he had agreed to keep her until she was able to do service, or was called for by the plaintiff.

<p>This case came before the Judges upon the following statement made and signed by the Counsel for the parties in the several suits depending in Morgan Superior Court:</p> <p>"There were ten several caveats for different claims to different parcels of land in the County of Wilkes; the caveators in all were the same persons; but the defendants were different in each; all were tried by a jury on the premises; in all of them the Jury consisted of the same men, and they were three days in trying all the caveats on the several parcels of lands.”</p> <p>The question for the opinion of the Court, is, Is each Juror entitled to one day’s pay, i. e. 8s. as a Juror, in each of the ten caveats, amounting together for each to 4l. 2s. or is each of such Jurors entitled only to be paid for three days attendance as a satisfaction in and for the whole of such ten caveats amounting to 1l. 4s. each ?</p>

EJECTIONE firmæ. The paper book was right, viz. acram terræ, but the bill on the file was clausum terræ, and the bill was amended from the paper book: and other variances were amended; and a distinction was taken where there is a paper book in the office, and it is right; all will be amended thereby: but if there be no paper book in the office, and the bill on the file be wrong, it shall not be amended.

This was a writ of error brought in Morgan Superior Court, to reverse a judgment obtained by the Defendant in error vs. the Plaintiff in Rutherford County Court by original Attachment in the words following : State of North-Carolina, Rutherford County.} To any regular Officer of Rutherford County, greeting.

<p>The declarations and admissions of a party to a suit., civil or criminal, pertinent to the issue, may be given in evidence against him by the oth? or party. ,</p> <p>It is not the belief, simply, of a man that he is about to be stricken, which trill justify.him in striking first, hut his belief founded on reasonable grounds of apprehonsiun. '</p> <p>One who seoks a fight, or provoker, another to strike him, cannot justify returning the blow on the gi’cinnd ot self-defence.</p>

HENRY TAYLOR, by his will, dated 21st November, 1799, bequeathed to his daughter Lucy, a negro man Harry.

<p>A Court-of Equity will not entertain a bill by a purchaser of ¡anil at execution sale, against the Sheriff, to compel him tooonvey.</p>

<p>THE Defendant, then a resident of New-York, sent jWiliams to this State to collect a debt due from Willis, did not authorize his agent to bind him by deed, With the view of getting satisfaction for the debt, Wil-Hams entered into an agreement, under seal, with Willis, thereby the latter sold to him, as agent of the Dtfend-⅛ ve¿sel then Gn the stocks, which he undertook to ’ complete ánd then deliver to whomsoever should be appointed by the Defendant to receive her. In considera-¿,011 whereof, and in pavment for the vessel, the agreement ' . , TJT. , states, that the Defendant should give up Wnhs s note, which he held, and pay the balance which might remain ¿ue^ estimated at $77'0, to Dickinson, the Plaintiff The agreement was executed by Willis, on the one part, arid by Williams, as agent of Rodman, on the other part.</p> <p>When the agreement, was executed, the Plaintiff was a large creditor of Willis’s, and approved ot the contract, as securing to him payment of part of his debt. The vessel was not completed^according to the contract, either as to the time or manner, But the Defendant afterwards, knowing what Williams had done,, approved of it, took possession of the vessel, and used it as his own.</p> <p>The Plaintiff brought an Action of Assumpsit against the Defendant to recover the sum contracted to be paid to him under the agreement; for which he obtained a verdict.</p> <p>A motion is made for a New 'í’rial, on two grounds :</p> <p>1st. That an Action of Assumpsit will not lie.</p> <p>2dly. If it will, that the non-performance of Willis's part of the contract, relieves the Defendant from the Plaintiff’s claim-.</p> <p>The Plaintiff cannot maintain an action of assumpsit against the Defendant; because here is an agreement under hand and seal ; upon which, Willis, had he complied with the terms of it, might have maintained an action of covenant against Rodman. To this the objection is, that it does not appear that Williams was authorized to bind Rodman by deed. But how can the Plaintiff make Rodman liable at all ? Williams was an agent to collect a debt. He was a special agent, who cannot bind his principal by any acts, in which he exceeds his authoty.* He was not authorized to contract a debt.</p> <p>It is not then, that Rodman is liable for Williams's act, because he was his agent, but on account of the subsequent confirmation of his act. Omnis ratihabitio retró trahitur set mandato cequiparatur. If, therefore, Rodman could have authorized him, by parol, to have executed the deed, he might confirm it afterwards by parol. In Com, Dig. Attorney, c. 5, it is only said, that an attorney must gerie-rally be constituted by deed ; but Ball v, Dunsterville,* where one signed in presence of the other, Mackay v<¡ Bloodgood,† where one signed by consent of the other, prove, that a consent without deed, is sufficient Rod-man, having confirmed the contract, is as much liable as the partner who authorized the other to seal for him.—¡ And the technical mode of signing the instrument makes RO difference, according to the case of Potts v. Laxar us.‡</p> <p>If Rodmart is bound, it must be, either because his agent hada right to bind him, or because of his own act¿ But his agent could not bind him to pay a debt. It must, then, rest on his own act, which confirmed the deed ; and if that does not bind him, he is not bound at all. Now where there is a deed made inter partes, one not a party, cannot sue on it; because with him, no contract is made by the deed,§ and if there were, assumpsit wo, ⅛ not lie, because the Defendant is liable in a higher action.</p> <p>But let it be admitted, that assumpsit could be maintained. and the deed used merely as evidence of the contract, it is clear, that Dickinson could not maintain it, because he was a stranger to the consideration.ǁ Dickinson lost nothing. He might even have sued Willis the next day, and forbearance for an indefinite time is no consideration¶</p> <p>Another light in which the case ought to be viewed, arises from the construction of the contract, in which the covenants are evidently dependant; and finishing the vessel forms a condition precedent. It is clear, that Rodman. did not intend that Willis should get further in his debt. Willis was a bankrupt; and the object of Rodman was to secure himself, which he could only do by requiring that the vessel should be completed and delivered to him be-fpre he made the paytnent. But, according to the Plain-titl ’a 1O1 stru t¡on, Rodman would be liable although Willis never had completed or delivered the vessel.* Rod-■piards- ha fig taken possession afterwards, can make no* difference; for it Willis had sued on the contract, he could only recover by showing a performance on his part; though he might have recovered the value of the vessel by some other action. But if Dickinson recovers, it must be on the, contract; for thence alone can he defivq any claim against Rodman.</p>

ACTION of Debt upon a Horse-Race, the articles of which and two bonds were written on the same paper, which was deposited with a stake-holder. The Jury found that the plaintiff’s horse had beat the race; but it appearing in evidence that the race was on one day, and the articles and bonds executed on the succeeding day, the question was reserved whether the plaintiff was entitled to recover on the bond.

This cause was removed from the Court of Equity lor Wayne county to this Court for trial. •' The bill alleges that Scarborough Spivey died in April, 1864, having made her will, of which the plaintiff was appointed executor, and that he has qualified as such.

<p>This was an action oí ejectment tried before ■ Fakncit, J., at Spring Term of Anson Superior Court,</p> <p>The case is fully stated in the opinion of the Court.</p>

This was an Action of Debt brought upon a bond executed by the Father of the Defendants, in his life-time, to the Plaintiffs.

<p>WILLIAM CLARK made a will in June, 1806, duly executed to pass lands, by which he devised land to his sons. In January, 1809, he made another will also effectual to pass lands, by which he made a different disposition of part of his real estate; and subsequently a paper in the form of a will was drawn by his direction, but neither signed nor attested, which in respect of some of his land, differed from both the former wills. Upon the issue of devisavit vel non, the Jury found that the latter paper operated as a revocation of the first will, as to the personal property, but not as to the real. Upon a motion for a new trial, the question submitted to this Court was, Whether the paper writing last drawn amounted to a revocation of the former wills.</p>

<p>This was a suit in Equity in the Court of Equity for Maywood county, removed to this Court, after being set for hearing on bill and answer.</p> <p>The purpose of the suit was to have a settlement of the estate of Amos Mott.</p> <p>The only controversy was on the construction of two clauses in the will of Plott.</p> <p>The opinion of the' Court contains a statement of everything relating to the questions decided.- «</p>

This was an action on the Case instituted originally in the County Court of Orange, to recover the sum of 81 dols. 30 cts. being the value of a certificate issued in favour of the Plaintiff, by Robert Fenner, Commissioner appointed in 1786, to settle the army accounts, and drawn by the Defendant. Pleas general issue, statute of limitations.

THIS was an Action of Debt brought upon a Jucfei ' ° “ J o i ment obtained in Rutherford County Court, upon an at-tac^ment taken out by Plaintiff v. Defendant, levied upon property which was not replevied 5 and not being suffi- . ' ’ v r , . , . , , to satisfy the judgment, this action was brought to reCover the balance. The Plaintiff produced the iudg- . t’■ r . j o ment of the County Court ; upon which the Jury gave a verdict for him.

<p>These words in a will, “ 1-give to my daughter, Susannah, four slaves, Darned &c., to her and her heirs — Provid 'd, nevertheless, if the said Susannah dio childless, then it is my desire that my son Aaron remove back to this country, and to have them, but not- to take them to any other part of the country,” do riot import a condition that Aaron shall return to this country.</p> <p>The case of Reeves vs. Oraigc, 1 Winston, 203, cite! and distinguished.</p>

<p>TRESPASS. The defendant pleaded in bar, that such a one was seized of the place where &c. and leased it for ten years to the defendant, and gives colour to the plaintiff, and justifies by this demise. The plaintiff replies, that after this demise and before the trespass, the defendant assigned the place, &c. for years to the plaintiff, and on such a day the defendant comes and maintains the bar, and traverses absque soc that he assigned on such a day, and at such a place modo et forma, as is alledged, and thereupon the plaintiff demurred in law generally.</p> <p>It was argued by the defendant’s counsel, that the rejoinder is bad and out of the statute of 27 El. 5. p. 332, and the demurrer is well, for he ought not to traverse the time and place, for it is not material when or where the assignment was made; and in this case if the issue had been joined and found for the plaintiff, it would have been aided by the statute of Jeoffails, for there is no necessity of any place, but the addition of such a place and time is not requisite; for every issue ought to be upon some thing material. But in certain cases the place is material, as Plowd Patridge’s case, the declaration mistook the place and day of the fitting of the Parliament, and it was not helped by the statute of Jeoffails. Dr. Leyfeld’s case, 10 Rep. 88. 94. So here the time and place are not matter of substance but of form, as in 30 E. 3. 5. And in 33 H. 6. there was an information against A. B. for buying lambs inter sheering-time and he pleaded that tali anno he did not buy of S. D. contra forman slatuti, prout &c. It is no issue, for the substance is not whether he bought of S. D. or any other.</p> <p>The court agreed that if the parties had come *to issue, notwithstanding that the jury had found that the defendant had demised the land on another day; still if it had been before the trespass, it would have been well. But in an ejectione firmæ, if the plaintiff declares on a demise made, such a day, and it is found that the demise was made on another day, but before the ejectment, it is bad.</p>

IN a special case, the jury stated that the Plaintiff is a subscribing witness to the bond, of which both the defendants acknowledged the execution; that one of them promised to pay it, and the other said he expected to have it to pay, and it would ruin him. The question reserved is, Whether this is a sufficient proof of the execution of the bond.

This was an Action on the Case brought in Fayetteville Superior Court of Law, pleas general issue, statute limitations. The Jury sworn find the Defendant did assume and assess the Plaintiff's damages to £76 8 2, subject to the opinion, of the Court on the following points: In July term, 1792, two actions were depending in the County Court of Cumberland, between John Burgwin, surviving partner of James Thackston & Co. against the present Plaintiffs.

<p>The probate of will in the County Court is prima facie evidence.</p>

<p>ERROR on a judgment of the Common Bench, in an action on the case fur assumpsit on delivery of a bond on request (the money being paid) and non ass. pleaded. The error insisted upon was that the request is laid generally: licet fœpius requifitum fuisset, without shewing when, where, or by whom the request was made: and the question was whether this was not cured by the verdict? It was objected by the defendant that the shewing the place is only for the venue; and here the request comes in question, and the plea of non ass. denies the request; and there ought to be a request, inasmuch as it is part of the contract, and licet fœpius requisitus is not sufficient. But if the plaintiff in fact alledges a request, and omits the place where it was made, and issue is upon non ass. he waves the request; and when the defendant promises to deliver a thing on request; the plaintiff if he does not request, has no cause of action, for the request is the consideration; and by his own shewing, it appears that he has no cause of action. The judgment was reversed.</p>

<p>Defendants were indicted under the Act of The indict-THE J779, to prevent the stealing of slaves, &c pent contained six counts; upon all which, the Jury found a verdict of, not guilty, except on the second, on which they found the Defendants guilty. The second count is in these words :</p> <p>“ And the Jurors aforesaid, upon their oath aforesaid, do further present, that the said Benjamin Sparrow, and Samuel Sparrow, afterwards, to wit, on the said first day of November, in the «year of our Lord one thousand eight hundred and fifteen, with force and arms, at and in the county of Craven, in the State of Nfrth-Carolina aforesaid, one other male slave called Jack Battle, of the value of fifty shillings, and the property of one William P , 1 „ , Moore, of the county of Craven, m the State of North-Carolina, feloniously and by seduction, did take and convey away, with an intention the slave called Jack Battle ’ast aforesaid, to sell and dispose of to another person, contrary to ah Act of the General Assembly entitled “An Act to prevent the Stealing of Slaves, or by Violence, Seduction, or any other means taking or conveying away any Slave or Slaves the Property of another, and for other Purposes therein mentioned,” and against the peace and dignity of the State.”</p> <p>A motion was made to arrest the Judgment, because the time and place of committing the offence are not set forth in the second count with sufficient precision. The question was referred to this Court.</p>

TRESPASS for mesne profits—Pleas, gen. issue, stat. limitatus, replication and issue. The Jury found all the issue, for the plaintiff, subject to the opinion of the Court upon the following points: Whether the plaintiff, in this action, brought two years after the decision of an ejectment in his favor, in which the demise laid had expired before the decision, ought to recover for the whole term, from the commencement of the demise to the taking possession, being 11 years.

<p>Ufone can take a iHsfcnt utiva share of an intestate's estate, with his next of kin, by force of the art of 1862-8, ch. .49, but those who, by representing an ancestor, can put themselves in the same degree of kindred to the'intestate, as his next of kin.</p>

<p>CASE. The plaintiff declared that he was seized of the manor of Williamson, in Comitatu Gloucesier, in which there is a custom; that on every alienation made by every frank tenant who holds the frank tenement of the manor, a relief is due. And after 30 M. 13 Jac. one S. T. was seized of such land, and held it of this manor, as of the manor of Windsor, in free foccage viz. per fealty and suit of court 5s. rent and relief quando accident according to the custom of the manor. Afterwards he shews that being lord of the said manor the 3d of July. 20 Jac. he had a conference with the defendant respecting the arrearages of rent and the reliefs, when the defendant, in consideration that the plaintiff would abstain from suing him, till the next court to be held for the said manor, and would make it appear to him and the other tenants, who were chargeable, that the reliefs were due. The defendant promised and assumed to pay the said reliefs and arrearages. The Plaintiff avers that the next court was held on such a day, when he made it appear that &c. are due, viz. by homage that the rent was in arrear; and shewed that the reliefs were due by the court rolls, and avers that the defendant did not pay &c. The defendant confessed the action and judgment given upon it, and a writ of inquiry of damages awarded and a second judgment given, But in arrest of judgment divers exceptions were taken: 1. It is impossible that the plaintiff ought to have relief. 2. The alienation is a new form of alienation, and cannot be part of the custom; for it comes by the statute 23 and 24 H. 8. but an alienation by will is within the statute; and it was compared to a common recovery, or any new form of alienation as by deed indented. But these two objections were overruled. 3. The plaintiff cannot have a remedy for this relief, unless it be averred that he prescribes to distrain for it. 11 Rep. 44. Godfrey’s case.</p> <p>argued that he may distrain for this relief; for as he had declared that it is part of the tenure, and the tenure is by curtain, he may distrain for it. 14 H. 4. 2. and he compared this relief to a fine for alienation. 2. Admitting that he cannot have a remedy for the relief, yet he has a remedy for the rent; and the forbearance of suing for that is a sufficient consideration.</p> <p>The last exception was, that he did not make it sufficiently appear to the tenants, that &c. the words are quod ipse fecit apparere, that the tenants are charged with them, and this by the presentment of the homage, upon their oaths: et ipse fecit apparere per rot. cur. Lord Lisle’s case was cited 22 E. 4. There the defendant ought to shew his charge, for it is the substance of the bar. 41 El. Washington’s case. Action on the case on a promise: the plaintiff declared that the defendant promised to pay him so much, if he would assure such lands to him: that he assured &c. without shewing by what conveyance: held that it is well enough, for the kind of conveyance is not the point in question. On the other side it was argued: that there is no relief here; for it is contrary to the nature of a relief to be due on alienation; and this being a relief by custom, and the prescription of a remedy being not shewn, as for a heriot custom; there is no distress, unless the custom gives it.</p>

The Plaintiff's intestate possessed and was legally entitled to the service of a Negro named King by hire, for the space of one year, commencing the 1st of Jan. 1795, and ending the 1st of Jan. 1796. James Spiller, the Defendant’s testator, in the year 1795, seduced, enticed and persuaded the said Negro King, to absent himself from the service of the said James M’Allister, and did maintain and keep the said Negro King in his possession during the remainder of the year.

This was an indictment for the murder of John C. Howard, tried before Gilliam., J., at Fall Term, 1864, of .Moore Superior Court.

<p>THIS was an action on the case, against the defendant, for misbehaviour in his office, as Sheriff ; in re-delivering the goods of one Walk, seized in execution, without levying the money. The declaration contained two other counts, but the first was alone relied upon. The facts disclosed in the evidence were as follow :</p> <p>Tagert obtained a judgment in the County Court of Wayne against Walk, sued out a fi : fa : thereupon, and delivered it to Hill, the Sheriff of Franklin County, to be executed ; who seized Walk's goods in execution, and appointed a day of sale, by advertisement ; but having on that day, or before, received an injunction, issued by the order of a Judge, he released the goods, and re-delivered them to Walk ; who disposed of them, and afterwards became insolvent. The defendant returned upon the execution, "Stopped by injunction."</p> <p>An execution, is considered by the law an entire thing, which, when once begun, cannot be stopped. The Sheriff is bound to proceed, though a supersedeas or injunction, be delivered to him before the sale ; and a seizure to the value operates as a complete discharge to the defendant, who cannot thereafter, be resorted 10. Should the Sheriff forbear to sell, the goods, being perishable, may be consumed, and thus the plaintiff be deprived of his debt. To prevent this, and similar mischiefs, the Sheriff must sell: if he re-deliver the goods, the defendant is both restored to his property, and discharged from any liability to another execution ; or, if liable, he may waste the goods and become insolvent.</p> <p>A seizure to the value, not only discharges the defendant, but likewise vests the property of the goods in the Sheriff, who becomes responsible to the plaintiff, and may sue the defendant, in trespass or trover, for taking them away : this proves that the defendant is not entitled to them alter the seizure ; and that consequently a re-delivery by the Sheriff is a wrongful act, which subjects him to answer the debt to the plaintiff. To shew that an execution is an entire thing, and cannot be stopped, when once begun, he cited 1 Burr. 30. 34. Cro. Eliz. 597. Dyer 98. 99. L. Ray. 1072. 1075. Salk. 147, 323.</p> <p>The case of Ross versus Poythress, 1 Wash. Rep. 120, shews that an injunction has the effect of releasing a person taken in execution upon a ca : sa : and I think the reason equally strong, that it should have the effect of releasing goods seized on a fi : fa. Whatever the practice may be in England, the circumstances and situation of this country, render it essential to justice, that the goods should be re-delivered, In that country, it is easy to make the deposit required, on account of the specie and paper, which an extended commerce has thrown into circulation ; which enables every one, who has the value in property to raise as much upon moderate interest, as his necessities demand, by giving a security upon the goods. Here, money can seldom be procured, but by a sale ; and even then, at a great under value ; and were a deposit required, under such circumstances, it would complete the mischief which it was the very object of the injunction to prevent : hence injunctions would seldom be applied for, even in cases where justice required their interposition, since in this view, they would serve to aggravate, rather than lessen, the evil complained of. It may also be mentioned, as some proof of what the law is in this state, that it has always been usual to deliver the goods, though no deposit has been made.</p>

The following case stated by the Council for the parties to this suit, brought in Wilmington Superior Court.

<p>A statement, in a bjU for the sale or partition of land», and an account of-the rents and profits received by the defendant, that the defendant “has received the rents and profits and appropriated then? to his own ase and, benefit," does not imply that the defendant is possessed adversely to the plaintiff, and is, therefore, no cause of demurrer.</p>

<p>MOTION to set aside a nonsuit, and for a new trial, under, the following circumstances. The plaintiff brought trover for a Negro, the title to which he founded on the following instrument of writing, executed by Elizabeth Black, then a widow and mother to the plaintiff. The paper was executed about an hour before her marriage with her second husband, Cox, by whom it was known and approved. The Negro came into Cox’s possession, who died some years after, before which, however, he was placed in the defendant’s possession,where he remained at the time of Cox’s death. Elizabeth took possession of the Negro when sent on an errand by the defendant, and delivered him to the plaintiff, from whom he was taken away by the defendant.</p> <p>A copy of the paper writing as follows:</p> <p>“Know all men by these presents, that I, Elizabeth Black, “of the county of Lincoln and State of North-Carolina, for “and in consideration of the sum of five shillings to me in “hand paid by Joseph Black, and also the further "consideration of the love and affection to my son, the said Joseph “Black, I do give, set over and deliver to the said Joseph “Black, my Negro slave named Merry, about 30 years of “age, five and and one half feet high, well made and set, “and very black; which said man slave I do give and "bestow unto the said Joseph Black, and warrant and defend “the property thereof on the following terms and conditions, “to wit: 1st. That although I do now, for the “consideration above mentioned, give and bestow, bargain and "deliver unto my son Joseph Black, my said Negro man slave “named Merry; yet he is not to take him out of my "possession or deprive me in any manner or sort of the use or “benefit of said Negro, until my death, or until I see proper “or fit to give him up or surrender him to the said Joseph. “2dly. That if the said Joseph should at any time get possession of the said Negro, either by my consent or "otherwise; that then and in that case, the use, benefit and labor of “the said Negro shall be due and owing to me, and to be “disposed of at my will and pleasure.</p> <p> </p>

AN indictment against the defendants for Trespass in forcibly taking from the possession of Wright Kirby a Negro slave named Nan.

This was a cause removed from the Court of Equity of Gaston county to this Court for trial. • in 1816 Mary J. Scott, a widow, living in Lincoln county, married John-Moore of the State of Georgia.

<p>The Plaintiff obtained a judgment in the County Court of Orange vs. James Green, for whom the Defendant in this suit was bail; a Writ of Fi. Fa. issued, and a small part of the demand was satisfied; for the balance a writ of Ca. Sa. issued to the County of Orange, to which the Sheriff returned ‘not to be found;’ before the Ca. Sa. issued to Orange, the Defendant informed the Plaintiff, or his agent, that Green resided in the County of Edgecomb, and requested that the process might issue to that County; this was however refused, and when the Defendant made his defence to the Scire Facias, grounded on the aforesaid return, he among other things, relied on this as proof of collusion to charge the bail. Judgment was given for the Defendant upon the plea of nul tiel record to the first Scire Facias, because the Scire Facias stated that the judgment had been recovered against one James H. Green, and the record was of a judgment against James Green.</p> <p>A second writ of Scire Facias issued, and was returned "executed;” and the Defendant pleaded “ Nul tiel record, former judgment, no Ca. Sa. to the Principal’s proper County, collusion to charge the bail, surrender of the Principal, death of the Principal, discharge of the bail by the election of the Plaintiff to sue out a Fi. Fa.” The Plaintiff replies, there is such a record, nul tiel record as to former Judgment, as to the plea of Ca. Sa. &c. Plaintiff replies a Ca. Sa. to Orange, where James Green was resident at the time the writ was sued out against him, and he arrested, &c. Defendant rejoins, that at and before the time of issuing the Ca. Sa. to Orange, the Principal resided in Edge-comb, and the Plaintiff had notice thereof; demurrer to the rejoinder and joinder, replication and issue as to the pleas, collusion to charge the bail, surrender and death, &c. demurrer as to the plea of discharge of the bail by issuing Fi Fa, and joinder. The County Court gave judgment upon the several pleas and demurrers for the Plaintiff; the Defendant appealed to the Superior Court of Law for Hillsborough District, when he withdrew the pleas that the bail was discharged by the election of the Plaintiff to sue out Fi. Fa, surren-der of Principal and death of Principal; and a Jury being impannelled, found that there was no collusion to charge the bail: Whereupon the Court ordered that the plea of nul tiel record, and the plea of former judgment, and replication thereto, and the plea of no Ca. Sa. to the Principal’s proper County, the replication, rejoinder, demurrer and joinder thereon, be transmitted to the Court of Conference for a final determination.</p>

<p>REPLEVIN for a slave which was the property 0? Tryon Smith, in Dec. 1814, when the Sheriff of Bladen1 made a levy on her, by virtue of an execution against said Smith ; and at public sale set her up to the highest bidder at the court house in Bladen, on the 24th of the same month, when she was struck off to the Defendant, the last and highest bidder, at the price of &90 15, the slave being then present. The Sheriff then, at Defendant’s re-qu st, gave him an indulgence for the payment of the money until the next day. The Defendant having failed to pay the money to the Sheriff when called on the next day, for that purpose, agreeably to their previous arrangement, the Sheriff soon after executed a bill of sale for said slave to the Plaintiff, and delivered the negro slave to him, he being the next highest bidder, without having again exposed the slave to public sale to the highest bidder. Soon after, the slave being found in the possession of the Defendant, who refused to give her up on the demand of the Plaiutiff, this suit was instituted. The charge of the Court being in favour of the Plaintiff, a Verdict was found accordingly. Motion for a New Trial on behalf of Defendant, upon the ground that the charge pf the Court was against law, &c. Motion overruled. From which Judgment, an Appeal is taken to the Supreme Court.</p> <p>Questions for the consideration of the Supreme Court:</p> <p>1st. Is the action of Replevin sustainable in this State ?</p> <p>2d. Had the Sheriff a right to adopt the bid of the Plaintiff, after having regularly struck off the slave to the Defendant, as the last and highest bidder, without having again exposed her at public sale to the highest bidder ?</p> <p>3d. Did not the time given for the payment of the money, confirm the sale to the Defendant, and vest thg property in him ?</p> <p>4th. Did th$ right of the slave legally vest in the Plain-, tiff, under all the circumstances as above stated ?</p> <p>took the following positions : 1.That in this action, the Defendant may plead property jn a stranger.*</p> <p>2.The title was in the Defendant, because a day of payment was given by the Sheriff.†</p> <p>3. That the sale to the Plaintiff was void, because private.‡</p> <p>4. That Replevin cannot be maintained, unless a forcible taking is proved §</p> <p>contended, that the property vested in the Plaintiff, as well by the delivery of the Sheriff to him, as because the Defendant could not confirm the bid he made by the payment of the money J this rendered it a nullity, and the Sheriff tyas bopnd to notice the next highest bid.ǁ °</p> <p>Tire action may be sustained for any illegal taking.¶</p>

DEBT for rent. The plaintiff counted that John Sury leased lands to the defendant for twenty five years; rendering and paying pro inde annuatim, durante dicto termine prefato Johan Surry, et assignatis suis, so much rent. John levied a fine of all the lands demited to the defendant to another, to whom the defendant attorned, and the other granted them to the plaintiff, to whom the defendant also attorned: and for rent arrear, the plaintiff brings this suit.

This was an indictment against the prisoner for the murder 'of one Hosea Little, tried before , Heath, J., at Eall Term of Mecklenburg Superior Court, 1864. On the trial --IJingstaff testified, that before, and at, the time of the homicide, he was a lieutenant in the army of the Confederate States ; and in obedience to a written order directed to him, purporting to be from General Gf.

THE following pleas were entered at August session of Halifax County Court, 1810, viz. “Fully administered, no assets, judgments, bonds, &c. no assets ultra, property sold under act of Assembly and the money not yet due.” At April term of the Superior Court, the defendant moved for leave to add, as a plea, “Since the sale continuance, the sale of the residue of the property, under the act of Assembly,” founded on an affidavit, which stated in substance, that he administered…

ACTION of Debt brought on two judgments of 30 pounds each, recovered before a Justice of the Peace. The defendant prayed an appeal, which was granted and security given; but the appeal was not returned to the County Court.

This was a petition exhibited in Wilmington Superior Court, for a distributive share of the es-tate Of Mary M’Allister, and the following facts were agreed upon by the Parties and their Counsel: 1.

<p>THIS was a Petition^ under the Act of Assembly, to recover damages on account of forty-six acres of land, claimed by the Petitioner, as being overflowed by the pond of the Defendant’s mill. The Defendant pleaded Libe-rum Tenem'cntum ; and in support of his plea, produced the will of Christopher Woodward, father of the Defendant, under whom the Defendant claims, as follows, viz.</p> <p>“ I give to Pleasant Woodward, my son, my mill and plantation whereon I now live, also three cows and calves or yearlings, to him and his heirs forever, also my riding-horse and saddle forever.”</p> <p>The Petitioner claimed under the following clause of the same will:</p> <p>a I give to my son Richard Woodward one hundred acres of land, including the Dutchman’s field, also one entry of land containing three hundred and forty acres, including ^the old field which lieth on the South Prong of Middle Creek, also one bed and furniture, also ten pounds worth in cattle, also ten pounds in specie, to him and his heirs forever.”</p> <p>The forty-sis acres are now included in the pond of the mill devised by the first-mentioned clause of the said will ; and are in-luded in the entry devised by the clause of the said will last mentioned-</p> <p>The Defendant did not cifer any evidence that the mill-dam was of the same height when the said will was executed, or at the death of the testator : Nor did the Petitioner offer any evidence that the said mill-dam had been raised since efther of these events.</p> <p>The Jury assessed damages for the Petitioner, subject to the opinion of the Court, on the foregoing statements.</p> <p>In a grant, the construction is in favour of the grantee, because words are to be taken most strongly against the person using them. But in a question between two devi-sees, I can see neither reason nor authority for any construction in favour of the one more than the other. If they are entitled to a favorable construction, so are we; but in conflicting claims, there cannot be a construction in favour of both—therefore there shall be none in favour of either, but a strict construction.</p> <p>By the grant of a house or land, even cum pertinentiis, another house or land does not pass, unless it be parcel.*</p> <p>Every where it passes as incident; it may be accepted if only convenient, and not necessary to the enjoyment.† And this is in conformity with the ancient and well established maxim of law.—Expression semper facit cepere ta? 'itum. e q. Feoffment by the words dedi concessi, in-plies a' general warranty; but if a special warranty is included m the deed, that rebuts the implication of a general warranty. So here, although the mill-pond might have been implied in the devise to the Defendant, yet part of it being given to the Petitioner in express terms, the implication ceases. , Without the forty-six acres, the Defendant would have the mill, as nine-tenths of the mills in the country are held, and as this very mill had been held It would be a strange construction, to take from the Petitioner what is expressly given to him—an entry of 340 acres, and give it by implication to the heir.</p> <p>No principle is better established in the construction of wills, than that the intention of the testator shall prevail. ’J'he rules by which this construction is ascertained, are reduced to no form of words, but depend upon the nature, of the thing devised, and sometimes upon circumstances relative to the testator himself. In the case before the Court, the subject of the devise will carry conviction to $he mind as to vyhat was the intention of the testator, V i give to. my son Pleasant Woodward (the Defendant)' jny mill and plantation -whereon 1 now livef is to be understood from wprds used in common parlance, a devise of not only the mill house, but also that quantity of land, which before that time was covered by the waters of the mill-pond, if this construction did not take effect, the mill would, in a high degree, be useless, and prevent the bounty of the testator, which extended equally to this Defendant as to his other son Richard, under whom the Plaintiff and Petitioner now claims.*</p>

THE Plaintiff stated in an affidavit that he was net worth five pounds sterling, and had no property except such a the law allows insolvent debtors to retain; and that he verily believed he had good title to the land in controversy. The single question reserved for the opinion of the Court was, Whether a person can sue in forma pauperis; which was submitted without argument.

NOY. The case is this: Gulielm Shelley conveyed lands to the use of himself for life, remainder to John Shelly and the heirs of his body, &c. provided that if the said Gulielm Shelley, at any time during his life, shall give, tender, pay or offer to the covenantees, or the survivors of them, or the heir of the survivor, a ring, or pair of gloves of the value of 12d. or 12d. in money, the said Gulielm Shelley then expressing and declaring that the ring or gloves, &c. are…

THE Plaintiff declared in indebitatus assumpsit, for the price of a mare sold and delivered to the defendant, and proved on the trial, that at a public vendue, made by him, on the 25th August, 1808, conducted according to certain terms which were then publicly proclaimed, and made known to the defendant, the mare was put up and struck off to the defendant, at the price of £50 6s. he being the highest bidder; that the property was delivered to him, but he omitted to give bond…

<p>The Plaintiff instituted an action upon the Case against the Defendant in the year 1794, in the County Court of New-Hanover, for the sum of 850l. At March term, 1797, of said Court, the Plaintiff moved to amend his writ, and alter it from Case to Debt, agreeably to the fallowing copy of the minutes of said County Court; “ In the suit Isaac Davis vs. Thomas Gibson, the Plaintiff moved for leave to alter the Writ from Cale to Debt, which was opposed by the Defendant, and it was ordered on argument, by the Court, that the Plaintiff take nothing by his motion ; from which decision said Plaintiff prayed an appeal to the Superior Court, which was granted; and at term 179 of said Court, upon a station for that purpose, the said Court refused permission to alter the writ. At November Term, 1799, the Plaintiff filed his declaration in case, for money had and received to the use of the Plantiff, to which the Defendant pleaded the general issue; and at November term, 1800, on the trial of the said cause, it appeared in evidence, and was proved, that the Defendant had gone in the vessel mentioned in the charter party, to the West-Indies, and sold her for 850 dollars, and received the money, but had paid it to the Captain of said vessel, as the Defendant declared, who, the Defendant said was authorised to receive it, though it appeared in evidence, that the Captain was put in the vessel as Captain by the Defendant : But the Court ordered a nonsuit upon the ground that the Plaintiff’had originally issued his writ upon a sealed instrument, and ought not after-wards to alter the cause of action, which said sealed instrument is as follows:</p> <p>North Carolina, set.</p> <p>“This charter party of assreightment, indented, made, concluded, and agreed upon this 2d day of January, A. D. 1794, and in the 18th year of American Independence, between Thomas Gibson, merchant of the island of St. Bartholomew, of the one part, and Isaac Davis, Pilot of the town of Wilmington, State, aforesaid, on the other part, witnesseth, that the said Isaac Davis, for the consideration hereinafter mentioned, hath granted and to freight lessen, and by these presents doth grant and to freight let unto the said Thomas Gibson, his Heirs, Executors, Administrators, and Assigns, the whole of the Schooner Rambler, of Wilmington, whereof he the said Isaac Davis is sole owner, to proceed from the port of Wilmington, as soon as possible, and to proceed to the island of St. Eustatia, St. Bartholomews or St. Thomas’s, which may be most convenient, the said Isaac Davis to deliver to the said Thomas Gibson, or his assigns, the said Schooner Rambler, well apparelled and fit for sea, and the said Thomas Gibson to man and victual her for the said voyage, and back again to the Port of Wilmington, and to pay to the said Isaac Davis the sum of one hundred Spanish milled dollars for the run to either of the said islands and back again, to him the said Isaac Davis, his heirs and assigns. And it is further covenanted and agreed upon, that the said Schooner Rambler shall not be detained in any of the aforesaid islands, that is to say in her port of delivery, making a provision for Charterer’s privilege of trying markets for the space of 24 hours, in any of the aforesaid islands, more than the space of eighteen days: In cafe of detention, said Gib-son agrees to pay the sum of six dollars per diem, for every such day’s detention. And the said Thomas Gibson doth also further agree to pay to Capt. Robert French, all balance of charter money as specified, and all such demurrage as arises afore-said, on delivery of cargo in any of the above-mentioned islands. And he the said Gibson covenants, and by these presents agrees to indemnify said Isaac Davis from, any penalty or loss which may incur by said vessel being employed in any contraband or illicit trade during the term of charter. And he the said Thos. Gibson doth covenant and further agree to well and sufficiently man and victual the said Schooner Rambler for the said voyage and back again to the port of Wilmington, and for the true performance of all and every the articles, covenants, and agreements before mentioned, they the said Thomas Gibson and Isaac Davis do hereby bind themselves each party to the other in the sum of two hundred dollars, to be paid by either of the parties failing in the performance thereof, or his heirs, to the other party or his assigns. In witness whereof, the said parties have hereunto set their hands and seals the day and year above written.</p> <p>Signed, ISAAC DAVIS, Seal.</p> <p>THOMAS GIBSON, Seal.</p> <p>N. B. We the parties above named do agree to have the said Schooner Rambler insured for six hundred dollars, to pay the insurance one half each party.</p> <p>ISAAC DAVIS, Seal.</p> <p>THOMAS GIBSON, Seal.</p> <p> The questions are, </p> <p>Whether it appears by the record produced and hereto annexed, that the action was founded on the said sealed instrument ; if so, then whether the Plaintiff can alter the declaration which he made in the County Court :</p> <p>Or having made no declaration, can vary the real and true ground of his action.</p> <p>And supporting that he will now be permitted to declare in cafe, whether he has not a better writ;</p> <p>And whether the bail being now liable, he should be permitted to vary his original ground of action of as to charge them.</p>

THE special verdict found that Elisha Pipkin died some time subsequent to the 31st December, 1784, and previous to the 1st January, 1795, intestate, seized of a tract of land containing the premises in dispute, and leaving sons, Joseph, Elisha, Charles and James Pipkin.

THIS Action was tried before Hall, J. at Anson Superior^Court, and was brought on a bond, payable to 'John Hardwick, to which William Johnson is the only ^ J subscribms; witness.

This .cause was transferred to this Court for trial from the Court of fkjuitjr of Forsyth county. The bill wan filed by the plaintiff as executor of A. J. Stafford, and prayed the advice of the Court as to the eon-strnction and execution of Ins will.

<p>The possession of a spot of ground, included in two deeds or patents, (each party being settled on some other part of his land,) is in the older grantee; but if that spot is settled upon, in the settler.</p>

DETINUE for a negro slave. Upon non detinet being pleaded, the case was, that the negro sued for had been given and delivered to the plaintiff in presence of witnesses, and had remained in possession of his guardian for several years. objected that a deed of gift duly recorded, was necessary to complete the plaintiff’s title, under the 7th. section of the act of 1784, cap. 10, the words of whichare: “ And “ whereas many persons have been injured by se cret deeds of gift to…

A prosecution for a conspiracy was commenced in the Superior Court of Wilkes, and removed to the county of Burke, where the defendant was convicted and fined £100 which sum was paid into the office of the Superior Court of Burke. The action is brought by the County Trustee of Wilkes, to recover the money for the use of that county.

<p>One who ha* made a gift of slaves, void by the act <! 1806, (Rev. Code, ch. 66, sect. 12) cannot be estopped to esscrtfhis titló by any act inputs.</p> <p>Nor is he estopped by-the record of a partition of the slaves by a suit, some of the parties to which, being infants, and his wards, sue by him as their guardian.*</p> <p>The cases of Alston vs. Hamlin, 2 Dev. and Bat.' 115, Ármfhld vs. Moore, Bush,, 167, and Dixon, vs. Waters, 8 Jones, 449, cited and approved.</p>

<p>Where Lst. nisu-ation are í>ran,te<1 by a county in t&stathnever resided, they are void : and aVetit'ioa to set w^dismiss» ed*</p>

THIS was a scire facias against an infant who had no guardian, and was issued in order to subject the lands to a debt of the ancestor.

<p>IN this ejectment, a verdict was found for the plaintiff, subject to the opinion of the Court upon a case, the material facts of which are: That T. Dixon being seized of the lands in contest, agreed to sell them to W. Dixon, to which end, he made a power of attorney to C. Dixon. W. Dixon took possession of the lands under the agreement, and contracted to sell them to Thomas Barnett, who entered accordingly; upon which, C. Dixon, intending to execute the power of attorney, did, at the request of W. Dixon, seal and deliver a deed of bargain and sale to Thomas Barnett, as assignee of W. Dixon. The deed was signed by C. Dixon, as attorney in fact for T. Dixon. A judgment was recovered against T. Barnett in the County Court, on which a fi. fa. issued, and was levied upon the land, which, at the Sheriff’s sale, was purchased by the plaintiff, who received a deed, which has has been duly registered. A short time before the Sheriff's sale, Thomas Barnett executed to his son Joseph Barnett, the defendant, a deed of the lands. Joseph entered, and was in possession, claiming title, when the Sheriff sold.</p> <p>The Jury found that the deed, made by Thomas to Joseph Barnett, was fraudulent against creditors.</p>

THE question of law arising in this case was, whether the plaintiff who claimed title under an execution, and sale thereupon by the Sheriff, was bound to produce the judgment ?

This was a Scire Facias brought in Halifax Superior Court of Law, to compel the Defendants to pay a sum of money recovered by the Plaintiff a-gainst Benjamin Waller, whole securities the Defendants were, on an appeal taken from the County to the Superior Court, plea nul tiel record the bond produced in the following words: “ State of North Carolina, Know all men by these pre-sents, that We, Benjamin Waller, Samuel Pittman, and James Slotter, are held and firmly bound unto…

EJECTMENT to recover a house and lot in the town of Wilmington.

<p>If the Ap-pellee, in the SuperiorCourt suffers the cause to g-o ⅛ an^mpíi-etl w*iyer of any objection arising from ness^^h^ap-peal bond. And the Ap-peiiant, in ^y'proceed ⅛ the suit. may,Vn their'" dlScreti0n> upon a proper case, require in^tr*ersec^'</p>

<p>This cause was transferred to this Court for trial from the Court of Equity of Rowan county.</p> <p>"The bill was filed by the administrator, .with the will annexed, of fireorge If orad against tire testator’s widow, and his brothers and'sisters and the children of deceased brothers and sisters.* It sets out a clause of the testator’s will by which he gives-his estate to his wife, the defendant, Sophia, for life, with remainder to the other defendants ; and the same clause provides that the defendant, James, shall hare a certain house and lot given to the defendant, Sophia, upon'his, James, paying to her $4,000 ; and the bill states that controversies have arisen among tbe-defendants concerning the right of the defendant, Sophia, to receive the property given to her, without giving a bond with surety for the benefit of the re-maindermen ; and also' concerning the right of the heirs of James (who is dead) to have the lot ob payment of the $4;000 ; and it is also a matter of .controversy between the administrator of James and his heirs, which of them must pay the money. The plaintiff asks the advice anti direetion of the -Court concerning these several matters.</p>

THIS was an Action of Ejectment to recover the pos» session of the premises of which Defendant was in possess;on The Tury, by direction of the Court, found for j j i j the Plaintiff, subject to the opinion of the Court upon the following facts.

This was an iudictment tried before Rbadk, J., at Pall -Term, 1864, of the Superior Court of Transylvania county.. The indictment .charged John Summey, William Sum-mey, and Samuel Johnston with distilling ■ spirituous liquor from corn. Johnston was not taken. The two #th-' er defendants appeared and pleaded, not guilty.

CERTIORARI.—The defendant had brought two suits against the plaintiff; one in detinue, and one in trespass for false imprisonment. After issue joined, both causes were referred by consent to three abitrators, who awarded that in the action of detinue, Arrington should return to Battle the Negro woman sued for, and her increase, and that Battle should pay Arrington the purchase money.

<p>This cause was transferred to this Court for trial from, the Court of Equity for Cumberland county. -</p> <p>The facts arc stated in the opinion of the Court.</p>

<p>Vil ore a judgment is recovered at law, on a training bond, Equity will not interpose, if no fraud was used, or tbe complainant wss not prevented from making a defence at law.</p>

CASE. The plaintiff declared that he was seized in his demesne of a house and meadow, and he, and they whole estate he had in the house, had, time out of memory &c. had a way from the house to the meadow, and that he had also a way from the house to the King’s highway, adjoining the said house, and over the defendant’s close; the defendant obstructed him therein.

THE Bill prayed an injunction and general relief. Upon the coming in of the answer, the injunction was dissolved, and the case was sent up to this Court, to decide whether the bill was sufficiently answered, so as to warrant a dissolution of the injunction. The Bill, answer and documents referred to were voluminous; but it is presumed that the opinion delivered brings forward enough of the case to render the decision intelligible.

<p>An order to pay money is, in the hands of the drawce, evidence of payment ; otherwise of an order to deliver goods.</p>

THE principle question of law arising in this case was, whether a line shall be extended, so as to reach a natural boundary, called for.

<p>This was an action of Detinue brought in Fay-etteville Superior Court, and the writ was " to answer Anthony Hutchins, of a plea that he render to him the following negro slaves, to wit: a female slave named Milly, and her three children, to wit, Creecy or Lucretia, Simon and Lettice, which he unjustly detains, to his damage of five hundred pounds.” The Plaintiff had a verdict in which the value of each slave was found; and the Defendant’s Counsel moved in arrest of judgment, that no price or value is laid for the negroes named in the writ as being detained.</p>

DEBT against an executor. He pleaded several judgments in bar. The plaintiff replied that those judgments were satisfied and kept a foot by covin to deceive him. The defendant traversed the satisfaction of the judgments, whereupon the plaintiff demurred, for the satisfaction is only an inducement to the fraud and covin. In an action on the case fur. assumpsit the defendant cannot traverse the consideration, but may the assumpsit. Dyer 361.

This was a petition exhibited in Halifax Superior Court, to obtain partition of sundry tracts of land; the Petitioners Rated they are the children and heirs at law of Josiah Sumner, dec. that William Sumner departed this life about the seventh day of May, 1784, an infant under the age of 21 years, seised and possessed of several tracts of land ; that the said William left no child living at the time of his death, or any brother or sister, whereby a certain James Sumner, and…

<p>A Court of Éqtlity will hot interpose^1 Where the ordinary rules of law alfbrd complete and adequate relief For the Object oí Equity is to supply the deficiencies of the law. Therefore, where a person has aright to a ferry, and another sets up a free fer-r m the neighbour-hood, whereby the owner of the ferry loses his profits, an injunction Will not be granted to stay the free ferry, because ⅛ Court of Law may place the owner of the ferry in statu quo.</p>

ON a seire sacias in nature of an audita quærela issue was joined in Chancery, and sent from there to the county palatine of Durham, to be tried, and a verdict given for the plaintiff, and afterwards the record came to the King’s Bench, and the defendant’s counsel took exception, that the issue was not first sent here, that the Judges of this court might write to the Bishop of Durham to try the issue, and afterwards, make return here, that judgment might be given: and for…

THIS was an ejectment brought upon the following title. In March 1717, the lords proprietors granted a tract of land containing four hundred and forty acres, to John Werley : in November 1724, Werley conveyed one hundred acres, part thereof to Jones, and sometime thereafter the residue, being 320 acres, to his son Joshua, who died leaving two sons, Joshua and William and three daughters, Elizabeth, Louisa, and Esther.

<p>This was a writ of certiorari at’ the suit of Major Mal-lett, for the purpose of reviewing the decision of Battm, J., in a writ of habeas corpus sued by the plaintiff against the defendant as commandant of conscripts in this State.</p> <p>J#udge Battle, on the trial before him, ordered the petitioner to be discharged, on the authority of Russell vs. Whiting. ■ - 1</p> <p>The facts of the case are stated in the opinion of Judge Battle.</p>

<p>THE substance of this Bill in Equity to stay proceedings at law, was, that the complainant became bound, as surety for Causey in an obligation to Stringer for 42 dolls. 50 cts. payable in December, 1796. That Stringer removed to Georgia, and Causey to the County of Pitt, about forty miles from the complainant, who in consequence, heard nothing of the debt until 1804, when Balfour presented the obligation and demanded payment.</p> <p>Stringer, after removing to Georgia, died, and the complainant understood, that Ruffin, a man of little worth either in character or property, went there, and in searching among Stringer’s papers found the bond, which he brought back and sold, or pretended to sell, to Balfour. The complainant to avoid a suit, with which Balfour threatened him, gave a new bond for the debt, and took up the old one which he believed still to be due, with which he applied to Causey for payment, who alledged that he had paid the debt to Stringer, soon after it was contracted, and that Stringer had informed him that he had destroyed the bond. Upon this, the complainant commenced a suit against Causey; but having learned since, that the debt really had been paid by him, he has abandoned the hope of recovery, and the bill charges his belief to be, that Balfour knew that the debt was paid.</p> <p>The answer asserts that Ruffin paid a valuable consideration for the bond, and that the defendant also bought it fairly from him for £20, which Ruffin owed him; but not until the complainant had voluntarily agreed to give a new bond, upon a further day of payment being allowed. It denies all collusion with Ruffin, and also notibe of the payment of the first bond, when the second was given. It alledges, that the defendant could have secured the debt which Ruffin owed him, if the complainant had not consented to renew the bond, for that Ruffin was then in possession of property, but has since become insolvent—so that the defendant must lose his money if deprived of the benefit of the judgment. It further insists, that the complainant cannot rightfully claim the interposition of a Court of Equity for facts, which if true, would have formed a defence at law.</p> <p>Upon several issues being made up and submitted to the jury, they found, that the defendant, when he purchased the old bond, had not notice that the debt was paid; but he had full notice of that fact, before he took the new bond payable to himself. They also found that Ruffin was solvent, from January, 1804, till the following April, shortly after which period he became insolvent.</p> <p>The cause was submitted without argument.</p>

<p>Pasch. 2. Car.</p>

This was an action of detinue brought in Wilmington Superior Court of Law, to recover a Negro Slave named Amy Richard Mullington, on the 13th day of May, 1776, made and duly published his last will and testament in writing, and among other things, devised as follows ; I give and bequeath to my grand daughter Lucy Lewis, one negro wench named Moll, that is to say, the said wench only, the children of her body to be disposed of or given, as hereafter mentioned or directed, the…

<p>One partner cannot bind the other by bond.</p>

CASE for these words: Hill is a base broken rascal, and hath broken twice already, and I will make him break a third time. It was moved in arrest of judgment that the action does not lie, because he did not say that he was a Bankrupt. Johnston’s case; Johnston is broke, the question was, whether an action lies with an innuendo that he is a bankrupt. But the parties made it up.

EXECUTOR of an executor was sued for legacies, and pleaded non assets. The plea was rejected in the spiritual court, and a prohibition out of the King's Bench was awarded in King James' time.

EJECTMENT. The land was originally granted to a person who left the state before the year 1771, since which time he has never been heard of. In the year 1780 part or the same tract was granted to a person, whose title hath devolved to the defendant, and in the year 1788 another part of the same tract was granted to another person whose title had likewise come to the defendant.

John Boon, the former jiro* prietor of the Negro in question, made a fraudulent con* veyance of the Negro to the Plaintiff his mother. The Defendant afterwards obtained a judgment against the said John Boon, and caused an execution to issue thereon, which was levied on the said Negro, and at the sale thereof became the purchaser. When the officer was crying the Negro, a person made a bid. The Defendant asked him if he was his enemy.

THE land in question was granted fc*/ the Crown to ^ ° J ' Thomas Locke, by patent, bearing date Feb* 20, 1735* In 1772, the same land (by mesne conveyances! vested - . , ■ r , in Neill McArthur, in fee-simple. In 1775, fhe said Neill ibT‘ rthur took up arms against , . . . ,, . - this State, and joined the public enemies thereof.

<p>This case was as follows ; Some time above the beginning of the year 1796, the Schooner Bellona, a privateer commissioned by the Republic of France, in a cruise off the island of Jamaica, fell in with the Brig called the Sally, loaded in part with sugars and coffee, and in part with American produce. The brig had no register on board, and the privateer took her on the high seas, under the pretence of a prize, carried her into the port of St. Jago,, in the island of Cuba, within the Spanish dominions, and without any regular form of condemnation sold said brig and cargo. Afterwards the said Simpson militated an action of trover against the said Nadeau in the Superior Court of Newbern district, upon the principle, that he was owner of said brig and cargo; that he was an American citizen, and consequently that said brig and cargo were neutral, property, and not liable to capture; and that said Nadeau was owner of said privateer, and as Rich, liable to the Plaintiff for damages by reason of such capture. On the trial, Simpson proved a property in said brig and cargo, and obtained a verdict for 1245l and cost, subject to the opinion of the Court, whether the Court had jurisdiction of the cause.</p> <p>The Plaintiff,who is a citizen of North-Carolina has had his property taken upon the high seas, and it is said he can have no remedy in this Court. If the maritime Courts have not jurisdiction then to do justice, this Court ought to take jurisdiction. To ascertain the proper tribunal before which this question ought to be heard and determined, we must take a view of Admiralty Courts, and they are divided into two, the one called the Prize Court, the other the In-stance Court; the first has power to enquire whether a capture is legal or riot, and to award resti-tution where the capture is illegal. The Admiralty Court does not take jurisdiction because the property has been on the high seas.—In the present case the prize was not carried into a country where a decision could be had—if the vessel had been carried into a French Port, the Court of Admiralty would, on the facts declared in this case, have determined the capture to be illegal, and awarded coils and damages against the captor and the vessel to be restored. If the Federal Courts and Prize Courts of this country have no right of enquiry into this subject, then it clearly results that this Court has a right, and unless it had, the maxim that for every wrong the law provides a remedy, would be evaded.</p> <p>The first process used in Courts of Admiralty, is to seize the vessel, but here the vessel was not within the jurisdiction of the Courts of this country. Let us enquire whether the thing having been done on the high seas, gives jurisdiction to the other branch of the Admiralty Court, called the Instance Court; and I contend, that the latter has a concurrent and not exclusive jurisdiction, and if a Court of common law, has first got the cause before it, it ought to proceed, and in such a case, no prohibition ever did or can issue where the Court of Common Law has the cause before them ; no cafe can be shewn where a cause brought in a Court of Common Law, was abated, because a Court of Admiralty had jurisdiction.</p> <p>I will first shew that this branch of the Admiralty Court cannot have jurisdiction, unless they can proceed in Rem. 1 Com. 392—Godbolt 260. The first process is against the ship and goods. The same doctrine to be found in 3 Dallas 186. The cause here reported was dismissed because the vessel was infra presidia, and the Court could not proceed in Rem; the Prize Courts, have exclusive jurisdiction, because they decide according to the laws of War, and the laws of Nations, and it should be very unsafe to trust the Municipal Courts to decide on those laws. The second branch of the Admiralty Court, i. e. the Instance Court, judges on the municipal laws, and consequently has jurisdiction concurrent with the Courts of Common Law.</p> <p>In all transitory actions, by fiction, the cause of action arising in foreign countries is said to have arisen in the country where the suit is brought, 3 Black. Com. establishes this doctrine, and proceedings of Admiralty Courts are very similar to those in the Municipal Courts, embracing some cases growing out of particular treaties and foreign laws. Formerly complaints were made that the Courts of Common Law had taken jurisdiction of causes arising on the high seas, by a fiction to these complaints it was answered by the Judges of the Courts of Common Law, that no prohibition had ever been granted—4 Co. Inft. 134—that the Prize Courts have no jurisdiction, because the thing is not within their power, and the instance Courts have only a concurrent jurisdiction, with the Courts of Common Law.</p> <p>It has been said that the Plaintiff ought to sue in the Prize Court of France. Was he to do so, he would be told that the subject matter never came within their jurisdiction ; when, therefore, he cannot sue in the Maritime Courts of our own country, and this Court has power to give him redress, it surely ought to do it.</p> <p>I will no shew that for a taking on the high seas, an action will lie in a Court of Common Law, unless the vessel was taken as a Prize—Douglas, 603.—The case here cited proves that the Admiralty Court, has not exclusive jurisdiction, and had it been otherwise, the Court of Common Law would have dismissed the cause. And this cafe further shews the clear definition of the Prize and Instance Courts to be such as I have given.</p> <p>It will be, insisted that the vessel was taken as Prize, and therefore the Courts of Admiralty have exclusive jurisdiction; the case states the vessel to, have been taken on presence of Prize.—The jurisdiction of the Court extends to cases of all descriptions, and will proceed unless it is disclosed that another Court has exclusive jurisdiction, and the objection to the jurisdiction of the Court, put on the Record in proper time, which not being done, it gives the Court jurisdiction and they will proceed, and unless the Court are apprised that it was taken as Prize, they will give judgment—1. Shower 6. 3. Mod. Reports, 194—same case.</p> <p>I insist upon it, even if the ship was taken as Prize, the objection comes too late to oust this Court of jurisdiction, time, Co. Litt. 127, whenever a Defendant en-it ought to have been pleaded in ters a plea which costitutes a general defence, he cannot afterwards be permitted to object to the jurisdiction of the Court, 1. Mo. 181—2 Mo. 273. The jurisdiction of this Court attached on the cause immediately on the Defendant’s pleading the general issue.</p> <p>If a cause is depending in an Inferior Court, it ought to appear by the proceedings, that the cause is clearly within the jurisdiction of that Court, otherwise the judgment will be reversed—but in a Court of general jurisdiction, it is too late to make an objection against the jurisdiction after it is admitted by the pleadings.</p> <p>Admitting that the cause of action here arose on a taking as Prize, yet it ought to be shewn, and they ought to prove clearly that it was taken as Prize, and was a legal capture—and if it be not shewn that it was taken as Prize, then it must be taken to be tresspass. If France and Great-Britain are at war, and the cruizers of one power take the ves-sel of a neutral nation, the taking cannot be held as Prize, but mere trespass; and this action being in trover creates no difference. If it be alledged that the Bellona had a commission from the French Republic, to cruize and make captures; yet it ought to be shewn that the taking was in pursuance of the commission; and she certainly had no power to capture American vessels. What does the commission authorise ? It can only authorise the taking of vessels belonging to enemies, or the ves-sels of neutral nations engaged in contraband trade, and to constitute the taking these as Prize, there must be a condemnation by a proper tribunal.</p> <p>By the treaty made between America and France, whenever a vessel is taken by a French privateer, it must be carried into port to be tried by a French Court; and if the captor does not carry it into a French Court for trial, the taking is to be held a trespass ab initio. By the laws of nations, he ought, to carry it into port for trial, in some Court of competent jurisdiction ; if he does not, the taking is a trespass. This doctrine is to be found in 1. Dallas, 106, and the consequence deducidle from his not doing this, is that he is a trespasser ab initio.</p> <p>By the 13th article of the French treaty, it is expressly stipulated, “In order to regulate what shall be deemed contraband of war, there shall be comprised under that denomination gunpowder, saltpetre, petards, match, ball, bombs, grenades, carcasses, pikes, halberts, swords, belts, pistols, holsters, cavalry saddles and furniture; cannon, mortars, their carriages and beds, and generally all kinds of arms, amunition of war, and instruments fit for the use of troops: all the above articles, whenever they are distined to the port of an enemy, are hereby declared to be contraband, and just objects of confiscation ; but the vessel in which they are laden, and the residue of the cargo shall be considered free, and not in any manner infected by the prohibited goods, whether belonging to the same, or different owner.” It clearly appears from the conduct of Nadeau, subsequent to the capture, that he never intended to have her tried, and that he did not pursue his authority and commission. Whenever a man acts under an authority, and does not pursue it strictly, he shall be taken a trespasser ab initio. 6. Carpenter's Case, 2. Stra. 1184.</p> <p>The facts in this case, out of which arises the question now submitted to the Court; in a few words, are these:</p> <p>The Bellona privateer commissioned by the Re-public of France, in a cruise off the island of Jamaica, sell in with and captured the brig loaded in part with sugar and coffee, supposed to be the produce of the British plantations, and without a register on board to designate the country to which she belonged. Under these suspicious circumstances, the privateer took her as and for a prize, carried her into the island of Cuba, and sold vessel and cargo without the formality of a legal trial or condemnation.</p> <p>The Plaintiff, who was owner of the brig and cargo, instituted an action of trover against the Defendant, owner of the privateer, upon this principle, that the Defendant is owner, is liable for the acts of the Captain, and as the Captain illegally, took,the brig and cargo, the presumption in law, is, that the same came to the hands of the Defendant, and consequently that he is guilty of the trover and conversion charged in the declaration.</p> <p>The Jury gave a verdict in favor of the Plaintiff, subject to the opinion of the Court, whether it has jurisdiction of the cause; and on behalf of the Defendant, I am to shew that it has not. This principle I shall endeavour to establish upon two grounds.</p> <p>1. That the privateer having acted under the orders, and in conformity to the existing regulations of its own government, the owner cannot be made personally liable in any Court of this country, to a citizen of a neutral country, for any damaged this neutral may have sustained by reason of a capture, however contrary to the law of nations this capture may have been. It is purely a matter of government, and the injured party must, apply to government for redress.</p> <p>2. Admitting, however, that there are Courts in this country competent to give redress, and to which the Plaintiff might have applied for relief, I contend that, the Federal District Admiralty Court has sole jurisdiction in the present case, and that a Court of Common Law can take no cognizance thereof, but that the Admiralty Court alone has jurisdiction, exclusive of every Common Law Court whatsoever.</p> <p>In respect to the first point: The French government conceiving the interests of their nation materially affected, and the safety of their commerce endangered in some essential particulars, by the operation of some clause in the treaty entered into between this country and Great-Britain, passed a law authorising their cruisers and armed vessels to capture neutral, and particularly American vessels, having on board any article of British manufacture, or of the growth and produce of their colonies, &c. Under the authority of this act, the privateer captured the Plaintiff’s brig, justified in such capture by the other circumstance, to wit, the want of a register. If this privateer then has simply pursued the orders of its own government, and in consequence thereof, the Plaintiff has sustained an injury, I apprehend that it is not in the power of any Court in this country to grant relief. Neither ought a Court of Judicature to take cognizance of such a case. Application should be made to the Executive, by whom compensation will be demanded from the offending nation.</p> <p>It would be strange construction of the law of nations, and the thing impracticable in itself. were each and every individual of that country by whom a capture has been made, liable to the claims of those whole property has been taken upon the high seas, which country has thought proper to pass a law for that very purpose.</p> <p>If the government to which the sufferer belongs, cannot procure justice from the hostile nation, re-prisals would be justifiable upon the principles and for the reasons laid down in the case of Hughes and Cornelius, 2. Show. 232.</p> <p>One important object of our mission to France, was to procure compensation for spoliation and illegal captures. It is not to be presumed that our envoys would demand, much less that the French government would consent to a double satisfaction ; that is to say, that each injured individual, in a court of this country, should be permitted to obtain satisfaction for his particular damage, and afterwards be entitled to the same amount, through the medium of a treaty. Besides, the Courts of the several States, not bound by the law of nations, nor by the decisions of each other, might and most probably would decide differently upon the same subject, by means of which, infinite confusion would ensue, in consequence of such contrary adjudications.</p> <p>2. But admitting, however, that there are courts in this county, competent to give redress, I contend that in the present case, a Court of Common Law has no jurisdiction whatsoever, not even a concurrent jurisdiction ; but on the contrary, that a Court, of Admiralty is the proper tribunal to which the Plaintiff ought to have applied for relief; that, it has complete and sole jurisdiction, exclusive of all Common Law Courts whatsoever.</p> <p>There is no principle more firmly established, no point of law better known and understood, than this, that a Court of Common Law cannot determine a question of prize or no prize; and further, if the principal taking was as prize, a Court of Common Law cannot entertain jurisdiction of any incident connected with it. On the contrary, if the Admiralty had jurisdiction of the original question, they must necessarily determine every circumstance incident thereto.</p> <p>This has been settled by a series of decisions for ages, and the doctrine has never been shaken even by a single authority. Molloy, new ed. 57, 58, 59, 85. 1. Lord Raymond, 271, Cro. Eliz. 685 1. Lev. 243. v. Mod. 340. Doug. 594. 3. Term Rep. 323. 3. Blac. Com. 108. 1. Dallas 221. 2. Dallas 160. 3. Dallas 6, 54. 4. Term Rep. 385, Carth 398. 2. Keb. 360.</p> <p>Upon the principle, then, that the law is as I have stated it to be, it only remains to examine whether the present case is virtually, as well as in express words, within the authorities cited. This will instantly appear by referring to the facts : The Bellona privateer, commissioned by the Republic of France, employed in an hostile manner against the subjects of Great-Britain, between whom and the citizens of France an open war existed, in conformity to the laws and regulations of its own government, upon the high seas, took the Plaintiff's brig as and for a prize. The Plaintiff, who claims to be an American citizen, and consequently a neutral, states that this brig and cargo, being neutral property, were not, by the law of nations, liable to capture, and therefore he has brought an action of trover at common law, to recover dama-ges for the tort.</p> <p>What then are the Court called upon to decide? Before they can sustain this cause, and render judgment for the Plaintiff, they must first decide upon the validity of the capture; they must first determine the taking to have been illegal, and of a necessary consequence, pronounce an opinion upon the question of prize or no prize.</p> <p>If the captors were authorized and justified in taking the brig ; if the really was liable to capture, and was a good prize, then it is evident, that the Plaintiff ought not to recover upon the intrinsic merits. But whether the captors were authorised and justified in taking the brig or not, whether the capture was legal or not, and whether she was a good prize or not, are questions, I undertake with submission, to say, never were determined in any Court of Common Law governed upon principles similar to ours; but such cases in every instance have been uniformly declared cognizable in a Court of Admiralty alone.</p> <p>View this cause in the gross or in the detail; bring it forward in any form of action whatsoever, whether trover or trespass; analyse it in all its parts, and under every circumstance, still this great and important question, that is to say, Was the Plaintiff's brig a legal prize or not, will stand forward, exposed and distinguishied, as the most prominent feature of the whole case.</p> <p>Let the action be what it may, yet this previous question must be first disposed of, before the Plaintiff can be entitled to a judgment. If this Court render judgment for the Plaintiff, they at the same instant pronounce the capture to have been illegal, and the brig no prize. And if in any collateral action, such a question can be determined in a Court of Common Law, the Admiralty Court, by a fiction, may be deprived of jurisdiction in every instance.</p> <p>It is highly reasonable that such exclusive jurisdiction should be vested in the Admiralty Courts, and it is founded upon maxims of the best policy. Sovereign, independent States acknowledging no superior. must necessary resort to some tribunal governed by laws and usages, which possessing no force but by the consent of all, must, when that consent is obtained, necessarily be binding upon all. This consent is the law of nations, and this tribunal the Admiralty Court, governed by the law of nations, and not by the municipal law of any particular Kingdom or State; for the municipal law is not binding upon any but those who belong to or reside within the limits of such particular Kingdom or State; whereas the law of nations is binding upon the whole world, for the whole world are parties to, and bound by the decrees of an Admiralty Court.</p> <p>From these observations, and many others to the same purpose, that might be adduced, I hope I may with confidence conclude, that this Court as a Court of Common Law, has not jurisdiction of this cause. Because in this case, is necessarily involved a question of prize or no prize, which with all its incidents, are exclusively cognizable in a Court of Admiralty</p> <p>Many objections have been raised to the application of the foregoing principles to the present case, which it will be necessary to examine. These objections may be classed under the following heads.</p> <p>It is stated by the counsel for the Plaintiff,</p> <p>1. That the Federal District Admiralty Court is not competent, and does not possess sufficient power to grant the Plaintiff adequate relief.</p> <p>2. That if the Admiralty Court possesses any jurisdiction, it must be as a Prize Court, and not as an Instance Court. That as a Prize Court, it cannot proceed, unless the subject matter, that, is to say, the Prize itself, he within the reach of the Court, for the proceedings are in rem and not in personam.</p> <p>3. That the Captors did not carry the prize infra præsidia, neither was she legally condemned, consequently the captors are trespassers ab initio, and liable to the original owner in an action of trespass or trover in a Court of common law.</p> <p>4. That the courts of common law have concurrent jurisdiction with the Admiralty Courts. And although the Superior Court of common law will frequently grant a prohibition to the Admiralty Courts ; yet such common law Courts will not send a cause originally instituted before them, to be tried in the Admiralty.</p> <p>5. That the defendant ought to have pleaded to the jurisdiction of the Common Law Court, and could not take advantage of this Court’s want of jurisdiction under the plea of not guilty.</p> <p>With regard to the first objection, I do not hesitate to declare, that if the District Admiralty Court had not competent jurisdiction, and possessed no power to afford relief in the present case, that a Court of Common Law ought to hesitate some time, before it should pronounce that the plaintiff must go without remedy. But on examination, it will be found that the Admiralty Court possesses full and ample power for this purpose. It is enacted in the 9th section of the judiciary Bill, that the Admiralty Court shall have exclusive original cognizance of all civil carries of admiralty and maritime jurisdiction. The word civil is here used in a sense opposed to criminal, and embraces every cause cognizable by the tribunal, either on the prize, or instance side of the court, 3 Dall. 12 13.</p> <p>As to the second objection, it is laid down by the Supreme Court of the United States, in the case of Glass et al. vs. the floop Betsey et al. 3. Dall. 16, that the Admiralty Court considered either as an instance or a prize Court, possesses all the powers of an Admiralty Court ; and it will appear, that there was no circumstance in the present case which could have prevented the plaintiff pursuing his remedy in that court to the utmost extent of satisfaction.</p> <p>In the first place, in order to obtain a decree for damages, it is not necessary, as I apprehend, even on the Prize side of the Court, that the subject matter, that is to say the prize itself, should be within the reach of the court. In some cases it would be impossible, and in others impracticable.</p> <p>Suppose a privateer, in a manner obviously illegal, should capture a neutral vessel and order her to port, and on the passage the prize should be lost—in this case it would be impossible to proceed in rem. or bring the subject matter before the court ---and yet I conceive there can be no doubt, but that the original owner of the capured vessel, might proceed, by libel, against the captors and recover ample damages for this illegal taking, as completely as if the prize were in the hands of the Marshal of the Court.</p> <p>Again, suppose the captors should take a ves-sel as prize, and sell her in some foreign country, without any regular condemnation, and so contrive, that she should never come within the reach of the Court. In this case, although the subject matter is still in existence, yet by reason of the illegal conduct of the captors, the original owner is entirely prevented from pursuing his claim in rem. and if the doctrine contended for by the plaintiff’s counsel be correct, the former owner can never be entitled to satisfaction in this case, although he is deprived of the means, by the captor’s own wrong, which the law will not permit.</p> <p>Upon an examination of the authorities and the practice of the Admiralty Courts, it seems evident, that in order to entitle the injured party to recover damages for an illegal capture, it is not necessary that the subject matter itself should be before the Court—Though it may be necessary where restitution is prayed for.</p> <p>In cases where damages alone are demanded, the practice sometimes is, to issue a monition and notify the captors to bring the prize into Court. —Carth 398.—And upon this, whether it is brought in or not, the complainant goes on to a decree.</p> <p>In many cases this formality is not required; and it is clearly laid down in the suit of Le Caux vs. Eden—Doug. 594, that damages may be reco-vered in the Admiralty Courts even for a personal injury sustained in consequence of a capture. In this case there was not the least necessity that the prize itself should be in Court : neither were the proceedings in rem. but against the captors per-sonally—so in every instance where damages alone are prayed for.</p> <p>In Clerke’s Prax. Cur. Adm. it appears that the first process usually is, by an arrest of the defendant’s person, who is then compelled to enter into a stipulation in the nature of bail, or a recognizance—3 Black. Com. 108,—And being in Court by this process, the complainant is entitled to proceed for such damages as he can make appear he has in any manner sustained either in his person or goodss by reason of this illegal capture.</p> <p>Then I apprehend, both from the reason of the thing and by authorities, I have shewed that the District Court possesses all the powers of an Admiralty Court, either as an instance or a prize Court. That although the subject matter, the prize itself was not and could not have been before the Court, yet the present plaintiff might have proceeded in the Admiralty Court against the defendant in personam, by arrest, and recover am-ple satisfaction for any injury he had sustained— consequently the District Court was competent to afford him full and adequate relief.</p> <p>As the cause now is before the Court, there is nothing contained in the third objection which can in any manner avail the plaintiff.</p> <p>The captors carried the prize into a port in the Island of Cuba, under the dominion of the King of Spain, who then was in an alliance offensive and defensive with the French Republic, and both at open war with Great-Britain. And nothing is more usual, than for two powers so connected to permit their cruisers respectively to carry their prizes to, and condemn them in each others ports. This privilege was granted by France to Ameri-can privateers, and was the constant practice be-tween the two countries, during the revolutionary war.</p> <p>Upon this principle then, the plaintiff’s brig was carried, as a prize infra præsidia.</p> <p>It does not follow, that because a prize is not legally condemned, that the captors are trespassers ab initio; or that they are trespassers in any res-pect whatever.</p> <p>The law certainly is this, whenever a vessel has been legally taken, as in the case of a neutral loaded with contraband goods, or endeavouring to enter a port in a state of actual blockade, or an open enemy, the captors are not trespassers in any sense of the word—neither can an action in any form be maintained for this capture.</p> <p>If the prize has not been legally condemned, the consequence will be this : the original owner may seize her, in the hands of any person, and at any distance of time, wherever the may be found: for until a regular condemnation takes place, the owner is not divested of his property. But still an action of trespess cannot be maintained for the capture, although no condemnation followed; because the taking was at first legal, And the case of the six carpenters, and other cases cited by the plaintiff’s counsel, do not in the smallest degree apply to the case of the legal taking of a vessel as prize.</p> <p>The commission granted to the privateer, authorizes her to take the vessels, goods, &c, of the enemy, and of course the vessels, goods, &c. of those who, by the law of nations, have placed themselves in the situation of an enemy. Then, whether after a legal capture the prize was carried infra presidia, or whether she was legally condemned or not, are circumstances of which the original owner cannot take such an advantage as will enable him to maintain an action of trespass—he can only regain possession of his property, which, for want of these formalities, has never been altered, and of which he has never been legally divested.</p> <p>But admitting, for the sake of argument, that the plaintiff’s brig, the prize, was not carried infra præfidia, and was not legally condemned, and consequently that damages are recoverable on that account, we are then brought back to the original ground of discussion, and that great question still remains behind : Can a Court of common law take cognizance of such a question, and award damages to the plaintiff?</p> <p>If it be true, as the plaintiff's counsel contend, that unless the prize be carried infra præfidia, and there regularly condemned, the captors are trespassers ab initio, and liable for damages, then I ask, do not these important facts form a material part of the question of prize or no prize ? Can this or any other Court decree damages in such a cafe, unless it be first ascertained whether the law requires the prize to be carried infra præ-fidia, and also whether it requires a regular condemnation, in order to vest the property in the captors ? And let me further ask, would not this investigation necessarily lead the Court to decide upon the validity of the capture, and consequently determine, not collaterally and incidentally, but in the very first instance, the question of prize or no prize ?</p> <p>To me, it appears impossible to separate the supposed trespass from the principal taking as prize. This would be to divide, between two different jurisdictions, the same entire transaction.</p> <p>If all this be true, then I apprehend this third objection of the plaintiff is entirely removed, upon the principle before established, viz. that a Court of common law cannot take cognizance of a case necessarily involving in it a question of prize or no prize.</p> <p>The fourth objection requires but a short an-swer. Every authority which has been introduced, and many others which might have been read, lay it down as clear, express and settled law, that in every case wherein the plaintiff claims damages for a tort, committed upon the high seas, if it appear that the injury complained of, was occasioned by or happened in consequence of a taking as prize, that the Courts of common law have no kind of jurisdiction whatsoever, neither of the principal question, nor of any circumstance or incident connected with, or arising out of it. On the contrary, that the Admiralty Courts have sole and exclusive cognizance, not concurrent, but exclusive of all common law Courts whatsoever.</p> <p>And the cases of Le Caux vs. Eden, Doug. 594, and Ross et. al. vs. Rittenhouse, 2 Dall. 160, completely shew, that although a suit be originally instituted, even in the highest Court of common law, yet if it appear to be a cause of admiralty jurisdiction, they will dismiss it and send it to its proper tribunal for adjudication.</p> <p>With regard to the fifth objection, I have to observe, that the present cause is an action of trover, and it has been repeatedly ruled, that the defendant, in an action of trover, can plead nothing except “not guilty and release” every special plea amounting to nothing more than the general issue. Further, the declaration is in the usual form, and in a plea to the jurisdiction, it cannot appear, either by the declaration or plea, whether the Court has jurisdiction or not, until the testimony is gone into, and then it would have been too late to take any advantage under the plea.</p> <p>But without having recourse to the circum-stances of this particular case, so far as it involves the question of right, pleading, it is sufficient for me to shew that the law upon this subject is al-ready settled.—Lord Chief Justice Lee, in the case of Rous vs. Hazard, lays it down as a clear principle of law, that is to an action of trespass for taking a ship as prize, the defendant pleaded not guilty, the plaintiff could not recover.</p> <p>This doctrine is recognized and illustrated by the Court in the case of Le Caux vs. Eden—and Justice Buller observes, that upon the general plea of not guilty, no action can be maintained, where the question relates to prize; and for this reason; That if the taking was a trespass at common law, it would have been incumbent on the defendant to have pleaded specially—but that a capture as prize was not a trespass at common law, and therefore under the plea of not guilty, the plaintiff could not recover.</p> <p>This principle is confirmed by Lord Kenyon, in the case of Owen vs. Hurd, 2 Term, Rep. 644, who declares that even the consent of parties cannot give the Court jurisdicton, where it had none before ; and that the Court is bound to take notice that it had not jurisdiction.</p> <p>Agreeably to these decisions was the cause of Plaice and Campbell determined by the Circuit Court at Raleigh : It came out in evidence that the plaintiff’s right was founded upon a capture on the high seas as prize. Immediately upon this discovery, the Court ordered the cause to be dis-missed, and said that they were bound to notice their want of jurisdiction, and that it was not ne-cessary, in that case, to plead it.</p> <p>If, however, this should be deemed an insufficient answer, I have to remark, that the plaintiff is precluded from taking any advantage for the want of this plea: For whether this Court has jurisdiction of this cause or not, is the very question which the jury, by their verdict, have reserved for the opinion of the Court—And the question now before the Court, is not whether the defendant was bound to plead to the jurisdiction, but whether the Court in fact has jurisdiction.</p> <p>Therefore, as the case now stands, it is totally immaterial whether the plea was entered or not.</p> <p>Before I conclude, it will be necessary to examine one authority, upon which the plaintiff has very much relied, to prove that, the Court has jurisdiction. It is the case of Beake vs. Tyrrel, 1 Show. 6. And it is there stated that trespass at common law will lie for the recovery of damages in taking a ship on the high seas as prize.</p> <p>Did the facts in this case warrant the opinion of the Court, and justify the use of expressions in that broad and extensive manner which those expressions seem to import—yet I might assert, and with confidence too, that one solitary authority ought not to weigh against a series of decisions to the contrary; and those decisions made too, many years afterwards, when the learning upon maritime affairs, and the doctrine of admiralty jurisdiction, became much better defined and understood.</p> <p>But there is not the least occasion to resort to such reasoning, for upon examination it will appear, that this case, so far from impeaching the doctrine and undermining the ground upon which I stand, will support both, and be found in an exact line with all the authorities cited.</p> <p>This case is also reported in 5 Mod. 194, Comb. 120. And upon a review of the whole it appears. that by a charter granted to the East-India Company, they had an exclusive right to trade to the East-Indies, and that every ship found trading within the limits of the charter, without a licence for that purpose from the company, became liable to forfeiture.</p> <p>It further appears, that the plaintiff was owner of a ship, and that this ship, as an interloper, was seized by the defendant, captain of an armed vessel, for a breach of this clause of the Company's charter, in trading within these limits without a licence—and in consequence of such sei-zure was condemned as forfeited to the Company, in some one of the Company’s Courts, erected by virtue of their charter.</p> <p>The plaintiff instituted an action of trespass against the defendant to recover damages for this capture, and the action was held to be maintainable in a Court of common law—and clearly it was so—but the confusion arises in calling this seizure a prize—for it was nothing like a prize in any one particular.</p> <p>A right to take a vessel as prize is founded up on the jus belli, and never permitted except during a state of actual war.</p> <p>At this period no war existed; it was the case of an English armed vessel taking an English merchant ship, during the time of a profound peace, and procuring a condemnation in the private Court of the East-India Company—a Court, not governed by the law of nations, which is binding upon all nations, but erected under the authority of a private statute, and of whose proceedings and decisions the King's Courts were not bound to take the lead notice. Therefore it was incumbent upon the defendant not only to plead all these matters specially, but also to prove the truth of them, and also to shew that the Court in which the ship was condemned had competent jurisdiction; which he failing to do, judgment was given against him.</p> <p>The particular circumstances of this case easily account for the observations of Chief Justice Holt, who in delivering the opinion of the Court says, “ It doth not appear how this ship came to “ be a prize—it doth not appear that there was any cause to seize her as such, nor shewn that " there was any war—it is not shewn whose Court “ of Admiralty it was, nor before what Judge.”— Questions, that the learned Judge never would have made, had the ship been taken jure belli, and, condemned in a Court of competent authority.</p> <p>The whole of this shews, that this vessel was not taken as a prize in the sense we use the term: at this day—but seized as forfeited for a breach of the charter and the revenue laws of the Company.</p> <p>It is in principle the same with the following case :—During the suspension of our intercourse with France and her colonies, the President was authorized by act of Congress to grant permits to certain vessels, to go under certain restrictions to the French West-Indies.</p> <p>Suppose then, one of our armed ships should have met an American vessel trading between the French Colonies and the United States, without a permit,—should seize and bring her in for condemnation—I ask, in what Court would the proceedings be? Undoubtedly on the common law side of the Federal Court, and she would be considered not as a prize, which can only be made in time of war, but as a vessel forfeited for the breach of a particular statute—And were the owner of this vessel disposed to institute a suit for this taking, the action would be cognizable in a Court of common law, agreeably to the above case in Shower.</p> <p>This decision is in unison with the opinion of the Court in the case of Le Caux vs. Eden, and is the very case which Lord Chief Justice Lee had in view when he dated, that for taking a ship on the high seas trespass at common law would lie, but not when a ship is taken as prize.</p> <p>Considering this as a fair explanation of the case, and sanctioned by authorities, I feel no hesitation in saying, with submission to the Court, that this case, so much relied upon, will not support the ground upon which the plaintiff’s counsel has built his argument—That so far from proving that the Courts of common law have cognizance of the question of prize, it clearly shews that the Court entertained jurisdiction of that, particular case, for the express reason that the vessel was not taken as prize, but merely forfeited for a breach of the Company’s charter—And there is no doubt but that the Courts of common law have exclusive jurisdiction of all cases of penalties and forfeitures, and every question founded upon, or arising out of them.</p> <p>Having now, as I conceive, fully answered the objections set up by the plaintiff, I have only to add, that it seems evident that a Court of common law cannot take cognizance of any cause in which is involved the question of prize or no prize, and have endeavoured to shew that the present case is completely of that nature, and that judgment cannot be rendered for the plaintiff here, without first deciding upon the validity of the capture, and declaring the prize to have been illegally taken, which a Court of common law has no power to do.</p> <p>I have also endeavoured to shew, that the District Court has full and adequate power to grant relief, and that no impediment existed which could have deprived the plaintiff of his remedy in that Court.</p> <p>And as the plaintiff has clearly mistaken his remedy, I pray that the cause may be dismissed for want of jurisdiction in this Court to sustain it.</p> <p>The great question in this cause is narrowed to a single point, viz. Whether a Court of Admiralty has exclusive jurisdiction or not.—All the authorities shew, that the Instance Court of Admiralty has concurrent jurisdiction; and those which say they have exclusive, are referable to the Prize Court. The Prize Courts have exclusive jurisdiction, because they proceed in rem.—the Prize Court can never proceed unless the thing is within their power.—There can be no occasion to apply to the Government for redress, when the person doing the injury comes within the jurisdiction of the Court Of Admiralty on the Instance side, and consequently, as I contend, within the jurisdiction of this Court.</p> <p>Suppose the vessel had been brought into Newbern, would Simpson, in order to recover damages, have his own vessel seized—certainly not; he might have proceeded against the person, and the Court of Admiralty would have been competent to give relief—2 Dallas 165—The question whether prize or no prize being at rest, a libel might be exhibited for damages, by reason of the illegal capture.</p> <p>If our Courts of Admiralty are both Prize and Instance Courts, then this case comes completely before them, taking it in either point of view, or whether the proofs be in rem or in personam.</p>

IN debt sur accompt, and judgment in the King’s Bench; the original writ had Devon and the declaration and subsequent process Exon, which is another county. On diminution alledged, the writ of Devon was certified, and it was now prayed that judgment be therefore reversed.

<p>EJECTMENT. The question in this case was, whether the land in question, which was a triangular piece, was included within the bounds of Jefferie's patent, under which the plaintiff claimed.</p> <p>This patent began on Fishing-Creek, then East, 320 poles, along Pollock's line, to Pollock’s corner, thence North to Bryant’s; then along Bryant’s line, 320 poles to the Creek. A North course from Pollock’s corner intersects Bryant’s line, at the distance only of 130, instead of 320 poles from the Creek, and at a point 190 poles from Bryant’s corner.</p> <p>The plaintiff’s counsel contended, that from Pollock’s corner to Bryant’s described a line from one corner to the other.</p> <p>The defendant’s counsel on the other hand insisted, that the line described in the patent, being from Pollock’s corner North, ought not to be departed from ; that the words of the patent were as well satisfied, should the line from Pollock’s corner terminate at Bryant’s line, as if it terminated at Bryant’s corner. He relied upon the case, of Bustin versus Hill, relative to the same case, where Judge Williams had so determined. Haywood’s Rep.</p>

AN administrator accounted before the Ordinary, and a creditor took exception, that he did not pay as much as he ought to: and a prohibition was prayed, because he proved it by his own testimony; and he he was execommunicated for default of proof.

<p>LITTLETON prayed a certiorari to remove an indictment for murder in Montgomery, in Wales, of one Cadwallader, who was killed in removing a force by order of the President of the Marches: He said that on account of the great influence of the persons concerned, judgment could not be had there, and he had a day given him.</p>

<p>BANKS took exception that the pluries cap. on which the defendant appeared, was dated the 21 Julii and returned Tres Trin. So the return was before the cap. and the alias cap. was returned 10 Julii. Now Trinity term is appointed by Parliament: and there is no such term on 21 Julii. So it was awarded out of term.</p>

TRESPASS for chasing sixteen sheep with a dog in a place called Bessils, in such a vill. The defendant pleads not culp. and afterwards as to the chasing, says that the sheep were on his own land, damage feasant, that his land his close Bessils, without being separated by any fence or hedge, and that with a small dog, he chased the sheep out of his own land, in said Bessils, and the dog, contrary to his will and inclination, chased them on Bessils per paululum tempus.

IN these ejectments, the plaintiff declared for the whole tract of land, and gave evidence of a title to an undivided moiety. that he was not bound to declare for the exact quantity he bad a right to recover ; but that it was sufficient if he proved a title for the same, or any less quantity than that stated in the declaration.

REPLEVIN. The defendant avowed that the Dean and Chapter of Westminster were seized in jure collegii, (without saying of what estate) and being seized, made a lease of 99 years to one Wade, who leased it to the plaintiff for part of the term, rendering rent. Wade made his wife executrix and died, and the for rent arrear after his death avowed, and Newman as her bailiff made a conizance, whereupon the plaintiff demurred generally. 1.

TRESPASS, assault and battery, in which evidence was offered of a provocation given by the plaintiff some time before the assault.

THE plaintiffs were entited by the will of Foster, deceased, to a considerable part of his property, in the event of his widow, Mary Foster, the now defendant, marrying again. The bill charged that she was married to the other defendant, which they severally denied by their answers.

<p>Where the Defendant, an administrator, is fixed with assets, byjtlie ‘finding1 of a Jury, and execution issues* on which •A*ulla bona is returned, the next proper process is a sci.fa. and not a special^i/a.</p>

THIS was an action for a malicious prosecution, in 7 ■ c-7 • , -r» • .>v i taking out a otate s warrant against the rlaintifl and one Joseph Garrett, charging the latter with perjury, and the former with subornation of perjury.

IN this ejectment, it was proved that Walker had sold the land in question to the plaintiff’s father, and had given him a bond, conditioned to execute a title at a future day ; at the same time, the father declared by deed, that the land was purchased for the plaintiff, his son.

<p>The representative of a partner cannot be sued while there is a surviving partner.</p>

DEBT against Sir George Baker, executor of S. B. on a bond executed by the testator, defendit vim et injuriam &c. et dicit quod scriptum predictum non est factum suum. Henden. This is bad. For suum refers to the defendant, and the deed is alledged to be his deed: and no mention is made of S. B. Intrat. T. 1 Car. rot. 280. Judgment for the plaintiff.

<p>IN a collateral issue made up under the direction of the court, between the heir and administrator, the latter in his account against the estate had raised a charge, for his trouble and services, in performing the duties of an administrator. Upon the question whether such a charge was proper.</p>

<p>This was a writ of certiorari for the purpose of review.-ing the judgment of the Chief Justice in a writ of habeas corpus, sued .out by Matthew Johnson and returned before him. The Chief Justice discharged the petitioner.</p> <p>The facts of the case are stated in the opinion of the Court.'</p>

<p>THE Defendant in this case, was, at the time of filing the bill, a resident of the State of Tennessee, and publi-caiion at the last term was ordered and duly made. Since that term, the .Defendant died, leaving his children fants, who are his heirs at law. The bill is to foreclose a mortgage, and the infant heirs reside in Tennessee. It _ is referred to the Supreme Court to determine, Whether the Court can appoint a Guardian to answer? And if not, whether the Complainant can proceed further, and . , ' , in what manner ?</p>

ONE Bassage was appealed by a woman, for the murder of her husband with a quart pot. Goldsmith. If he is not found guilty of murder; the jury cannot find him guilty of manslaughter. They may. Sir Christopher Blunt’s case. Bendl. 142.

THIS case was sent to this Court from the Equity side of Cumberland Superior Court, to obtain an opinion on the question, Whether the deposition of Rooert Rowan, taken as evidence in the cause, ought to be read. The _ ° . facts were, that it was taken before a single person, but had been read many years ago in the hearing of the Court, at time the witness was dead. If the deposi.ion is disallowed, the evidence must be lost.

A MASTER brought his action and declared quod consuetudo regnis suit that hosts should keep the goods of their guests ubi hujusmodi hospitii tenentur transeuntes and shewed that one Rowly, his servant, lodged in the inn of the defendant, who was a common hostler, and had with him certain goods of the plaintiff, his master, which through negligence were stolen: *Verdict for the plaintiff. Boulstred moved in arrest of judgment. 1.

<p>THE prisoner was indicted upon the act of 1779, cap. 11, for stealing a male slave, the property of the prosecutor, and was thereof found guilty by the verdict of a jury. The words of the act are “that any person or persons who shall hereafter “ steal, or shall by violence, seduction or any other “ means, take or convey away any slave or slaves. “ the property of another, with an intention to sell “ or dispose of to another, or appropriate to their “ own use such slave or slaves, and being thereof “ legally convicted, or shall upon his arraignment “ peremptorily challenge more than thirty-five jurors, or shall stand mute, shall be adjudged guilty “ of felony, and shall suffer death without the benefit of clergy.” Upon a motion to arrest the judgment.</p> <p>that the offence of stealing a slave was unknown to the common law, since it did not recognize the condition of slavery, and also because larceny could only be committed of inanimate or irrational subjects ; whereas a slave possesses the faculty of reasoning and the power of volition like other men : hence, if carried away with his own consent, it is seduction, if without his own consent, he can declare his owner and be restored to him. A slave cannot like the other subjects of larceny be concealed for ever, from the enquiries of his owner. Neither by the Roman law, nor by that of any other country where slavery has prevailed, could thest be committed of a slave; and this principle is expressly recognized by the common law, with regard to villeins.</p> <p>If therefore, this offence never hath been felony before the passing of the act of assembly upon which the prisoner is indicted, it follows, that it is not felony, unless done under all the circumstances specified in the act, and annexed to it, as forming a part of the crime: one of these is omitted in the indictment. The Judges of a free country are emphatically bound to decide upon penal laws, especially those of the capital kind, according to the letter. They may perhaps regulate the construction by the spirit, where the letter comprehends a case manifestly not within the meaning of the legislature; but they will never extend the act by construction, to make a case punishable under it, which the letter does not reach. Upon the strict adherence to this rule, every citizen must depend for his safety; and for the protection of his life against any attempt to deprive him of it, founded on the pretence that he has offended against the meaning of a penal law. If in cases of this kind, constructions are to be allowed, the consequences to the community will be of the most dangerous kind. The caution which hath been heretofore observed on such occasions, is evidenced by various authorities. Thus where the statute of 3 H. 7. c. 2, enacted, “That if any person take for lucre any woman, &c. and afterwards “she be married to such misdoer, &c. he shall “be capitally punished:" Here, although the taking for lucre does not seem to be such a circumstance as would enhance the offence, yet it must be stated in the indictment; because such are the words of the statute, 4 Bl. Com. 208. So if a statute enact, that those who are convicted of stealing horses shall be capitally punished, yet he shall not be thus punished, who is guilty of stealing but one horse; 1 Bl. Com. 88. The same principle has been applied to the Stat. of 14. Geo. 11. cap. 6, by which stealing sheep or other cattle was made felony without benefit of clergy. The words “other cattle,” were considered as too loose to create a capital offence; 1 Bl. Com. 88.</p> <p>Then to apply this reasoning to the act of Assembly: the word “steal” must be connected with and govern the words "slave or slaves, the proper-" ty of another,” as much so, as the words take or convey away: otherwise, the fact of stealing no matter what, will be a capital felony. Then, as the words “with an intention to sell, or dispose of to another” &c immediately follow in continuation of the same sentence, before any new subject is taken up, and without any disjunctive particle, they are, by the rules of syntax, concomitant to them; equally, where governed by the verb “steal” as where governed by the verbs “take and convey away.” Thus reddendo singula singulis, the act stands thus “that any person or persons “who shall hereafter steal any slave or slaves, the property of another with intention to sell or dis-" pose of to another, or appropriate to their own “use such slave or slaves; and that any person or “persons who shall by violence &c.” Hence, the crime defined and created by the act is stealing a slave with the intention to sell or dispose of to another, or to appropriate to his own use. These words, marking the intention, being omitted in the indictment, the prisoner is found guilty of an offence altogether different from that which the act of Assembly seeks to repress by such severe sanctions: wherefore they concluded, the judgment ought to be arrested.</p>

<p>A LEASE was made of a manor, rendering rent £. 10 per annum, and 100 couple of conies, to be delivered weekly, between St. Bartholomew's and St. James' feasts, so many and in such a manner as the lessor may appoint. He brought debt for the rent in debet and 49 conies in the detinet; and on a plea of the general issue, it was found for the plaintiff, and several damages were given. It was now objected that it is not alledged that the lessor had appointed in what manner they should be delivered.</p>

IN case, the plaintiff declared: quod cum fuit tali die &c. et adhuc est seized of the manor of Winston, et quod infra manerium predict. talis habebatur consuetud. &c. quod quilibet tenens liber manerii predicti should pay such a sum on every alienation pro relivio, as the annual amount of his land should amount to, &c. and one Smith being tenant, and seized of such land, and holding it of the plaintiff, as of his manor of Winston, per fidelitatem sectæ cur. ad 5 s. rent per…

<p>A contractor to carry the mail is a civil > ilicc-r of the Confederate government, and, therefore, exempted from s, < vice in the Home Guard, by the act of the General Assembly at the sesión of July, 1883, cb. 10.</p>

TRESPASS for entry upon his close, and taking or carrying away a negro man, called Robin, the property of the plaintiff. Plea, general issue. The facts were, that Stanly obtained judgment against Blount for £. 444. A fieri facias issued thereupon, and the Sheriff returned levied upon negroes, naming them, one of whom was the negro in question.

<p>This was a writ of 'certiorari at the suit of Joseph J. Cox, directed td Heath J., for the purpose of reviewing his judgment in a writ of habeas corpus, at the suit of Cox against Major Gee-commandant of the military post at Salisbury. • -The.petition alleged that Cox was detained in prison wrongfully and without any cause. .The return of Major Gee stated in subbtance that Cox was a soldier in the army of the Confederate States, and that he was held in close prison by order of the Secretary of War, on ^ charges of murder and .larceny, awaiting- bis trial by a military court.</p> <p>Judge Heath dismissed the writ and remanded Cox,</p>

<p>Ás?raf¡t mav be presumed, from SpoSon, although no pr ority can successive ¡^such case, land, as to time°mayebe offered to the cumstance.1</p> <p>Possession of part, is thewhole ° by a deed,where there is no adverse possession or superior ti» tie-</p> <p>jyJx making certain possesions valid against the State,, does not affect the common law pruietpls of ’-.resuming a grant.</p>

<p>THE plaintiff brought debt on the statute 5 El. 9. p. 304, for perjury, and declared that Sir Robert Rich was one of the Masters in Chancery, and had power to administer oaths, and shewed that there was a suit between him and I. S. in the King’s Bench, in ejectione firmæ, and the defendant came before Sir Robert Rich and made affidavit, that the plaintiff had made a lease by grant to I. S. whereupon it was decreed that I. S. should have possession.</p> <p>This action lies; because the affidavit is not here, upon the process, but on the main point in question, the establishment of the possession, and we alledge that Sir Robert Rich had power to take oaths.</p> <p>*1. It is on an affidavit. 2. It is not alledged to be in court. He cited a case where an action was brought upon an affidavit, before Mr. Myles, in the Star-Chamber; yet as it was not said to have been made in court, it was held no action laid.</p>

ON a special verdict, the case was this, John Uply, the grandfather, was seized in free soccage of lands and a house, lying in Cobham in Surry, &c. had issue John and William. In 25 El. he made his will in writing in the words following: Item, I give and bequeath my house, to Agnes, my wife, to dispose at her will and pleasure, and to give it to which of my sons she pleases: and died.

<p>not guilty pleaded. The defendant was the widow of one Ferguson who was killed at the battle of the Allemance, leaving two children.</p> <p>The legislature in order to make some provision for his family, directed that one hundred pounds should be deposited in the hands of Richard Caswell to purchase negroes for the widow and children. Two negroes were purchased, one of whom died; the other was given by the defendant, after her marriage with Williams, to her son, the plaintiff’s testator.</p>

<p>DEBT in Bristol on concessit solvere secundum ordinem civitatis. Judgment given, error assigned in the King’s Bench, that it does not appear what this custom is, it being only said secundum consuetudinem, &c. The defendant in error pleaded in nullo est erratum.</p> <p>prayed that he might be allowed to supply the defect, that is by an averment of the custom.</p> <p>Doderidge, J. and Jones, J. It ought to be put in the declaration, in Bristol, or may be alledged here before the plea in nullo est erratum. But now it cannot be made part of the record.</p> <p>Crew, I will alledge it, and leave the other party to demur.</p>

<p>A mat), who was between the ages of 18 and 45 at the date oi the passage of the act of 17th February, 1864, at)d arrives at the age. of 45 before he is enrolled, is exempt.from service for the war, tut is liable to serve in the Senior Reserves.</p>

EJECTMENT. The plaintiff’s grant which was issued by the state in 1787, decribed a tract bounded by the river on one side, and thence from the river, so as to include a tract, supposed to have been left out of the patent, hereafter mentioned. The defendant claimed under a patent issued fifty years ago, beginning at a hickory, standing not far from the river, thence down the river a certain course and distance.

MOTION by the defendant for leave to enter the plea of plene administravit, in addition to the pleas of general issue, &c. which had been pleaded in due time.

This was a writ of certiorari at the suit of S, W. Scott, a Captain in the militiia, directed to Chief justice Pearson, commanding Kim-to certify the proceedings had tie-fore him, and his judgment, in a writ of habeas corpus at the suit of the plaintiff against the defendant — tried by him in vacation. .He had adjudged that the petitioner was unlawfully in custody, and had discharged him. The facts of the case áre stated in the opinion of th@ Court.

<p>Judgment obtained since the pleadings were made up, not allowed to be pleaded.</p>

<p>EJECTMENT. The land in question, had been devised to the plaintiff, then a feme sole, by her father; she afterwards married, and together with her husband, executed a deed, under which, the defendant claims: the husband soon afterwards died. There was no indorsement on the deed purporting that the wife had been privately examined with respect to her consent; nor could any record to that effect be found.</p> <p>The defendant offered one of the Justices of the court to prove that he had received the examination of the feme; but,</p>

THE defendant had executed a bond pursuant to the act of 1759, cap. 14, conditioned for keeping the prison bounds. Debt being brought thereon, the question was, whether it was incumbent on the plaintiff to prove the execution by the subscribing witness.

<p>ONE had judgment on an obligation, as administrator of I. S. and died intestate; administration of his goods was granted to Pastal, who sued out a fieri facias on this judgment against the first obligor, and on two nihil returned had judgment and execution. Now Jermyn moved, the money being brought into court should be delivered to the administrator. For althought he ought not to have execution, yet there being a judgment, there is no remedy, except by writ of error.</p> <p>He ought not to have execution. But the administrator of the first obligee, shall have a new action of debt, for now the judgment is ineffectual. But as long as the judgment may be executed, the party cannot resort to a new action upon the bond.</p>

CASE. The plaintiff declared that the defendant’s husband super computum inter eos indebitat. &c. to the plaintiff, and assumed to pay him; and afterwards died.

<p>JOHN DAVY was indicted at Windsor, on the statute of usury, for having taken 12d. for the use of 20s. from 21 Junii to the 21 Julii. Whereupon judgment was given and the record removed by certiorari. The defendant pleaded the coronation pardon of the present King, by which all usurious takings and contracts are pardoned: and the question was whether the judgment was pardoned?</p> <p>It is. For although it is said in 6 Rep. 13, that a pardon of felony does not aid him who is attaint of felony, yet when, as in this case, a pardon has express relation to the time before which the act was committed although judgment intervenes between the fact 1d the pardon, the pardon shall avail. As in the case of arson Burton, 6 Rep. 13. He was deposed, for adultery, after which a general pardon came out: He shall be restored: For the pardon was of all adulteries committed before the 14th of February, 13, and the offence was 12 Eliz. and judgment on 13. I agree to the case 36 H. 6. 25. Fine for a trespass, and after the trespass is forgiven; the fine is not discharged: For the pardon has relation to no certain time in particular: and so does not operate before.</p>

THE prisoner having been indicted at the last term for murder, now appeared at the bar, and, upon motion of the Attorney-General, was ordered into the Sheriff’s custody. It was moved by his counsel that he might be admitted to bail, on the ground of having voluntarily appeared, and upon some affidavits taken before Justices of the peace, tending to shew that he was not guilty of the crime.

TRESPASS for breaking the plaintiff’s house in D. in Nottinghamshire, and taking and carrying away £. 3000 in divers bags of money, &c. The defendant pleaded quod coram domino Hubbard and the Justices of Assize of said county, he was indicted by the procurement of the plaintiff for the same offence, for breaking the house burglariter, and carrying away the said £. 3000, and he put himself upon the country, and one, &c. was found guilty as principal, and he as accessary;…

<p>If by consent a large quantity of effects are put up together, sold at one bid, and purchased by the plaintiff, who colludes with the defendant to defeat the claims, of other creditors, the sale is void.</p>

TENANT in fee granted a rent for life, and made a lease for years of the land: the grantee supposing that he had lost the deed, and that it had fallen into the hands of the lessee, sued him for the rent.

<p>THIS was a scire facias against heirs, upen a judgment recovered before a magistrate against the administratori wherein He had proved a full administration. The constable levied upon land, and returned the nrocecd- . * 1 . mgs to the County Court, whence this scire facias issued j but instead of reciting the judgment, it recited an execution for the same sum the judgment was recovered for. The cause was tried in the County Court, on the plea of nul tiel record, and on an apjjeal to the Supeiior Court, it came on to be tried before Dastisl, J. who, upon motion, allowed the scire facias to be amended bv reciting the judgment, and the Defendants to withdraw their plea, which they refused to do. The cause was then tried and a judgment rendered for the Plaintiff; from which the Defendant appealed to this Court.</p> <p>The questions submitted are, Was the amendment properly allowed r If it was, Ought not the Plaintiff to have been taxed with costs ?</p>

<p>DEBT on an obligation. The condition was, that whereas the plaintiff had leased to the defendant a house, except an inner parlour, &c. with free ingress; egress, and regress thereto, the defendant disturbed the possession of the plaintiff, una cum free ingress. The defendant pleaded that he did not disturb the ingress, &c. secundum formam conditionis prædict. but did not say liberum ingress. The plaintiff assigned a breach, that on such a day, the defendant clausit exteriores januas (anglice gates) et quod non potuit intrare. Whereupon the defendant demurred and the following exceptions were taken.</p> <p>1. The variance: he did not disturb the ingress of the plaintiff without saying liberum ingressum, which is not a good plea.</p> <p>2. In the replication, clausit exteriores, januas, without saying that he could enter no where else.</p> <p>Doderidge, J. and Jones, J. This shall be shewn by the plaintiff, for it is alledged that he could not enter freely; as to the other part the defendant (plaintiff, I suppose) ought to shew a request to open the doors; for otherwise there is no breach. Therefore the bar and replication are both bad.</p> <p>Doderidge, J. Therefore there ought to be a repleader.</p> <p>Jones, J. There is no necessity of a request, where no breach. Perhaps he came in the night, and the lessee is not obliged to keep his house for ever open. There ought to be no repleaded after a demurrer.</p> <p>The bar is bad. For the condition is, that he shall have liberum ingressum, &c. and the defendant says that he had liberum ingressum; and the replication is well: for it shews a disturbance quod defendens clausit exteriores januas and kept them shut, from the first of March to the first of April of the same year, so that he could not have free ingress, &c. there is no necessity for a request; for the defendant has bound himself to more than the law requires. Seaman’s case. 5 rep. 93. If the sheriff has an execution to serve for the Queen, he cannot break the house without a previous request to open the door. If the bar and the replication are both bad, the plaintiff shall have judgment, if the replicantion does not contradict the count; and there shall be no repleader after a demurrer.</p> <p>Liberum ingressum is no more than the law implies: for when he reserves to himself an ingress, it shall be understood to be a free ingress; the replication is bad, for it does not shew that he might not enter elsewhere, nor shews any request to open the door; therefore there ought to be a repleader. For although, generally, after a demurrer, there ought to be no repleader; this is restrained to the plea only the demurrer was upon: But on any precedent plea, there may be a repleader.</p>

<p>The Superior Courts cannot reverse one of their judgments for error in a matter of law; but if it be absolutely void they will set it aside at any time, in motion.</p>

<p>This was an action of trover, brought in Halifax superior court of law, to recover the value of several slaves, and the following special verdict: was found, viz.—That Thomas Davis, in the year of our Lord 1721, on the 4th day of March, duly executed his last will and testament, as follows, viz.</p> <p>" In the name of GOD—amen—I, Thomas " Davis, of the upper parish of the county of " Isle of Wight, being of sound sense and memo- " ry, and calling to mind the certainty of death, " and the uncertainty when, do make this my last " will and testament, &c. I give and bequeath to " my sons Thomas Davis and William Davis, " all my tract of land I bought of the widow " Blake, to be equally divided among them; my " son Thomas to enjoy that part whereon he now " lives, and my son William that part where my " son lived. I say I give the lands unto my " aforesaid sons, and their heirs forever, and my " will is, that if either of my aforesaid sons shall " think fit to dispose of his part, that the other " shall have the refusal, if he desires it, paying " a reasonable rate.—Item, I give and bequeath " to my daughter Frances Williamson, the use of " my negro Sarah, for and during her natural life, " and after her decease, I give the said negro " Sarah and her increase, amongst the children " lawfully begotten of her body, to be equally " divided among them. Which said negro girl " Sarah so bequeathed, shall be in full of any " further demand of any part or parcel of my " estate; and I declare that my son George Wil- " liamson, and my daughter, shall have no more right to claim any thing else.—Item, I give " unto my loving wife Elizabeth Davis, the plan-" tation I now live on, for and during her natu- " ral life, and after her decease I give the said " land to Benjamin Davis and to his heirs for- " ever.—Item, I give to my grandson Thomas " Davis, a negro boy called Robin, and the heirs " of his body lawfully begotten; and for want of " such heirs after his decease I give the said ne- " gro to my son Benjamin and to his heirs for- " ever,—Item, I give to my son Thomas Davis, " and his heirs, my negro boy Harry.— Item, I " give to my son William Davis and his heirs, " my negro boy called Sam.—I give and be- " queath to my loving wife, the use of my negro “ woman Cate, during her life, and after her de- " cease I give the said negro woman and her in- " crease unto my son Benjamin Davis and the " heirs of his body, and for the want of such " heirs then to Thomas, William, Edward and " Benjamin Davis, to be equally divided amongst " them.—Item, I give to my wife during her wi- " dowhood, my negro boy Dick, and afterwards " I give the said negro boy Dick unto my son " Edward and his heirs.—Item, I give unto my " loving wife Elizabeth, my plantation bought " by me of William Exum, during the term of " her widowhood, and no longer —Item, I give “ my lands aforesaid, bought of William Exum, " unto my son Edward Davis and his heirs for- " ever.— I give and bequeath the use of “ all the rest and residue of my estate unto mv " loving wife during the term of her widowhood; " when she shall marry again, I give the same to " be equally divided amongst my sons Thomas, “ William, Edward and Benjamin, share alike " with her, and do appoint my loving wife Eli- " zabeth Davis sole executrix of this my last " will, hereby revoking any and all other wills, “ whether by word or deed, heretofore made or done.—Witness my hand this 6th of March, 1721.”</p> <p>Signed, Thomas Davis, (Seal.)</p> <p>Which was duly admitted to probate in the court for said county of Isle of Wight, on the 23d of April, 1722. And the jury do further find, that the said Frances Williamson, in the said will named, had six children lawfully begotten, and among others her son William Williamson, who moved into this state, then province, and died in the year 1768, in the month of April, leaving nine children, and amongst others George Williamson, his eldest son and heir at law. And the jury further find, that the said Frances Williamson departed this life some time in the month of January or February, 1769. And the jury further find, that on the 23d of March, 1769, the following proceedings were had in the county court of Amelia, in the dominion of Virginia, as appears by the copy of the record in these words:</p> <p>At a court held for Amelia county, March 23, 1769.</p> <p>Jacob Williamson, George Williamson, John Moreley & Elizabeth his wife, Henry Turpin & Anne his wife, vs. George Williamson, an infant under the age of 21 years, by George William-son his guardian, & Nathaniel Wil-liamson, an infant, by Nathaniel Williamson his guardian. In Chancery.</p> <p>This cause was this day heard upon the bill of the complainants and the answer of the defendants. In consideration whereof, it is decreed and ordered, that William Archer, John Scott, William Giles and Edward Rofs, or any three of them, do divide the slaves in the bill mentioned, viz. Sharper, Dick, Peter, Doll, Cæsar, Edith, Patt, Sall, Cate, Jane, Phebe, Lucy, Dill, Phill, Lewis, Aggy, Hannah, Sall, Bob, Sukey and Roger, agreeable to the last will of Thomas Davis, deceased; and that they allot and assign unto the plaintiffs each a sixth part thereof, having regard to the value of the slaves in said division; and that they make report to the court, in order to a final decree.</p> <p>Amelia County, March 31, 1769.</p> <p>Pursuant to the above decree, we have divided the negroes, and allotted them to the persons therein mentioned, in the following manner, viz. John Moreley’s lot, Dick, Cate, Lewis and Lucy—Jacob Willamson’s lot, Sharper, Cæsar, Edy and Dill—George Williamson, son of William Williamson, Sall, Sall, Hannah and Phœbe—Henry Turpin’s lot, Peter, Doll, Sall and Pat—Nathan Williamson's lot, Aggy, Sukey and Bob—George Williamson’s lot, Jane, Roger and Phil.</p> <p>And the jury further find, that the said Sall, Sall, Phœbe and Hannah, in the said division named, were a part of the increase of the said negro woman Sall, in the aforesaid will of the said Thomas Davis mentioned, and a sixth part of the negroes descended from said negro Sall.</p> <p>And the jury do further find, that Sarah, in the said will bequethed, was at the time of the death of the said Thomas Davis, in the dominion of Virginia; and the said other negroes, Sall, Sall, Hannah and Phœbe, from the time of their birth until the day of the division above mentioned, had also continued in the dominion, now state of Virginia.</p> <p>And the jury do further find, that the said William Williamson above named, died in this province, in the county of Bute, in the month of April, in the year 1768, and that his widow, one of the plaintiffs, since married to Peter Cox, the other of the said plaintiffs took out letters of administration on the estate of the said William Williamson, the 9th day of February, 1769.</p> <p>And the jury do further find, that the said George Williamson, by his guardian George Williamson the elder, did receive and take into his possession, the said negroes in the said record of the court of Amelia above stated; and some time afterwards, upon coming to age, he brought said negroes into this state; and that the said negroes afterwards had the following increase, viz.-John, Cate, Lewis, Fanny, Arthur, Nancy, Rachel and Milley.</p> <p>And the jury do further find, that the said George departed this life in the month of August, in the year 1780, leaving his widow and a child named Nathan.-And the jurors do further find that their possession was a joint possession.</p> <p>And the jurors do further find, that the wife of the said Kilbee obtained letters of administration on the estate of her husband George Williamson the younger, soon after his death; and the said Peter Smart is the guardian of the child of said George Williamson, deceased.</p> <p>And the jurors do further find, that the said Peter Cox demanded the said negroes of the said Smart and Kilbee, in right of his wife as administratrix, in the year 1786.—With respect to the law, the jurors are ignorant, and pray the opinion of the court thereon—if it be for the plaintiff, they assess his damage to £. 800—if for the defendants, they find them not guilty.</p>

<p>An action ofdebtwill. he on a re- ' plevin bond ^eTttachT mcnt 1;iw-</p> <p>A scire fat p^pé/reme-</p>

AN annuity was granted to the youngest son by the father, and he delivered the deed to be kept, to one of his eldest brothers, who went to Ireland: and in the removal of sundry papers this deed was lost. Now the youngest son sued the eldest brother, in the Council of York for the annuity, and grounded his action on the equity of the case.

A SPECIAL verdict had been found in this case stating, in substance, that in June 1788, the plaintiff sent to the defendant’s testator thirty barrels or rosin; that the defendant’s testator died in December 1790, and the writ was taken out in June 1792—The question was, whether the writ was a sufficient demand.

<p>CALF recovered in debt here against I. S. A scire facias issued out of the court against Bingley, as bail of I. S. who pleaded, that after the judgment, on such a day and year, the said I. S. brought error in the Exchequer Chamber; whereupon the transcript of the record was removed, and pending the writ of error, I. S. surrendered himself a prisoner in custodia marescalli, and died while the writ of error was still depending: which he is ready to verify, and therefore prayed judgment. On which plea, Calthrop for the plaintiff.</p> <p>1. The surrender ought to be tried by record; therefore he ought to have concluded, et hoc paratus est verificare per recordum.</p> <p>2. The plea is double: the surrender is triable by the record and the death by the country; and different answers ought to be given; and if the plaintiff takes issue, or pleads to the one, the other remains unanswered.</p> <p>3. The bringing a writ of error is a supersedeas to the execution, although the transcript of the record alone be removed. In M. 12 Jac. there was a case in this court between Heyden and Sheppard, on a judgment in Norfolk; error was brought in this court, and in 12 Jac. judgment being given, error was brought in the Parliament, and although the transcript of the record only was removed; yet the whole court was of opinion, that the writ of error was a supersedeas. In 20 Jac. Crouch and Hains’ case, the court said that error in the principal case is a supersedeas to the execution.</p> <p>Jermyn. Then if the execution is suspended by the writ of error, during this suspension the bail cannot bring in the principal. In H. 20. Jac. Cadner and Anderson, error was brought to reverse a judgment here: and it was ruled that the principal cannot be brought in pending the error, so in this case the surrender is nothing, but the death is the only matter of the plea, and traversable.</p> <p>Jones, J. The bail may bring the principal in before judgment.</p> <p>Jermyn. But then he ought to be in execution; and not here when the execution is stayed by the writ of error.</p> <p>Quod Crew, C. J. and Jones, J. concesserunt. But the bail may bring him as soon as they can.</p> <p>Jermyn. Then the execution being suspended *by the writ of error, and the principal dying before the determination of the writ of error, the bail are discharged. In Hobbs and Tadcastle’s case, the clerks of the court said that the bail may bring the defendant in, before the scire facias and after the capias.</p>

<p>THE defendant being a burgess of the Parliament, brought in a letter from the Prolocutor to stay, &c.</p> <p>Per totam curium. It is disallowed. He ought to have brought a writ of priviledge, and might be relieved that way. When Thorpe was Speaker of the Parliament, he had a supersedeas for all actions: it was held bad. He ought to have had a supersedeas for every action.</p>

<p>If the nominal plaintiff resides out of the state, the defendant may be sued out of his own district, if the real plaintiff is an inhabitant of the district in which he sues.</p> <p>Vide Winch versus Keeley, 1 Term Rep. 619.</p>

IN case. The plaintiff declared quod cum, the defendant was indebted to the plaintiff on an obligation in so much, and he intended to sue him, the defendant in consideration that the plaintiff would deferre solutionem denariorum prædict. and not implead the defendant, he would pay him; and on this promise the action was brought. This is not a good consideration: for he may forbear to sue him for an hour and sue him the next, or a day &c. In M. 19 Jac.

MOTION in the Superior Court to dismiss an appeal, , . rr 7 because not brought up within the time prescribed by law. ⅛ Th& Clerk of the Superior Court died in the vacation, •. , , ’ leaving no deputy, and there was no person to, receive the appeal, from the time it was made until the first day the Superior Court.

<p>not guilty, pleaded. The plaintiffs were possessed of the slave in question, from 1787 until 1794, when he came into the possession of the defendant, who converted him to his own use. It appeared that the slave belonged to the estate of John Vernon deceased, upon whose goods &c, the defendant obtained admininistration in 1798, since the institution of this action; and he now offered in evidence the letters of administration.</p> <p>The plaintiff’s counsel objected to this evidence on the ground of its having no relation to the question now to be decided; which is, whether the defendant had any right to the property during the continuance of the plaintiffs possession. At that time, the defendant had no claim upon the negro or right to disturb the plaintiff’s possession; which, however acquired, he might maintain against all but the true owner.</p>

THIS was an ejectment tried before Daniel, J. at Bertie Superior Court, where the jury, under the Charge Court, found a verdict for the Plaintiff. The title ■ . was regularly deduced from the patentee, whose devisee, George Pollock, exchanged .the land with the lessor of the plaintiff for part of her dower.

TWO tenants in common, had common in law; Whitchlow, ploughed the land, Harman, one of the tenants in common, brought his action upon the case, and declared that thereby his cattle were in great danger of starving and perishing, and on non culp. it was found for the plaintiff. Whistler. There ought to be no judgment, for this action does not lie for a tenant in common: and by the declaration, it appears that he had a companion who is not joined with him.

<p>IN case. The plaintiff declared, that on the 11th of October, 22 Jac. he was possessed of a term depending of the Rectory of Markham in Barks, of which a curtilage was a parcel, in which curtilage there has been a watering place, time, &c. where all those who were seized of the rectory, their tenants and lessees used to water their cattle, &c. and that the water flows from inch stream, and runs over the hop yard of the defendant, to the watering place in the curtilage aforesaid; and that the defendant, knowing this, filled and flopped the aqueduct with dirt and stones, and erected a wall thereon, to the damage of the plaintiff. The defendant s lays that 38 H. 8. the King was seized of the manor of M. and of this rectory, as well as of this hop-yard, and being so seized, granted it to one Box, (viz.) the hop-yard, in fee; and that Box being so seized, one Seal, entered and enfeoffed the said Piggot, the now defendant, who being so seized, erecred the laid wall in the hop-yard, as well he might &c. Whereupon the plaintiff demurred. The question was whether, by this unity of possession, the water-course was extinct.</p> <p>held it was not: for it is a thing of necessity. He cited 4 Rep. 26. Benedicta est expositio quando res redimitur a destructione. Rent shall be extinct by unity, and so shall be a way. 14 H. 7. For they have no existence</p> <p>during the unity, and therefore they are gone. But it is otherwise of a thing which exists notwithstanding the unity. 12 H. 7. 4. Pracipe of a water course ought to be pro una acra acqua coopert. In 6 Jac. B. R. Chaloner and Moor. It was adjudged that an ejectione firmæ does not lie for a water course, for it is not a thing stable, but always</p> <p>moving; *and is also a thing of necessity. Here it is a thing distinct from the land, as in 12 H. 7, in the case of a gutter. The other exception was that the action is brought against Piggot and two others, who justify by the command of Piggot; but there is no answer by Piggot. To which it was replied, that the commander is a trespasser. Piggot has no title to the water course; for a grant from H. 8 to Box is pleaded, whereby Box was seized, and being so seized, one Seal entered and enfeoffed Piggot and two others, and he does not say that Seal ousted Box, so, for any thing that appears here, Box. is yet seized and the feoffment does not imply an ouster. There was a case in the Common Bench, Cook vs. Cook, in dower: the defendant pleaded entry since the last continuance, and because he did not plead ouster of the tenant, it was held to be no plea.</p> <p>On another day Whitlock, J. concurred. But</p> <p>Doderidge, J. It is not material whether the defendant has a title to the hop-yard or not.</p> <p>Crew, C. J. assented. 21 E. 3. Way entinct. 36 El. rot. 1332. Two were seized of two acres, one joining the ota one made an inclosure towards the other, one person purchased both acres, and made several leases; and the question was, whether the inclosure was extinct, and he was received in the affirmative. There is a difference where something rises out of the land, as a custom of Gavelkind, by purchase, the custom remains. But presumption goes to the estate. I take also an exception to this declaration, in which a prescription to the tenants in fee is not alledged, as it ought to be. 33 H. 6. 26. As to the point in law, we all think that the water-course is not extinct.</p>

DEBT upon a bond, to which the defendant pleaded “solvit ad diem, and relied upon the presumption of payment, from the length of time elapsed since the bond was given. Deducting the time, between the sixth of March 1773, and the first of June 1784, there were 26 years, to support the presumption.

THIS is an action of trespass, quare clausum fregit, and liberum tenemenfum pleaded. It is admitted, on both sides, that Abram Dubois, sen. of the city of Philadelphia, had a fee simple in the land in dispute, before the year 1807.

THE plaintiff claimed 130 acres of land, under a grant from the State issued in February 1799. The defendant claimed under Creel, who had been in possession for forty years; and who had formerly shewn one of the witnesses an old marked line, telling him that it was the line which separated his land from Taylor’s. A grant, issued in 1757 in favour of a third person, was also produced by the defendant, which called for Creel’s line and beginning tree.

<p>John Cox was indebted to Allen in the sum of nine hundred and seventy dollars and forty-four cents, by note bearing date the 13th August, 1796, payable three months after date. On the 4th day of August, 1798, sued out an original attachment against said Cox, returnable to Sept. term of Chowan county Court, and the following endorsement made thereon: “ Executed and summoned in writing, Charles Haughton, as garnishee, the 4th day of August, 1798. Charles Roberts, sheriff.”—At September term a judgment by default was taken against the defendant, Cox. Charles Haughton, the garnishee, was called out on his, garnishment, a conditional judgment entered against him, and an order made for a writ of scire facias to issue, which accordingly issued, and a judgment final was taken against the garnishee, and a writ of inquiry awarded to ascertain the amount due on the note on which the suit was brought, and damages assessed at £. 572 to 5—and 6d. costs.</p> <p>At April Term, 1801, of Edenton Superior Court, Haughton, by his counsel, obtained a rule on Allen to shew cause why a writ of error should not issue to remove the records and proceedings in the aforesaid suit—and the following points were made for the judgment of the court:</p> <p>1st. Whether the writ of error issuing from the Superior Court, is a writ of right to issue of course upon a compliance with the requisites on the act of the General Assembly in such case made and provided—or whether it can only issue upon the alignment of sufficient errors.</p> <p>2dly. Whether a garnishee in a cause can take advantage of error in the proceedings against him, by writ of error issuing from the Superior Court—and</p> <p>3dly. Whether the writ of error issuing from the Superior Court is the proper remedy to cor-rect errors in proceedings by attachment.</p> <p>The errors intended to be relied upon for reversing the judgment, were, 1. That the proceedings in the cause by attachment, were not staid according to the directions of the act of Assembly, 2. That the said garnishee had never been summoned, or brought into court, as garnishee, according to due course of law.</p>

DEBT on an obligation, the condition of which was to pay £. 100 on the 31st of September. The defendant pleaded payment at the day whereupon issue was joined, and there was a verdict for the plaintiff. Andrews moved in arrest of judgment, because every issue ought to be such that it may possibly be found either for the plaintiff or the defendant. But here it could not be found for the defendant, there being no such a day, as the 31st of September.

<p>The omission of a figure cannot be supplied in an indictment.</p>

<p>THIS was an action of trespass, for taking four hog$, __ _ m ⅜ the property of the Plaintiff,</p> <p>The Defendant justified the taking, On the following , , . . r , c ground, viz. that the commissioners of the town or Fayetteville, under and by virtue of an act of the General Assembly, “for the better regulation of the town of chapter xxix, 1787,’’ passed the following ordinance, viz.</p> <p>“ Whereas the several ordinances heretofore passed by jhe board of commissioners, and in force, against hogs .... . , . , running at large m the streets of the town, having been f°UIK‘ ineffectual, it is again ordered, that from and after the 15th day of June next, the town constable be, and he hereby is authorisecl and required to take up and sell all ?*0SS> ^oun<^ rtinning at large in any of the streets in towq. One half the proceeds of such sale to be returned and accounted for by him to the town treasure^ the other jialf t0 apply to his OWn Use.” • A-4‘ ⅜ .</p> <p>The Defendant was constable of the town, duly ap■pointed by the commissioners of said town j and. in that capacity, took the hogs, &c.</p>

ACTION on the case for these words: Keymer is a base gentleman, and has had four or five children by Ann, his own house maid; and hath either killed them, or procured them to be killed. The first words, that he is a base gentleman, and has had four or five children are not actionable, for perhaps that Ann was his wife: nor the last words, for he does not say that he killed them feloniously; perhaps it was lawfully, as a Minister of Justice. Tr. 21 Jac.

EJECTMENT. Miller claimed under a patent to Nathan Bryan, beginning at a corner tree, thence South 80 East, 40 poles to Walter Lane's line. There was no actual survey: the 40 poles were completed before arriving at Lane's line.—the second line was with Walter Lane’s line to his corner, a certain course and distance; but that distance would not have reached the corner, supposing the line to be drawn from the point of intersection of the first line with Lane’s line.

<p>DEBT on an obligation. Two made a lease for years, by indenture, and covenanted that the lesse should not be disturbed, nor any incumbrance made by them; one of the lessors made a lease to a stranger, who disturbed, &c. The condition was to perform covenants.</p>

THE Defendant was indicted for perjury, and demurred to the indictment, “ because it appears to have found at October Term of Wayne Court, whereas there is no such Term of said Court, recognized by the law j Wherefore,” &c. The case was submitted.

<p>Negroes are presumed to be slaves, till the contrary appears; not so of persons of mixed blood.</p>

<p>This was an action on the case brought in Newbern Superior Court of Law, and the jury found a verdict for the defendant—the plaintiff moved for and obtained a rule to shew cause why a new trial should not be granted—and the following facts were agreed by the counsel of the parties:</p> <p>1. That the plaintiff, Joseph Tagert, obtained a judgment against Anthony Walke, of Franklin county, for £. ; upon which judgment a writ of sieri facias was issued and delivered to the defendant, who then was sheriff of Franklin.</p> <p>2. That the defendant, by virtue of said writ Of sieri facias, took possession of property to the amount of £. , consisting of a store of goods.</p> <p>3. That Anthony Walke obtained an injunction against the plaintiff’s judgment, which was served upon the defendant, who thereupon re-stored the goods which he had taken to Walke.</p> <p>4. That Walke’s injunction was dissolved upon Tagert’s answer, but Walke had removed him-self and property out of the state.</p> <p>The plaintiff, through the misconduct of the defendant who was sheriff of Franklin county, has lost his debt, and the jury which tried this cause, have done him injustice in finding against him.—When the writ of injunction came to the defendant’s hands, he was bound to stop the sale; which, but for that, he would have made. A supersedeas and injunction do not authorize the sheriff to redeliver the goods. Whenever a seizure is made, the plaintiff then must look to the sheriff for his debt—if he has begun execution, he may proceed to sell, and his doing so cannot be considered a contempt.</p> <p>The question in this case is, whether the sheriff ought to have re-delivered the property or not,—There is such a general rule, that a sheriff, on a supersedeas, is not restrained from going on to sell; but this rule does not hold in its application to injunctions. 1st. It never was the law in England,—2dly. It never was the law of this country:—And admitting it may be the law in England, yet general custom proves that it never was in use in this country.—But should both of these grounds fail, then I contend that the writ issued by the judge, warranted the sheriff in re-delivering the goods.</p> <p>Upon enquiry, I find that the rule which prevailed here before the revolution was, that whenever an injunction issued, a bond was executed by the party obtaining it, conditioned to perform the final decree which should be made in the cause; this was filed in the chancery office, and was accepted in the room of the money, which, by the English practice, must be deposited when the injunction is obtained. Whenever this bond was given, it would be highly unjust to fell the goods of the debtor: and if, in England, the goods were restored upon the money being deposited, then it will result that in this country, the goods should be restored upon the filing of the bond. The reason why the bond is accepted here in lieu of the money, is, that in England money is more plenty than in this country; and the plaintiff; at law is rendered equally safe by the filing of bond with good security, as if the money was deposited.</p> <p>The practice since 1782, has been uniformly to restore the goods, from a belief that the sheriffs entertained, that the judge who granted the injunction had done his duty by taking bond, or requiring the money to be deposited.</p> <p>Some years ago, Judge Spencer granted an injunction, under which the sheriff restored a number of negroes, levied upon to satisfy a very considerable demand—The negroes were removed, the injunction was dissolved, the plaintiff at law completely lost his debt, and the conduct of the sheriff who restored the negroes, was considered to be conformable to law and general usage; and no lawyer who was consulted, would advise bringing a suit against him,</p> <p>Another case, which will serve to shew that it was held to be the duty of the sheriff, upon being served with an injunction, to restore the goods, is that of Alexander Joice, former sheriff of Rockingham county, who refilled to deliver the goods upon a Judge’s fiat for an injunction, although no writ of injunction had then issued, and sold the property. For this, he was indicted in Salisbury Superior Court, and convicted of disobeying the Judges order. This case formed a public adjudication, and served as notice to all sheriffs who might be placed under similar circumstances. I have reason to think that this decision was not strictly conformable to law; yet it has established a practice which ought now to be adhered to.</p> <p>The rule then in England, that the sheriff is bound to go on to sell, is counteracted by the practice in this country—How would a sheriff act, if he cannot sell—in a great variety of in-stances he could not keep the goods—if he is not bound to sell, he is not bound to keep the goods; and the consequence is, that the goods must be restored to the complainant.</p> <p>If, in England, an injunction be applied for after verdict, the money must be deposited before it can go—C. Cancel. 447—same doctrine, 2 Ch. Ca. 4—2 Bro. Ch. 185—And from these cases it clearly appears, that if the deposit is made, the goods are to be restored.</p> <p>Suppose the sheriff executes property which dies in his hands, he may levy again—the first service does not discharge the debtor; and this proves that the rule is not true in the extent, as laid down by Mr. Woods, Whatever the law on this subject may be, the sheriff is bound to obey the precept, to follow its words, to rely on the Judge, to believe that he has done his duty in taking a proper bond, and not to enquire into the legality of the writ. The words of the injunction are, “ You are to forbear and desist from carrying the judgment into effect.” If he has levied, this restrains him from telling—if he cannot sell, he is not bound to keep them; and the complainant is the only person entitled to the possession of them.</p> <p>If the law were others-wise than as laid down by Mr. Haywood, the greatest injustice would be produced.—Suppose the case of one imprisoned on a writ of Capias 2d Satisfaciendum, who obtains an injunction,, unless he is restored to his liberty, he gains but little indeed—he may, according to Mr. Wood's construction, put on the words of the injunction, be continued in confinement until he can procure a final determination of a tedious suit, notwithstanding his claims to relief are strong and undeniable. But if the party imprisoned, upon obtaining an injunction, be entitled to be restored to his liberty, then is, the complainant also entitled to the possession of his goods, when he has obtained an injunction—both of which practices are conformable to the general usage of the, country.</p> <p>Let us enquire how this case stands between, the plaintiff and the defendant—it is a question of loss—The goods levied upon were not at most worth more than £. 410 or £. 150—either the plaintiff or defendant must lose it. This is a hard action, and one that ought to be considered stricti juris, and not to be favoured. The jury, however, have found a verdict for the defendant—Justice does not require that the verdict should be set aside, nor that the defendant, who it is admitted acted uprightly and without fraud, should pay the debt out of his own pocket.— therefore hope that the rule will be discharged.</p> <p>No case can be found where the property was restored, although the money was deposited. If a sheriff has money in his hands, and he is served with an injunction, he is bound to retain it, and has no authority to restore it. The sheriff is not to go back to enquire what was the practice previous to the year 1782; and as it is well known that no bonds to secure the principal sum have been taken since that time, greater caution is required for the sake of creditors. Does the injunction authorize the sheriff to recede—surely not—it only authorizes him to stop; and certainly there is a material difference.</p> <p>I cannot suppress the astonishment I feel in hearing of the indictment of the sheriff of Rockingham—to my mind, the conduct of the Attorney General, in preferring an indictment against him for such a pretended offence, was much more irregular, than that of the sheriff who dis-obeyed the order of a judge not directed to him, but to another; and his fate ought to excite our compassion, rather than furnish a general conclusion.</p> <p>This is not such a case as comes under the general rule of hard actions, where new trials are refused. The sheriff ought to be informed what his duty was—if he did not think it worth while to seek for information, he ought to abide by the loss.</p>

THE Defendant ivas indicted under the act of 1805, C. 14. The charge against him was for bedding and biting with a Woman of the name of IJccwkins. A motion was made to quash the indictment, because the wo-toan was not joined with the Defendant in the charge» The case was submitted without argument.

THIS was an action of ejectment brought to recover the possession of a tract of land in the County of Onslow.—William Wells patented the land in the year 1735 and by his will duly made and executed devised it to his two sons, Joseph and Henry, in the following manner, viz, “I give and devise the plantation whereon I live to my “two sons, Joseph and Henry, and their heirs lawfully begotten of their bodies for ever, to be divided; each of them to have one half of the woodland…

<p>LITTLETON took divers exceptions to an indictment before the coroners of Montgomery, which was removed here by certiorari.</p> <p>1. The inquisition ought to be sufer visum corporis. This appears in Britton de coroners and the statute de officio coronatoris. 4 Ed. 1. St. 1. p. 13. and F. Coronæ 107. 21 E. 4. 70. 2 R. 3. 2. Therefore, if a man be drowned and his body cannot be found, the coroner cannot inquire, but the Justices of the Peace ought to do so. Here it appears, that it was not super visum, for it is inquisitio capta apud D. super corpus I. S. mortis jacentis apud L. If it was in one town, a view could not be had of it in another.</p>

THE question was, whether an action on the case lies against a sheriff for escape, in the life of the testator: the escape being on a mesne process, viz. a latitat ? It was said it does not lie, quia actio personalis moritur cum persona. Dyer 271, a and 322 a. The heir shall not be charged for an escape suffered by his ancestor, and 32 H. 8. Waste does not lie against the executor. But where the thing is to be recovered, such actions go to the executor.

<p>Where tbs Soe^nouic, y,mPanv atl4 follow the ti-tie, the trans-If an absolute deed s made telde ⅛ made at the same time, not ope-mortgage, to the prejudice oi third prisons*</p>

ONE promised Rutland Mollineux thatin consideration of &c. he would make assurance of certain lands, which he refused to do. And Mollineux sued him in the court of requests for a special performance. In order to obtain a prohibition he alledged. 1. That the plaintiff has an action on the case at common law. To which it was answered that in it, he would only recover damages, but here the suit is for a specific performance, to obtain which there is no action at common law.

HE was indicted before a Justice of the Peace in the county, for that being of evil same, and minus honestis conversationis suit nocte vagrans and that on such a day, &c. he frequented a bawdy-house. The indictment was removed in the King’s Bench, and moved that it be quashed. For the last part of the indictment being bad, it is as if he had been indicted for night-walking only; which is not a crime, for one may have occasion to go out at night. 4 H. 7. 12.

<p>THIS was an action of trespass quare clausum freg'it, tried before Daniel, J. at Hyde Superior Court. The Plaintiff claimed under Ellison, to whom M'Szvain, then being owner of the laud, conveyed by a deed, in which he bargained and sold his plantation whereon he then dwelt, together wiA all bouses and buildings, all orchards &c. it being part of a patent granted to Milines. The boundaries of this tract of 200 acres are then particularly described; after which follow these words, “ one half , , , . .... ■ . , acre ot land where my grave-yard is, which is at the end of my garden, and the privilege thereunto belonging, ⅛ excepted. Together with forty five acres lying pn the front of the aforesaid land whereon the houses stand ; reference to the patent for the courses of the same. • , Also another tract or parcel of land, containing fifty acres,” The courses of the last tract are the» described in the deed* £</p> <p>The trespass was committed on the two small tracts hast described, viz. Ae forty-five acre and the fifty acre patent, which the Defendant, who is heir at law to Jf'Swain the bargainor, contends were not conveyed, tp ¿Ellison, but were excepted. The dwelling-house, orchard, and grave-yard, are in the forty-five acre tract: bijt ^/I'Swain had a part of each tract in cultivation, when he conveyed %o Ellison*</p> <p>The Jury, under the charge of the Court, found a ver» diet for the' Defendant; and the Plaintiff, upon his motion’for a new trial being overruled, appealed to this Court.</p> <p>The case was submitted.</p>

<p>William Giles, of the county of Rowan, made his last will and testament in writing, in which he devised real and personal estate. The will was attested by three witnesses, and placed in the hands of Montfort Stokes for safe keeping.—Some time afterwards William Giles directed Stokes to burn the will—Stokes said he would not, but would deliver the will to him (Giles), and he might burn it if he pleased. This conversation passed in the presence of three witnesses. The will, however, was not delivered by Stokes to Giles, nor was it burned by Stokes. After this conversation, Giles said that he had made his willy and it should stand; that he had made provision for his wife—that she was to have one half of his estate. This conversation passed between Giles and three or four persons at sundry times, and had relation to the will in the hands of Stokes. Then Giles died, leaving said will in Stokes’ possession.</p> <p>The executors named in the will obtained the will, and offered it for probate in Rowan county court—This was contested by the heirs of Giles, upon the ground that the will had been revoked by the parol directions given by Giles to Stokes to burn the will. An issue of devisa savit vel non was made up and tried. There was an appeal to the superior court for Salisbury district, and the issue was tried at March term, 1801, and found in favour of the executors. A new trial was moved for, upon the ground that the court had misdirected the jury, and these points referred :—</p> <p>1. Can a will in writing, duly executed, and published in the presence of two subscribing wit-nesses, whereby lands and personal estate are devised, be revoked by parol; the will being made since the act of assembly respecting wills.</p> <p>2. If such will may be revoked by parol, can it not be republished by parol?</p> <p>If such will has not been revoked by parol, then judgment for the executors—If such will can be revoked by parol, but may also be re-published by parol, then judgment for the executors. If the will has been revoked by parol, and cannot be republished by parol, then judgment to be entered, that the devise of lands in the will is void, and judgment for the will as to the personal estate.</p>

CASE on several assumpsits of nine particular sums, quæ quidem separales suamma attingunt at £. 52, which was more than the total sum really was. On a plea of the general issue, there was a verdict for the plaintiff. And moved in arrest of judgment, this matter ut supra and also quod fæpius requisitus non solvit the £. 52. Nota that the jury only found £. 40 damage; which was less than the aggregate sum; and cited 5 £. 3. 14.

HE brought an action on the case against Merick, for saying of him: I charge you, King, with felony, and you, Constable, (innuendo one Noscot,) to take him, and the words were said to have been spoken in London, and on non culp. pleaded, there was a verdict for the plaintiff. The defendant moved in arrest of judgment, because, 1.

THIS was an action to recover the penalty of 0 50Q, under the act of Congress, for rion-payment of the tax op a quantity of pig iron. The Defendant was owner of a furnace, which he worked a part of the time between the 18th of April, 1815, and the 22d of February, 1816 ; in which time, he made 77,555 lbs. of pig iron; no part of which was made for sale, but the whole designed for his own use, to be made into bar iron at his own forge.

THIS was a motion to dismiss a bill in equity, upon • • the ground, that the Complainant might have made de-fence in the trial at law. The material allegations in the » ° bill were, that the Complainant purchased from Anderson a tract of land, for which he paid him promptly 120, and ágreed to pay him jCl20 more in a twelvemonth. The .• . Complainant gave a penal bond, to secure the last inent, which he had reduced to fí 10.

<p>This was an action of ejectment, brought in Newbern Superior Court, and the following special verdict was found :—" That the premises in " question were granted to Robert Palmer in the “ year 1759—that 1771 he went to England— that he attached himself to the enemies of the " United States, during the war between Great- “ Britain and the said United States, and did not " return till the year 1785—that William Palmer “ was in this state in the year 1779, and under “ her protection having been in the same from " the year 1769, and remained here till the revo- “ lutionary war; and that he is the eldest son of the said Robert—That he, the said William, “ made his will, and devised the premises to the “ lessor of the plaintiffs, and died at New-York “ in 1786—That in the year 1787, the commissioner of confiscated property sold the premises “ to the defendant, as confiscated property—That “ the wife of Robert Palmer, in the year 1771, “ went with him to England, and has never returned to this state—That the said Robert Palm- " er is the person named in the confiscation acts. " —The jury pray the advice of the court, and if, &c.</p>

ERROR on a judgment in Ely. 1. In the stile of the court, Placita coram Thoma Athow, justiciario, assigne to ad placita coram rege, infra insulam Eliensem tenenda; without shewing what authority they had to hold pleas there; whether by patent or prescription. All their pleas and precedents are so. It is a notorious jurisdiction, as in London.

<p>THIS was an action of trespass quare clausum fregit, tried before Seawell, J. at Nexu-Hanover SuperiorCourt; plea, Not guilty, and a special justification that the in quo vs au arm of the sea, &c. The facts were, that the Plaintiff’s testator claimed under a grant. The Defendant had taken oysters, in the lifetime of the testator, from the oyster-rocks included within the lines of the grant, which rocks, and the earth on which they grow, are • ’ ' jai. ered wi;h water at high tides and bare at low tides, and extend from the main land to the' banks which the Sound from the Ocean, occasionally interrupted by marsh land and channels for the water. The navigation of the Sound, eyen for small boats, is almost impracticable, except at flood tide, when the oyster-rocks, being covered, the communication between the different parts of the main is more direct. The main land along the western boundary of the grant is the property of different p- rsons. The banks included in the grant are not covered by high water, but the marshes generally but not entirely are. The channels through the Sound and between Ijhe marshes and oyster-rocks are frequently changed by violent storms and new phapnels broken through thp oyster-rocks. The Defendant was in the-habit of making a profit .from burning the shells taken from these oyster-rocks.</p> <p>The Court, under the evidence, instructed the jury that the Defendant had committed a trespass, and directed them that the amount of the damage sustained by thg Plaintiff was the clear profit made by the Defendant* The jury found accordingly ; and a new trial was moved $or*on the ground of misdirection as. to the points^</p> <p>The case was submitted without argument*</p>

<p>ONE was indicted on the statute 21 Jac. 1, 25, p. 373. for entering into a house, at Cobham, in the county of Oxon, ad tunc existens liberum tenenementum of such a woman, ad voluntatem domini, secundum consuetudinem manerii, &c. The party came into court, and being put out of possession on this indictment by a Justice of the Peace, prayed that the court would grant, him restitution, and it was granted, by Whitlock, J. and Doderidge, J. (absente Jones, J.) The reason was because the words of the statute give power to a Justice of the Peace, or a Judge to make restitution, to a lessor for years, guardian in chivalry, or tenant by copy of court roll, at will, &c. But for any thing alledged here, the wife may be tenant at will by the verge and not by copy. But the statute shall be construed strictly: and he who applies for restitution under that statute, must be within the words of it.</p>

HALSEY was indicted: quod apud Kensington, cum quodam muro coctili, obstupavit altam viam regiam ducentein de London, ad Kinsington: and the indictment was quashed by Jones, J. and Whitlock, J. (absente Doderidge, J.) For the stopping is alledged at Kensington, and the way is alledged to be from London to Kensington: thus Kensington is excluded, as a lease for three years from Michaelmass, excludes Michaelmass.

SC IKE FACIAS, issuing from the Court of Equity, against the Defendants, as securities and co-obligors in a bond given by Morrison, on obtaining an injunction against a judgment at law, recovered by Bozman. The Defendants demurred, on the ground that the , . - inedy on the bond was at law, by an action of debt. The case was submitted, without argument.

TROVER for certain loads of fetches, and other grains in Warda de Cheap, London.

<p>A RESCOUS was returned, by the sheriff, thus: Cepi corpus, prædict. A. et ut idem A. suit in custodia mea virtuti brevis præd. quousque B. C. et D. vi et armis on such a day and year, and at such a place, in E. et F. ballivos meos insultum fecere, vulneravere, et male tractavere, et A. de custodia mea ad tunc et ibidem rescussere.</p> <p>said that this is not a good return, for he does not shew any warrant made to his bailiffs.</p>

<p>Where an ««due allowance of a year’s provision is ■made to a widow, a lis. tributee is entitled to a c&i't¿orari; tecause Ae act of Assembly recognizes his right, quo ad hoc, as a legal one.</p>

DEBT on a bond conditioned to perform covenants. Breach assigned that the bargainor, being obligor, covenanted that he, his assigns, or any other having right to the land, at any time within seven years, at the request and cost of the obligee faceret, cognosceret, et exequeretur vel causare fieri, &c. amnia ulterius factum vel focta, pro meliori assurantia, sit per finem, vel fines, feoffamentum vel recuperationem, or any ways whatever, which by him or his counsel should be…

LAICOCK brought a special action on the case, against Wishire, and counted that he took a latitat out of the King’s Bench to arrest one Wilmot, at the suit of himself and wife, directed to the sheriff of Wilts, who had appointed tHe defendant his under-sheriff, which office he executed before and afterwards, (the said Wilmot, ad tunc et ibibem being in the presence, view and company of the said Witshire.) quibus nonobstantibus.

• TROVER for a slave, of which the Plaintiff had been in possession for fourteen years. The Defendant showed no title in himself, but offered in evidence a marriage settlement entered into by the Plaintiff, his wife, and William Dasns, whereby this slave among others, was con- . - J ° ’ veyed to Davis as a trustee, to permit the wife of the Plaintiff to have the labour and profits, and to allow the slave to bé under the direction of the Plaintiff.

<p>TRESPASS for breaking a vessel and carrying away, her fails. The defendant justified under a warrant from the Admiralty-Court, to arrest the vessel, and in salvo custodire, by force of which he entered the vessel and carried away the sails, which is the same trespass.</p> <p>The breaking the vessel is not answered, therefore he had no authority to carry away any thing.</p>

<p>THIS was an action upon the statute of Usury. The . Plaintiff and Defendant both reside in the county oí Rutherford., and resided there long before the circurn-stances hereafter mentioned, took place. The Plaintiff owned a tract of land with a mill thereon, worth at the time of the contract §1000, in the State of South-Car olina. The Plaintiff obtained, on loan from Defendant, the sum of §600 for six months, for which he was to pay at the rate of twelve per cent. To secure the repayment of the JBH00, together with §36 the usurious interest, the Plaintiff agreed to make an absolute conveyance, in fee simple, for the mill and lands in South-Car olina ; and it was further agreed, that the Plaintiff should keep possession of them for six months, the term of credit agreed bn. If at the end of six months, he repaid the consideration money mentioned in the deed, viz. §636, the Defendant was to reconvfey the land and mills. If he failed to pay, the Defendant was to enter on and hold them as his own absolute property, according to the tenor of the deed.</p> <p>The contract was made between the parties at the house of the Defendant, in Rutherford county. The deed was signed in South-Car olina, where the parties went to have it executed. The sum of §100, part of the §600, was paid in South-Carolina, at the time the deed was executed. A part had been advanced in Rutherford, at the time of making the contract, and the balance was paid in Rutherford, after the execution of the deed.</p> <p>: The ’Plaintiff kept possession of the land and mills for six months after the contract, and not paying the $636, the Defendant entered, and has had possession of thena and the profits ever since. In this the Plaintiff has acquiesced ; nor has he repaid the money and the interest reserved thereon, or offered to pay the same in any other manner than by giving up ⅛⅜ land aforesaid to Defendant, who holds the same under the absolute deed aforesaid.</p> <p>The jury found for the Plaintiff the amount of the penalty sued for. The Defendant moved for a new trial, on the ground that the facts alo not, in law, subject him to the penalty. Which being overruled, he appealed, &c,</p> <p>The cause was tried before Cameron, J. at Rutherford Superior Court.</p> <p>This action is founded on our Statute of «Usury ; not on that of South-Carolina. The latter is not set forth ; ■and being a penal statute, we could not take notice of it if it was.*</p> <p>It must be admitted, that our laws are not in force in South Carolina ; and it must also be admitted, that as the land lay within the territorial jurisdiction of South Carolina, the laws of that State exclusively regulate the transfer of them.</p> <p>The lex loci of the transaction governs a challenge in this State, and if they go into South-Carolina to fight, for the express purpose of evading the law, and do fight, they are subject to our law for having given or received ¾ challenge, but not for the assault or intent to kill or for the homicide, if one ensues; for they were not then and there in the peace of God and this State, because its peace extends no further than its boundaries.</p> <p>Scotch marriages are good, notwithstanding what was said hv Lord Mansfield, in 2 Bur. 1079.* So the lex loci governs interest on contracts† There is nothing more common in this State. A merchant in New-Tork and one here, have accounts current. By that merchant shipping goods according to order, and the one here shipping produce to be applied to his credit when disposed of, the balance is sometimes on one side and, sometimes on the other ; and it is the duty of the debtor to look out for his creditor ; so that, when the balance was in favour of our merchant, the money was to be paid here, vet interest on both sides at 7 per cent, because the contract Was there.</p> <p>The only exception that occurs to me, is the case of lands which are regulated according to the law of the country where they lie. Therefore, if there was any offence committed it was against the law of South-Ca.ro-lina and not jfiorth-Carolina. l.But if the transaction had taken place in fi!orth-Carol a, no action could have been supported under our statute. It first makes all assurances, &c. utterly void; and the deed being only, an assurance, &c. it is utterly void, and the Defendant when he entered, was a trespasser as much as if he had no deed. If he had had no deed and had entered, he would not have been liable to the penalty in the statute, although there might have been a usurious contract between them before, and this is the same thing. 2. The statute speaks only of taking money, six pounds in the hnndred. No case can be found where any thing else has been taken but money, &c. If this is not so, he might recover the penalty first, and then the land ; and so the Defendant would be subject to the operation of both branches of the statute.</p>

One who owed money to Alderman Cripps, paid it after his death to his wife, with the consent of his son, to whom administration belonged at that time, he being dead intestate. The money was spent circa funeralia, and for the maintainance of his family during the great plague, afterwards a stranger took the administration in due course of law, and sued the man in the Mayor and Alderman’s Court.

AN action was brought in London, in the sheriff's court there, on the statute 3 and 4 Ed. 6, for buying and selling cattle. The court held it bad; and the party being removed here by habeas corpus, was discharged. The suit being on a pœnal statute, ought to have been in the Court of Sessions of the Justices of the Peace.

WISEMAN had judgment in debt, in C. B. against Sir William Fish, and after the year, without a scire facias, took a capias against him, and arrested him, whereupon Wiseman brought error here, and the judgment was affirmed, but the execution reversed and Sir William discharged.

THIS was a warrant to recover the penalty of £i0, imP°sed by the Act of 1741, c.—, for inismarking one of the Plaintiff’s cattle. The Defendant insisted, by way of defence, that he had done it ignorantly; believing, at the t*me’ ^at the cow belonged to himself. And sundry witnesses were examined, to prove that not only the Defendant, but others, believed the cow belonged to him. There was evidence, on both sides, as to the identity of the cow.

IN an action on the case in C. B. for words in Haswel, in Suffolk; on the general issue, it was found for the plaintiff, and judgment was given, and error was brought here, eo quod the plaintiff being within age, appeared by attorney. The defendant in error, and the plaintiff in C. B. replied, that he was of full age at the time of the appearance, &c. and on a venire facias, from Haswel, it was found that the plaintiff was of age.

THE Defendant^ a,Constable, had an execution agains^ J°hn M ‘■Ilwinntj and his mother, who were next of kin anj legatees of the testator, and who under the Act of . _ ,, , Distributions were entitled to part of the intestate s estate. Under this execution, the Defendant levied upon a slave which belonged to the testator, and which was in the hands of the Plaintiff as assets. There were no debts due from the testator..

<p>This was a case in equity, brought in Newbern superior court, and referred for the opinion of the Judges upon the following statement of facts, viz.</p> <p>1. Judith Pasteur, mother of the complainant, was seized in fee of a piece of land in Newbern, described in the complainant’s bill, at the time of the contract hereinafter mentioned with Jones and Neale.</p> <p>2. That John Jones and Abner Neale were, at the time of the said contract, partners in trade under the firm of Jones and Neale.</p> <p>3. Some time before the 1st October, 1785, it ws agreed between Judith Pasteur, of one part, and Abner Neale, in the name of the company of Jones and Neale, (but in the absence of Jones from Newbern) of the other part, that Jones and Neale should put upon the land before mentioned, at the expence of Jones and Neale, such buildings as the company should have occasion to use in the course of their trade; and when the buildings are completed, persons should be appointed by the parties mutually, to name a term of years for which said Jones and Neale should have the land on lease, in consederation of their putting and leaving, at the expiration of the term, the buildings upon the land.</p> <p>4. That in pursuance of such agreement between Judith Pasteur and Abner Neale, Neale put upon the land, at the expence of the company, buildings of the value of £. 400, and a term of seven years was named by persons mutually chosen as aforesaid.</p> <p>5. That in further pursuance of such agreement between Judith Pasteur and Abner Neale, the said Judith, on the 1st October, 1785, executed the lease hereto annexed.</p> <p>6. That the company of Jones and Neale occupied the said lands and buildings for the purpose of carrying on trade and merchandise, from the date of the said lease till the 30th day of April, 1787; when Jones, for a valuable consideration, assigned his interest in the lease to Abner Neale.</p> <p>7. That Abner Neale, on the 9th day of August, 1787, for a valuable consideration, assigned all his interest in the lease to Richard Ellis.</p> <p>8. That said Richard Ellis, by himself and others his tenants, occupied and enjoyed the premises from the last mentioned assignment till about the 28th Sept. 1791, when said buildings were consumed by fire.</p> <p>9. That Richard Ellis died in the year 1792, and George Ellis obtained administration on his personal estate.</p> <p>10. That Judith Pasteur, in the month of July, 1786, in consideration of the natural love, and affection which she had and bore to her son, the complainant, assigned all her interest in the premises to him.</p> <p>Edward Graham, C. M. E. N. D.</p> <p>The clause in the lease by which the complainant insisted the defendants were bound to leave the buildings, &c. on the land, is as follows; —" And the said Jones and Neale do, " for themselves, their heirs, executors, admini- " strators and assigns, covenant and agree to and " with the said Judith Pasteur, her heirs, exe- “ cutors and administrators, that they, the said " Jones and Neale, their heirs, executors, ad- " ministrators and assigns, will leave all houses, " out houses, fences and other improvements, " that are now on the said part of a lot or parcel " of land, or that they or any of them may " erect hereafter on the same, in good tenant- " able order and repair, under the penalty of " paying double the value thereof to the said " Judith Pasteur, her heirs, executors, admini- " strators or assigns; and that they will not " move off the premises any house, out-house, fence, “ or other improvements which they have al- " ready built, or may hereafter build thereon, " under the like penalty.”</p> <p>cited Dyer 33. Alleyne's Reports, 26, 27. 1 Fonblanque, 366.</p> <p>cited 1 Dallas, 210. Ambler 619. 1 Salkeld 199.</p>

CASE, for taking and detaining a box of charters, viz. quare cepit et detinuit unam pixidem, una cum diversis chartis et minumentis, concerning the land of the plaintiff, quousque, the plaintiff, in order to obtain them, gave to the defendant a note of £. 40. It was brought in Lincoln, and on judgment, error was brought here. Because 1. He says pixidem, without saying suam, or that he had it in possession. 2. He does not shew what charters were taken away; which is not well.

DEBT on a lease for years, to commence in futuro; virtute cujus, the lessons entered, and the lease was rendering rent, after verdict. moved in arrest of judgment. The declaration is bad, for it does not shew, when the defendant entered. Therefore it shall be taken more strongly against him; viz. that the lessee entered before the lease commenced.

A LEASE was made in London of land in Middlesex, the lessee assigned; the essor died, the rent being an arrear, and the administrator of the lessor brought debt in London against the assignee; and Stone moved whether the action should be brought in London or Middlesex, where the land lies?

THE Defendant sold to the Plaintiff ⅜ tract of land ; - . : , , , , , . tor which he executed U deed, containing this warranty : ‘‘ Arid the said °fohn Shaw, for himself, his heirs, and “ xccutors, will for ever warrant and defend the said “ land against the lawful claim or claims of all “ whatsoever.” The land being unoccupied, the Plain-1 • ’ tin cut down, some timber aryl carried it away ; on which an action of trespass quare clausum- fregit was instituted against him by…

ERROR on a judgment of an inferior court of the King, obtained by the plaintiff. The judgment was given in the time of King James, and the writ of error to remove the judgment obtained, in the time of King Charles. Now Damport, the King’s Serjeant, prayed that the inferior court might proceed to execution, notwithstanding the writ of error.

SIR Francis Evers, made his wife and his son executors, and divided all his goods, and for a breach of trust (misapplication) the son being the Queen’s attorney, sued the wife in the Marches of Wales, and a prohibition was prayed, because it was not in their instructions to sue therefor legacies. Because for this breach of trust, there is no other remedy at law.

<p>A devise to the wife for life, with remainder to the testator’s three daughters (his heirs at law) their heirs, executors and administrators, makes them joint-tenants.</p>

DEBT on an escape. The plaintiff declared that he had a judgment against J. B. for £. 600 In London, and on such a day and year imprisoned him, until he was removed by habeas corpus, before the Chief Juftice, who committed him again, remanding him to jail, under the care of the defendant, who permitted him to escape.

<p>Where the yia.ntiffsued out sixteen warrants a- | gainst tlieDe-f'endant upon due bills, the highest ofthe warrants including only four dollars, tb e Court on motion refused to consolidate the warrants.</p>

HE was indicted for cozenage eo quod one Proud, existens miles sub one Hammond, his captain, &c. Serlested, pretending that he had power to dischacge soldiers, took of the said Proud, as well for discharging him, &c. The first exception was that it is said existens miles, without saying how, or where. But it was held well enough.

THIS was an action of slander for saying of the Plain- , , . .1 , tilt that he had sworn to a lie m obtaining a warrant from. a ju&tice, respecting a deer. The warrant stated that the Plaintiff had made oath that he had reason to believe, ^at ^ie.

A LESSEE covenanted to do all reasonable cartings for his lessor, with his carts, carriages, and otherwise, as it would be required. The plaintiff alledged as a breach of covenant, that he requested the defendant to carry three loads of coal, which he refused to carry, and did not carry &c. The defendant pleads, that at the time he had no cart nor carriage. The plaintiff demurred.

<p>This was an action of ejectment, brought in Halifax Superior Court, to recover possession of a certain tract or parcel of land, lying in Northampton county, and the following special verdict found:—That Jonas Wood, father of the defendant, being seized in fee of the lands in question, on the 17th day of August, 1790, duly made and published his last will and testament in writing, and among other things devised—"Item, I give and bequeath to my son Cullen Wood, my plantation and lands, by the name of Mall’s Ridge, bounded as follows: Beginning at the head of the Hog pen Branches, in Joseph Wood’s line, at a blazed tree; thence along a line of blazed trees to the Great Pocoson, to a pine; thence along a line of blazed trees to the head of Robertson’s branch; then down the run of the said branch to Lemuel Burkett’s line, to Godwyn Cotton’s line; thence along said Cotton’s line to Joseph Wood’s line; thence along the said Joseph Wood’s line to the first station, containing four hundred acres, be the same more or less, &c.—Item, My will and desire is, that if either of my two sons, Cullen Wood or Lawrence Wood, should die without lawful issue begotten of their bodies, that my son Jonas Wood shall have the lands of the one so first dying; and in that case, as aforesaid, do give and bequeath the aforesaid lands of the one so first dying, unto my son Jonas Wood, to him, his heirs and assigns forever”—And afterwards departed this life, and the said will was duly proved and recorded.—That Cullen Wood, the devisee under said will, entered upon and was seized of the lands in questions, agreeable to the devise thereof to him in the said will; and being thus seized, on the 7th day of May, 1792, duly made and published his last will and testament in writing, in the words and figures, following —“Item, I give and bequeath to “my wife Sarah, all my horses, cattle and sheep, “that was not before given, away, and the re-“mainder half of my growing crop. Also all the, “remainder of my estate, whether within doors or “out, that was not, before given away—all the “residue of my estate, and every part thereof, I “give to my wife Sarah Wood, she paying all my “just debts and funeral charges, &c. to her and “her heirs for ever"—And afterwards departed this life without issue, leaving his brother Lawrence Wood, upon which the said will was also duly proved. That the said Thomas Sutton intermarried with the said Sarah Wood, widow and devisee under the will of the said Cullen—the defendant having entered upon the premises, by virtue of the devise in the will of the said Jonas, deceased, as aforesaid. After the death of the said Cullen this suit is brought; and if the court shall be of opinion that the law is for the plaintiff, they find the defendant guilty of the trespass and ejectment set forth in the plaintiff’s declaration, and assess 6d. damages and 6d. costs—If not, they find the defendant not guilty.</p>

THE parish of Bingley levied a tax on all the lands in it; so much for every acre: and they excepted from the said tax 900 acres of wood, belonging to the Bishop of London, pretending that they were discharged by custom. A parishioner was sued, and judgment was given against him in Pauls, and the judgment was affirmed upon an appeal. And now he prayed a prohibition. The custom is against law.

I. S. promised with his daughter, a certain sum in marriage, and afterwards the plaintiff intending to sue him on this promise, (having married his daughter) the said I. S. told him he would leave him as much as he would give to any of his other children.

<p>THE Jury End a verdict for the Defendant subject t® tbe opinion of the Supreme Court upon the questions arising out of the following case»—--The Defendant’s intestate, Horn'iblow, of the town of Edenton, in his lifetime* by hIs writing obligatory, bearing date the 15th day of June, in the year 1798, bound himself to the Plaintiff’s testator, his heirs, &c. in the penal sum of six hundred ant^ eighteen pounds, eight shillings and six pence, to be discharged on the payment of three hundred and nine pounds, four shillings and four pence. The said Ramsay died on or about the 9th day of September, in the year ^ ■ . , r , . 1799, (the said obligation nor any part thereoi being Pa*^) having first made his last Will and testament and therein appointed Alexander Millen, of the town of Eden-ton and the said Plaintiff William T. Muse of the County «f Pasquotank, executors thereof, who proved the same and took upon themselves the execution thereof. That the said Millen^ during his lifetime, transacted alhthe bu-siftess relative, to the estat» of the said, testator in the county of Chowan, That on pr about the 15th day of October, in the year 1799, the said obligation and every part thereof being still due and unpaid, that the said Horniblow died intestate, and joint administration on his estate was by the County Court of Chowan committed to yacob Blount of the same town of Edenton, and the said Millen. That before the said obligation.or any part thereof was paid, the said Blount died, .whereby the entire administration of the effects of the said Horniblow survived to the said Millen, who holding in his hands the said writing obligatory as one of the executors of the said Ramsay, and being also as administrator op the estate of the said, Horniblow, on the receipt of the assets arishig from his, estate on the-30th June 1.8.02, applied the sum of eighty-two'pounds, thirteen, shillings—in part discharge of the. said writing obligatory, and op the. 30th January, 1803, a, further sum of seventy pounds, ten shillings, which said appropriations tyere endorsed upon the sard- waiting obligatory in the proper hand writing, of the said Millen, leaving a balance, including interest, of ^192 14 4, of the assets of his said intéstate, Horniblow, which remained, in the hands of the said Millen, unappropriated, until his. death, there being no other debt then due from the estate, of his intestate : That the said Millen died on or about-the 27th April, in the year 1807, having first made his last will and testament, and thereof appointed Josiah Collins ^ John Little, and Henry King, 'of the^same tqwn of Edenton, executors, who proved the same in dué form of*' law, and took upon themselves the execution thereof That administration de bonis non he. on the estate of the said Horniblow, was in due form ofdaw committed by the County Court of Chowan to the said Defendant, üaweqer^ of the Term of March, in the year 1808 : That the said -John,-little, Josiah Coilins, and Henry King, having undertaken to transact the'business pf the said Milieu, in the said town pf Edenton, as t^ell the writing obligatory as the monies of tj^e estate of the said Horni-hlow, come into their hands, who delivered over to the said Defendant, Sawyer, the said last mentioned sum of £192 14 4, and to the said Plaintiff, Muse, the said writing obligatory on ^hich the aforesaid balance of ,£240, appears to be due on the said 30th January, 1803, with interest from that time. There was also in the hands of the said Millgn specific personal property of his intestate. To recover this balance of £240, with interest thereon from the 30th January, 1803, this suit is brought, and |.he following points submitted, viz.</p> <p>1. Whether the said Alexander Mitten, having held the said writing obligatory for such a length of time, and having at the satrie time the estate of the said John, more than sufficient to satisfy the said bond, is such a presumption pf payment thereof, as to bar the Plaintiff ⅛ recovery or Operate as an extinction of the debt ?</p> <p>2. Does the act of 15T15, under all the circumstance? pf the case,* operate as a bar to the Plaintiff’s recoyery ?</p> <p>If a creditor appoint the debtor hi? executor, it shall pperate as an extinguishment of the debt; but the debt must be due from the debtor in his private capacity, and not as executor or administrator. < A suspension, of a remedy by Operation of law, is different from one created by the' voluntary act <jf the party. If administration is granted to a debtor, the debt is not thereby extinguished, because £omes *n by operation of láw. If the creditor make the executrix of the debtor his executrix, and die, this is no extinguishment of the debt ,* because the executrix ig not entitled, in her own right.*</p> <p>The debt is extinguished, because the same hand that is to receive ought to pay. Her & Millen, as executor of Ramsay, had aright to receive the amount dufe on the bond; and having had assets as administrator of the debtor, he ought to pay. This is the principle which prevailed in the case of Dorchester v. Webb;† for although judgment was there given for the Plaintiff, it was because-when she was made executrix of Anne Rowe, she had fully administered all the assets in her hands, as executrix of her husband, Dorchester, one of the joint and Several obligors. So that, though she was the person having a right to receive, she was not the person who ought to pay.</p>

<p>IN replevin the defendant made conisans en droit the tenant for life, and prayed a return: then the plaintiff came and pleaded that the tenant for life, died since the last contuinuance.</p>

THERE being divers matters of controversy between the father and Margaret, his daughter of the one part, and Knight of the other part; the father and daughter of the one part, and Knight of the other, submitted themselves to an arbitration of all quarrels. The girl being within age, the father bound himself to Knight, that he and she would perform the award on their part.

IN detinue, the plaintiff declared that he had delivered the goods to be redelivered quando requisitus, and that the defendant did not deliver them, licet sæpius requisitus, &c. The defendant pleaded a custom of suing by attachment, and that thereby they were recovered of him. Whereupon the plaintiff demurred. 1. Because, the cause of the debt on which the attachment was, is not shewn; neither is it averred expressly that there was any debt. Stone.

Action on the case for the Infringement of a Patent Right.) The following brief statement was furnished to Mr. Oliver Evans, by his counsel for the purpose of exhibiting to the committee of Congress appointed on the subject of his patent right.

THOMAS CUNNINGHAM in September 1792, duly made his last will and testament, by which amongst other things, he devised as follows; “It is my will and desire that five feet of an alley “be left from Front-street to low water mark, as “convenient as may be to the after bequeathed lot, “then I will and desire that forty feet back including the house where Mr. Potts is now resident, be at the expiration of the lease rented out for the maintenance of a negro woman of mine, named…

<p>This was an indictment against the prisoner for the murder of William Loaper, upon the bill in the words and figures following, to wit:</p> <p>State of North-Carolina, District of Fayetteville.</p> <p>Superior Court of Law, April Term, 1801.</p> <p>The Jurors for the State, upon their oaths, present, that James Carter, late of the county of Robeson, within the district aforesaid, labourer, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the twenty-second day of November, in the year of our Lord one thousand eight hundred, and in the XXVth year of the independence of the state, with force and arms, in the county and district aforesaid, in and upon one William Loaper, in the peace of God and the state, then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault; and that he the said James Carter, with a certain knife of the value of six pence, which he the said James Carter in his right hand then and there held, the said William Loaper, in and upon the left breast; of him the said William Loaper, then and there feloniously, wilfully, and of his malice aforethought, did strike and thrust, giving to the said William Loaper, then and there, with the knife aforesaid, in and upon the aforesaid left brest of him the said William Loaper, one mortal wound, of the breadth of one inch, and of the depth of four inches, of which said mortal wound the aforesaid William Loaper then and there instantly died; and so the jurors aforesaid, upon their oath aforesaid, do say that the said James Carter, the said William Loaper, in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder, against the peace and dignity of the state.</p> <p>Edward Jones, Sol. Gen.</p> <p>Plea Not Guilty—The jury sworn to try the issue of traverse, found the prisoner guilty of the felony and murder, in manner and form as charged in the bill of indictment—And the council for the prisoner moved an arrest of judgment, for the following reasons:</p> <p>1. Because, in the caption of the indictment, the term of the court is not sufficiently expressed, the year being written in numerical figures.</p> <p>2. Because the place of the wound, in that part of the indictment which charges with giving a mortal wound, and which states the length and breadth of the wound, is not sufficiently, or at all set forth. William Duffy.</p>

THIS was an action of trover, brought by the Plaintiff, to recpver the three negroes mentioned in a bill sale frop Defendant to Plaintiff’s intestate, which is drawn in the usual form; to which Plaintiff, T. D. King, was a subscribing witness, and on which, there was the following endorsement: “ The condition of the within “ bill of sale is such, that if, the said Hill, within nine “ months from the date thereof, pay over to the said S. r J King the purchase money therein…

JUDGMENT being given in an ejectione firmæ, a writ of error was sued before the writ of inquiry was awarded, or returned. For the judgment is quod quærens recuperet terminum; and on this judgment the plaintiff may maintain an hab. fac. poss. If the writ of error did not lie in this stage of the suit; the plaintiff after obtaining possession, under an erroneous judgment, would never get a writ of inquiry, and the injured party would be without a remedy.

IN ejectione firmæ on non sum informatus the plaintiff had judgement, quod recuperet terminun, and the writ of inquiry was awarded; and, before the return of it, a writ of error was brought in K. B.

<p>THE complainants claiming as legatees and next of ícin to William flones, instituted a suit in equity against Zollicoffer, in which the bill stated that William flones died in 1758 having first made his will, which amongst others contained th'e following clause. “ I give to my wife Sarah flones the use of a negro fellow named Ben, another named Sam, and three wenches named Sal, Nan, Doll,, as also my sto k of goods, chattels, &c and parts and parcels of my estate during her life, then to be equally divided among my children, bv my executors.” He appointed his wife and his son William his executors.⅜</p> <p>That part of the negroes so bequeathed, are in the possession of .Zollicoffer, who pretends a title to them under a purchase, made either by himself or his lather from Set-rah the widow, who alone, took upon herself the burthen 7 1 _ ¿f executrix, and who before the period of such purchase, had paid all the debts due from the testator’s^ estate, and had elected to bo d the negroes as legatee, and had actually so held them for many years.</p> <p>That the said Zollicoffer was acquainted with all the circumstances, and purchased from the widow as legatee only ; and paid a consideration proportionate only to her life estate, and applied the money paid, or knew of its application, to the discharge of the widoW5s_proper debts. The bill then prays a discovery of the names and increase of the negroes, and of the profits received from their la-bour, and a decree for the respective shares of the complainants.</p> <p>The answer of ZoV coffer admits the purchase of a negro named Beck from the widow and three of the legatees, who assured him that they^ could then, or would make a'good title to her ; that he has understood that the girl was sold to pay a debt contracted for the support of ithe family.</p> <p>To this answer a replication was filed, and the Court directed five issues to be made up ; the only one of which necessary to be here stated was as follows-—“ Whether «ale to Zollicoffer' was for the purpose of paying the debts and expences of the testator’s estate, or the necessary ex-pences towards maintaining the‘children, or young negroes belonging to the testator, or for the benefit of the widoW only ? And whether the said Zollicoffer had notice of the equitable claim set forth in the bill, when be purchased ?”</p> <p>On this issue the jury found that the sale of the negro Beck was justifiable, and for a valuable consideration, and that the Defendant purchased without notice.</p> <p>The Court thqn decreed that the complainants should pay to Zallicoffer his costs.</p> <p>The complainants • afterwards filed a .bill of review, in which they made the following assignment of errors, viz, 1, No such issue as that above stated ought to have been submitted to the jury, it being perfectly immaterial as to the claim of the complainants, whether the said ne'gro Beck was sold by the widow who held her as a legatee for lite for any of the pufposes mentioned in the said issue or not,</p> <p>2. Such issue ought not to have embraced any other causes lor the salfe than that expressed in the answer, viz. “to pay a debt contracted for the support of the family,” whicH could upt, Were it true, enable the Widow, a legatee for life only, to sell the said negro absolutely and for ever, and so as to divest the property of the complainants.</p> <p>3. The jury have not specified the cause or purpose for which the said sale was made, nor have they said it was for any of the purposes contained'in the said issue.</p> <p>4’ That the Coqrt should have pronounced a decree for the corpplainants against the said Zollicoffer for all the descendants of Beck, which were, or had been in his possession, or in other words for the complainants shares of all the said negroes.</p> <p>To this hill of reyiew Zollicoffer demurred, and upon argument the following opinion oi the Cour^was pronoun* ced by (</p> <p>Henderson, J. It is a maxim in equity that where equity .is eqtial the law shall prevail.—Under a mistaken application of this principle the original bill was dismis-sed .as to the Defendant Zollicoffer. To reverse that de~ js ^ 0b;ect of the present bill. - J r</p> <p>A purchaser for a valuable consideration without ncltice, has an equity equal to that of any one ; and if he has any 1 J 1 J advantage at law over his adversary, a Court of Equity will not deprive him of it; although he may have obtain- ,- eel it accidentally, or even improperly. It will not com* pel him to discover his title, or his title deeds, the boundaries of his lands, to surrender up title deeds, although improperly obtained; or isulft r testimony to be perpetuated against him, because a Court of Law vjtould do none-of these things.—.-Bu; when he is not called on to surrender any of these advantages ; when nothing is asked qt him but what a Court.of Law would compel, him to perform, it aiFords him no protection ; and when he withholds from another his property, he shall be compelled to restore it—the Court taking care that he shall not be deprived of "any of his legal advantages. The case of Collet v. Dc Gols & Ward* so much relied on by the Defendant’s . . counsel, fully supports this opinion. A simitar plea to the present protected Ward and his trustee, as to all the estates of tfie bankrupt, which the bankrupt had morg^ged prior to the bankruptcy and which by assignment had, come to Weird or to his trustee before the commission was sued oüt; for as to them Ward had a legal advantage ; he had the legal estate, and nothing but equities of redemp-tipn reinainecIHin the baukrupt at the time of his bankruptcy to forfeit by the act of bankruptcj*for the benefic of his creditors } and when the assignee came into a Court of Equity to redeem the mortgaged estates, Ward's' equity being equal to his, and he having the estate at law, it was decreed that the assignee should redeem, upon paying not only the money for which the estates wefe originally mortgaged, but also the money paid by Ward to the bankrupt for a release of the equities of redemption ; although the equities were purchased after the acf of bankruptcy committed, and when the bankrupt had nothing which he cbuld sell. For Ward had the legál estate, an equity of l-edemptioa is unknown at law, and cannot be enforced in Courts of Law. And but for the interposition of a Court of Equity, the mortgaged estate, after default in the , , . .. mortgagor, would remain forever in the mortgagee. Ward\s equity therefore protected him in a Court of Equity, as he would have been protected in a Court of Law ; and the truth of his plea was ordered to be ascertained.</p> <p>But as to that property derived immediately from the bankrupt after his bankruptcy, and before commission sued out, the Court directed Ward to account, regardless of the truth or falsity of his plea; for as to that he had nq legal advantage,</p> <p>It is deemed unnecessary to examine farther the cases cited in the argument, or to notice some expressions of the Chancellors ; such as that a Court of Equity has no jurisdiction against a purchaser for a valuable consideration without notice, and others of like import j for in all the cases the , complainants were endeavoring to obtain something which the ?aw would not grant, and the expres-. sions qf the Chancellor’s Were used in reference to such cases*; and if not were extra judicial. It is unnecessary to decide whether the allegations of the parties warranted the making up of the fifth issue, to wit: Whether the Defendant was a purchaser for a valuable consideration without notice. But it is very questionable whether the Defendant had made in his plea or answer (call it whiclj you will) any such allegation.</p> <p>It is also objected that there has not been a final decree, passed and enrolled in this cause. It is true those formalities which are used in England have not been complied with. But there is sufficient for this Court to perceive that there was a decree pronounced in favor of Zol-Ucoffer. The issue was made up under the direction of the Court; it'was found in Zollitoffer’s favor ; it was ordered that the complainants should pay him' his costs: an interlocutory order was made as to the other Defendants and the cause progressed as to them; and rested as to him. According to the loose manner in which the decrees of the Courts are taken, we must, in ietstice to the parties. ’ J 1 ’ consider this as sufficient evidence of a decree having been pronounced. It is therefore ordered and decreed that the decreh dismissing the bill as to Zollicoff'er be reversed.</p> <p>Upon the reversal of the original decree, Zollicoffer filed a petition for re-hearing, which was argued by</p> <p>In this case the widow who conveyed to the Defendant, was executrix of the estate and legatee for life of the property so conveyed. It is stated, in the original bill, that before conveying to the defendant she had elected to hold as legatee; but that fact was not admitted in theansweri nor was any issue made up upon it; nor any proof whatever offered of it. The jury, on the proper issue, have found that “ the Defendant purchased for a valuable consideration, without notice of the complainants claim.”</p> <p>On behalf of the Defendant it is contended, that the original bill was properly dismissed, and of course that the demurrer to the bill of review ought to be allowed</p> <p>I. Because the complainant in the original bill did not prove that the widow had elected to hold as legatee.</p> <p>According to the practice in the Court of Chancery in England, the Chancellor finds what material facts in issue are proved by the parties ; and they are all set forth in his decree as having been proved ; and the facts wot stated in the decree to have been proved, will, on a bill of review, be held not to have been proved.*</p> <p>Here the Legislature has enacted, that all the facts controversy between the parties, shall be tried by a jury, and therefore, the only proof which the Court could have admitted in support of this allegation in the bill, would liave Leen the admission of the Defendant; for then it would not have befen a disputed fact} or the verdict of a jury, it being a disputed fact- But the complainants produced neither of these, nor any other proof whatever.: therefore this allegation not being proved, or admitted, must be taken not to be trne.¡ Cde non apparcniibvs ct de non existentibus eadem est ratio.J</p> <p>If a devise be tb aii executor Himself, he shall take as' executor, till* his election to have #s legatee.* As the widow had not made her election to hold as legatee, she held as executrix, and in that character sold, and surely conveyed a good title, both in law and equity, and therefore the original bill was properiv dismissed, and the demurrer must be allowed on this ground.</p> <p>If it is contended that the Court may reverse the decree and open the cause so as to let the complainants have an issue made upon this allegation,.because it would ire hard that the party should suffer from the mistake or oversight of his counsel : it may be answered</p> <p>- fst. There is not a single tittle of Testimony, not even the oath of the party, to shew that there was any mistake or oversight whatever, or that the merits were not fairly and fully brought forward and disclosed on both sides. And if a decree can be reversed', merely because a man of lively imagination.can fancy that, the party against whom it is made, might possibly have been able to produce testimony, which might have Had an influence on that decree, all decrees whatever may be reversed.</p> <p>2dly. “*Itis to be lamented, if the fact be so—but it is out of the power of this Court, without introducing a rule' pregnant with inconvenience, to remedy it,” was the given by this, Court, unanimously, to an applica-f°r a new trial, where the ^mistake of counsel and surprise on the party were sworn to † And surely nothing could be more inconvenient than permitting a party first to bring bis cause to hearing on one set of facts, and when the opinion of the Court was found tó be against him on them, to try another : and perhaps another, at the distance of many years (as in this case) when his adversary hás probably lost much of his testimony. The com» plainants may have abstained from making up this issue until the Defendant’s witnesses have died. The Defendant did not want an issue on the complainant’s allegation s —his case was as strong without such issue, as if one had been made up, and found for him. Such practice is not permitted in England, even where the Court has no doubt that the party applying for a new trial has merits.* The maxim is “ it is better to suffer a mischief than an incon» Venience.”</p> <p>Sdly. At law, if the Flantiff has had a verdict against him, and had any material testimony, which he could not fcffer to the jury, he may obtain a new trial, provided he Shews that his not offering that testimony was owing to any fraud in his adversary, or surprise, in a doubtful case, on himself. But, if he does not move for a new trial, but suffers judgrnent to be entered up on the verdict, then in that case he is without remedy ; for that judgment can only be reversed by writ of error,—for error on the face of the record ; or for some fact, (such as the death of one of the parties) shewing that the judgment was a nullity. Now in the present case the Complainants suffered a decree to be entered against them, and acquiesced in it for many years, and now bring a bill of review to reverse that decree. A bill of review is in nature of a writ of error, and “ can only be brought upon errorfin law appearing in the body of the decree itself (or issues,) or upon discovery of new matter.† -</p> <p>It is therefore concluded that on this ground the demurrer must be sustained unless it is contended that this Courtis neither bound by precedent or principle, but can., say with the tyrant of old, “ Sic volo, sic jubeo.,</p> <p>II. If it bad been proved that the widow had. made her election to hold as legatee, it is admitted that that election 'would have vested the legal remainder in those under whom the complainants claim, and that the widow, after such election, could only dispose of the legal estate for her life to the Defendant. But at the time that the Defendant purchased Of the widow he believed that she was conveying to him a good estate in fee simple, gave an adequate and valuable consideration for such an estate, and had no notice of the complainants claim—so the jury has found» And, the Defendant being in possession, it is contended that this Court ought not to interfere to deprive him of that possession, or in any manner to invalidate or endanger his title.</p> <p>The maxim in equity on which this position is grounded is sometimes cited as being “ Where there is equal equity the law must prevail.” But this is not the true maxim, but a consequence of it. The true maxim is, “ In (equali jure, potior est conditio possidentis.” The person having the legal title can and does generally recover possession^ law, and whoever wants to deprive him of* that possession must come in as a complainant in equity, and if the Defendant who has got possession has equal equity with him who demands it from him, the Court will not interfere between them; for there is no equity or justice in taking a burthen off the back of one innocent man and imposing it on that of another equally innocent man. So that the legal tide prevails in such cases, not because equity pay's any more respect £o it, but because it puts its owner in possession, through the instrumentality of a Court of Law.</p> <p>For example, A, B and C, have several mortgages oñ the same property for jflOOO each, without being affected hv notice of one another’s mortgages. A has the legal title, being first mortgagee, but this Court will compel him to convey it to B, on B paying him his _£l000 : But if A, before B files his bill, conveys or assigns the legal title to C, on C paying him his money, then B cannot compel C to part with the legal title without paying him £2000. What is the reason of this—the legal title is equally valid in both cases, and equally operative; for it puts its owner in possession ; and B*s equity is still the same ; for he hath done nothing to strengthen or impair it. The true reason is, that when A had the legal title, by means of it, he got possession, and by virtue of his mortgage was a purchaser for a valuable consideration to the amount of £1000, and so far in xqiiali jure with B, and as long as he sustained that character, the Court would not interfere against him ; therefore B, when he wanted to procure the interference of the Court in his favour was obliged to deprive him, not of his legal title, but of his equal equity, which he did by paying to him or tendering the £1000. Upon that A ceased to be a purchaser for a valuable consideration, and B continuing to be so, the Court readily interfered in h)s favour, against A’s legal tide. But when A conveyed the legal title to C, C became a fair purchaser to the amount of the £ 1000 he paid to A, and continued a fair purchaser to the amount of his original mortgage, viz. £1000, and having got the possession by virtue of his legal title, the Court would not interfere against him until B deprived Jhim of the character of a purchaser by paying him the whole £2000—as well his own younger mortgage as A’s elder one. Sq if there had been an outstanding satisfied term in D, although D, not being in equity a purchaser, would have been compelled to convey to a purchaser without receiving any consideration, and these mortgagees would have been entitled to call upon him according to seniority (for between equities, neither of whom can hold the possession for want of the legal title, qui prior est tempore, potior est jure) yet if D assigned this satisfied term, which itself was of no value in the eye of equity, to C, he would by means of it get the possession and compel the others to resort to equity if they wished to get it from him, and in order to induce the Court to act against him they must deprive him of his character of a purchaser by paying him off.</p> <p>This principle more extensively influences the conduct of pourts of equity than any other principle whatever. In equity there are three classes of persons. 1. Purchasers, or those who claim fop a valuable consideration. 2. "Wi-* dows and children, or those whose claim is considered meritorious. 3. Volunteers, or those who claim without any consideration. And equity will relieve purchasers against widows and children or volunteers, and it will relieve widows and children against volunteers ; but it will not interfere between volunteers,* nor between wi~ flows and children ; nor between purchasers, which is the point to be more particularly proved.</p> <p>A purchaser having the legal estate can, it is believed, come into equity only for one of three purposes. 1. To perpetuate testimony. 2. To obtain discovery. 3. To obtain more compleat relief. a</p> <p>The Court will perpetuate testimony where it will neither grant a discovery nor give reliel-†</p> <p>So it will more readily entertain a bill for discovery than one for, relie 1.‡</p> <p>The original bill prayed both discovery and relief. But it was properly dismissed as to both ; for it is a well settled rule that against a fair purchaser for a valuable consideration, without notice, the Court will take no step whatever.§</p> <p>Against a purchaser for a valuable consideration without notice, the Court will not entertain a bill for the purpose of perpetuating testimony.ǁ Or for a discovery, and still less for relief. ¶</p> <p>|n some 0f these cases a discovery was sought of deeds • J ? the Defendant had got into his hands by a trick or a fraud, ' ‘ but was refused.* And in almost all of them the complainants had the legal title ; so that when it is asserted that the plea of being “ a purchaser for a valuable consi-d' ration, without notice,” is no defence in equity when the complainants own the legal title, all that can be said Stnswer is, that such an assertion is worthy of admiration.</p> <p>The case reported in C. T. T. 65, under the title of Collet v. De Gols and Ward has been 'supposed to be contrary to the doctrine now attempted to be supported by the Defendant. But a very little consideration will show that it strongly sppports the Defendant.</p> <p>The complainant as assignee under a commission of bankrupey against Tyssen, filed his bill to set aside several conveyances which Ward and the other Defendant, in {rust for him, had obtained from Tyssen after his bankruptcy, and without consideration. Although Bradly is not mentioned as a Defendant in the title of the bill, yet be certainly was one ; for a decree was made against him. The property of the bankrupt was placed in three situations distinctly different. 1st. The mortgage to Bradly, which he never had assigned, but of which the bankrupt had assigned the equity of redemptitm to Ward, without receiving any consideration therefor. 2d. Mortgages before the bankruptcy, made to Haskshaw and others, and by them assigned to Ward and others in trust for Ward. 3d. Property conveyed to Ward and others in trust for hint after the bankruptcy. As to Bradlys mortgage, he Lad the legal estate which gave him the possession or right of possession, and was a purchaser for a valuable consideration, without notice, to the amount of his mortgage, which was of course paid to him in order to divest him of the character of a purchaser, and then he, Bradly, was decreed to convey to the complainant; for the assignment to Ward of the equity of redemption was after it had been tested in the complainant, and was fraudulent, and unsupported by the actual possession, or right of possession— aS to it, no decree was made against Ward, nor any step whatever taken against him. When Bradly was paid, thp of redemption was necessarily to be disposed of by the Court, and the Court did dispose of it by decreeing Bradly to assign to the elder and fairer equitable claimant.</p> <p>As |to the property of which Ward had the legal title, and by means of it the possession, or right of possession, and concerning which the decree must necessarily be against Ward, Lord Talbot after distincdy stating, “ that a purchaser for a valuable consideration, without notice, having as good title to equity as any other person, this Court will never take any advantage from him ; and consequently, will not grant a discovery against him, &c.” directed an issue to try whether Ward had notice of the bankruptcy, and when. He also made the same order as to the third class o property, considering Ward, and his special trustee, as one person.</p> <p>The case of Strode v. Blackburne,* hath also been relied upon for the Complainant. There a bill was filed for a discovery and relief, to which the Defendant plea; ed that he was a purchaser for a valuable consideration, without notice, &c. Lord Rosslyn overruled the plea as to the discovery, and directed that it should stand for an answer, with liberty to except. So far, this case is inconsistent with what is now contended for on behalf of the Defendant^ and is inconsistent with the doctrine of Lord Rosslyn himself,† and with every other case previously decided and reported. And in the subsequent case of n v. Lee,‡ which was exactly similar to Strode v. •' T Blackburne, Lord Eldon allowed a similar plea, and said, “ that the decision of Lord Rosslyn, in Strode v. Blackburn, was not consistent with the doctrine of equity as to a purchaser for a valuable consideration, without notice.5’</p> <p>The legal title in equity is of no consideration ; for “ the trust is the land in equity, and the owner of the land.”* And it is devisable by general words, as lands.† And it will descend as lands.! , ‡</p> <p>It is therefore submitted, that on either of these grounds, the original bill was properly dismissed, and that the Demurrer to the Bill of Review, ought to be al-7 ° lowed.</p>

THIS was a petition filed by the widow and next of kin, to obtain distribution of the intestate’s, William Duke's estate. Held: the widows was not entitled under that act. That although, by the act of 1784, the provision for the widow was differently modified, yet no allowance was made her, with respect to a child’s advancement.

QUARE vi et armis in ipsum insultum fecit, &c. and declares on a battery. The defendant says quoad venire vi et armis, non culp. without saying et de hoc ponit so super patriam, et quærens similiter; et quoad residuum transgress. he justifies by a special plea et paratus est verificare, &c. The plaintiff replies, quoad defendens prædict. vi et armis, in ipsum insultum secit the et anno, &c. supradict. et verberavit, et hoc paratus est verificare.

CASE. The plaintiff recovered only small damages, whereupon the defendant prayed that judgment might be entered against himself. The plaintiff prayed that judgment might not be entered, and Beere cited the case of Taylor vs. Somes, where the plaintiff waved his judgment and began de novo.

This was an action on the case brought by Carrington against Carson, to compel him to pay to the plaintiff the sum of £.86 10 11½, being one half of a sum which the plaintiff, as joint security in a bond with the defendant, had paid by execution for Andrew Burke, the principal.

INDICTMENT for Petit Larceny, the caption of which was in these words, State of North-Carolina, Franklin-County, March sessions 1798. The defendant’s counsel moved that it might be quashed, because it did not appear on the face of the indictment, before what court it was taken, nor indeed that it was taken before any court. Every caption of an indictment, ought to shew that it was taken before a court which had jurisdiction of the offence ; 2 Hawk. 359. sec. 119.

IN EQUITY This was a case in equity from Morgan court, in which the complainant, for himself and the concerns of the Unitas fratrum in this state, states that the said Unitas Fratrum had been acknowledged as an ancient Protectant Episcopal Church by the Parliament of Great-Britain, and the Bishops of the Church of England, by a public act of parliament of the year 1749, before the revolution; and as such has sublisted in this state above forty years; and the title and stile…

THE plaintiff brought his action for the following words: will you cast away your daughter on Taylor? to which the father of the girl replied why? and the defendant added: It is as true as any thing that he ravished Frank's wife, innuendo &c. And you had better follow your daughter to the gallows, than bestow her on him.

CASE for these words. If Robert Prior would justify his answer, which he made to a bill preferred by Tinson against Tinson. I would prove him perjured upon his oath. The answer had been disallowed for insufficiency; all points in the bill not being answered. The action does not lie; for he is not directly charged with perjury. T. 17 Jac. B. R. Sparkman’s case. He is a thief, or I. S. is perjured; held not actionable; the words not being directly affirmative. So 18 Jac.

<p>DETINUE for several negro slaves. A special verdict was found in Halifax Superior Court, which was transmitted here, for the opinion of this court. All the material facts are stated in the following opinions.</p>

<p>THE plaintiff declares that he was a clerk, and the defendant in speaking of him, said: Robert’s attorney in this court purchased a latitat against the defendant, whereupon the defendant added: Go, tell your lawyer, that he is a base rascal, and that I will make him lose his ears, and teach him, or any lawyer of them all, how they dare to serve a writ on me. The plaintiff had judgment, for the words tend to disgrace him in his prosession.</p> <p>C. J. If he had said that he would have his ears, it might be intended that he meant by violence. But when he said that he would make him lose his ears, he meant for some crime.</p>

<p>TROVER as executor, and the plaintiff declared of a trover and conversion, after his testafor’s death, and after issue was non-suited. The defendant prayed and obtained costs.</p>

<p>The special verdict found that the bond declared upon is the act and deed of John Pope, the devisor of the defendants, and that they have lands by the devise sufficient to discharge the same: That the executors of John Pope did duly advertise the death of their testator according to the directions of the act of 1789; and that the plaintiff is and has been an inhabitant of the State; and that the suit was not instituted within two years from the qualification of the executors :—And they also pray the advice of the Court, whether the plaintiff is barred from a recovery by the said act of 1789. If the said act is to be considered as extending to claims against heirs and devisees, they then find for the defendants; but if the act is to be confined only to suits against executors and administrators, they then find for the plaintiff: And that the bond was not paid at or after the day.</p> <p>The case was argued at a former term, by Harris for the plaintiffs, and Gaston for the defendant; and now the opinion of the Court was delivered by</p>

IN trespass for taking goods, &c. The defendant pleaded that the Earl of Southampton was seized of the manor of St. Giles, and that in the said manor there was a plaint against one Bayton, and an attachment issued against him, and he (the defendant), being bailiff, attached him by his goods; which the plaintiff claiming by colour of a fraudulent deed brought his action. The plaintiff joined issue that the deed was made bona fide, and it was found for the defendant.

HE was indicted for a forcible entry in the moiety of a manor; and the first exception was, that it did not say that he entered manu forti. But it was overruled, for it is sufficient if the extra tenuit be manu forti, and with force. 2. He could not enter on the moiety of an entire thing, but it must be an entry in the whole, for an entry on an entire thing cannot be apportioned.

<p>The Defendant, Skipper M’Call, contracted with the Plaintiff’s Son and Agent, at Wilmington, to carry from that place to the town of Fayetteville, certain articles for which he gave the following receipt:</p> <p>“Wilmington, 18th December, 1806.”</p> <p>“Received of Mr. Henry Williams, in good order and “well conditioned, the following articles.—Which said “articles I promise to deliver to Messrs. Nesbit and Campbell “at Fayetteville N. C. the dangers of the river only “excepted, they paying freight for the same as marked in the “margin.</p> <p>“Hugh M’Call"</p> <p>One of the hogsheads of Sugar, mentioned in said Receipt, being larger than common, could not be got into the hold of the Boat, but was placed behind on the hatches, a place where Sugar is sometimes but not usually carried, except hogsheads of the above description: There was at the time a considerable fresh in the river, which was known (equally) to both parties. There stood on the bank of the river, about ten miles above Wilmington, a large cypress tree, part of which, or some of the limbs of which, leaned, over the river, at this place the river made a bend, and in passing this tree, the stream being rapid the stern of the Boat was driven in towards the bank, and passed under one of the limbs of the tree, which forced the hogshead overboard together with the Skipper who was trying to save it.—The hogshead was lost. It appeared in evidence upon the trial of the cause, that the Skipper, after having deposited the other articles in his Boat, did not wish to receive this hogshead, on account of its size; the plaintiff’s agent replied, that if he carried any, he should carry all; the Skipper then informed him, if the hogshead was taken, it must be placed upon the hatches; and the plaintiff’s agent knew that the said hogshead was placed on the hatches because it could not be got into the hold pf the Boat. It further appeared, that at the time the hogshead was forced overboard, the Boat was in the common way, and that this was the only way along which Boats could be got up the River in time of high water; and that Boats are got up the river by hooking and gigging, and whilst the hands were engaged in the bow of the Boat in hooking to the trees and limbs, which stood on the bank and stretched over the water, the rapidity of the current drove in the stern of the Boat under the limbs which forced the hogshead overboard. It further appeared, that this cypress tree is a well known tree, and was well known to the Skipper and crew of the said Boat. There appeared to be no neglect on the side of the Skipper and crew, except the circumstances before mentioned do constitute neglect in contemplation of law.</p> <p>This action being brought to recover the value of the hogshead of sugar that was lost, and a verdict rendered for the defendant: It is submitted to the Supreme Court to decide whether the loss of the said hogshead of sugar, is attributable to one of those accounts that comes within the meaning of the expression in the receipt, “Dangers of the river, &c.” If it be, then the rule for a new trial to be discharged; otherwise to be made absolute.</p>

<p>THE plaintiff counted of a lease made to Anthony Hubart, whereupon he was possessed until the defendant ejected him. On non culp. a special verdict was given, to wit. That Jacobus Hubard, being seized in fee of the manor, granted the nine acres whereof, &c. is a parcel, and devisable by custom, &c. and committed voluntary waste, &c. Jacobus Hubard died, and Anthony is his cousin and heir, but they do not find that Jacobus died seized, or the land descended to Anthony; and this they present to the court. Anthony entered on the nine acres, being seized of the manor, and leased to the plaintiff, and J. H. entered on him, and whether his entry was lawful or not, the jury doubt.</p> <p>It was said that the heir shall take advantage of this forfeiture, for a right of action which is a mere foreign remedy, descends to the heir; a fortiori a title of entry. F. N. B. *149. 10 E. 4. 9. 38 E. 2. 39. 29. Ass. 32. 10 Ass. 20. 43 Ass. 45. 50 E. 3. 4. 19 E. 4. 15. 46 E. 3. 4. F. N. B. 144. 18 Eliz. Harper’s reports. There was a lord, and two coparcener copyholders; one of them made a feoffment, and the lord made a lease of the manor. The lessee shall not take advantage of this forfeiture, for he is, not privy to the title. But if the lessor dies, his heir shall take advantage of it. E contra. The heir in this case shall not take advantage of the forfeiture, in the life of the ancestor. The cases put, are those of inheritance, which descends to the heir: here is a new right of entry, an estate at the will of the lord. But this is a personal misdemeanor, and moritur cum persone. It is not found that he died seized, and that A. is his cousin and heir: so he may be, and yet enter by force of a feoffment. It was said e contra, that the commission of waste gives a freehold, which is nor personal; but is a forfeiture in respect to the tort done to the freehold. As to the point, where a seisin in fee is supposed in one, the law intends that it remains in him until his death. Sed adjournatur.</p>

ACTION of debt upon a bond, which was made before the act passed in 1786, by which bonds were made negotiable. The question for the opinion of the court was, whether this action was maintainable by the assignee ?

<p>This was an action of trover for a quantity of lightwood set as a tar-kiln on the defendant’s land, without being banked or turfed. A judgment was obtained against the defendant, on which execution issued, and was levied on the said lightwood, which was duly advertised and sold, and struck off to the plaintiff as the highest bidder. The plaintiff afterwards applied to the defendant for liberty to bank, turf and burn the kiln, as it then stood, which the said defendant refused to grant. The plaintiff then demanded the lightwood, and proposed to bring his team and cart it off the defendant’s land; whereupon the defendant replied, if the plaintiff came on his premises for that purpose, he would sue him.</p> <p>It is admitted that there was no evidence at the trial of an actual conversion, but that the kiln remained in the same situation it was when purchased by the plaintiff, and had never been touched or interfered with by the defendant.</p> <p>Upon the facts above stated, the plaintiff was permitted to take a verdict for $20, the value of the tar-kiln, with leave to the defendant to have the verdict set aside, and non-suit entered, provided the court should be of opinion, the plaintiff was not entitled to recover in this action on the foregoing facts; and, on motion of the defendant for that purpose, the case is transmitted, by order of the Court, to the Supreme Court.</p>

<p>ifan indict. ment forior' gery contains such acharge common law.thejudjjment shall not be arrested, although {he prisoner be indicted under the statute,-</p>

THE negro slave in question belonged to John Guy. He ran away on Sunday night, and on Monday about ia J o’clock he Was apprehended at Peter Hairston's, nine m^es distant from Guy's. Within a few minutes aftey the negro was apprehended, Walker, the prisoner, came , , .. . ' , . to the house ot Hairston, and was requested by Hairston to take the negro home.

THE bill stated, that the complainant, on the 15th September, 1771, contracted with the defendant for the purchase of several tracts of land ; and that the intention and understanding of the parties was, that one thousand pounds, Virginia money, was to be the price of the land, to bear interest from the first of December 1771 : that there was to be a credit of fifteen years for the payment of the principal sum, but the interest, computed at six per cent. was to be paid…

<p>The pleas were nul tiel record, death of the principal, payment and set-off—Surrender of the principal, and a special plea that the defendant was not sheriff at the time the writ was executed.</p> <p>The plaintiff sued out a writ against Martin Armstrong from the county court of Surry, at May term, 1807, but it was not returned until November term of the same year, at which time it was returned with the following endorsement: “Executed, James Fitzgerald.” No bail-bond was taken by the sheriff, a judgment was recovered against Martin Armstrong, and this is a scire facias against the defendant, to subject him to the payment of the judgment recovered against Armstrong, he having taken no bail bond. The defendant was elected sheriff of Surry at May term, 1806. At August term of the same year, he was qualified and gave bond and security. At May term, 1807, Thomas C. Burch was elected sheriff, and qualified and gave bond at August term following. It appeared from the evidence of Joseph Williams sen. Clerk of the County Court of Surry, that the practice of electing at May, and qualifying at August, obtained at a time when the law required sheriffs to be commissioned by the Governor, and that the practice has continued to this time. It appeared further by his evidence, that the sheriff elected at May, did not enter upon the duties of his office until he had given bond and qualified at August term following his election. It appeared by an entry on the docket, at November term, 1807, that the suit was then returned by consent of Armstrong and Fitzgerald the present defendant. It appeared also, by evidence, of the deputy-clerk, Joseph Williams, jun. that when Fitzgerald returned the writ at November term, he then observed that he had executed the writ in due time, but had failed to return it at August court preceding owing to its being mislaid. No capias could be found against Armstrong, the original defendant; but it appears from an entry on the execution docket, that a capias did issue from August, returnable to November, 1809, and that the same was returned "not found.” It further appears, from the affidavits of Joseph Williams, sen. clerk of the county court of Surry, Joseph Williams, jun. deputy clerk, and John Wright, deputy sheriff, that a capias did issue, against the defendant Armstrong, from August court, and was returned by the sheriff to November, 1809, "Not found;” but that the same had since been lost of mislaid; after which the present scire facias brought against Fitzgerald. The several papers alluded to in this case, accompany the same, and form a part thereof.</p> <p>The Court adjudged that there was such a record, and a verdict upon the issues was found for the plaintiff. The following reasons were offered for a new trial, but were overruled. If the Court should be of opinion for the defendant, a new trial to be granted: if otherwise, judgment for the plaintiff.</p> <p>reasons for a new trial.</p> <p>1st. That it was adjudged by the Court, that there was a no record. 2d. That parole evidence was received to supply the record; which was contrary to law. 3d. That the verdict of the Jury was contrary to law and evidence. 4th. Misdirection of the Court.</p>

The plaintiff sued out an original attachment against the defendant, which was returned to December sessions 1811, of the county court, levied on sundry articles; and the suit was then continued without further order, until September sessions, 1812, when judgment by default was entered and the cause continued until March sessions, 1813, when the default was set aside on motion, and Hill was allowed to enter into an interpleader, from which the plaintiff appealed to the…

<p>THIS was an action of assumpsit instituted in the County Court of Orange. The damages laid in the writ were above twenty pounds; after a trial in the County Court, it was brought up to the Superior Court by appeal.</p> <p>Upon the trial of the cause it appeared that the parties, being tradesmen, had worked together for their joint emolument, until they earned thirty two pounds ; when they came to a settlement and the balance of eight pounds was found due to the plaintiff. They afterwards continued to work, until they earned one hundred and six pounds more, the whole of which sum was received by the defendant. The plaintiff admitted the receipt of fifty pounds from the defendant, on which evidence the jury gave a verdict for the plaintiff, affecting his damages to eleven pounds, seventeen shillings and sixpence.</p> <p>A rule was obtained on the plaintiff, to shew cause why the verdict should not be set aside and a nonsuit entered.</p> <p>These two principles of law, on the doctrine of nonsuits, are established and known ; I. that a plaintiff cannot be nonsuited before the jury leave the box, but with his own consent ; 2 Term Rep. 275 : II. that the Court will not permit him to enter a nonsuit after the jury have returned, and declared their verdict. He has the right of putting his cause to the jury and risking a verdict, if he thinks proper ; but should be do so, and the jury find against him, then he cannot enter a nonsuit ; because such a practice would give him the advantage over the defendant, of receiving the verdict, if in his favor, and destroying it, if against him. To enter a nonsuit, on the rule obtained in this suit, would be contrary to both these principles of law, and give to the defendant that advantage which is denied to the plaintiff.</p> <p>The practice of granting such rules, if established, will give the defendant another advantage over the plaintiff ; he may omit to move for a nonsuit before the evidence is losed, when, perhaps, it would be in the plaintiff’s power to supply the defect relied on by the defendant ; and after a verdict is entered against him, move for and obtain this rule, set aside the plaintiff’s verdict and enter a nonsuit in its stead. But is such rules are refused, and the defendant compelled to move for a nonsuit before the jury retire, these evils will be prevented, and the parties stand on equal ground. For should the plaintiff refuse to be nonsuited, and obtain a verdict on evidence materially defective ; the defendant would be entitled to, and might easily obtain a new trial ; but I apprehend that even in such a case, he ought not to set aside the verdict and enter a nonsuit in its stead, unless on a rule entered by consent.</p> <p>The practice in England of granting rules somewhat similar to the one in this suit, is modern ; and it has not, it appears to me, been sufficiently attended to in this state. I suppose that practice to be founded on the statute of 14 Geo. 2 cap. 17, which provides, “ that if the plaintiff neglects to “ bring the issue to trial according to the course of “ the Court, the Court, on motion or notice, shall “ give judgment as in case of a nonsuit, unless they “ allow further time ; and that the defendant shall “ recover his costs.” If the rule in this suit is not founded on this statute, it is not supported by any one principle of law ; and is intended to be founded on this statute, it must be discharged ; for the issues were brought to trial according to the course of the Court, and the plaintiff obtained a verdict well warranted by the evidence ; 1 Burr. 358. But whether the rule is founded on that statute or not, it is a clear principle that the rule shall be discharged, unless a nonsuit, if moved for before the jury returned, would have been proper and legal. In this case, it is not pretended that such a non-suit would have been legal ; the rule, therefore, ought to be discharged. If the County Court had jurisdiction in this case, the plaintiff is certainly entitled to a judgment ; and that the court had jurisdiction, I think on examination of the several Acts, there can be no doubt. The first Act on the subject is that of 1777, cap. 2, sec. 61, by which jurisdiction is given to the County Courts in all cases, where the debt is above five pounds. By the same Act, sec. 69, jurisdiction is given to a single Justice in all cases where the debt is five pounds or under. The next Act is that of 1785, sec. 4. By this Act, the jurisdiction of a single justice is raised to ten pounds. Under this Act, the County Courts and Justices had concurrent jurisdiction of a debt of ten pounds, and of all sums between that and five pounds. The Act of 1786, cap. 14, sec. 7, is next. This raises the jurisdiction of a single Justice to twenty pounds, and contains this proviso ; “ provided also, that no suit shall be com- " menced in the first instance, returnable to any “ County Court, for any sum under twenty pounds.” This proviso appears to me, to relate to the suit only, and the sum mentioned in the writ, and not to the balance, which may be found on a settlement of the accounts, due the plaintiff : and in this construction I am supported by a decision ; Haywood’s Rep. 122, and the universal opinion, that if the defendant pleads in abatement, “ that the balance due the plaintiff is not twenty pounds, ” the plaintiff may well reply the writ for a larger sum. For if this construction is not good, the replication would be bad on demurrer ; and what may be pleaded in abatement, can never afterwards be taken advantage of : this construction will not render the proviso nugatory ; it will still prevent suits on all bonds for small sums : it certainly ought not to extend to the balance on long and great accounts, in the settlement of which are frequently involved the greatest intricacy and difficulty. It often happens, that the plaintiff does not know the balance due him on such accounts, and that he forms erroneous opinions of the law arising on them ; and shall he in such a case, after he has prosecuted his suit to a verdict, be nonsuited, because that verdict should not amount to twenty pounds ? If my construction is not the true one, great evil and injustice will be the consequence of a decision in this case. The law is positive ; it leaves no discretion in the Court, and must be carried into execution in all cases. The Court could not take notice of any claim or demand set up by the plaintiff unless proved and found by the verdict ; the Judges of the Superior Court, by Act of Assembly, have a discretion in such cases ; but the County Courts would have none. If a plaintiff should honestly enter on his accounts the credits to which the defendant was entitled, leaving a balance of above twenty pounds due him, and bring his suit ; if he should, by any accident or misfortune, fail to prove an item of his account, he would be nonsuited and have the costs to pay. Creditors, whose demands were not muck above twenty pounds, would be under the necessity of leaving out of their accounts all items, however just, the proof of which was doubtful, so as to bring their debts within the jurisdiction of a single Justice. This proviso is omitted by the Act of 1794, cap. 13, and I contend that the seventh section of the Act of 1786 is entirely repealed by the twenty third section of this Act ; and that the County Courts and Justices have concurrent jurisdiction of debts of twenty pounds, and of all debts under that sum and above five pounds, and insist that the rule in this case ought to be discharged.</p>

THE Defendant was indicted for perjury r J J before the Grand Jury of Johnston Superior Court, while they had under examination an indictment preferred against S. Norsworthy for forgery. This bill charged Nors-worthy with fotging a deed under the hand and seal of Avera, and for uttering and publishing the same, knowing it to be forged.

Rule to shew cause why a new trial ought not to be granted:- First. That after the Jury had retired under the the charge of the Court, they came into court and wished some further evidence; when the court permitted two witnesses to be examined, who had not been previously introduced.

<p>fcfmi given ** because bift onesec-i-fitj is g.ven ¡.n it. That one is net lesa bound than if two or more had been give*.</p>

<p>This was an action of debt on a bond for fifty dollars, claimed in consequence of the plaintiff’s having won a race, made and run pursuant to certain articles. The plaintiff deposed that the bond was not in his custody or possession; that it was deposited in the office of the clerk of the county court; and that he had made repeated applications for it without having procured it. This testimony was objected to on the part of the defendant, but admitted by the Court. The clerk of the county court swore that he had searched for the bond in vain, and in his belief it was not left in his office. A witness then swore, that a bond for fifty dollars, payable either on demand or when the race was to be run, was staked in his hands by the plaintiff and defendant, with condition to be delivered to the winner of a horse-race. The same witness also swore, that some time prior to the date of the articles, a parol agreement to run a race was made between the plaintiff and defendant. But the articles now produced were executed in consequence of the parol agreement, and were signed, &c. by the parties on the same day on which they were written and bear date; and that they were then attested by him. The introduction of these articles as evidence was objected to by the defendant’s counsel, but admitted by the Court.</p> <p>There was no evidence that the distance run was ascertained to be a quarter of a mile; but it was proved that immediately after the race was run, the defendant acknowledged he had lost it, and that the bond, was delivered by his direction to the plaintiff.</p> <p>Upon this latter evidence, it was left by the Court to the Jury to decide whether the distance run was a quarter of a mile; but the Court did not instruct the Jury that any ascertainment or measurement of the distance was necessary to be proved. The Court stated to the Jury, that no parol evidence was admissible to connect the bond with the agreement; that they must look into the agreement and consider the description of the bond given by the stake-holder, in order to decide whether the bond declared on is the one which was staked, in pursuance of the articles, to secure the payment of the money lost on running the race: That having decided this point, they would consider whether the race was run according to the articles, with respect to distance, time and circumstances; and whether it was run fairly and according to the usages of racing. Upon this, the Jury found a verdict for the plaintiff, for the sum of twenty-five pounds, assess his damages, to five pounds and costs.</p>

<p>Where⅝ ^ dinted /; bequeaihed limitatum over is ex pres-tervyaidi m a tencl^f Me' estate in land is also clevis-cd toA, on tationto'ii^s ingrafted; fined by construction ■ofthe wdl, to the land; and thatas'to'the chattels,they bntabie,-after the death of A amongst the next of ⅛⅛.</p>

THIS was a writ of error sued out of Rockingham Supe-tior Court, to reverse certain proceedings which com men- . , . ced by a warrant issued by a magistrate, ana terminated in the County Court. The warrant was as follows. J “State of N. Carolina, y To any lawful officer to execute and Rockingham County, $ return within 30 days, Sundays exCepted.

<p>This was an action on the case, in the nature of deceit, for a fraud in the sale of a negro wench and child. It appeared in evidence, that the plaintiff, who was a speculator in negroes, applied to the defendant for the purpose of purchasing the aforesaid negro woman and child; that the defendant said he wished to sell them, named his price, and told the plaintiff, “go into the kitchen, look at the negroes and judge for yourself;” that the plaintiff continued there while the defendant and his family breakfasted, and upon the plaintiff’s coming out of the house,the defendant asked the plaintiff how he liked them, who answered, “very well", that a bargain was concluded, and a day agreed on when the negroes were to be delivered, and a bond for the, purchase money executed; that on the day, the plaintiff was asked by one Tisdale, who was a partner with him in the purchase, what kind of bargain he had made, to which he replied “I have got a likely wench, and the child is “middling;” that after a bill of sale and a bond were executed, the defendant said to the plaintiff “if you wish to be off the "bargain you may: I can get the same price from another “man, and you are at liberty either to take the bond or the "bill of sale.” The plaintiff replied, “he had bought the “negroes and would hold him to his bargain.” It further appeared in evidence, that the defendant had bought the negroes in question at a public sale, about nine months before the sale of them to the plaintiff, and the child at the time of the latter sale was between fifteen and nineteen months old, and at that age it was not able to walk, talk or move, except upon its back backwards; that the plaintiff shortly afterwards carried them to South-Carolina with others, that a snow fell on their journey, that the child was neglected by its mother, was attacked with a dysentery, in common with other negroes in company, and when they got there the plaintiff could not sell the child, but gave it away. One witness, who lived in the family of the defendant at the time the plaintiff went to examine the mother and child, said the child appeared to be well and ate hearty, but thought it might appear to the, most common observer that the child was not altogether right. The witness further declared that the defendant one day observed (looking at the child) “I“ wish you were on the Sand-hills and I had my money for “you.”</p> <p>There was no evidence that the defendant knew of any latent defect, other than that the child was kept in the house where the defendant and his family eat, or if knowing of any that he endeavored to conceal them; and the person who had sold the negroes in the character of executor or administrator, testified that he knew of no defects.</p> <p>Upon this evidence, the Court left it to the Jury, with directions, that if they believed that the negro child was unsound, and its defects were known to he defendant, and he failed to disclose them or endeavored to conceal them, or was guilty of any fraud or misrepresentation, they ought to find a verdict for the plaintiff; but that if, on the contrary, they believed the defects, if any, were unknown to the seller, and he had been guilty of no fraud, or if the defects were known, and of such a nature as to be discovered by a common observer, and the plaintiff had an opportunity of satising himself on this head, then they ought to find a verdict for the defendant.</p> <p>There was a verdict for the defendant, and a motion for a new trial, which upon argument was refused; whereupon the plaintiff prayed an appeal, which was granted.</p>

D. R? B Fisher were seised of a tract of land in Guib-Jord County, which the former, in behalf of himself, and aS agent for the other, agreed to sell to Linch, to whom executed á .parol contract to make a title, when the purchase-money S278 should be paid ; the contract ex-stipulating that the title was to remain in the the whole of the consideration iponey, with . . . interest, was paid. ,. 4 The contract was dated the 4th of February, 1801, and unmediately thereafter Linch…

The certificate of the president and cashier as to the amount of the debt was exhibited, and the required notice proved. The defendants pleaded that the right claimed by the plaintiffs, to have judgment of their demand on motion and notice, is unconstitutional and ought not to be allowed. when the Court took time to advise; and now their opinion was delivered by

<p>THE prisoner was indicted on the third sec. of the act passed in 1791, the words of which are, “ that if any person shall be hereafter guilty of wil- " fully and maliciously killing a slave, such offender “ shall upon the first conviction thereof be adjudg- " ed guilty of murder, and shall suffer the same “ punishment as if he had killed a freeman, any law " usage or custom to the contrary notwithstanding."</p> <p>The prisoner was found guilty by a jury in Hillsborough Superior Court and being brought up to receive judgment, several exceptions were taken in arrest, by his counsel ; upon which the presiding judge directed the case to be sent up to obtain the opinion of this Court. The case was ably argued by Haywood and Duffy for the prisoner, and the Attorney General for the state.</p> <p>The following authorities were cited in behalf of the prisoner. 2 Hale’s Pl. Cor. 334, Kelyng 104, 4 Bl. Com. 98, 366, 2 Hawk. 446.</p>

Daniel Carthy applied to the County Court of Orange for administration on the estate of John Casey, deceased. This application was opposed by James Webb, on the ground of his being the largest creditor in the State. The Court overruled the application of Daniel Carthy, from which decision he prayed and obtained an appeal to this Court.

The County Court of Stokes ordered that the road crossing Dan-River at Bostick’s old place should be discontinued; and after this order was made, Hairston run a fence across the road, and kept it up for the space of one month and more. Carr brought a warrant to recover the penalty given by the 13th section of the act of 1784.

<p>THE Plaintiff declared, that the Defendant’s testator being executor of Robert Troy, promised, in writing, t0 pay a debt due from Troy to him j and that at the time * . . . T-L of the promise he had assets, which is admitted. 1 he question referred to this Court is, Whether having assets alone, without, any new contract or agreement, is sufficient , . . , to charge a p,erson in a representative character on a promise so made, de bonis propriis. ’ 1 1 1</p> <p>relied upon express adjudica» tions, and cited 1 Cro. Eliz. 91. Douglas 115, Cawperr 284, 28⅜'/.</p> <p>contended that of the cases relied upon had been overruled, and that no princi ple could be extracted from the other? fairly appli- . * ⅜ cable to the support of the declaration,*</p>

<p>This was an action of covenant founded on the following articles :</p> <p>“State of North-Carolina, Franklin County.</p> <p>“Articles of agreement made and concluded this day by "and between Henry Hunter and Benjamin B. Hunter, of the “one part, and Alsey Jackson and William Jackson, (Miller) “witnesseth that the said Henry and Benjamin B. Hunter do “agree to run a certain horse called Scoredouble, carrying one "hundred and fifty five pounds, against a certain horse known “by the name of Brutus, carrying one hundred and forty five “pounds, which they the said Alsey and William Jackson “(Miller) do agree to run; which race shall be run at Henry “Hunter’s paths near Tarborough, one quarter of a mile, on “the first Thursday in April next, at or before four o’clock “in the afternoon, for the sum of five hundred dollars, to be “staked in bonds with approved security the said Hunters “agreeing to give said Jacksons choice of paths and twenty “five dollars as a compensation for running in the above “named paths. Which race shall be entirely void “provided either of the principals or either of the said horses should “die before the above named day; otherwise to be run “play or pay. In witness whereof we have hereunto set “our hands and seals, this first day of December 1810.</p> <p>“H. HUNTER, (Seal)</p> <p>“BEN. B. HUNTER, (Seal)</p> <p>“Witness “ALSEY JACKSON, (Seal)</p> <p>“P. C. PERSONS. “WM. JACKSON, (Seal)</p> <p>The plaintiffs declare upon the following breaches:</p> <p>1st. That the defendants did not stake their bond agreeable to the articles.</p> <p>2d. That the plaintiffs beat the race.</p> <p>The plaintiffs proved that on the day named in the articles, the ground was measured, and the weights made out: That precisely at four o’clock, one of the judges, who held the watch, proclaimed that fact, immediately upon which both the parties started: That plaintiff’s horse came out twenty feet foremost, bearing his proper weight—Start even: There was no evidence that plaintiffs offered any choice of paths to defendants, or that defendants complained of not having choice: There was no evidence that either of the parties said any thing respecting a stake-holder to deposit bonds with. There was evidence that the plaintiffs gave to one of the judges chosen by himself a paper writing of which the following is copy:</p> <p>“For value received, with interest from the date hereof, “we promise to pay to Alsey Jackson or Alsey Jackson and “William Jackson (Miller) or order, five hundred dollars. “Witness our hands and seals, this 4th April, 1811.</p> <p>“H. HUNTER, (Seal)</p> <p>“LEWIS FORT, (Seal)</p> <p>Which was delivered to his said judge, after he was chosen, the day the race was run. There was no evidence that the plaintiffs, or either of them, gave defendants any notice of the above deposit, or that the purpose thereof was explained to the depositee; but depositee conceived himself it was staked on said race. Nor was there any evidence that the plaintiffs called upon the defendants or either of them, to make a like deposit on their part; or that either of them had notice of the deposit by plaintiff’s; or that the defendants, or either of them, had ever seen the bond, or had been informed of its contents, or knew that any such was executed. The plaintiffs called a witness, who testified that he had been conversant in the rules of horse-racing, and gave it as his opinion the said deposit was a proper stake, and said his opinion was confirmed on a race with a certain Col. Bynum. The witness being pressed for time (the hour at which they were to start having nearly arrived) made a similar deposit; and that Col. Bynum, who was reputed to be experienced in the rules of racing, being unable to make up his stake, and not running with the witness, paid the money.</p> <p>There was evidence that a few minutes before the hour of four, plaintiffs called upon defendants to make ready, the time was nearly out. Said witness also declared it was generally the case to choose a stake-holder.</p>

JUSTUS LYRUS brought suit against a vessed called The Negro, in the Admiralty court. Scarborough came in and pro interesse suo prætenso bailed the vessel. The case was that Lording Berry super altum mare borrowed of Justus- Lyrus £. 100, on bottomry, and bound the vessel. This bottomry is when money is borrowed on the keel of the vessel, and the vessel is bound for the payment of it: viz. if the money is not paid, the lender shall have the vessel.

The following questions are submitted to the Supreme Court for their decision: 1. Shall one who has purchased lands without a warranty be permitted to give copies of title deeds, except of that immediately to himself, in evidence, without an affidavit by himself to account for the non-production of the originals? 2. Shall a purchaser with general warranty, be permitted to give such copies in evidence without such affidavit. 3.

Action for money had and received to the use of plaintiff. On the trial, the plaintiff produced the following instrument of writing, to wit: “March 22d, 1808, then received of James Mealor a “tobacco note, inspected at Petersburg, weight 1415 pounds “nett, which I am to sell at Petersburg, or elsewhere, for the best price I can get for it, and the money to be placed “to the credit of John Cheeks, executor of James Mealor, “obtained the 9th January, 1808, and I, the said…

He was summoned as a talesman to serve on the Juryy . a>¡(J claimed an exemption on the ground ot his being a commissioner of navigationa† The Judge, however, did not suslain his claim, and fined him for non-attendance/ , . „ front which he appealed to tins Court,

The Defendant was presented by the Grand Jury for § Nuisance, and the case was referred to this Court upon 4 . the question whether ah indictment could be sustained uPon the following statement of facts. That the Defend-ant is bound to keep up the Bridge described in the in-dictment, for seven years, for^ the due performance of which he executed a bond; that the time is not yet expired. The Bridge is admitted to be out of tepair. The Defendant is hot overseer of the roád.

This is a petition filed in the County Court for añ ac* count of the personal estate of an intestate. It charges, that the Petitioners and Defendants are the next of kih of the intestate, and entitled to distribution thereof; and that the Defendants, after the death of the intestate, took , . , , , , , , the estate into their hand , a - executors, and are brand to distribute. The Defendants answered, and the ’ Was heard in the County Court, and the petition dismissed.

IN replevin, the plaintiff declared on a taking in October 21 Jac. in G. The defendant avowed as bailiff of Thomas Surry, and shewed that F. S. was seized of the premisses in his demesne as of fee; and being so seized, gave them to Ed. Surry and the heirs male of his body, begotten on his wife; who had issue I. S. and died.

was a gin ⅛ Equity,, praving an injunction and , u discovery.

ACTION on the case, brought in villa de Lanceston in comitatu Cumberland, and judgment was given there, pro qunæente. Error was brought here, because issue being joined there, the venire facias was awarded de viceneto de Lanc, where it ought to have been de Lanc. for the visne de Lanc. extends over Lanc. and the jurisdiction extended to the vill de.

<p>Mich. 3 Car. Antea, p. 116, 225.</p>

The Plaintiff claimed title to the land in the following manner. It was granted to A. Inman, on the 14th Sept 1779; Inman sold it to John Welch in 1784, who died o before the year 1795 intestate, leaving five sons, viz Thomas, William ajames and Andrew. In the year 1800, John Welch, the younger, conveyed the whole tract to T, , ,. , . , , Joseph Dobson, who took possession ol it immediately.

THE plaintiff counted directly in the time of King James, contra pacem domini regis nunc, &c. and, after verdict non allocatur in arrest of judgment, quia matter of form, if the whole had been omitted, it would not have arrested the judgment after verdict.

<p>LESSEE for years made his executor and died. The executor assigned over the term, and after the assignment, the rent was arrear, and the lessor brought debt against the executor.</p> <p>There are three sorts of privities, 1. Of estate. 2. Of contract. 3. Of estate and contract.</p> <p>Where there is a privity of contract; it is not determined by the assignment over of the estate to another; as in the case of Overt and Sidhal. But in 3 Rep. 23 Walker’s case, the very case is said to be adjudged, while revera, it was not adjudged, as appears by the book of entry.</p> <p>Cook. As to Turpin’s case; there also put, it never was adjudged, as appears by the roll. In this *case there is a privity of contract, between the lessor and the executor of theleffee. For the executor reprefents the perfon of the teftator. 28 H. 8. Dyer I4. termor covenants to build a new houfe, the term expires and the lessee dies, his execut- or shall be charged. 26 H. 7. 18. Lessee covenants to repair the house and dies, the executor is bound. 5 Rep. 17. Spencer’s case. Lessee for a term of a flock of sheep, covenants for him and his assigns; covenant does not lie against his assignee, for it is personal, but it binds his executor. Com. 168. Lessor covenants to build a new house, for the lessee, and his assigns, the executor is assignee. H. 15 Jac. C. B. rot. 3068. Sir Christopher Heydon brought debt against Hudson, executor of the lessee for years, for rent arrear; the executor pleaded that he had not agreed to take the term; but the plaintiff had judgment; for, inasmuch as he has taken on himself the office of executor, he cannot refuse the term. P. 17 Jac. B. R. rot. 346. Manly vs. Moody. Debt against executors, they plead plene administrav. all the goods, except a term, which they refused: and judgment against them. Contra. 21 H. 6. 24.</p> <p>per Ascue. Those cases prove that the executor is not in, as assignee, for then he might avoid and wave the term; but that he is in, by a privity of contract.</p> <p>2. The executor does not plead that he has given notice of the assignment, and tendered the arrearages. 8 H. 6. 10. 8 E. 4. 12. 47 E. 3. 4. where the act of the party shall not change the avowry, without notice; aliter, the act of the law. The action of the lord is not altered by the feoffment of the tenant without notice. Bro. Avowry 111. Parceners make partition without notice given, the avowry of the lord continues on them jointly. 2 E. 4. 6. 34 H. 6. 4. e contra. Otherwise, if the tenant, after feoffment, dies. 3 Rep. 14. There notice was pleaded and accepted accordingly. Also, the executor had not pleaded that he had not assets, for the personal estate is bound by the contract. 8 Rep. 133. 9 Rep. 90.</p> <p>3 The executor has no power to change the action of the lessor by his assignment; otherwise great inconvenience would ensue; for, by this means, he might waste the land and make it barren, and then, assign it to some indigent person. Perhaps there is a difference, if the lessee himself assigns; perhaps debt does not lie against an executor.</p> <p>cited the cases of Sidhal and Turpin, ut supra.</p> <p>Noy, quære? quia the executor represents the person of the testator. Sir Thomas Waller’s *case. 10 Jac. B. R. A freeman of London imported goods, made his executor and died; held that the prisage shall not be paid by the executor.</p>

This was an action of Ejectment brought for the recovery of a lot in Washington, described in the Plaintiff ⅛ declaration. The lot was admitted to have been the pertyof Dr. Tennant Bowen.

CASE against two, in C. B. for procuring the plaintiff to be indicted of common barretry. He had judgment and error was brought here. 1. They ought not to be joined in one action; quia the procurement of one, is not the procurement of the other. 7 Jac. Stade vs. Roper. K. B. the court was divided on a question, whether an action may be brought against many, for procuring a person to be put out of the commission of the peace. Intrat. T. 6. Jac. rot. 568. M. 1 Jac.

<p>INDICTMENT for forcible entry and detainer, which was as follows.</p> <p>“ The Jurors for the State upon their oaths “ present, that Isham Parham, late of the County “ of Granville, in the district of Hillsborough a- " foresaid, on the fifteenth day of January in the “ year of our Lord one thousand seven hundred “ and ninety nine, was possessed of a certain messuage with the appurtenances, situate and being “ in the County of Granville, in the district afore- " said, for a certain term then unexpired, and be- " ing so possessed thereof, one John Butler late of “ the County of Granville, in the district aforesaid, “ labourer, afterwards, viz, on the fifteenth day “ of January in the year aforesaid, into the said “ messuage with the appurtenances aforesaid, the “ freehold of one Isaac Hunter in the County of “ Granville, in the district aforesaid, with force and “ arms and with strong hand, unlawfully did enter “ and the said Isham Parham from the peaceable “ possession of the said messuage with the appur- " tenances aforesaid, then and there, with force “ and arms and with strong hand, unlawfully did “ expel and put out ; the said Isham Parham from “ the possession thereof to as aforesaid, with force “ and arms and with strong hand, being unlawful- " ly expelled and put out, the said John Butler “ him the said Isham Parham from the aforesaid. “ fifteenth day of January, in the year aforesaid, " " until the day of the taking ot this inquisition, “ from the possession of the said messuage with the “ appurtenances aforesaid with force and arms and “ with strong hand unlawfully and injuriously, then " and there, did keep out and still doth keep out to " the great damage &c.</p> <p>Being found guilty by the Jury, in Hillsborough Superior Court, a motion was made by the Solicitor General, that a writ of restitution should be awarded ; upon which the cause was sent up to this Court to obtain a decision on that point.</p> <p>The question was here argued by Norwood for the Defendant, and Haywood for the State.</p> <p>Some rules are laid down in the books, directory of the manner of drawing indictments of forcible entry, which appear not to have been strictly attended to in the present instance ; the exceptions arising on the face of the indictment, together with others of a more general kind, I mean to urge as reasons, why the writ prayed for should not be awarded.</p> <p>I. It is a rule that the tenement in which the force is charged to have been committed, must be described with certainty ; in order that the defendant may be apprized of the manner in which to make his defence ; and that the sheriff may know exactly the possession to which the party praying the writ, is to be restored. The words of the indictment are, that Parham was possessed of a “ certain messuage with the appurtenances, situ- " ate and being in the County of Granville aforesaid, in the district aforesaid. This description is liable to the objection of vagueness and uncertainty, as much so as many of those instances which the books furnish, as having been held fatal to indictment : 1 Hawk. Pl. Cor. Book 1. cap. 64. Sec. 37, where the cases are collected, and 4 Com. Dig. 210, D. 3.</p> <p>II. The estate which the party expelled had in the land, ought to be shewn in a particular manner, to entitle him to the benefit of this writ, under any one of the statutes. The indictment states that Parham “ was possessed of a certain term then un " expired.” But it ought specially to have defined the term ; whether for life, or years, that it might appear to the Court that the term is still unexpired. If the indictment had been on the 8 Hen. 6, it must have shewn that the party put out of possession was seised of a freehold, otherwise he could not be entitled to restitution under that statute. If the indictment be founded on the 21. sec. 1 Car. 15, it ought to shew that he was possessed of a certain term for years : for neither tenant for life, nor tenant at will are entitled to restitution under that statute ; 1 Hawk. Pl. Cor. B. 1. cap. 64. sec. 38. 4 Com. 210. 1 Salk. 260. 1 Ventris. 306.</p> <p>III. a writ of restitution cannot properly be issued to the party expelled, unless it appears to the Court that his right to the possession, continued at the time the indictment was found ; here it is stated that he was possessed of a term unexpired on the fifteenth of January, 1799, the time of the expulsion ; but it cannot be inferred, that the term remained unexpired, when the bill was found. On the contrary, it appears by the copy of the lease filed by the prosecutor, that the term ended the third of March, 1799 ; whereas the indictment was found at April term, 1800. A writ of restitution cannot, then, be awarded to Parham ; for he has no right to the possession. Can it be awarded to Hunter ? I apprehend not. I. Because the indictment does not shew that Hunter was in actual possesson ; II. Because it does not appear that Parham held under Hunter. It is true, the indictment calls it the freehold of Hunter, which it might be, and yet Parham be a disseisor. It should have been clearly stated, that Parham held under a lease from Hunter.</p> <p>IV. The superior Courts cannot entertain jurisdiction upon all, or any of the statutes, relating to forcible entries. There is no Act of Assembly conferring that jurisdiction in express terms, nor can any other authority be shewn for it. Besides, the writ of restitution, as used in England, is not given by the common law, but by the several statutes enacted for the purpose. Those statutes ought to be strictly pursued, and there is not one of them that will warrant issuing the writ upon this indictment. And as the writ is not at common law, it cannot be issued on this record ; 1 Plow. 206, 7.</p> <p>V. By the Constitution of this State, no man can be deprived of his rights or property, but by the verdict of a jury, or his own admission or consent. Upon this indictment, neither the right of property nor of possession were out in issue ; the force only has been decided upon : the defendant ought not therefore to be molested in his property or possession.</p> <p>Upon these reasons, it is apprehended that the motion will not be granted.</p> <p>It is admitted that certainty and precision are requisite in the statement of a criminal charge, and, particularly, in a case of this kind, where restitution is sought ; but it would have been difficult, if not impossible, to have drawn this indictment so as to have effected those objects more completely. It certainly is not necessary to be more particular in a case of this kind, than in a declaration of ejectment ; in both, restitution is to be made, and the property detained should be so specified, that the sheriff may without difficulty execute his writ. Yet this description would have been sufficient in an ejectment, and even less certainty than this indictment contains; 1 Term Rep. 11. It would be sufficient in an indictment, or a plea in bar ; Cowp. 683. 1 Term Rep. 65, Douglas, 154.</p> <p>Nor was it necessary to have been more particular in stating the quantity of estate the defendant had in the land. Term is certain enough ; it signifies, in legal acceptation, a term for years. An estate for years is frequently called a term, terminus : 2 Bl. Com. 143, Cok. Lit. 45, b, and the indictment must be understood that at the time it speaks, the term was then unexpired, for it states that the defendant “ still doth keep him out of possession. ” It follows that the defendant appears upon the face of the indictment to be a tenant for years, whose term is unexpired ; and such a one is entitled to restitution by the 21. Jac. cap. 15. This is not an indictment upon the 8 Hen. 6, and therefore no seisin is necessary ; it is upon the first mentioned statute, and the defendant being within the benefit of that, it is not regular to travel out of the indictment to ascertain whether his term still continues. As to jurisdiction ; I take it to be a settled rule, that the superior courts have a general jurisdiction upon all criminal matters whether arising at common law or by statute, unless taken away by express negative words. 2 Hawk. B, 2, cap. 3. sec. 6. The Act, establishing these courts, invests them with a general criminal jurisdiction, Iredell 297, though partial limitations have been since made. The jurisdiction in this case, therefore, cannot be ousted, unless it be done by a law for that purpose ; but none such exists.</p> <p>Lastly ; if the constitutional objection be valid, then all the statutes relative to forcible entries are, at once, repealed : yet they have been used ever since the revolution, and generally considered to be part of the law. Iredell 353. But the proceeding in those cases doth not affect the right of property or possession : if the defendant hath either, he may resort to the legal mode of establishing his claim ; to that mode directed by the bill of rights, sec. 1, 12. & 14. It is such conduct as the defendant's, that has a tendency to violate the instrument referred to ; for he is endeavouring to establish a possession not sanctioned by law, and without resorting to the trial by jury.</p>

<p>This was a bill in Equity, the material statements in which were, that in 1782, David Dickerson, the elder, conveyed a slave to Shadrack Dickerson, by deed, which on its face purports to be absolute, and made for valuable consideration; whereas, in truth, the deed was made in trust, for the benefit of David, and under an agreement on the part of Shadrack, that the slave should be delivered and reconveyed to David, or to such person as he should at any time direct. The bill charges, that no consideration was paid, and that the complainant being a judgment creditor of David’s, the latter did, in 1810, assign all his right in the said slave to him, of which Shadrack had notice, but refused to give up the property, insisting that he was an absolute purchaser for valuable consideration.</p> <p>The answer denies the trust, avers a valuable consideration to have been paid, and insists on the transaction having been an absolute purchase.</p> <p>The only question submitted to the decision of this court was, whether parole evidence was admissible to shew that the deed was made under the trust specified in the bill, and that a valuable consideration was not paid. Gaston for the complainant, cited 2 Ves. 375. 2 Atkins 225. 3 Atkins 415.</p>

THOMAS HUDSON, executor of John Hudson, brought trover against Mary Hudson, and counted that the testator was possessed of the goods, and made him executor, and died: afterwards they came to the hands of the defendant, and the plaintiff suscepit executionem testamenti; afterwards the defendant, converted the goods to her own use.

<p>fire to the cun*dun]ess ilays n0' tice is given to the owners agreement of ⅛ take slior-wfu no tobara strangerfrom undeTthe’ C. 29.</p>

<p>Antea, p. 255. Mich. 3 Car.</p>

<p>IT was argued by the plaintiff, that by the death of the lessor the rent is gone. In Dyer 15, it is said that conditions and agreements are private laws between the parties, and resemble a private act of Parliament between them. Therefore, if by these agreements they have not sufficiently provided for themselves, the law will not help them. And every reservation has fix things to be considered. 1. The thing reserved. 2. The place of payment; 3. The continuance of the payment. 4. The person to whom. 5. The terms of payment.</p> <p>For all these, the law provides; and if the party provides and does not follow the law, it will not extend his reservation. 21 H. 7, 25. Rent generally reserved goes with the reservation, and shall be paid at the end of the year. In 8 Rep. 71. Whitlock’s case, it is said that the belt reservation is general. So in a lease of two manors reserving rent; the law reserves it out of both; but the party may make several reservations. Dyer 308. 5 Rep. 55. 14 H. 6. 26. But he cannot reserve contrary to law, as it would be *in our case. Therefore if a grant be in tail tenend. capitalibus dominis, this is a void tenend. 2 E. 45. So here. Grant by a husband tenend. of him and his wife, as to the wife. So he may reserve it to other persons than those the law limits it to; but not contrary to it and out of the privity. 4 Rep. 75. Reservation out of the land. So Avowry 258. Grant in tail, remainder in tail, it shall issue out of the whole. But per Houghton, if the reservation intervenes, it shall only charge the precedent estate. As to the person to whom the reservation is made, which is the principal question here, he cited 10 E. 4. 18. Ass. 86, 27. H. 8. 19. Dyer 45, and Mallory’s case. The reservation shall be taken strongly against the reservor, as 10 Rep. 127. rendering rent at usual feasts, or 20 days after, the twentieth day is the day of payment. So 10 Rep. 108. Two tenants in common reserve a horse, they shall have but one; but if they grant a horse annually there shall be two. True it is, if two joint tenants reserve rent to one, it shall go with the reversion to both. But if they make a feoffment rendering rent to one, it is not good to him alone; for it is not annexed to the reversion.</p> <p>cited the case of Wotton vs. Edwin, postea, p. 274. 5 Jac. rot. 3777, C. B. where the reservation was to him, his executors and assigns, during the term, and it was adjudged that by the death it is gone. And P. 5 Jac. Hill vs. Hill, rot. 112, where one seized of lands in custom of free bench, made a lease, reserving rent during life, to himself and to his wife during the term: it was adjudged that by the death of her husband, the rent is not determined. But Cook and Warburton, against the other, there held that it shall be determined. Barksdale held it shall be continued, for the extent appears, 3 Jac. Warmer and Agars. The lessee granted his term to the lessor rendering rent during the term. &c. Quod expressum facit cessare tacitum, but not facit cessare prius expressum. B. 104. Grant in free marriage habend. in fee, the habend. is void. For the mind of a man is stronger at the beginning of his speech than at the end, when his intention languishes; and this is the reason of the transposition. Plowd. 164. and 5 Rep. 112. For, otherwise if the rent is not payable to the successor, it shall not be paid during the whole term. 27 H. 8. 19. per Audly, is directly in point as to Richmond’s case, 33 El. there was an express reservation to the executors: this being a particular, excludes all other particulars, as heirs. But assignee is a general word, and therefore shall not exclude the executor or the heir. But a special shall exclude another special, but a general shall not exclude a special. 3 Re. 97. *Condition that he shall pay the heir, this excludes the executor; but a condition to pay to the assignee does not. As the executor is excluded by the reservation to the heir: so here shall the heir be excluded by a reservation to the executor.</p> <p>2. The avowry is made by the heir, and it appears that the ancestor is dead. The lessor shall be intended to be living, for it is an avowry by the assignee ut pro redditu existente infoluto. Then, if after the death of the lessor, it is not due, it shall be intended that he is living; for he has averred that the rent is due to him, which implies all necessary circumstances. So it was adjudged in 12 Jac. A. rundel's case, where the heir avowed, without averring the death of his ancestor. For as he avers that the rent is ar-rear and unpaid to him, this implies that the father is dead, for otherwise nothing is due to him. So is 10 Rep. 59. Life is a natural thing, and therefore shall be presumed to continue. Dyer 329. Condition of an obligation to pay so much yearly towards the education of A. B. and in debt the plaintiff did not aver the life of A. B. yet held well. Attornment is not pleaded to be during the life of the parties. So is 10 E. 4. 18. 24. 30. The defendand avowed as holding in right of the lessee of husband and wife, without averring the life of the wife; yet held good: But an avowry is a bar, although to some purposes the avowant is an actor; for, as the defendant, he say's defendit vim, &c. As to the exception ot pleading the fine without saying to what use. By the common law the use was to the conusee, as the statute makes it, and the common law takes no notice of the uses; so the pleading according to the common law is well. Novel Entries 344. 2 Rep. 88. There the fine is pleaded without saying to whose use. P. 477. Three feoffments are pleaded, without the uses. But there is a difference when one pleads a feoffment, or a fine of which the use is limited to any other than the feoffee or the conusee; it ought to be pleaded: but if it is limited to the conusee, it is not necessary, for by the common law this is implied.</p>

<p>The administrators plead fully administered, former judgments, &c.</p> <p>Judgments had been taken at July term, 1807, to the full amount of assets then on hand; since which time, a judgment had been taken in favour of James Greenlee for £280, against these defendants also; a suit which had been depending between the defendant’s intestate and Davidson was dismissed about the time of Greenlee’s judgment, under a compromise made between the parties, in the life time of said intestate; (which was that the said intestate should pay a certain part of costs), to which suit Stevelie had been security to prosecute. At the time of Greenlee’s judgment, no assets were in the defendants’ hands, which was so found in the verdict in said suit of Greenlee; and sci. fa. had issued against the guardian of the heirs of the plaintiff’s intestate, but no judgment thereon; this suit by sci. fa. is yet depending. Also in the case of Davidson’s suit, proceedings are carrying on to subject Stevelie, the security of Spencer. Now since those suits went off (of Davidson and Greenlee) assets to the amount of £94:3:3, have come to the defendants’ hands, which are so found by the jury, subject to the opinion of the court, on this case, whether the judgments of Greenlee and Davidson, or either of them, are legally entitled to a preference, in exclusion of the present debt whereon this judgment is rendered. Greenlee’s judgment was not entered to subject assets when they should come to hand, by any words expressed by the jury in their verdict delivered by the court.</p>

<p>This Was a sci.fa. on a bond given on obtaining an in~ ajuncti°n- The Defendants demurred on the ground that acj. 0f iglo, c. 12, allowing a sci.fa. on such bonds . Was passed posterior to the bond in question,</p>

The Plaintiffs had a verdict in their favour. The Defendant obtained a rule on them to shew cause why jffiey should not pay the attendance of two of their witnesses who were absent at the trial of the cause. Upon the return of the sci. fa. one of the Plaintiffs, who acted as agent for the others in the suit, made oath that those two witnesses were under subpoena and were material wit-messes for the Plaintiffs.

<p>This was ah action of detinue brought to recover a fe-siave an¿ her three children, elaimed under the following circumstances. The slave Agá, the mother of the, children, was owned by the Plaintiff, whose daughter in-termayried with Simqnton, the Defendant’s intestate then residént \a Georgia. Sorpe years after tl\e marriage he visit to the Plaintiff who told him .to take Agá home wfth him, and Jo keep her in the event of his survi-but: if she, the Plaintiff survived, 4fd should contj-nue ⅛ be hers. The Defendant took Air a accordingly ' _ ' and kept her m possession many years. Alter the loan or the Plaintiff intermarried, with Abel Armstrong. who died before Sfimonton,</p> <p>The Judge* before whom the cause was tried, instruct-? ed the Jury that if the transaction was a loan determinable at; the will of the lender, and. there was no adverse Possession set up, the property vested absolutely in Abel Armstrong on his intermarriage with the Plaintiff, and thát his executors cquld alone recover it. The Jury found for the Defendant, and the case is sent here on a motion for a new trial.</p>

DEBT against one as administrator, he pleaded that before the writ brought, he renounced the administration; and the ordinary received it. The plaintiff replied that before the renunciation, he had administered, and the renunciation was by covin. The defendant rejoined by protestation, that without covin, for plea ut supra, he had renounced. Whereupon the plaintiff demurred.

<p>an action in the nature of a writ of against two persons, and one be ac-found guilty,' thaUbfeo. tered up against that acquittal of* t.he otlier ground for a ”ew tna!i the judg. mellt*</p>

TENANT for life, without impeachment of waste, with liberty to cut, carry, &c. and to make leases for 21 years or their lives, made a lease for life excepting the woods and underwoods growing and to grow, excepting sufficient to keep in repair the rail and pale of the park, and 50 trees yearly to uphold the houses in the park, and the tops of all the trees; and afterwards the lessor cut wood on the ground.

<p>IÍ ¾⅛⅛⅛ tlmCourt to allow Execui commissions ¿"ipts and ’ sa,T,e ™ liic disburse*» ments, but commission» on the pay-Set* due t<* themselves of another01^ persons-</p>

<p>The Defendant was found guilty by tVie jury of a libel* the indictment for which was as follows : l\- '</p> <p>-The Jurors fen the State; iipbti thefe oath present, that <t Sampson Néeseí late of, the county of Orange, farmer; r J ⅛ being a person rtf ⅛« envious,, et'il; and wicked mind, and most malicious disposition, and Wickedly, riaalicious-i ]y and unlawfully minding, Contriving arid intending aS much as in him lay tb injure, oppress and dggnfcve dhd ydify the good name, fame, credit and reputation of one Elizabeth B. Holt, spinster, & good, worthy* virtuous girl, and to bring her into great contempt, ridicule and disgrace ; after the first day of August* in the year of our Lord one thousand eight hundred and seventeen, (to wit) on the tenth day of August in the same year, with force and arms in the county aforesaid, of his great hatred, malice and ill will towards the said Eli±abetll B. Holt, wickedly, maliciously and unlawfully did write and cause to be written a certain scandalous, malicious and defamatory libel of and concerning the said Elizabeth B. Holt, which said false, scandalous, malicious and defama-to?}- libel is according .to the tenor following, to wit. “ Notice to all Persons Jentlemen I have taken it upon pay self to inform y o of A SircumstSmce thatpccird Latfcrly between 'John Holts & Benjamin Whitbys as I was going .on I discbvfered Á mán aiad ivofean along tlae field side and after standing a while I discovered that on was a Negro Seeing that they were so busily engaged I lit of and made toward them Í got within About twenty yards of themvand Behold it was Betsey Holt the Daughter of Miss Holts (meaning the said Elizabeth B. Holt) and a Negro boy I Beleafe belonging to Mr. IVhid bey I then Returned to nay Beast, Jentlemen Í assert this for the fact thd it is a Sireumstance that will evidently show for itself ⅛ a Coming time tho ther is A young man over the Alamance that would Witness this case he ^as Present with mea and he Beged mea to let no person for the sak of the Best of the family he having a great Respect for some of them t Beleafe formerly mófe so for hur than the Rest-—I therefore will not assign my name Perhaps some of yo will say every person has their enemays and enmity speaks the trooth of no Person but this Suf-eumstance will show for itself áiid if not I am able to make it appeare” Which said scandalous, malicióuá and defamatory libel he the said Sampson Neese afterwards* to wit, on the same day and year aforesaid, on a tree on the side of the Public Road leading from Trolinger’s Bridge to Hillsborough, in the county aforesaid j wickedly, maliciously and unlawfully did publish, nail up and fasten, to the great damage, disgrace, scandal and injury of the said ílizabeth B. Holt, to the evil and pernicious example of all other in the like case offending, and against the peace and dignity of the State*</p>

DEBT in London, on lease of a warren, rendering rent, and 100 couple of conies, to be paid from such to such a time weekly, in such a number as the plaintiff should appoint. The term was assigned to the defendant and for 96 couple of conies in arrear, the plaintiff brought this action. Resolved, per curiam: That without an appointment, it is not necessary to pay. For the request is here part of the reservation and part of the contract.

<p>Sci. Fa. against the defendants as sureties to an appeal bond. The administrators of the obligor, the principal in the bond, pleaded plene administravit; and no other plea being entered, a verdict was taken against all the defendants. The following reasons were moved in arrest of judgment:</p> <p>1. That the sci. fa. states, there was an appeal to the Newbern Superior Court, whereas the record shews that there was an appeal to the Equity side of the Court. 2. That the bond is not for prosecuting an appeal according to act of Assembly, but for prosecuting an appeal to the Equity side of the Court. 3. That the bond is blank, where it should specify the judgment and costs.</p>

ASSUMPSIT. In consideration that the plaintiff would deliver certain clothes, which the plaintiff had made for him, the defendant assumed pay for them, without saying to whom? Motion made in arrest of judgment. for the preceeding communication and agreement reduces this to a certainty, viz. that the payment should be to the plaintiff, with whom the agreement was made. A preceding communiciation will take away the uncertainty of time, estate, or person.

This cause originated by way of petition, to recover, damages for overflowing the plaintiff’s land by the defendant’s mill-pond, &c. under the act of Assembly in that case provided.

Defendant was tried on a charge of Perjury, the assignment of which, after the customary formal statements, was as follows, “ did depose, swear and make affi-¿av;t ;n writing (among other things} in substance and to . . ■ the effect following, that is to say, that he the said Jona• than Coffey did not know that a writ was returned against him, to the last County Court, in the above suit, meaning the suit of F. B. Smart ag únst him, and that therefore he did not speak to an…

THE defendant and one Abraham Bush had a suit depending in the Superior Court of Law for the District of Newbern, in which the present defendant was plaintiff and which was determined in the term of March, one thousand, seven hundred and ninety five. The defendant, Hodges, prevailed in the suit ; the plaintiff, Stanly, was summoned and attended as a witness for Hodges, and took out tickets for his attendance, but did not file them with the clerk.

<p>IT was objected that the implication quia fuit ad grave damnum is not a sufficient implication that the plaintiff was tenant at the time; and that the declaration shall not be made good by implication. Com. 202, 206. In waste, he declared on the of a reversion, and it did not appear whether it was before or after the waste; held bad-although it concluded ad exhæredationem, which strongly implies that it was before the waste. The declaration, as was said in Stradding’s case, ought to contain truth and certainty. So ought to a seire facias, which is in the lieu of it. And here, if it was not his land at the time the executor was sued, although it be tortiously charged, he shall hold it as the feoffor did. 15 E. 4. 24. Feoffee shall not have forgery in the time of his feoffor. Penruddock’s case, 5 Rep. F. N. B. 149. Feoffee shall not have admeasurement of dower, but shall take the land in the same plight, as the feoffor did.</p>

<p>The only question presented to the Court, in this case, is, Whether the lessor of the plaintiff in ejectment, is bound to prove the defendant in possession of the premises which he seeks to recover, although the defendant has entered into the general consent rule to confess lease, entry and ouster.</p>

<p>The land h» ^lsPu5,e'T38 described m patent as lo-the n^e. Cape-Fear ⅛. a"(*lile line whence question fo£s«apn!e on the marsh branch, thence along poles, thence-branch meets the river the distance held that the boundary & the mouth ofitthecorr-i^bepaten^ a?d that the to be disrev Sarde4-.</p>

This was an action of debt, on a sealed instrument. The defendant pleaded that the bond was given for an illegal consideration. On trial, the defendant wished to give in evidence that the bond was given in consideration of compounding a felony for a rape. This evidence was opposed by the plaintiff’s counsel, because the plea was not sufficiently specific to introduce the same. This point was reserved by the Court.

<p>In a hard action, where the jury have found for the defendant, whose conduct has been bona fide, and the practice under which he acted has been general, though not perhaps strictly consonant to law, the Court will not grant a new trial.</p>

<p>Where a |ract of land is devised tofafterTlie" making of the will sells it, such sale mount'taa" revocation ⅛ prevent the probate of the will, Where the deviseesVe regularly^ to an issue of devisavit vel pon, their de-elarationsare Senceagainst thenwr1 ««■⅛⅛.</p>

Debt on a penal statute. After verdict, the defendant moved in arrest of judgment—1. That the writ is not in the debet and detinet, but in the detinet only. 2. That there was no issue joined between the parties. 3. That the issue joined, if any, was immaterial to the decision of the question. 4. That the jury have given a verdict upon a point not at issue between the parties.

Wilson Blount conveyed two tracts of land to Edward ¿ran, by a deed bearing date the 25th February, 1799, “upon trust that the said Edward Kean, his executors, administrators or assigns, shall and will at any time, at the request of John Haslen Esq. of the colony of Demo-rara, in South America, or at the request of Catharine Henrietta Haslen, in case she should survive him, or in case both should die without making such request,then at the request of the executors or…

<p>The bill in Equity states, that William Sheppard, the father of the complainants, being considerably indebted, with a view to provide payment, came to an agreement with B. Sheppard, to convey to him a tract of land, for which B. Sheppard was to convey to W. Sheppard two other tracts of inferior value by 800 pounds; to satisfy which difference, B. Sheppard was to pay off all the debts, and indemnify, Wm. Sheppard from them. That soon after the agreement, Wm. Sheppard died; and one of his creditors obtained judgment, and took out execution, which was levied on his slaves, and at the sale, B. Sheppard, intending to perform his agreement, bid off twelve slaves at the price of 133/. for the benefit of the, complainants. That he took an absolute bill of sale from the sheriff to himself, but that the purchase was really made in trust and for the benefit of the complainants.</p> <p>The question, reserved was, Whether it was competent to the complainants to prove the bond by parol evidence; which was submitted without argument.</p>

This is a bill in equity filed against the administrator and distributees of the estate of William Farmer, dec. and prays for relief, upon the following case: William Farmer being indebted to John Atkinson upon bond, died intestate, and administration on his estate was granted to Benjamin Farmer, who was sued by Atkinson, and judgment was recovered.—Execution issued against the goods of the intestate in the hands of his administrator: pending the suit, the administrator…

<p>THIS was an action of debt, brought on a promissory note under seal, and assigned to the plaintiff by the original payee ; upon the plea of ” general issue.” The defendant’s counsel offered to give in evidence, that the writing obligatory, was delivered as an escrow to a depositary, who delivered it over to the payee before the conditions of the deposit had been performed : but the presiding Judge at Newbern Superior Court, July term 1800, thinking such evidence inadmissible, a verdict was taken for the plaintiff, and the case sent up upon a motion for a new trial, to obtain the opinion of this court, upon the above question.</p> <p>Woods. The question referred in this case for the consideration of the Court is, whether in an action upon a promissory note, under seal, the defendant may give evidence, upon the general issue, that the writing was delivered as an escrow to a depositary, who delivered it over to the payee before the conditions of the deposit were performed ? To prove that this special matter may be given in evidence upon the plea of non est factum, the following authorities are so fully in point as to admit of no shadow of doubt ; 2 Rolls’s Abr. 683. Gilb. treatise on the action of debt (bound with kis reports) 437, Gilb. L. E. 159. 168, Butler’s Nisi Prius. Tidd's practice of the king’s bench, 203. Nor have I seen a single authority, case, or dictum which, according to my ideas, contradicts, or in the least, questions any of them.</p> <p>It is indeed said in behalf of the plaintiff, that all refer to, and ultimately depend on that in 2 Rolle, of which the author himself, entertained a doubt ; but surely, it cannot be supposed, that such waiters as Gilbert, Buller and Tidd, should cite with approbation, and without any caution to the reader, any authority which was disputable. The manner in which they have stated the law, leaves no room to doubt of their opinion, that it was unquestionable ; and the high estimation, in which their works are held, forbids the supposition, that they were mistaken. Indeed the rule laid down in Whelpdale's case, 5 Rep, 119, goes much farther, and admits the defendant to give in evidence upon non est factum, special matter, which makes a deed void, after it has once had a legal existence ; whereas in our case the writing never became a deed at all.</p> <p>But it is objected, in behalf of the plaintiff, that all these authorities speak of a special non est factum which is not the general issue, but a special plea and this objection has been so much relied upon, and deemed of such importance in the case, that it becomes necessary to examine it fully ; to ascertain what kind of non est factum, is meant by these authorities, and whether the general issue, which is pleaded in our case, is not by fair intendment that plea.</p> <p>Rolle says it is non est factum, generally pleaded ; 2 Abr. 683 Gilb. L. E. 168, uses the very same words, and Buller and Tidd when they refer to the same passage must be supposed to mean the same thing.</p> <p>Lord Holt in Bushel and Pasmore, 6 Mod. 217, 218, says that " in all his time he never knew “ such a plea as that, viz, a special non est factum “ in case of escrow and that all these special non est factums, in case of escrow, erasure &c. are impertinent, for thereby the defendant brings all the proof upon himself ; whereas if he had pleaded non est factum generally, he “ would have turned the proof of whatever is neccessary to make it his deed, upon the plaintiff." This is said, by the plaintiff’s counsel, to be an obiter dictum, unworthy of regard. It is however the dictum of a great judge, and has never been questioned, although the case, in which it is found is very frequently quoted. And Gilb. L. E. 163, 164, assigns the reasons, why it was anciently deemed necessary, to plead special non est factums, viz, to prevent surprise at the trial, and because they usually contained matter of law, of which, the Court ought to judge, but adds “ at this day, the “ law is otherwise.” Again, all the authorities say, the special matter may be given in evidence. This necessarily excludes the idea of a special plea which it is contended, in behalf of the plaintiff, a special non est factum is.</p> <p>A fact is pleaded, when it is specially alledged in the plea, and offered to the Court. It is gives in evidence, when, without being alledged in the plea, it is offered to the jury as proof of some other allegation, and in legal phrase, no two things are more distinct, than the pleading of matter specially, and the giving of it in evidence. Can it then be conceived, that these writers, when they say that the special matter in question may be given in evidence, mean only, that it maybe specially pleaded ? This would be absurd. And to maintain that it is necessary at this day, to plead a special non est faction (that is, in the sense of the objection, a special plea) in case of escrow, is to pronounce Lord Holt both ignorant and rash, and to impure to Gilbert, Buller, and Tidd, a loose, unintelligible jargon. But it is said, in behalf of the plaintiff, that all the precedents to be found in books of entries, and cases of reports on the subject of escrow, are precedents and cases of special non est factum. How, it is asked, does it happen, that there is no case, nor precedent to be found, of a general one on that subject ? To this, I answer, that with regard to precedents in books of entries, they must necessarily be of special non est factum ; for a general one, in case of escrow, is not distinguishable from a general one, in any other case. There are no precedents of non est factum peculiar to the cases of erafure, interlineation, and false reading of a deed ; and yet, these are cases which must have frequently happened. The reason must be, that such special matters have been given in evidence, upon a general one. The same observation applies with force, in regard to reported cases ; the questions in those cases, have been such, as could arise only, in special non est factums. In general cases, none could arise, except with respect to evidence ; and upon a point so simple and unfrequent, as whether a deed was delivered as an escrow, or not, it is not remarkable that few cases should occur, worthy of the notice of a reporter. As few will probably be found, of interlineation or false reading of a deed, and yet it will not, I presume, be thence interred, that such matters may not be given in evidence on a general non est factum.</p> <p>But admitting, for the sake of argument that all the foregoing authorities, contrary to the express words of some of them, speak of a special non est factum, I must still be permitted to contend that such plea may be considered the general issue, which we have pleaded.</p> <p>All the authorities say, that a special non est factum in case of escrow, may conclude to the country, and some of them say, it must. In Watts and Rosewell, 1 Salk. 274, such plea was held ill, because it did not conclude to the country, The cases in T. Raym. 179 and 6 Mod. 217, both conclude in that way. And Gilbert L. E. 164, says the general way is to conclude to the country, but it is apprehended not to be vicious to conclude with a verification. It is presumed to be a general rule in pleading, deducible from reason and authorities, that a plea which concludes to the country is a general issue. A plea which denies the whole declaration, is called a general issue, because it amounts at once to an issue ; 3 Bl. Com. 305. Where the whole contents of a plea are denied, the conclusion must be to the country ; but a particular fact only, it must be to the Court. 1 Bur. 319. Doug. 429. non est factum is a plea which denies the whole declaration and is therefore a general issue, 3 Bl. Com. 305. If it be a special one, it concludes with the same denial and for that reason ought to conclude to the country ; fee the reason urged in Watts and Rosewell, 1 Salk. 274 : with such conclusions it amounts to an issue. It is, then, a general issue. If therefore, a special non est factum may be considered a general issue, as well as a special plea, it would be contrary to reason and the spirit of modern practice, to consider it a special plea for the purpose of excluding evidence. General pleading is at this day much favoured ; 3 Bl. Com. 305. 6 : and that strictness which was formerly required or indulged under pretence of preventing surprize is justly considered discreditable to the Profession.</p> <p>The books relied on as authorities for the defendant are 2 Rolle, 683, Gilb. L. E. 159, 168, Gilb. Rep. 437, 6 Mod. 218, Bull. 172, Tidd’s pract. 203. The passage found in Rolle, is there given on the authority of one of the Year Books, 9 H. 6. 38, and it must be admitted, would be of great weight towards deciding the question, were not the expression of doubt that accompanies it, not less strong than the passage ; and could it not be shewn, that the law is not so, by more modern authorities, aud an uniform practice to the contrary. Whether the quoere annexed to this passage, be found in the Year Book, or be the suggestion of Rolle, cannot be a material circumstance ; in either case it shews that the law was not then settled, at least ; and if Rolle adds the quære, it will follow, that his opinion, and the practice of his day, were at variance with the Year Book. Gilbert's law of evidence, and his treatise on debt, in the pages refered to, also give support to the opinion, that escrow may be given in evidence on a general non est factum. But we are referred to the single case in Rolle, just examined, for the authority on which his lordship had formed this opinion : the naked dictum of his lordship would have been more respectable ; resting on the authority in Rolle, which concludes nothing, it certainly derives no additional force, from it’s transposition into Baron Gilbert’s treatise.</p> <p>But it is said, the defendant has on his side also, the opinion of Judge Holt, a great and respectable name among the profession of the Law ; and for this we are referred to 6 Mod. 218, and it is true, that this great lawyer does contrive, or is made, rather out of place, it will be allowed, to say, obiter, that these special non est factums, in cases of rasure and escrow &c. are “ impertinent." But when it is considered, that the case before the Judge was a case of an escrow, the plea a special non est factum, and no question whether escrow might not be given in evidence on a general non est factum, made or argued ; this expression, far from deciding the point, will only excite our surprise, at its irrelevancy to the business in hand ; or at most, is only to be considered, a mere obiter dictum.</p> <p>It is always understood that these accidental expressions of even the most learned and experienced judges, on points of this nature, not under the consideration of the court, and without any previous investigation, are not to be regarded as authorities, as well, in justice to the judges, as from the danger of admitting them. The judge himself attaches no consequence to them, and on a flight examination, often changes his opinion ; the reporter too, having his attention occupied, by the principal question, is very liable to error on collateral points. It is worthy of remark, that wherever this opinion, as ascribed to Judge Holt, is noticed by subsequent writers, it excites surprise, and its correctness is questioned. 4 Bac. Abr. pleas and pleadings, 62. Perhaps, it this had been the point submitted, his lordship would have made up a different opinion. Neither Buller nor Tidd make any distinction between a general and special non est factum. They, as well as many others, seem to consider both as one plea, in contradistinction to all special pleas in bar, in the action of debt : thus, they say rasure, coverture, escrow &c. may : be given in evidence on the general issue, non est factum ; but per duress, per minas, release &c., must be specially pleaded. When, under the first branch, you examine the cases referred to, as Sir T. Raym. 197, and 6 Mod. 218, they are cases of escrow, and the pleas are special non est factums so that the only meaning they can be supposed to have, is, that you need not plead escrow, as specially as you must per duress &c., but you may take advantage of it on a non est factum, that is, a special non est factum, which concludes to the country, and not with a paratus est verificare, as do these special pleas. It may, therefore, fairly be presumed, that Baron Gilbert has mistaken the true import of earlier writers, and given to them a latitude of construction, beyond what they intended. It is concluded therefore by the plaintiff, that there is no good foundation to say, that under a general non est factum, delivered as an escrow may be given in evidence.</p> <p>In order to prove, that a special non est factum must be pleaded, it is remarked, in the first place, that to alledge the special matter relied on is most consonant to the principle of pleading, which is every where avowed, that the Court and adverse party should be fairly apprized of the nature and circumstances of the defence ; which can be done only by setting forth the particular facts ; thus, surprise is avoided, and the parties come prepared to try the true question. If this principle has force in regulating the pleading, in the British courts, it becomes much stronger in its application to the mode of pleading, in our own courts. With us, the name or names only, of the pleas are entered on the docket : whereby the hazard of being entangled in special, or general demurrers from the nicety required in pleas drawn at full length, is avoided ; which was the only evil intended to be remedied by the relaxation of the rule which required all special matter to be specially pleaded.</p> <p>It is contended, secondly, on the ground of express authority, that escrow must be pleaded by a special non est factum ; and the cases that are deemed such authorities are Com. Dig. pleader (2 W. 18) 643, throughout." Non est factum is a good “ plea, when the bond or specialty was not executed, but if it was, but was void ab initio for other cause, such as escrow, among others, a special " non est factum may be pleaded : so is Morg. vad. mec. 221. 222, Espinasse, debt, 149, and the authorities there refered to, Co. Litt. 56, a, 1 Vent. 9, 2 Vent. 10. 1 Salk. 274, 6 Mod. 218, Sir T. Raym. 197. Morg. Ess. 299, 4 Bac. pleader 62, Lill. Ent. 187, 184, and other modern entries, generally. From an examination of these cases and entries, this fact will appear, that escrow has, without exception in earlier, as well as later times, been pleaded under a special non est factum ; and this conviction will result; that it has been the opinion of the ablest judges, pleaders and practitioners, that it is the only safe and proper plea.</p> <p>It is conceived, thirdly, that this conclusion may also be established by reasoning from the practice, to the law ; the pleadings in cases are said to be pretty certain indexes to the law. If it be found that in all cases of escrow, whether of ancient or modern date, the plea is a special non est factum, especially, if no one can be shewn, where it was offered in evidence on a general non est factum, the conclusion is logical, natural, and strong, that a special non est factum is the plea required by law. All the reporters abound in cases of escrow all under the plea of special non est factum ; a solitary case of escrow, when a general non est factum was pleaded, the plaintiff’s counsel, after a laborious search, has not been able to find, nor has the defendant’s counsel pretended to produce one. If it were thought consistent with the law, would not counsel rather surprise his adversary with a special defence, under the general isue, than to furnish a plea which states explicitly the circumstances on which he rests his defence ; which requires more labor and more skill, to place it beyond exception ; and which assumes upon itself, the onus probandi ? The special non est factum, adapted to the case of an escrow, being carefully inserted in the entry books of pleading, another circumstance, from which to infer, it is considered to be a necessary plea.</p>

<p>At March Term, 1792, the plaintiff’s testator recovered against Thomas Wade and Holden Wade, executors of Thomas Wade the elder, £2000 for debt, and £8:10:6 costs, but the plea of fully administered was found for defendants.</p> <p>The plaintiffs testator then sued out a sci. fa. against William Wade, Judith Wade, Polly Wade, Sally Wade, Thomas Vining and Polly his wife, Joshua Prout and Sarah his wife, heirs, devisees and terre-tenants; suggesting that Thomas Wade, the elder, died seized of a large real estate, sufficient to satisfy the said debt and costs, which was devised by him to Thomas Wade, the younger, Holden Wade, Polly the wife of Thomas Vining, and Sarah the wife of Joshua Prout; and that Thomas the younger, was dead, and the estate devised to him, had descended upon his heirs at law, the said William and Judith; and that Holden Wade was also dead, and that the estate devised to him had descended upon his heirs at law, the said Polly and Sally; and praying execution of the said debt and costs, against the real estate to them devised and descended, as aforesaid.</p> <p>Upon the due return of this process, William Wade, Judith Wade, Sally Wade and Polly Wade, appeared by their guardian and pleaded several pleas, but afterwards withdrew them, and judgment was entered against them, as well as Thomas Vining and wife, by default, but upon condition that the said William, Judith, Polly and Sally, should not be liable for any estate which had come or should come to them other than such as should be derived by devise or descent from Thomas Wade the elder, or Thomas the younger, or Holden.</p> <p>Joshua Prout appeared for himself and wife, as devisee of Thomas Wade the elder and pleaded nothing by devise on the day of the sci. fa. purchased. The plaintiff’s testator replied “that lands were devised to Sarah by Thomas Wade the elder upon which issue was joined by demurrer.</p> <p>The said Joshua Prout also pleaded as terre-tenant that the lands of which he was in possessien not mentioned in the devise to Sarah his wife were never bound by any judgment againt Thomas Wade, the devisor: upon which issue was joined by demurrer.</p> <p>The death of the plaintiff’s testator has been since suggested, and the plaintiff been duly admitted to revive and prosecute.</p> <p>Upon this state of pleadings and facts, the case is submitted to the Court:</p>

<p>This was a warrant issued by a justice, under the act of 1777 ch. 22,a the defendant had notice of the proceedings of the freeholders in sufficient time to have made his defence; and the question now submitted to the court was, whether the plaintiffs should be allowed in the taxation of costs for the attendance of sundry witnesses, whom he summoned to prove the truth of the report made by the justice and freeholders.</p>

This was a sci. fa. upon a refunding bond given by the defendant, to which the defendant pleaded, that the judgment stated in the sci. fa. to have been recovered against the administrator, was not justly due; and that the administrator fraudulently and in collusion with the plaintiffs, suffered the judgment to be entered against him by confession. To this plea there was a demurrer and replication.----Drew for the plaintiff, Brown for the defendant----

<p>This Cause originated in the Court of Equity for Wilmington district. The complainants by their bill alledge, that Rufus Marsden, on the fifth day of March, 1749, duly made and published his last will and testament, containing, amongst other things, the following devices :— " I give, grant and devise, and bequeath unto " my loving wife, Allice Marsden, all my houses " and lots in the town of Wilmington, in the “ province of North-Carolina, to have and to " hold to her, my said wife Allice Marsden, for " and during the time of her life; and after her “ decease, to the use of my three daughters, “ namely, Hannah, Allice and Peggy, and to “ their heirs, executors, administrators and as " signs for ever, and to no other use or uses “ whatsoever.</p> <p>" Item, I give, grant, devise and bequeath “ unto my loving wife, Allice Marsden, all my “ personal estate, of what kind or nature what- " soever, and after her decease to the use of my " three daughters, Hannah, Allice and Peggy " to their heirs, executors and assigns for ever, “ and to no other use or uses whatsoever.” And soon afterwards died, leaving his widow and three daughters living at his death.</p> <p>Hannah, one of the daughters, intermarried with Arthur Mabson, in 1754, by whom she had issue, Allice, one of the complainants, and shortly afterwards died—Arthur Mabson, her husband, also died before Allice, the widow.</p> <p>In 1758, Allice Marsden, the widow, died, leaving the other two daughters, Allice and Peggy, and the grand-daughter, Allice, living.</p> <p>In 1765, Allice, the daughter, intermarried with Benjamin Herron, who died soon afterwards.</p> <p>In 1785, Peggy, the other daughter, intermarried with John Lordan, one of the defendants, by whom she had issue, John Lordan, another of the defendants, and died.</p> <p>In 1772, Allice, the grand-daughter, intermarried with Samuel Campbell, the other defendant.</p> <p>After the death of the widow, Allice and Peggy, the daughters, took possession of the whole estate, and they and the said John Lordan have remained in possession thereof ever since, and enjoyed the rents and profits of the same.</p> <p>The complainants claim one third part of the estate of Rufus Marsden, and the profits accrued since the death of Allice the widow, and pray an account and division.</p> <p>To this bill the defendants demurred, and for cause stated, that Rufus Marsden, in the bill mentioned, devised the property claimed to his three daughters, Hannah, Allice and Peggy, as jointenants, and that Hannah died, Alice and Peggy surviving.</p> <p>It is contended on the part of the defendant, 1st. That the devisees in the will of Marsden, took by purchase and not by descent—2d. That they took an estate in jointenancy, and not as tenants in common.</p> <p>1st. They took by purchase.—Although the general rule be acknowledged, that where the heir takes nothing more by the devise than he would without it, he shall be considered in by descent, (for reasons however which exist not in this country). Yet wherever the ancestor devise the estate to his heir, with other limitations than the cause of descents would direct, or makes use of words which constitute and convey an estate, and which draws with it other incidents and qualities, the heir to whom the same is so devised, shall be said to be in by purchase—Hob. 29, 30 —Gilb. on Devises, 112, 113—Powell on Devises, 439—2 Bl. Com. by Christian, 241, note—1 Cro. 431.—The words made use of by the devisor are such as convey an estate in joint tenancy; the incidents and qualities of which differ from an estate in coparcenary, Parceners cannot have an action of waste against each other by virtue of the stat. of West . II. nor can they have an action of account, by the 4 Ann, as joint tenants and tenants in common. Parcenors alone were compellable by common law to make partition; they have but one estate, and do not hold by distinct moieties as tenants in common, and there is no survivorship among them as among joint-tenants. Therefore wherever an estate is devised by words which constitute either an estate in common, or in joint-tenancy, though to the persons who are the heirs of the devisor, they take by purchase and not by descent; because the qualities incident to those estates, are not incident to such an estate as the heirs would take, if considered in by descent.</p> <p>2dly. The devisees took as joint-tenants, and not as tenants in common.—joint-tenancy was anciently favoured by the laws; and although the reasons which induced a construction of deeds and wills, which tended to the support of jointtenancy, do not exist with the same force as formerly, yet the rule is still the same. That wherever the estate is given to two or more, without explanatory words, the personss to whom it is given take as joint-tenants; for notwithstanding the reasons have failed upon, which the rule was founded, the rule itself still exists in the same manner as all other rules of law exist and are in force, without having the reasons on which they were built to support them in their operation.—This principle is recognized by Powell in his Treatise on Devises, 356. The following authorities apply, to prove that the words of Marsden's will convey to the devisees an estate in joint-tenancy—3 Lev. 127—1 Leo. 112, 113, 315—Cro. Ehz. 431—Gilb. on Devises, 113—Powell on Devises, 43—Owen 65.</p> <p>No instance can be produced where such words, without some other words severing the estate were held either in law or equity to convey a tenancy in common. That the rule is still the same as formerly, the opinions of the first law characters in the kingdom of Great-Britain, the late commentator on Coke upon Littleton, will confirm—Co. on Litt. 190, 6 note—3 Ves. jun. 628.</p> <p>It is also to be observed, that the construction of wills is the same in a court of equity as in a court of law—2 Bur. 1108—3 Bl. Com. 435— 2 Com. 537—2 Brown, 233.—It is therefore concluded, on the part of the defendants, that the demurrer should be maintained, inasmuch as the authorities prove that the words made use of by the will of R. Marsden, convey an estate in joint-tenancy ; which drawing with it other incidents than such as are attached to an estate in coparcenery, places the devisee in of an estate by purchase, and not by descent.</p> <p>1st. The rule of construeing wills at the present day, is, that the intention of the testator shall prevail—3 Bur. 1634—3 Atk. 619—5 Bur. 2703—2 Bro. Ch. 51</p> <p>2dly. The old rule, which I do not dispute, was established in very ancient times, when the judges favoured joint-tenancies, in order to avoid multiplication of tenures and of services—Salk, 158, 392—9 Mod. 159.</p> <p>3dly. As the tenures wore off the rule was gradually departed from, till the intent and not the words became the governing principle, and induced the judges to construe the words as conveying a tenancy in common; first in wills and then in deeds—2 Ves. 252, 259—2 Atk. 121—3 Atk. 731—1 P. W. 14—Cow. 660.</p> <p>4thly. If the intent is now to govern, the daughters took as tenants in common, for the intent of their father was, that they should take as tenants in common, and not as joint tenants.</p> <p>1. For the same reason as in 2 Ves. 252, a settlement upon children. He could not mean that if one died leaving children, that those children should not have any thing.</p> <p>2. He was a layman, and not knowing the use of words has thrown in a number, hoping they would discover his intentions “ Executors.” How could the property go to the executors of Allice if it survived upon her death. Suppose a devise by Allice to her executors.</p> <p>3. " Administrators.” How could it go to them, if it survived upon her death.</p> <p>4. " To no other use or uses.” If it survives does it not go to those who are not the heirs of Allice, to her sisters instead of her child, and directly contrary to the intention of the testator, and the words of the will.</p> <p>5thly. These are the very words the legislature has used to sever the joint-tenancy—Iredell 489.</p> <p>6thly. In the clause relative to the personalty, the same words are used, and no one can doubt the testators intentions, that the part of each child should go to her executors, consequently that a will might be made of it, and for want of a will that it should go to adaministators. The same words in the same will must of necessity have the same meaning.</p>

<p>This was a writ of error brought in Morgan Superior Court of Law, to reverse a judgment detained by the defendant against the plaintiff in error, in Lincoln county court, by original attachment, in these words :—</p> <p>“ Whereas Henry Dellinger hath complained on oath to me, Daniel M'Kissick, a justice assigned to keep the peace for the county of Lincoln, that he hath just cause to suspect that Samuel Bickerstass in company with others, hath endamaged him to the amount of two hundred and nineteen pounds ten shillings; and oath having been also made, that the said Bickerstass hath removed himself out of your county, or so absconds or conceals himself, that the ordinary process of law cannot be served on him: and the said Henry Dellinger having given bond and security, according to the directions of the act of the General Assembly in such case made and provided, you are therefore commanded that you attach the estate of the said Bickerstass, if it be found in your county, or so much thereof, repleviable on security, as shall be of value sufficient to said damages and costs; and such estate so attached in your hands, to secure, or so to provide, that the same may be liable to further proceedings, thereupon to be had at our next Court of Pleas and Quarter-Sessions to be held for the county of Lincoln, on the first Monday in July next, so as to compel the said Samuel Bickerstass to appear and answer the above complaint of the said Henry Dellinger, when and where you shall make known to the said court how you shall have executed this writ.—Witness Daniel M‘Kissick, a member of said court, this 17th May, 1783, and in the 7th year of American Independence.</p> <p>“ Daniel M'Kissick, J. P. (Seal.)</p> <p>" To the sheriff of Lincoln county to execute, or James Martin, constable.”—On which was endorsed the following return:—" Levied on 300 acres of land, on the waters of Buffaloe Creek. James Martin, Constable.”</p> <p>The following affidavit was returned at the same court:</p> <p>State of North-Carolina, Lincoln County.</p> <p>This day came Henry Dellinger before me, a justice assigned to keep the peace for said county, and made oath that he has reason to suspect that Samuel Bickerstaff, in company with other tories in the British service, did come to his house on the 26th day of January, in the year 1781, and took, destroyed and carried away the following articles, to wit:—300 galloons brandy, at 8s.—£.120—and other articles which are mentioned in the affidavit, amounting in all to l.219: 2s.—And that he never received them, nor any of them, or any value for the above mentioned articles.</p> <p>Sworn to and subscribed this 17th May, 1783.</p> <p>Henry Dellinger.</p> <p>Daniel M'Kiffick, J. P.</p> <p>The cause stood thus on the docket of the county court:—</p> <p>Henry Dellinger, vs. Samuel Bickerstaff. }</p> <p>Or: Attachment—Jury charged—Verdict £.219 2 and costs.—On winch execution issued, and the land mentioned in the return on the attachment was sold.</p> <p>The following errors were assigned by Mr. John Williams, counsel for the plaintiff in error, to wit:</p> <p>That no bond or security for satisfying all cost which might have been awarded to the said Samuel 5 in case the said Henry had been cast in the said suit, and also all damages which might have been recovered against the said Henry in any suit or suits which might be brought against him for wrongfully suing out such attachment, was ever taken or returned to the said county court.</p> <p>That the said Henry never swore to the amount of his damages or demand in the said suit, to the best of his knowledge or belief.</p> <p>That there was no complaint made on oath too any justice of the peace of the said county court, that the said Samuel, at the time of granting such attachment, had removed, or was removing himself out of the county privately, or so absconded or concealed himfelf, that the ordinary process of law could not be served on him.</p> <p>That the original attachment does not appear to be granted by any justice of the county court of Lincoln, or any judge of the superior court of law.</p> <p>That the said original attachment was directed to the sheriff of Lincoln county, or to James Martin, constable; and that by the record aforesaid, appears to have been levied by the said James Martin, as constable, on land, when, by the law of the land, the same attachment ought to have been directed to the sheriff or coroner of Lincoln county, and not to any constable.</p> <p>That there is no declaration filed and remaining of record in the said suit, and that the complaint, as it appears in the affidavit filed in the same suit, and the said original attachment, and the matter thereof, is not sufficient in law to maintain the said action.</p> <p>That there was no issue joined, nor any judgment by default given or inquiry awarded as to damages, whereupon the verdict of the jury in that suit finding for the plaintiff, and affecting his damages and costs, could or can be founded.</p> <p>That judgment was rendered for the said Henry, when by law it ought to have been rendered for the said Samuel.</p> <p>Plea in nullo est erratum.</p>

<p>Treaty with Great-Britain replied to the Act of 1715, and held bad.</p>

<p>This Was an action on the case for the non-performance an agreement to sell lands. It appeared in evidence that the Defendant had agreed with the Plaintiff to inform him by letter, whether he would take the price offered for ^ ^an<^s A question,—that the Defendant had insisted tipon more but the Plaintiff positively refused it,—that the price offered was §2000, payable in instalments, at which time the Plaintiff informed the Defendant, that in . case of a purchase he* the Plaintiff, would be under the necessity of selling other lands to meet the payments Of the new purchase t .the Plaintiff therefore insisted on the Defendant giving as early notice as possible as to his de*' termination in respect to the offered price. Shortly af-terwards the Defendant wrote the letter which follows; on the receipt of which, the Plaintiff declared his accept-anee, and closing with the terms of the original contract; according to which he tendered his bonds and demanded a title to the land;. The Defendant declared he would sign no deed, which did not reserve to him a few acres out of the tract, at a particular place adjoining the town of Lumberton, which, from the evidence appeared to be the most valuable part of the land. The Plaintiff did not offer or tender any deed or draft for the Defendant to sign*</p> <p>The Court directed the Jury that the fair exposition of the letter was, an acceding to the original offer of purchase, and as to that part which related to the reservation of a few acres, the Court directed them, that the same was precatory and rested merely in the will of the Plaintiff ; and as to the want of tendering a deed ©r draft, the Court informed them, that the Plaintiff wasdicharged from a formal tender, by the declaration of the Defendant.--The Court in its direction to the Jury, declared, that jn assessing damages, they ought to respect the situation of the parties, when mere loss of bargain was the gist of the action; and that a Jury in its discretion was well autho-rised to assess damages to a greater amount, between parties whose situation and circumstances in point of fortune, placed them beyond ordinary standing, than in a case where they were of the opposite character, and had po opportunity from education or manners to know the impropriety of violating a contract. This part of the charge the Court in no wise doubting, but states it merely for the satisfaction oí the Counsel of the Defendant*</p> <p>The Jury found a verdict of 50/.</p> <p>Rockingham, 13th Feb. 1815.</p> <p>Dear Sir,</p> <p>Agreeably to promise I embrace this opportunity to write to you from this place. J have seriously weighed in my own breast the subject between me and you, in respect to the sale of my plantation, commonly known by the name of Walnut Shade. I do not hesitate to say, that you may proceed to make sale of your lands, when a favorable opportunity may offer. I shall soon be at Lum-berton again. As the land I am going to let you have, on the back of my plantation is of greater value than that which I retain on the Elizabeth road, I know you will not hesitate to make me some equivalent of a spot of land on some other corner, joining other land of mine, where it will be no inconvenience to you As Mr. C. Moore has made preparation for making a crop, I expect not to discommode him this season ; should he not put the whole uiider crop, the balánce will be yours. I will leave this place for Char» iotte, in four or five days. I remain with respect your old friend,</p> <p>JOHN DOWE,</p> <p>Alfred Rowland, Esq,</p> <p>contended that as no evidence was admissible as to the character of either party, such a consideration was improper for the Jury; character can only be enquired into in a civil suit, where it is directly put in issue by the nature of the proceeding itself ;* that the Plaintiff ought to have tendered a deed before he could have a right to sue,† and this obligation was pot dispensed with by any act of the Defendants,‡ that even if the Plaintiff has a cause of action, his right t» damages can only be nominal.§</p>

TRESPASS quare clausum fregit. The plaintiff claimed under a grant from the State, issued in 1798. The defendant, upon the plea of liberum tenementum, set up a title under prior grants, for two tracts of land, one of three hundred acres, the other of one hundred and forty.

Ejectment to recover a tract of 150 acres 6f land, to which the lessors of the Plaintiff claim title under a deed of oift from ^fohn Harrell, who was seised of the same u and conveyed it to his grandson Estas. The issue of Estas failed in 1772 by the‘death of his only daughter and heir at law, who had intermarried with the defendant, who had taken possession under her title, claiming as husband. Ezekiel and David died before the year 1772.

EJECTMENT, for a house and lot in the town of Newbern. The plaintiff claimed as heir at law to Richard Hunly, who had devised the residue of his property to his widow, the defendant, after having made sundry specific bequests. The deed for the lot in question was made to the testator after the executing of his will; though evidence was offered by the defendant to shew that the purchase was made before.

The prisoner was indicted for horse-stealing in the Superior Court of Law for Halifax district. April term, 1801, and pleaded not guilty. On his trial he challenged thirty-five jurors, without shewing any cause, and they were rejected accordingly. When the next was drawn and called to the book to be sworn, he challenged him also, and claimed a right to challenge as many others as he thought proper, and to exclude them without shewing any legal cause.

<p>THE writ was returned executed to the last term, and an appearance entered by the defendant’s attorney, who informed the plaintiff’s attorney, upon entering up the rules, that he should file a plea in abatement. The plaintiff’s attorney, upon learning the substance of the plea, said he should take issue upon it : but no plea was entered, and, upon motion to enter a judgement by default as of the last term and to execute the inquiry instanter:</p>

<p>Master of a vessel may not give his protest in evidence.</p> <p>If a bill of lading be not stamped, parol evidence may be given of the contract to carry the goeds.</p>

THIS cause was tried at the last term and a verdict found for the plaintiff under the direction of the Court. A rule was obtained by the defendant’s counsel, calling upon the plaintiff to shew cause why a new trial should not be granted, on the ground that improper evidence was suffered to go to the jury, and on that of misdirection. the following opinion was delivered.

On the 9th day of April, 1787, Margaret Jones made her last will and testament, in which were the following bequests, to wit: — I give and bequeath to my beloved son, William Jones, one negro, named Tena. Should my son Wil- liam die without an heir, in that case all the property herein bequeathed to fall to his sisters, if living.

<p>Micajah Thomas, having three illegitimate children by Ann Jackson, viz. Mourning, Margaret and Temperance, made his Will in 1788, and died without altering or re-yoking it. By it he devises as follows. “ I give unto my daughter, Mourning Thomas Jackson, all that part of my manor» plantation, &c. containing about two thousand five hundred acres; also, another tract of land lying on the North side of 1 ar-river, containing 420 acres, known by the name of the Kerseu, &c. t,o her and her heirs for ever.!* # J Then he devises other lands to Margaret⅝ and in fee sim-P^e ’ anc^ a third estate to Temperance, jn fee simple, and then comes the following clause. “■ Item, my will and desire is, that if either of my three children, Mourning ’j'fl0mas Margaret Thomas, and Temperance Thomas ’«s ’» i ** Jackson, daughters of Ann Jackson, should die before they marry, the lands of the deceased shall go to and be equally divided between the surviving two and their heirs for “ ever, and in case two of the said children should die before they marry, then the whole of their lands shall go to the surviving one and her heirs for ever; and in case that all three of my children, Mourning Thomas, Margaret., and Temperance Thomas Jackson, daughters of Ann Jackson, shall die before they marry, then and in that case, it is my wish and desire that all the lands willed to them, should goto and be equally divided between Bennet Bod-die, George Baddie, John Crudup and George Crudup, to them and their heirs for ever.” Then follow several legacies and devises to other persons, after which comes the following clause. “ Item, I give and bequeath unto my three daughters, Mourning Thomas, Margaret Thomas and Temperance Thomas Jackson, daughters of Ann Jackson, the following negroes with their increase (here follow the names of 64 slaves) together with all my cash in hand, certificates, stock in trade, debts due by bond or otherwise, all and every thing else of my estate, real, personal, or mixed, that is not heretofore by this, my last will bequeathed, to be equally divided between them, when they, the said Mourning Thomas, Margaret Thomas and Temperance Thomas Jackson, daughters of Ann Jackson, arrive at the age of eighteen years, or marry, to them and the heirs of their body for ever: but if either of the said children should die, before they arrive at the age of eighteen years or marry, then and in that case, my will and desire is, that the estate of the one deceased, should be equally divided between the surviving two, to them and the heirs of their bodies, for ever, and if two of the said children should die before they arrive at the age of eighteen or marry, then that the parts of the two deceased, shall descend to the surviving one, and the heirs of hey body for ever : But if all my daughters should die%efore they arrive at the age of eighteen years or marry, and has issue thereby, then the said negroes with their increase, *aoney, certificates, stock in trade, and all other property which they are entitled to by this will, shall go to and be equally divided between Bennet Boddie George Boddie, Temperance and Mary Perry, daughters of Nathan Bod-die, Elizabeth Boddie, Mourning Boddie and my two nieces, Rkoda Ricks and Mourning Arrington, to them and their heirs for ever.</p> <p>Mourning Thomas Jackson, arrived at the age of eighteen, married and died without issue, in 1805.</p> <p>Ann Jackson, had four children, named Munroe, who were born out of wedlock, and survived Mourning; she had also a daughter named A ary, wife of Joseph Arring-ton, one of the lessors of the Plaintiffs, born out of wedlock ; and John Arrington, Martha, wife of Lawrence Battle, and William Arrington, all lessors of the Plaintiffs, born in wedlock, who survived Mourning; Margaret Thomas Jackson married John Alston; Temperance Thomas Jackson married Janies Alston: the former is in possession of the premises in question, claiming them adversely to, and denying the title of the lessors of the Plaintiffs.</p> <p>It is submitted to the Supreme Court, to say who are entitled to the real estate acquired by Mourning Thomas Jackson, under the will of Micajah Thomas ? If Margaret and Temperance Alston, then judgment to be entered fot the Defendants. If all the brothers and sisters of Mourning, legitimate and illegitimate, then judgment for the Plaintiffs, on the demises of each of his lessors : if only the illegitimate, then judgment for the Plaintiffs on the demise of Joseph Arrington and wife : if only the legitimate, thett judgment for the Plaintiffs on the demises of John Arrington, William Arrington, and Lawrence Battle and wife.</p> <p>The case was elaborately argued at January Term 1817, by Mordecái, for the Plaintiffs, and Browne for the Defendant, bút as the leading ca$es cited on either side, áre noticed in the opinion of the Court, the arguments of the counsel are omitted.</p>

This was an action of debt brought in the Superior Court of Law for the district of Fayetteville, and came before the court on the following statement made by the counsel for the parties, viz.—“ On the 26th May, 1797, the executors of William Dry brought this suit on a bond with a penalty, conditioned for the payment of £. 100 procl. money, on the 1st of October, 1775, of which £.24 were paid by Roper in December, 1774, and that no other payments have been since made.

<p>The Plaintiff brought an Action of Debt in the County Court of Person, upon an award, and declared in the following manner, to wit: James Bryant complains of James Milner, in custody, &c. of a plea that he render unto him sixty dollars, of the value of thirty pounds, which to him he owes and from him detains: For that whereas a certain controversy had arisen and existed, between the said James Bryant and the said James Milner, of and concerning a horse which the said Bryant had lent to the said Milner, and the said Milner had not returned to the said Bryant; they the said Bryant and Milner being willing to settle and determine the said controversy in an amicable and friendly manner, on the seventh day of September, in the year one thousand seven hundred and ninety-nine, in the county of Person aforesaid, submitted the said controversy to the arbitrament and award of James Cochran, David Mitchell, Drury Jones, William Mitchell and Wilson Jones, Arbitrators mutually chosen and agreed upon, by the said Bryant and Milner; and they the said James Cochran, David Mitchell, Drury Jones, William, Mitchell and Wilson Jones, being so chosen and appointed arbitrators as aforesaid, then and there undertook to hear and determine the matter of controversy aforesaid, so existing between the said Bryant and Milner; and having heard the allegations and evidence of the said parties, of and touching the said matter of controversy, they the said James Cochran, David Mitchell, Drury Jones, William Mitchell and Wilson Jones, Arbitrators as aforesaid, then and there did erbitrate, settle and determine the said matter of controversy, and then and there rendered, under their hands and seals, their award of and upon the same matter of controversy in the words and figures following, to wit: ' We the subscribers, having been chosen to arbitrate a certain matter of controversy between James Milner, of the one part, and James Bryant, of the other part, do award, that the said Milner shall pay unto the said Bryant sixty dollars, or secure the same to be paid, on or before Christmas next, by giving his bond with security. Given under our hands and seals this seventh day of September, 1799 ;" whereof the said Milner then and there had notice. By force of which award the said James Milner became indebted to, and liable to pay the said James Bryant, the aforesaid sum of sixty dollars, or secure the same to be paid, on or before Christmas then next following the date of the said award: And the said James Bryant faith that the aforesaid sum of sixty dollars is of the value of thirty pounds current money of this State.” Yet the said James Milner, &c." The Defendants pleaded the general issue, no submission, and that the arbitrators proceeded ex parte and partially; " on which issues were joined.</p> <p>The Plaintiff having appealed from a judgment against him in the County Court, the cause was tried m the Superior Court for Hillsborough district, at April Term, 1801, when the Jury found a verdict for the Plaintiff, but subject to the opinion of the Court on this question, “Whether the award as declared on, was sufficient to enable the Plaintiff to recover." And thereupon the cause was transmitted to this Court.</p> <p>Courts anciently considered awards as judgments, and construed them strictly, without attending at all to the intention of the arbitrators, unless expressly stated in the award, Kid on Awards, 154. Brownl. 92. Yelv. 98. This rule of construction produced great mischief, and rendered injurious that method of settling controversies, which would otherwise have been of great utility to the community. The Judges, therefore, in the latter end of the reign of James I. departed from this rule, and adopted one more liberal and more conducive to justice, holding that awards should be interpreted liberally, as contracts, according to the intention of the parties, and of the arbitrators. Kvd on Aw. 155, 156. Awards ought to be liberally construed, because made by Judges of the parties own choosing. 1 Bur. 277. Under this rule, awards made on parol submissions, ought to be interpreted as verbal agreements. An award, tho' under seal, is not a specialty; and is made on a parol submission, is of the same nature with the submission, and ought to be construed by the same rules. 1 Bur. 279, 281. In an action of debt upon an award, made under a parol submission, the Plaintiff may by averment connect the award with the submission, and thereby cure a defect, which otherwise would have been fatal 1 Bur. 274, 278. 279. Allen 51, 52. 1 Wils. 58. If an award recites the controversy, and orders a sum of money to be paid, it shall be intended in satisfaction of that controversy, and the award held good. Kid on Aw. 152, 153, 150, 148, 149. Com. Rep. 328. If the award is not made on the submission, or there is any other objection to the award, the defendant must shew it by plea; for the Court will not presume any thing which will destroy the award, but will presume that no such circumstance did exist. Wilson 163. 2 Mod. 227. 1 Bur. 277. 2 Cro. 663. In debt on an award, the Plaintiff need not shew any thing more than the submission ; that the arbitrators acted; that they made an award on the matter submitted ; the amount of the award ; that the defendant had notice of the award ; and a breach by the defendant. Kid 198. 1 Bur. 881. 1 Salk. 72. When an award is annexed to the submission by a proper averment, either in a declaration or plea, all the material facts are put upon the record, in as full and conclusive a manner, as if the matter submitted had been mentioned in the award. Com. Rep. 330.</p> <p>In this case, the declaration states a submission by the parties of a controversy relative to a horse ; that the arbitrators acted under that submission, and made an award of the controversy so submitted ; that the defendant had notice of the award ; and assigns a breach. I therefore contend that judgment ought to be given for the Plaintiff.</p> <p>But suppose I should admit that no authority has been cited which comes up to the case, the plaintiff would, on principle, be entitled to judgment. For the books referred to, incontestibly prove, that the Judges in England, having observed the inconvenience and injustice of the ancient rules governing the construction of awards, have from time to time so changed and amended those rules, as to render them more conducive to justice and the good of the community. The entire change of the rule in the time of James the first, and many decisions made since that time in support of awards, evidence the authority of the court in such cases, and hold forth an example worthy of imitation, when good policy and justice require an extension of the present rule. In this case the only objection to the award is, that the controversy submitted and settled, is not identified by the award itself; and it will be contended the award cannot be supported by an averment of that fact. I cannot see what inconvenience or injustice would result from permitting such an averment, particularly in support of awards made on parol submissions ; because it might be done in a plea as well as in a declaration, and therefore mutually beneficial to the parties; and the judgment in such cases would be conclusive, and might be pleaded in a subsequent suit on the original cause of action. In many other cases, it is not only permitted, but is absolutely necessary to support the principal matter of declarations and pleas by proper averments. Thus, in pleading a former judgment, the defendant must aver, that it was given on the same cause of action; and in pleading a release of all demands, the defendant must aver the demand on which he is sued, existed before the execution of the release; these two cases appear to me much stronger than the one before the court. In one instance a record, and in the other a deed is supported, and made to apply in a particular manner, by the averment of a fact not appearing on the face of them ; the present case is a parol transaction, and therefore certainly more open to averments. It is a good policy to render as easy and certain as possible, this amicable and cheap method of settling disputes.</p> <p>The award is not certain or final; no particular controversy is recited; no release is awarded; nor is the money directed to be paid in satisfaction of specified injury or demand. It is not mutual, because it does not discharge any cause of action, and as it cannot be supported by averment, leaves the defendant exposed to a suit on the original controversy 1 Bur. 274. 2 Stra. 1024. 2 Bur. 7011 1 Salkeld 69.</p>

EJECTMENT. The land claimed by the plaintiff, was granted in the year 1745, and became the property, of Walden, in 1764, who, after owning it for thirty years, conveyed to the plaintiff. The courses and distances, expressed in the patent were as follow; beginning on the river, running then West 179 poles, then North 179 to a pine on the road, then East 179 poles to an oak, then Southwardly the various courses of the river to the beginning.

<p>The tssta» will lends* reaJ- and personal to bis slave# for^andTup-' port, which property, to-hi'ssla've'she places under the direction F. ’till each slave coross of age, when ar® 10 pró-Jlause^* lie directs all property not disposed of by his will, to besoldby lus executors, and hi.i debts paid, and the overplus after the payment of debts and legacies to be dispos. ed ofas his executors think proper ■ shortly before his death his slaves were liberated by the County Court on the procurement of bis executors under directions given to them;—> it was held that the executors were discharged*ft*om all accountability as to every part of the personal estate which did not go into their hands subject to a trust; 2ndly where a legacy lapses by the death of a legatee in the lifetime of the testator, or when it becomes void and cannot take effect, it passes into the residuum, unless those events are guarded against: 3dly. By the residuary clause the executors are entitled to the whole surplus áisposed ot, and notning is left which can be rightfclly claimed by the next of kin.</p>

The Plaintiff brought an Action of Covenant in the Superior Court for Salisbury district, and declared thus: David Nesbit and John Brown, executors of the last will and Testament of Hugh Montgomery, deceased, were summoned to answer John Nesbit of a plea of covenants broken, &c. Whereupon the said John Nesbit, by his attorney Alfred Moore, complains, that whereas Andrew Craustin by deeds of lease and release, bearing date respectively the third and fourth days of February,…

<p>The defendants answer may be read, though it is not evidence jury. If the answer positively denies the allegations of the bill, the court will not decree in the complainant’s favour, upon the uncorroborated evidence of a single witness.</p>

<p>THE complainant’s solicitor objected to the reading of the answer on this ground : - a blank commission had been taken out, and filled up by the defendant with the names of two persons, who did not appear either by the commission or certificate, to be authorised to administer oaths in Georgia, where they reside. He said that although the Court might direct a commission to any person, yet when the party is intrusted with a blank commission, he ought not to be allowed so much latitude : that he understood that in the case of Blount v. Simpson, the Federal Court of this district had set an answer aside on the same ground; saying, a party should direct his commission to a person authorised to administer oaths, by the laws of the country in which he resides. For, if any one could be resorted to indiscriminately, it would be easy to find some person mean enough to certify that an answer was sworn to, although no oath was ever taken.</p>

<p>If a commission be called up by the Clerk and Master, the party may not strike out the name of the commissioner, to insert another.</p>

<p>This was an Indictment brought in Hillsboro Superior Court for forcible entry and detainer, as follows:</p> <p>“The jurors for the State upon their oaths present, that Isham Parham, late of the county of Granville, in the district of Hillsborough aforesaid, on the fifteenth day of January, in the year of our Lord one thousand seven hundred and ninety-nine, was possessed of a certain messuage with the appurtenances, situate and being in the county of Granville, in the district aforesaid, for a certain term then unexpired, and being so possessed thereof, one John Butler, late of the county of Grandville, in the district aforesaid, laborer, afterwards, viz. on the fifteenth day of January, in the year aforesaid, into the said messuage with the appurtenances aforesaid, the freehold of one Isaac Hunter, in the county of Granville, in the district aforesaid, with force and arms and with strong hand, unlawfully did enter and the said Isham Parham from the peaceable possession of the said messuage with the appurtenances aforesaid, then and there, with force and arms and with strong hold, unlawfully did expel and put out the said Isham Parham from the possession thereof so as aforesaid, with force and arms and with strong hand, being unlawfully expelled and put out, the land John Butler him the said Isham Parham from the aforesaid fifteenth day of January, in the aforesaid, until the day of the taking of this inquisition, from the possession of the said messuage with the appurtenances aforesaid, with force and arms and with strong hand, unlawfully and injuriously, then and there, did keep out, and still doth keep out, to the great damage, &c."</p> <p>Being found guilty by the Jury, in Hillsboro Superior Court, a motion was made by the Solicitor-General, that a writ of restitution should be awarded; upon which the cause was sent up to this court to obtain a decision on that point.</p> <p>The question was here argued by Norwood for the defendant, and Haywood for the State.</p> <p>Norwood.—Some rules are laid down in the books, directory of the manner of drawing indictments of forcible entry, which appear not to have been strictly attended to in the present instance. The exceptions arising on the face of the indictment, together with others of a more general kind, I mean to urge as reasons why the writ prayed for should not be awarded.</p> <p>I. It is a rule, that the tenement in which the force is charged to have been committed, must be described with certainty, in order that the defendant may be apprized of the manner in which to make his defence, and that the sheriff may know exactly the possession to which the party praying the writ is to be restored. The words of the indictment are, "that Parham was possessed of a certain messuage with the appurtances, lituate and being in the county of Granville aforesaid, in the district aforesaid." This description is liable to the objection of vagueness and uncertainty, as much so as many of those instances which the books furnish, as having been held fatal to indictment. 1 Hawk. Pl. b. 1, c. 64, f. 37, where the cases are collected, and 4 Com. Dig. 210, D. 3.</p> <p>II. The estate which the party expelled had in the land, ought to be shewn in a particular manner, to entitle him to the benefit of this writ, under any one of the statuses. The indictment states, that Parham "was possessed of a certain term then unexpired.” But it ought specially to have defined the term, whether for life or years, that it might appear to the court that the term is still unexpired. If the indictment had been on the 8 Hen. VI, it must have shewn that the party put out of possession was seised of a freehold, otherwise he could not be entitled to restitution under that statute. If the indictment be founded on the 21 f. 1 Car. XV, it ought to shew that he was possessed of a certain term for years; for neither tenant for life, nor tenant at will, are entitled to restitution under that statute. 1 Haw. Pl. B. 1, c. 64, s. 38. 4 Com. 210. 1 Salk. 260. 1 Ventris, 306.</p> <p>III. A writ of restitution cannot properly be issued to the party expelled, unless it appears to the court that his right to the possession continued at the time the indictment was found. Here it is stated that he was possessed of a term unexpired on the fifteenth of January, 1799, the time of the expulsion; but it cannot be inferred that the term remained unexpired when the bill was found. On the contrary, it appears by a copy of the lease filed by the prosecutor, that the term ended the third of March, 1799; whereas the indictment was found at April term, 1800. A writ of restitution cannot, then, be awarded to Parham—for he has no right to the possession. Can it be awarded to Hunter? I apprehend not. I. Because the indictment does not shew that Hunter was in actual possession: II. Because it does not appear that Parham held under Hunter. It is true, the indictment calls it the freehold of Hunter, which it might be, and yet Parham be a disseisor. It should have been clearly stated, that Parham held under a lease from Hunter.</p> <p>IV. The superior courts cannot entertain jurisdiction upon all, or any of the statutes, relating to forcible entries. There is no act of Assembly conferring that jurisdiction in express terms, nor can any other authority be shewn for it. Besides, the writ of restitution, as used in England, is not given by the common law, but by the several statutes enacted for the purposed. Those statutes ought to be strictly pursued, and there is not one of them that will warrant issuing the writ upon this indictment. And as the writ is not at common law, it cannot be issued on this record, 1 Plow. 206-7.</p> <p>V. By the constitution of this State, no man can be deprived of his rights or property, but by the verdict of a jury, or his own admission or consent. Upon this indictment, neither the right of property nor of possession were put in issue; the force only has been decided upon: The defendant ought not, therefore, to be molested in his property or possession.</p> <p>Upon these reasons, it is apprehended that the motion will not be granted.</p> <p>Haywood.—It is admitted, that certainty and precision are requisite in the statement of a criminal charge, and particularly in a case of this kind, where restitution is sought; but it would have been difficult, if not impossible, to have drawn this indictment so as to have effected those objects more completely. It certainly is not necessary to be more particular in a case of this kind, than in a declaration of ejectment; in both, restitution is to be made, and the property detained should be so specified, that the sheriff may, without difficulty, execute his writ. Yet this description would have been sufficient in an ejectment, and even less certainty than this indictment contains. 1 Term 11. It would be sufficient in an indictment, or a plea in bar. Cowp. 683, 1 Term 65, Doug. 154.</p> <p>Nor was it necessary to have been more particular in stating the quantity of estate the defendant had in the land. Term is certain enough; it signifies in legal acceptation, a term for years. An estate for years is frequently called a term, terminus. 2 Bl. Com. 143. Cok. Lit. 45, b; and the indictment must be understood, that at the time it speaks, the term was then unexpired, for it states that the defendant “ still doth keep him out of possession.” It follows, that the defendant appears upon the face of the indictment, to be a tenant for years whose term is unexpired; and such a one is entitled to restitution by the 21 Jac. c. 15. This is not an indictment upon the 8 Hen. 6, and therefore no seisin is necessary; it is upon the first mentioned statute, and the defendant being within the benefit of that, it is not regular to travel out of the indictment to ascertain whether his term still continues. As to jurisdiction, I take it to be a settled rule, that the superior courts have a general jurisdiction upon all criminal matters, whether arising at common law or by statute, unless taken away by express negative words. 2 Haw. B. 2, c. 3, s. 6. The act establishing these courts, invests them with a general criminal jurisdiction, Iredell 297, though partial limitations have been since made. The jurisdiction in this case, therefore, cannot be ousted, unless it be done by a law for that purpose; but none such exists.</p> <p>Lastly. If the constitutional objection be valid, then all the statutes relative to forcible entries are, at once, repealed ; yet they have been used ever since the revolution, and generally considered to be part of the law. Iredell 353. But the proceeding in those cases doth not affect the right of property or possession : If the defendant hath either, he may resort to the legal mode of establishing his claim, to that mode directed by the bill of rights, s. 1, 12, 14. It is such conduct as the defendant’s that has a tendency to violate the instrument referred to; for he is endeavouring to establish a possession not sanctioned by law, without resorting to the trial by jury.</p>

<p>This was an action of debt brought in Hillsborough Superior Court, upon a bond which was made before the act passed in 1786, by which bonds were made negotiable. The question for the opinion of the court was, whether this action was maintainable by the assignee ?</p>

This was an action of assumpsit instituted in the County Court of Orange. The damages laid in the writ were above twenty pounds. After a trial in the county court, it was brought up to Hillsborough Superior Court by appeal. Upon the trial of the cause, it appeared that the parties being tradesmen. had worked together for their joint emolument, until they earned thirty-two pounds, when they came to a settlement and the balance of eight pounds was found due to the plaintiff.

This was a case sent up from Wilmington Superior Court. Thomas Cunningham, in September, 1792, duly made his last will and testament, by which, amongst other things, he devised as follows: “ It is my will and desire, that five feet of an alley be left from Front Street to low water mark, as convenient as may be to the after bequeathed lot, then I will and desire that forty feet back, including the house where Mr. Potts is now resident, be at the expiration of the lease…

This was a case from Hillsborough Superior Court. The bill stated, that the complainant on the 15th of September, 1771, contracted with the defendant for the purchase of several tracts of land ; and that the intention and understanding of the parties was, that one thousand pounds, Virginia money, was to be the price of the land, to bear interest from the first of December, 1771, that there was to be a credit of fifteen years for the payment of the principal sum, but the…

This cafe was brought from Halifax Superior Court. A petition was filed by the widow and next of kin, to obtain distribution of the intestate's, William Duke’s estate. Held: the widow was not entitled under that act. That although, by the act of 1784, the provision for the widow was differently modified, yet no allowance was made her with respect to a child's advancement.

This was an Indictment for Petit Larceny, brought from Halifax Superior Court, the caption of which was in these words : State of North-Carolina.1 Franklin County, March sessions, 1798.” The defendant’s counsel moved that it might be quashed, because it did not appear on the face of the indictment, before what court it was taken, nor indeed that it was taken before any court.

<p>The defendant hired of plaintiff a negro boy, about 16 years of age, who was consumed by fire in the defendant’s stillhouse, with its contents, which were valuable, the defendant with some difficulty escaping. In conversation afterwards, the defendant, in accountng for the misfortune, said, he supposed the spirits were losing between the two vessels, and the boy looked under to ascertain it, or to prevent it, when the fire communicated to the spirits.</p> <p>The Judge informed the Jury, that if the time of hiring was not expired, the defendant was not bound, it he used ordinary care and attention, such as a prudent man would afford to his own property. On returning their verdict, the Jury said, that they were of opinion, that the time of hiring had not expired, and gave the plaintiff three months hiring, only, at the rate of four dollars per month, making six pounds. On a motion being made for a new trial, by the plaintiff’s counsel, the defendant’s council admitted that the damages in the second count, were too small, and offered to enlarge them to twelve pounds, or any sum the Court might think the evidence warranted. At the trial, and the return of the verdict, the defendant’s council moved for a nonsuit, or arrest of judgment, on the second count. The Court overruled the plaintiff’s motion for a new trial, from which he appealed.</p> <p>The defendant then renewed his motion for a nonsuit, or arrest of judgment, whichever might be deemed most proper; which latter part is referred to the Supreme Court—No advantage is to be gained or lost by priority of motion, or the order in which they are stated.</p> <p>The verdict of the Jury is made another part of the case, and which is as follows: “Find for the defendant, on all the issues on the first count in the declaration; and on the second, they find that the defendant did assume for the hire of said negro for three months: that they find for the defendant in the other counts; and they further find that there is no accord and satisfaction and release, and assess the plaintiff’s damages in second count to 6l. and costs.</p> <p>The depositions of William Williams and Henry Speer, and a letter from Joseph Williams, the plaintiff, to defendant, and by him produced on trial, also made parts of this case.</p> <p>It was admitted, by plaintiff’s counsel, that an additional hiring of three months was made by the plaintiff to the defendant, to commence at the expiration of the former hiring, and at the same rate of hire as the first; but he further stated, that the second hiring had elapsed six or eight days before he was burned to death.</p> <p>It was stated by Samuel Speers, a witness on the trial, that about twilight of some day about the 3d or 4th of September, 1806 (not exceeding the sixth of the same month and year) when the boy, the defendant and a valuable negro fellow belonging to the defendant, were engaged in defendant’s still-house, emptying brandy from the runlet, in which it was received from the still, into a larger vessel, the boy in question holding a candle for that purpose, when the spirits took fire and burned him to death and the negro fellow belonging to the defendant, and all the property of the defendant’s in the still-house.</p>

<p>In the year 1783, John Debow, being seized of the tract of land described in the plaintiff’s declaration, departed this life, having previously published, in writing, his last will and testament, which was admitted to probate after his death, and a copy thereof is sent up as a part of this case. His widow, Lucy Debow, qualified as executrix of the said last will and testament: Jacob Lake, appointed by the testator as one of his executors, never qualified as such, nor did he ever intermeddle with the estate of his testator, until after the intermarriage of the executrix, Lucy Debow, with one Robert Scoby; when the said Jacob Lake made sale of the said tract of land to George Hodge, the father of the defendant, and executed to him the deed of bargain and sale, a copy of which is sent up as a part of this case. Lucy, the executrix of John Debow, deceased, was then alive and did not refuse to execute said deed—the question submitted to the Supreme Court, is, “Whether the deed made by Jacob Lake to George Hodge, is good and valid, in law, to pass the fee-simple in the tract of land aforesaid, and bar the right of entry of the lessor of the plaintiff, who is the heir at law of John Debow, dec. If the Supreme Court be of opinion that the said deed is good and valid in law for the purpose aforesaid, judgment is to be entered for the defendant—if not, judgment to be entered for the plaintiff.</p>

The defendant was indicted for horse-stealing in Salisbury Superior Court of Law, March Term, 1802.

This was an action of Trespass, vi et armis, brought to recover damages for wrongfully imprisoning the person of plaintiff, and for wrongfully selling his property. The following were the facts: The defendant, some years past, obtained judgment before a justice of the peace, against one Sherwood Allen and the present plaintiff.

<p>The complainants filed their bill in the Court of Equity for Salisbury district, at March term, 1800. By the bill it appears, that the complainants Hudson and Joseph, in the year 1795, purchased a tract of land of the defendants, who sold by Adlai Osborn their commissioner and attorney, which land was claimed by them as having been the property of Henry E. M'Culloch, consequently confiscated, and by the act of Assembly passed in the year 1794, granted to and vested in the defendants; that in August, 1795, the said Adlai Osborn, in the name of the defendants, executed to them a deed, sufficient in legal form to convey to them the land in fee simple ; and that they at the same time, with Edward Yarborough their security, executed a bond to the defendants for the payment of the purchase money of the said land. The bill then charged that the land had been sold by the State to one Brandon, before the passage of the said act, who before that time had, by petition, prevailed on the Legislature to dissolve the contract, by releasing him from the payment of the purchase money, and receiving the land again, to the use of the State. That the defendants had commenced an action at law on the said bond, and threatened to compel the complainants to pay the said purchase money, and insisted that the land to sold to them, was not within the meaning and operation of the said act, and that the defendants had no title to the same. The complainants prayed an injunction, &c. until the question on the operation of the act should be judicially settled, &c. An injunction was accordingly granted; and the usual proceedings being had, the bill was taken pro confesso, and the cause heard on the bill.</p>

This was an action of detinue for a negro slave, Alfred, in the possession of the defendant. The plaintiff claims under the will of Josiah Settle, dec’d, a copy whereof is hereunto annexed, and agreed to be a part of this case. The testator died shortly after making said will; and his widow, Nancy, had the same duly proved and took out letters testamentary.

<p>Len H. Bullock executed to Jesse Bruton a bond in these words, to wit. ‘‘I promise to pay to Jesse Bruton, his heirs or assigns, the sum of fifteen hundred pounds, proclamation money, to wit, three hundred pounds on the third day of August, 1775; three hundred pounds on the third day of August, 1776; three hundred pounds on the third day of August, 1777; three hundred pounds on the third day of August, 1778; and three hundred pounds on the third day of August, 1779, for value received, witness my hand and seal 3d day of August, 1774.” On the 5th January, 1775, Jesse Bruton assigned this bond, in the manner, to Messrs. Hamilton & Co.</p> <p>The suit was tried in the Superior Court of Law for Halifax district, at April term, 1803. The Jury found the value of the money mentioned in the bond to be £ 1020 15s. and assessed damages for the detention of the debt to £ 48 9 7. The Plaintiffs being dissatisfied with the verdict, moved for a new trial; and the case was referred to this Court.</p>

<p>The writing on which this action is brought, is in the following words and figures: “Nine months after date, I promise to pay John G. Munrow, the sum of 210 dollars and 62 cents, it being for value received of him; as witness my hand and seal, this the 20th day of May, A. D. 1811.” Signed, “John Martin, (seal)—Test. John Clark.” On said note the following endorsement was made; “I sign over the within note to Hugh Allen, for value received of him, this 27th August, 1811, as witness my hand—John G. Munrow.”</p> <p>On the trial, it was alleged by the plaintiff, that Martin and Munrow, with an intention to defraud the plaintiff Allen, to whom Munrow was indebted, agreed to make and execute the note as above; that Martin, the obligor, should write the name of John Clark, the witness; and when so executed, that Munrow should endorse as above to Allen, the plaintiff, in satisfaction of the debt he owed him; but of this there was no direct and positive proof—indeed, no legal evidence.</p> <p>The plaintiff then alleged, that the note was without a witness; offered to prove the hand-writing of the obligor, John Martin; and also offered to prove that the name of John Clark was in the hand-writing of John Martin, the obligor, and written by him for the purpose of effecting the fraud as above alleged. But, as it seemed agreed on all hands, that a man of the name of John Clark lived in the house of Martin, in May, 1811, the Court refused the evidence until the absence of the said John Clark was accounted for. The Plaintiff then proved that a man of the name of John Clark, who had lived at the house of Martin, the obligor, in Iredell County, about the time the note was executed, had been seen in the neighborhood of Martin, after this suit was at issue; and the counsel of the plaintiff stated (and his statement was admitted as true) that he acted as agent in fact for Allen, the plaintiff, who lived in the State of Virginia; and that he had enquired after the same John Clark, and could not find out where he was, but had been informed that he had left the country.</p> <p>It was then proved, that the supposed witness, John Clark, at or near the time of the trial, and for several months before that time (long enough to have procured his deposition, and within the knowledge of the plaintiff) had lived, and did live in the State of South-Carolina, not far from Winnsborough in that State.</p> <p>The witnesses, who proved that a man of the name of John Clark had lived about the house of Martin, the defendant, also proved that he was not often publicly seen in the neighborhood. And two respectable witnesses swore, that they considered the said Clark as a transient person who occasionally came into the neighborhood and went off again; and was, in their opinion, of suspicious character.</p> <p>Upon this evidence, the plaintiff moved the Court for leave to prove the hand-writing of John Martin, the obligor, and that he also wrote the name of John Clark; and though he had never issued a subpœna for John Clark the witness, nor had ever taken a commission for taking his deposition, the Court admitted him to do so. The plaintiff then produced and swore Andrew Carson and Samuel Wales, Esquires, who said on oath, that they had seen John Martin, the obligor and defendant, write; that they were acquainted with his hand-writing; and that they believed he wrote the note, signed his name to the same; and that he also signed the name of John Clark, that appeared on the said note.</p> <p>Upon this evidence, the Court admitted the note to be read, and directed a verdict for the plaintiff, subject to the opinion of the Court if such evidence was properly admitted which was found and rendered accordingly. The Court doubting as to the admissibility of the evidence, ordered this cause to be sent to the Supreme Court, for its decision.</p> <p>First, Whether a party is bound to take a commission and procure the deposition of an instrumental witness, who lives beyond the process of the Court (the place of his residence being known to him) before he can be admitted to prove his hand-writing? And,</p> <p>Secondly, As this case is circumstanced, shall he do so; or may he prove the name of the witness written fraudulently by another person, without first procuring the testimony of the supposed witness, if probably known to him, as in this case?</p>

The Defendant pleaded that he had fully administered since the last continuance, to which there was a demurrer and joinder.

This was an action of ejectment in Wilmington Superior Court.

It was moved by the defendant’s counsel, that this bill be dismissed and stricken from the docket, because the complainants had, in proper person, dismissed the original bill, on which the bill of review had been brought; which dismission appears on the records of this Court, in the words following: “This bill is dismissed by the plaintiffs, in person”—said dismission appears on the docket of October term, 1800.

John Venables commenced an action, in the County Court of Stokes; against the plaintiffs. The cause was removed to this Court by a certiorari obtained by the plaintiff Venables. By an order of Court, the plaintiff, Venables, was directed to give bond and security, to prosecute his suit with effect, and did so—the defendants becoming his securities in said bond. The question referred to the Supreme Court, is, “Will a sci. facias lie on the prosecution bond above described?

<p>This was an action of debt, on bond, for 1000l. which is resisted on the ground of fraud and imposition, in obtaining the bond. Evidence of the inadequacy of the value of the bond, among other circumstances, to prove the fraud, was received by the Court.</p>

This was an action of trespass, assault and battery. The defendants plead the plea of justification, and attempted to give evidence of an arrest, under a State warrant, issued by a magistrate, for larceny. The warrant was delivered, by the magistrate, to the plaintiff. The defendants, previous to the trial, were advised by their attorney, to give the plaintiff notice to produce the warrant, or they would give parol evidence of its contents.

This suit was brought to recover damages from the defendant for slanderous words, which was proved to have been spoken at four different times. In this case thirteen witnesses were introduced on the part of the plaintiff; whereupon the defendant moved the Court to order the fees of the supernumerary witnesses to be stricken out of the bill of cost.

This case originated in Fayetteville Superior Court, where the Plaintiff declared in the following manner: “ Henry William Harrington, who sues as well for the State of North-Carolina as for himself, in this behalf, complains of Duncan M’Farland, who being in the custody of the sheriff, &c. of a plea that he render to the said State of North-Carolina, and to the said Henry William Harrington, who as well, &c. five hundred pounds lawful money of the State of North-Carolina,…

The complainants filed their bill in the court of Equity for Halifax district, calling on the defendants to discover, what assets had descended and came to their hands and possession, respectively; and to account for the same.

Detinue for the recovery of slaves. The record filed in this Court states the following case: Charles Edwards, of the county of Halifax, in the State of Virginia, being possessed of the slaves in question, duly made his last will and testament on the 14th day of March, 1785; and thereby bequeathed one-third part of his estate to Letty his wife during her life, the residue of him estate to his children, to be equally divided amongst them, when his son Leonard Edwards should…

This was an Action of Ejectment in the Superior Court of Hillsborough district, on the trial at October term, 1802. The plaintiff abandoned the first count in his declaration, which was on the demise of one Pilkington, and gave evidence sufficient to support the last, which was on the demise of Joseph Brown.

This was an action of Ejectment brought in Morgan Superior Court, for the recovery of a tract of land, situated on the west side of Pigeon River, opposite to the Flowery Garden.

<p>The Complainants and Defendants being seized, as tenants in common, of a large tract of land, covenanted with each other, to put up and sell in one lot, part of the tract; no person to bid except themselves; the highest bidder to be the purchaser. The purchaser or purchasers to allowed two years credit, on his or their giving bond with approved security for the purchase money, with lawful interest from the date thereof. The land was accordingly put up on the 9th day of December, 1789, and purchased by Dickerson. In May, 1791, he tended a deed for the land to Nathaniel Allen to be executed, and a bond for one third of the purchase money, bearing interest from that time; Allen accepted the bond and executed the deed. A like tender being made at the same time to Collins, he refused to exccute the one, or accept the other.</p>

<p>Action of debt on a single bill for money payable on the 2d day of June, 1774. On the trial the jury found the issues for the plaintiff, and assessed in damages interest from the issuing the writ only. The plaintiff moved for a new trial, on the ground, that he was entitled to interest from the day of payment.</p> <p>Samuel Cornell, the intestate, was a British subject, resident at Newbern, on the 17th day of August, 1775, he left that place and went to England, where he remained until December, 1777, when he returned to Newbern, but was not permitted to come on shore, he refusing to comply with the requisites of the acts of Assembly, concerning absentees. He died in February, 1778, at New-York, leaving a Will, which was proved, and one of the Executors qualified, who died in 1786. On the second Monday of March, 1798, the plaintiff obtained letters of Administration in this Satte.</p>

<p>This was an action of assumpsit for money had and received to the plaintiff's use, tried in Wilmington Superior Court, May term, 1803, when a verdict was taken for the plaintiff, subject to the opinion of the Court on the following case:</p> <p>M’Kinsie had money in the hands of John Barclay, and applied to him for 1000 dollars. Barclay could not raise the money, but could draw bills on New-York. M’K. did not want money in New-York, but undertook to fell B’s bills, and applied to Wilkings, who said he wanted a bill on New-York and would pay 500 dollars down, and give his note for the balance, payable in a short time, if the bills were drawn payable in sixty days. M’K. agreed. Wilkings paid the 500 dollars, and gave his note to M’K. for the balance; and M’K. gave an order to W. on B. for 1000 dollars. W. applied and got B’s bill for 1000, which was returned protested for non-payment. M’K. sued W. and recovered the amount of the note: and now this suit is brought to recover back the 1000 dollars, being the amount paid by W. to M'K. The bill was in due time forwarded to New-York, protested and returned; of which due notice was given to M'K. and also notice that the order was not satisfied; which was protested as appears by the written protest. The notice was given immediately after the bill was returned. But before the return of the bill, B. committed an act of bankruptcy, to wit, on the 26th January 1802, and was declared a bankrupt some time about the latter end of February, or beginning of March. That the order was drawn for money, and was retained by W.; but it was understood by the parties that W. was to receive a bill of exchange.</p> <p>cited 12 Mod. 408. 2 Salk. 442.</p> <p>cited 6 Term 52, and 7 Term 65.</p>

Action by the endorsee against the endorser of a bill of exchange. Verdict for the plaintiff subject to the opinion of the court: whether damages and interest are to be calculated agreeably to the laws of New-York, where the bill was negotiated and endorsed; or agreeably to the laws of in the West Indies, where the bill was drawn, and where the drawer resided.

<p>This action was commenced in Halifax Superior Court of law. The plaintiff declared to wit,</p> <p>" Joseph Jordan, late of the county of Ber-" tie, was attached, to answer John Hardison " of a plea of trespass on the case, &c. And " whereupon the said John Hardison, by Blake " Baker, his attorney, complains, that, where-" as a certain Amasa Perrin, on the day " of in the year of our Lord, one thousand " seven hundred and ninety-nine, at the county " of Bertie aforesaid, had instituted a suit, by " way of warrant, against the said John Hardi-" son, for the recovery of a sum of money pre-" tended to be due and owing by the said " John Hardison to him the said Amasa Perrin; " and the said suit on the day and year aforesaid, " at the county aforesaid, was tried by the said " Joseph Jordan, a Justice of the Peace of the " said county, who had competent power to try " the same. And he the said Joseph, on such " trial, gave judgment against the said John Har-" dison in favour of the said Amasa Perrin, upon " the said warrant, for the sum of six pounds, be" sides costs of suit. From which judgment of " the said Joseph, the said John prayed an appeal " to the county court of Bertie aforesaid. And " the said John, then and there, offered to the " said Joseph, two good and sufficient securities " for prosecuting the said appeal with effect, to " wit, Samuel Mares and John Harrisson, both " of the said county, then and there being suff-" cient persons, and having each of them, suffi-" cient property within the county aforesaid, and " were good and sufficient securities for the said " John's prosecuting the said appeal with effect, " according to the directions of the act of the " General Assembly in such cases made and pro-“ vided. Nethertheless the said Joseph, being " not ignorant of the premises, and well know-" ing that the said Samuel Mares and John Harrisson were good and sufficient securities for the said appeal, as aforesaid; not considering " the duties of his said office, and disregarding " the directions of the said act of Assembly, but " contriving and maliciously intending unjustly " to aggrieve and oppress the said John in this " behalf, and unjustly and maliciously to deprive " him of his said appeal, and to subject him un-“ justly and maliciously to the payment of the " said unjust judgment and costs, did, then and " there, refuse to accept the said Samuel Mares " and John Harrisson as securities for the said " appeal; and did, then and there, refuse to " grant the said appeal, although he the said Jo-" seph was then and there requested so to do, “ by him the said John, whereby the said John " was unjustly and maliciously deprived of the " said appeal, and was thereby unjustly compelled " to pay the said sum of six pounds, together " with the sum of for the costs of " the said warrant. Wherefore, &c.”</p> <p>There was another count in substance the same, only, charging that the defendant refused the appeal corruptly, &c.</p> <p>The jury, on the trial at October term, 1801, found the defendant guilty upon the first count; but not guilty in manner and form as charged in the second count.</p> <p>The defendant’s counsel moved in arrest of judgment, and filed the following reasons, viz.</p> <p>" 1st. Because the defendant was acting in his “ judicial capacity as a Justice of the Peace, " when he refused to grant an appeal as com-“ plained of, and stated in the plaintiff's declaration.</p> <p>" 2d. Because it is not sufficiently stated in “ the plaintiff’s declaration, how the plaintiff “ suffered any damage in consequence of the “ defendant’s refuting to grant the plaintiff an “ appeal.”</p> <p>The counsel for the defendant argued, that an action at the suit of the party will not lie against a Judge, on an official act—1 Danv. Abr. 179, sec. 1, 2, 4.</p> <p>Or a justice of the peace for what he doth while acting as such. 2 Haw. Pleas of the Crown. ch. 13, sec. 20. Carth. 494. Bacon’s Abr. Appendix, Justice of the Peace, F.</p>

<p>This was an action of debt for the escape of William Farquhar, who was arrested by the defendant on a Ca. Sa. regularly issued at the plaintiff’s suit. A verdict was found for the plaintiff under the direction of the court. The following reasons were filed in support of a motion for a new trial, which was overruled by the court; from which judgment the defendant appealed to this court.</p> <p>1. Misdirection of the Court, who decided and gave in charge to the Jury that the delivery of the prisoner Farquhar up to the Court at the return of the Ca. Sa. was not such as to discharge the officer. Though it appeared that the officer gave him up at the return term into open Court, and an entry appears on the minute docket in the following words: “The sheriff of Lincoln comes into open Court and “surrenders William Farquhar, whom he had taken upon a Ca. Sa. at the suit of James Rutherford.”</p> <p>2. The Court left it to the Jury to infer from parol evidence whether Patterson who served and returned the Ca. Sa. was deputed, no evidence appearing that any written authority existed.</p> <p>3. If it had been known to have been necessary to make the surrender a good one to discharge the officer, to make it known to the plaintiffs, or to the sheriff of this Court, he could have proved what is set forth in the annexed affidavit. He was therefore as to this point surprised, &c.</p>

On a special verdict the Jury find that Joseph Haiden on the 28th day of April, 1786, executed a bond to the plaintiff in the penal sum of two thousand pounds, hard money, conditioned for the payment of one thousand pounds like money on or before the 1st day of March, 1787.

This was an action of detinue brought in Newbern Superior Court to recover a negro. On the trial, the jury found a verdict for the plaintiff, subject to the opinion of this Court on this point, “ whether husband and wife can be joined in detinue tor the property of the some detained before and at the time of the marriage. This case was argued by Mr. Woods for the plaintiff, and by Mr. Haywood for the defendant.

This cause came up from Cumberland Superior Court, upon a rule to shew cause why a judgment entered up against the defendant in that Court should not be set aside for irregularity.

<p>DETINUE FOR NEGRO GEORGE.</p> <p>Michael Sherman, about twelve years ago, made a parol gift and delivery of the negro in question, to his daughter Elizabeth. At the time of the gift made, the said Michael was owner of four or five other negroes, two hundred acres of land, with a plantation on which he lived, and a small quantity of household furniture. There was no evidence of his being indebted to any person at the time of the gift, nor any evidence of an intent to defraud; but it was proved that the motive of the gift was to provide for his daughter, who was a cripple. The negro, as well as the child, lived with, and remained in the possession of, the said Michael until the sale hereafter mentioned, the said Elizabeth being then still an infant. After the gift aforesaid, Michael Sherman became indebted, and judgment and executions to the amount of £130, or thereabouts, were obtained against him about four years after the gift, which executions were levied on the negro in question and sold by the constable, to satisfy the aforesaid executions, at the price of $555; but failing to pay the money, the negro was set up again and bid off by William Dickens at the price of $549, but for the benefit of the plaintiff — the plaintiff had the interest and benefit of the executions — no money paid at the time of the purchase, but finally all paid — one hundred dollars of which was paid to Michael Sherman, by the hire of the said negro for one year. At the time of the sale the negro was claimed on behalf of the said Elizabeth under the gift mentioned. Mary Bressir, then Mary Sherman, the mother of Elizabeth, who claimed the negro for her daughter, bid for him, to save him, as she said, for her daughter. At the time of the sale Michael Sherman was possessed of two other negroes, the land, plantation, and household furniture before mentioned ; and at the time of his death, which happened shortly afterwards, he left property sufficient to pay his debts. The defendant held possession of the negro under Elizabeth to whom the gift was made, and got possession about eighteen months before the commencement of this suit. Elizabeth, at the trial, was between twenty-three and twenty-four years of age. The plaintiff remained in possession of the negro, except the year he was hired as aforesaid, until he came to possession of defendant. The judgments were not given in evidence, but the executions. The judgments were in possession of the constable, who was dead; and diligent search for them had been made, and they could not be found.</p> <p>If the Supreme Court should be of opinion the sale under the executions was valid, then a new trial to be granted, but if not, the verdict to stand.</p>

The plaintiff’s testator was a resident of South-Carolina, where he died, and where letters testamentary were granted to the plaintiff. The defendant’s testatator was an inhabitant of this State, and never resided in South-Carolina. The question submitted, is, whether the action can be brought upon such letters testamentary.

Covenant against Richard and James Bullock and others, and upon oyer being prayed and given to the defendants, they pleaded a variance between the writ and the deed declared on, in this viz. that the defendants Richard and James Bullock were named in the writ, but were not parties to the deed. The plaintiff then moved to amend his writ by striking out their names; and it is referred to this court to decide whether such leave be given.

This was an action of covenant, brought by the owner of the brig Susanna upon a charter party of affreightment, which after stating at full length and in the usual form, the freighting of the brig to the defendant for a voyage from Wilmington to Jamaica, and the delivery of the cargo there according to the bill of lading, proceeds thus: “Joshua Potts, hereby obligates himself, on delivery of said freighted cargo to his consignees at Kingston, and for and in consideration of…

The Defendant was indicted in Salisbury Superior Court, at September term, 1801, for perjury, committed by swearing to an affidavit, “with intention to continue a suit, the said “George Williams then had pending in the “Court of Equity for the said district, wherein “he the said George Williams was plaintiff, “and a certain John Simmons, defendant.”—The defendant being charged on this indictment, pleaded not guilty; and on the trial of the issue, was found Not Guilty.

<p>In these cases special verdicts were found; the material facts of the first of which were: That the plaintiff was evicted by lawful title from a tract of land, conveyed to him in 1781, by the defendant’s testator, with a general covenant of warranty: that the purchase money of the land was £60, but that at the time of eviction in 1814, its value was £345, from the ordinary and regular rise of property.</p> <p>In the other case, the verdict stated the land to be worth at the time of purchase in 1796, £200, and at the time; of finding, £750, including improvements.</p>

Sci. Fa. against the defendant as sheriff of the county of New-Hanover, on an amercement nisi. made at April term, 1803, for not returning a writ directed to him, against James Richards and others, returnable to April term, 1803.—This Sci. Fa.issued, returnable to October term, 1803, to shew cause why the conditional judgment, on the amercement of April term, should not be made absolute. At October term, 1803, the Sci.

<p>This suit was brought to recover money due on bond executed before the war; and among other pleas, the aft of 1715, ch. 48, f. 9, was pleaded in bar.</p>

<p>This was an action, on the case, brought under the act of 1793, which gives a remedy, by debt or case, to any person injured by the neglect, or misconduct in office, of any Clerk of the Superior or County Court, &c. Upon the trial of the cause in the Superior Court, the following facts were established by evidence, and the case was transmitted here with leave to plaintiff to enter a non-suit, if this Court should think the action not maintainable; otherwise, judgment to be entered for the plaintiff.</p> <p>James Daughtry, father of the plaintiff, died intestate, after which the defendant’s testator as Clerk of Northampton County Court, issued a paper, purporting that one Joseph Daughtry was appointed administrator to James. No administration bond, however, was executed by Joseph; but he sold the personal estate of James, to one-seventh part of which the plaintiff is entitled, which with interest she claimed from the defendant. Except the letters of administration abovementioned, there was no evidence that Joseph was appointed administrator: no suit has been instituted against him by the plaintiff or any distributee, and the present suit was not commenced until after the death of the defendant’s testator. The whole of Joseph Daughtry’s property had been sold under execution.</p>

The note was made by John Mitchell, payable and negotiable at the Bank of Cape Fear. When it became due, the holder was at Wilmington, where the maker had usually resided, but had not at that time any house or store there. The defendant then informed the plaintiff, that the maker of the note was at sea, and that it would be hard if he himself should be obliged to pay the money, as he had already paid large sums for him.

<p>This was an ejectment brought to recover a tract of land, claimed by the plaintiffs under the will of their uncle M'Kinnie Long; the materialclauses of which are as follow. “ I give and bequeath to the children of G. W. Long, provided he has any, if not, to the heirs of my sister Stith, the land which lies between the road, &c.” Item. My brothers Richard and George Long are to pay out of the bequests I have made them, what debts I may owe.” To his brother “ Richard he had previously devised a tract of land. The jury found, in a Special Verdict, that G. W. Long died before this suit was brought, without ever having had a child ; that the testator’s sister Stith is still alive, and that she, as well as her children, the lessors of the plaintiff, lived in the same neighborhood with the testator, who saw them almost daily ; that the lessors of the plaintiffs are the only children Mrs. Stith had, either at the making of the will or at the death of the testator.</p> <p>On the trial of the cause in Halifax Superior Court, the introduction of parol evidence was objected to, by which the knowledge of the testator, as to his sister Stith being alive, was proved to the jury. The admissibility of such testimony was one of the questions submitted to the Court.</p>

<p>B. Wade brought an action of debt in Stokes County Court against J. Wade, on a judgment obtained in a court of record of another State in the Union: The defendant pleaded the “ General Issue." The issue was submitted to a jury, and a copy of the record, authenticated according to the act of Congress, being read to them, they found a verdict for the plaintiff, “ that there was such a recorda;" and judgment was rendered by the Court for the plaintiff accordingly.</p> <p>J. Wade obtained a writ of error, and assigned for error, that the general issue in this case is, Nul tiel record, which ought to have been decided by the court, and not by the jury.</p>

An Action of Debt brought by the plaintiff, a British subject, returnable to Granville County Court, August sessions, 1798, to recover a debt due by bond executed to Duncan Campbell and Company, by Robert Hester, on the 13th day of March, 1777.

Petition to the county court of Mecklenburg, for a residuary legacy, given to the plaintiff, Mrs. Erwin, by the last will of Robert Arthur, her deceased father. The defendants put in their answers, to which the plaintiffs replied, and several depositions were taken; and on the hearing, the county court ordered an account of the estate of the testator to be taken, by an auditor to be appointed by the court.

The defendant was summoned by the sheriff of Rockingham, where he then resided, to attend Guilford Superior Court, as a witness for the plaintiff in his suit against Lewis Whitimore ; he failed to attend and was called out and fined nisi. A sci.fa. issued to Rockiugham, which was returned not found : A second sci.fa. issued to the same County, on which there is the same return. On motion for Judgment, according to sci.fa.

This was an action of trespass vi et armis, for entering and searching the plaintiff’s house, under the pretence of looking for a runaway slave. The defendant justified, under a warrant, and it appeared in evidence, that the slave was not found in the plaintiff’s house. The warrant was set forth in the record, and it’s legality submitted to the consideration of the Court; but the only question decided was as to the form of action.

<p>Case agreed, filed in the Court of Equity for Hillsborough district, for the purpose of settling the equitable rights of the parties concerned in this, and similar cases.</p> <p>The case states, that Henry E. M’Culloch, by his agent duly authorized, on the 6th day of February, 1767, contracted to sell and convey in fee simple, two hundred acres of land, lying in Orange county, to Robert Ray, the testator; for which the said Robert agreed to pay the said Henry, £ 72; and to secure the payment thereof, gave the said Henry his bond, who at the same time executed to the said Robert, a bond conditioned to convey to him the said land, when the aforesaid £ 72 should be paid, and put the said Robert, into possession of the said land; who remained in possession of the same till his death, and his heirs have continued in possession thereof ever since. Nothing further was done in execution of the contract, before the passage of the act of Confiscation, in which the said Henry was named. On the 14th day of October, 1792, George M’Culloch, being duly authorised and empowered, by the said Henry, executed to the said Robert, a deed, sufficient in legal form, to convey to him the said land in fee simple; and at the same time, delivered up to the said Robert, his bond given as aforesaid; and the said Robert, executed to him a bond for the penal sum of £ 222 2s. 3d. conditioned to be void on the payment of £ 111 1s. 1d. with interest from the date. The said Robert died soon afterwards; and the said George instituted an action of debt, in Hillsborough superior court of law, against the complainants, on the bond executed to him as aforesaid, which is still depending. The Trustees of the University, by virtue of several acts of the General Assembly, claim the said land, as escheated or confiscated, and have give notice to the complainants accordingly.</p> <p>If the said George is entitled to the money mentioned in the condition of the last bond, he may proceed at law; but if he is not, an injunction absolute and perpetual is to issue.</p>

The defendant was convicted of perjury, and his counsel moved in arrest of judgment, because the indictment was signed by William Miller for H. G. Burton, Attorney Gen.

Elias Fort by his last will devised as follows : 1st...I make myself an heir to my estate, and for me to have a child’s part forever.

Upon the trial of this suit in the Court of Equity, in Warren County, several issues were submitted to the Jury ; but it is only necessary to state those on which the questions arose which were submitted to this Court. These were, 1st....Whether negro Lewis ever came to the hands of the defendant, as part of his testator’s estate ? 2nd...Whether the title to the negroes in dispute, was in complainant’s testator ; or in defendant’s testator ?

This was an appeal from a decree of the Court of Equity of Beaufort County. The answers of all the defendants, except that of Joel Dickinson, had been filed at the fall term, 1813, and the cause stood on replication and commissions. Leave was given to amend the answer of Marshal Dickinson, and the amended answer was made the foundation of a motion to dissolve the injunction.

This was an action of ejectment brought to recover a tract of land lying in the county of Granville.

<p>This was an action on a bill of exchange, drawn by the defendant, and made payable to the plaintiff, who endorsed it to William Guthrie, or order. Two questions were submitted to this Court —</p> <p>1...Whether the bill is negotiable by indorsement, not being payable to order ?</p> <p>2...If it is, can the indorsement in full be struck out at the trial, and the action be supported in the name of the payee ?</p> <p>The latter question only, was decided by the Court, whose opinion was delivered by</p>

Detinue for slaves. The case states that William Howell, the interstate, being possessed of the negroes in question, for the consideration of love and affection, made a bill sale of them to Sarah Howell, his sister; which was attested by the defendant.

The defendant demurred specially to the declaration for eight distinct causes; which demurrer was, upon argument, sustained; but the Court, at the same time, (Spring Term, 1812,) gave the plaintiffs leave to amend, upon payment of costs.

Scire facias against the defendant, a sheriff, to shew cause why an amercement against him should not be made absolute. The plaintiff had issued a fieri facias against Cash, which came to the hands of the defendant, who returned on it “ Not satisfied;” and the only question submitted to this Court was, whether for such return he was liable to amercement under the act of 1777?

<p>This was a motion to dissolve an injunction obtained by complainant, on a bill containing the following allegations. That in September, 1813, Nathan Hartsfield, surviving administrator of David Delk, sold at public vendue, on a credit of six months, a slave named Ben, as the property of his intestate, of which the complainant became the purchaser at the price of $425, for which he gave his bond. That since the sale, Jacob Delk, son of the intestate, has claimed Ben as his property, under a deed of gift from his father, and threatens to sue for him ; in consequence of which the complainant, before his bond became due, applied to the administrator for an indemnification against Jacob’s claim, and offered to pay off his bond, upon being made secure against it; but the administrator refused to give it, and hath since recovered judgment on the bond. That the complainant can get no satisfaction out of the estate of Daniel Delk, which is insolvent ; nor from the administrator, who hath sold off all his property and is about to remove : he, therefore, prays an injunction, and that the administrator and Jacob Delk maybe compelled to litigate their title to Ben before he is compelled to pay the price of him.</p> <p>Jacob Delk’s answer sets up a title to Ben, under a deed from the intestate, made in 1811, and registered at the time of sale ; alleges infancy at the time of the vendue, and special notice to the complainant of his title, and an assurance that he should sue for him : it also asserts that he forbid the sale, and doubts whether the court can compel him to sue the administrator, against whom he has no claim.</p> <p>The answer of Nathan Hartsfield, the administrator, also alleges special notice to the complainant of Jacob’s claim, his forbidding the sale, and insists that the complainant having purchased with a full knowledge of the defect in the title, has no equity to be relieved; it does not admit the insolvency of his intestate’s estate, nor his own design to remove.</p>

Upon an indictment for maiming, the defendant was found guilty, and on a motion to arrest the judgment, one reason was, that no issue was joined between the State and the defendant.

This was a bill in equity for the purpose of charging the defendant’s testator as security to an administration bond, which was signed by him in blank, and not afterwards filled up.

The questions submitted to the Court, in this case, were, 1st....Whether a sale of lands (not listed) for taxes, after an advertisement in the papers, of more than thirty, but less than sixty days, be valid, so that the sheriff’s deed passes a title to the purchaser ? 2nd....Whether, on a sale for taxes of land not listed, it is not incumbent on the purchaser to give evidence that such sale had been advertised at the Court-house, and other public glaces, in the Courts, as…

In Equity. The intestate, James Yancey, on the 14th day of November, 1780, executed to Thomas Mutter, the defendant’s testator, a bond in the penalty of eighty-fix thousand and thirty-six pounds of crop tobacco, to be inspected at Petersburg or Blandford, in Virginia; conditioned for the payment of 46,315 pounds of like tobacco-—10,753 pounds, part thereof, on the 25th day of December, 1783, with legal interest thereon from the 18th day of May, 1779—and a like quantity…

It is referred to the Supreme Court, to decide, whether there can be an appeal from the decision of the County Court, in a case of petition for a private way.

The plaintiff claimed title under a patent granted to Walker, and in order to prove a corner tree, introduced evidence On the trial of this ejectment, of the declarations of John Walker the younger, now dead, as to what he heard his father, the patentee, say, respecting the corner. The assertions af Walker, the patentee, were made when he was owner of the land, and at a time when no dispute existed, or was expected, concerning the title.

Motion, on the part of the Plaintiff, to strike out from the taxation of costs, the attendance of several witnesses, summoned by the defendant, but not examined. It appeared that the witnesses were called to the book, sworn, and, on motion of the plaintiff, committed to the care of an officer.

<p>Debt on a promissory note, to which the Statute of Limitation was pleaded. Demurrer and joinder.</p>

The plaintiff brought an action of detinue for slaves, returnable to Fayetteville Superior Court, April term, 1803. At that term, the defendant employed John Williams, Esq. to defend the suit, and informed him, that he had purchased some of the slaves for a fair and valuable consideration, in the year 1791, and had been in possession of them, and their increase, continually after that time, and instructed his attorney to plead such pleas as were best adapted to his defence.

This was an appeal from Brunswick Superior Court, in which a motion was made by the defendant to remove this cause to another County ; that Court overruled the motion.

Indictment for an assault and battery, to which the defendant pleaded “ auterfoit convict,” on which the Jury found specially, that the defendant for the assault wherewith he is charged, had been brought into the County Court of Wake, and, on his submission, fined for a contempt, the assault having been committed in view of the Court. The question is, whether the plea, under the facts found, forms a bar to this indictment.

Writ of Error to Morgan Superior Court, to reverse a judgment obtained in an action of covenant, by the present defendant against the plaintiff in error, in Burke County Court. The only error of consequence assigned, was, “ That there is a material variance between the ver- “ dict of the jury and the writ; the verdict and judgment being for £ 102 5 o, besides the “ costs of suit, and the damages in the writ being laid at £ 50, only.”

<p>In Equity. The complainants attempted to amend their bill, by making many new defendants: but drew their amended bill in such a manner, that it did not appear to have any relation to the original bill. Copies of the amended bill had been sent out and served on the defendants. The complainants counsel having discovered the omission, moved the Court for leave to amend their proceedings, by connecting the two bills together, so as to make up but one record; and the only contest was, upon what terms the leave should be granted.</p>

<p>The question referred to the Court in this case, is, what costs the defendants’ are entitled to recover from the plaintiff, upon the abatement of this suit ?</p>

The question in this case was, whether the action of tres pass vi et armis, was maintainable by the plaintiff, under the following facts, which were found by special verdict. The subject of the action was a horse, which was contracted for by the plaintiff, with one Dobson, provided Jason Carson should, when he saw the horse, approve him.

<p>In Equity. The complainant offered to read the deposition of Mrs. Livingston. To which it was objected, that the, on die examination, had behaved rudely to Mr. Watters, the guardian of the defendant, and had refused to answer some question put to her by him relative, as the commissioner believed, to the subject matter of the suit. The complainant also offered the deposition of Mrs. Tucker, and to that the defendant objected, that it was reduced to writing by Mr. Walker, a practicing attorney then attending the examination on behalf of the complainant, but admitted that this was done under the view and control of the commissioner, in the presence of the defendant, and without any objection taken at the time.</p>

Indictment for assault and battery. The defendant was indicted in the County Court of Rowan, and acquitted, and judgment in favour of the defendant; from which the attorney for the State appealed to the Superior Court of Salisbury District.

<p>This indictment was found at October Term, A. D. 1813, at which time one Jacob Jackson was bound in this Court in a recognizance in £50, to appear at this term as a witness in behalf of the State, in this case. The said Jackson then resided in Guilford County, at the distance of twelve miles from the Court-house — but had prepared to remove, and, shortly thereafter, did remove himself and family to the State of Tennessee, where he now resides, at the distance of three hundred miles from Guilford Court-house. Along the road usually, and, by the said Jackson, actually travelled, from his place of residence to the said Court-house, the distance within this State, is one hundred miles. At this term the said cause came on to be tried, and the said Jackson, as he was bound, attended as a witness in it, in behalf of the State; when the said defendant, R. Stewart, submitted, and was fined ten shillings. The said Jackson applied for a Witness Ticket, in which he charged mileage for the whole distance between Guilford Court-house arid his present place of residence.</p>

In Equity. Samuel Holding, sen. the testator, on the 9th day of May, 1797, made and published his last will and testament, and therein, amongst other things, devised a tract of land to the defendant, and other tracts to the complainants, Arthur and John Holding, his sons; and directed that the several parcels of land thereby given to his three sons, Frederic, Arthur and John Holding, should be valued by good men, as woodland unimproved, and that the valuation so made, should…

Ejectment. On the trial the case appeared to be this. A bill of indictment had been found against one George Harkness for perjury; he appeared, plead not guilty, and was acquitted, at term of Salisbury Superior Court. No express judgment was given by the Court, as to the costs of the prosecution.

In this case, the plaintiff was master and owner of a vessel called the Ailcy Ann, stranded on the Island of Bald-head, in a voyage from Philadelphia to Charleston. The cargo was sold by the order and under the direction of the plaintiff, by the defendants, auctioneers. This action was brought to recover the amount of the account of sales.

<p>The complainant's intestate filed his bill against the defendant’s testator; the object of which was, to set aside an award which had been made between the parties, and to open the accounts on which the award was founded; and the Court, many years ago, passed an interlocutory decree to that effect. The defendant preferred a petition praying a re-hearing; which was had, and his petition overruled. The accounts were referred to a Master, who reported a large sum against the defendant. He filed exceptions to the report, which had stood some years for argument, when he preferred a second petition praying a re-hearing of the interlocutory decree. This petition was objected to, on the ground that a second petition praving a re-hearing of the same question, would not lie.</p> <p>This case was several times argued in the District Court, and also in this Court.</p>

The plaintiff declares in deceit, for, that defendant’s testator sold to him, as sound, a negro which he knew to be unsound. The defendant pleads that her testator was not guilty, and that she had fully administered, &c. The Jury found her testator guilty, assessed damages, and that she had fully administered. It is referred to the Supreme Court to say what judgment shall be entered. The plaintiff wishes to proceed against the real estate.

The lessor of the plaintiff claims title to the land in question, under a grant from the State, bearing date 10th July, 1788, which land is described and conveyed in said grant as the confiscated property of a Governor White.

<p>Ejectment. The jury found a verdict for the plaintiff, subject to the opinion of the Court on the following case, to-wit:</p> <p>" The plaintiff, and those whose estate he hath, owned the lot mentioned in the declaration, distinguished in the plan of Newbern by the No. 122, extending on Grave-street one hundred and seven feet, three inches, and back in depth two hundred and fourteen feet, fix inches: The defendant, and those whose estate he hath, owned a lot distinguished by the No. 117, adjoining the plaintiff's on the back end, being of the same width, and extending to another street one hundred and fifty-six feet, six inches. Both lots lay open and uninclosed until the year one thousand seven hundred and seventy-six, when the defendant, and those whose estate he hath, inclosed his lot with a plank fence, and in the inclosure included sixty feet of that part of the plaintiff's lot which adjoined his: And the defendant hath kept up the said fence, and had an adverse possession of the said sixty feet of the plaintiff's lot included in his inclosure ever since.”</p> <p>Upon this case the jury prayed the advice of the Court, “ Whether such possession, unaccompanied by any other title, or colour of title, be sufficient to bar an Ejectment?” If the opinion of the Court be in favour of the plaintiff, they find the defendant guilty, and assess sixpence damage and sixpence costs; if in favour of the defendant, they find him not guilty.</p> <p>The plaintiff's counsel relied on the observations on the act of limitations, published by Judge Taylor at the end of his volume of Reports.</p> <p>The cause having been argued and submitted to the Court, before Judge Johnston retired from the bench; he, at the time of his resignation, forwarded to the Clerk of the Court his opinion in this case. It is thought best to insert that opinion, although a final judgment was not given in the cause until some terms afterwards.</p> <p>Johnston,—The act of 1715, chap. 27, has two objects in view, as appears from the title of the act. The first is, to cure defective titles, after a possession of seven years, and for this purpose, the second section enacts, that all possessions or titles. &c. derived from any sales made, &c. where the purchaser, &c. have continued, or shall continue in possession seven years, without &c. be declared good, &c.</p> <p>The words of the act being possessions or titles, in the disjunctive, if by title is intended conveyance, perhaps a seven years possession under a sale, without a conveyance, might be held a good title under this act; and extend so far as to bar not only an ejectment, but a writ of right also.</p> <p>The case in question comes under the 3d sect. which provides for the second object of the act; Limitation of Actions. It takes away the entry or claim within seven years after their right accrues; it says nothing of Sales or Titles; it seems intended to extend further, and embrace cases not within the provision of the second section, and is surely a copy of the stat. 21. Ja. 1, chap. 16: the only difference which I have been able to discover, is, that the word claim is inserted in our act of Assembly, but is not to be found in the Statute.</p> <p>This section, therefore, of the act of Assembly, may very well be construed by the rules laid down in decisions on that statute, which was certainly in force in this country at the time of making the act, as our charter does not bear date until many years after the 21st Ja. 1; and it has been uniformly held, under this statute, that a naked possession of twenty years will bar an ejectment.</p> <p>Bac. Ab. under the title Limitation of Actions, Vin. Ab. Limitation, Jenk. 16, Pl. 28, 8 Com. Digest, Ejectment A. And it is laid down, 2 Salk. 421, that a man may recover in ejectment, on shewing a possession of twenty years, and that he was afterwards ejected. It therefore appears to me that a possession of seven years, without any actual sale or conveyance, will bar an entry, and is a good title in ejectment, under our act of Assembly.</p> <p>At December term, 1804, the Court rendered judgment on the case.</p>

This cause came up on an appeal from the judgment of the Superior Court of Craven, in which a motion was made to dismiss the complainant’s bill as not containing matter of equitable jurisdiction.

<p>Ejectment to recover a tract of land in the defendant’s possession, upon the following case agreed. In the year 1783, William Harris devised the land sued for, together with other lands, to Hood Harris by these words. “I give and bequeath to my son Hood Harris, three hundred and fifty acres of land “ and by another clause of his will, devised thus : “ I give and bequeath to my son Hood Harris and my four daughters, who now live with me, all the rest of my estate, consisting of various articles too tedious here to mention.” The testator also bequeathed to Major Harris, his heir at law, twelve shillings.</p>

A warrant, on an account, issued in this case against John and Robert Morrison, executors of Robert, deceased, William Morrison, the other executor, not being an inhabitant of this County. The magistrate rendered judgment for the plaintiff; and, on an appeal to the County Court, the defendant pleaded in abatement, that William Morrison, one of the executors, was not a party to the suit.

The defendant was acquitted on a charge of Petit Larceny, and, on a motion that the prosecutor should pay the costs, under the act of 1799, C. 4, § 19, the question submitted was, whether the act embraced this offence?

<p>George Merrick, by a clause in his will, devised as follows: — “ I give and bequeath to my nephew, George M. Leach, and to the male heirs of his body, lawfully issuing, the lands purchased of Jeremiah Vail. Now, if the said George M. Leach dies, without leaving lawful issue as aforesaid, in such case I give the said lands to the eldest son of my niece, Mary Spaight, and Col. Spaight, deceased.”</p> <p>The eldest son of Mary Spaight and Col. Spaight, at the date of the will, and at the death of the testator, was Wm. Spaight, who died shortly thereafter, leaving the defendants his heirs at law.</p> <p>George M. Leach has since died intestate, and without issue, leaving two sisters (one of whom, is wife of the plaintiff) his heirs at law.</p> <p>The question submitted to this Court, is, whether the plaintiffs are entitled to claim any, and if any, what part of the lands comprehended in the above devise?</p>

The plaintiff and one George Parker, on the 24th day of December, 1799, by articles under their hands and seals, agreed to run a horse race, one quarter of a mile, an the first Thursday in May 1800, on Rice's paths: Parken’s nag to carry one hundred and forty five pounds, and Critcher’s nag one hundred and thirty pounds; for five hundred dollars, to be staked on the day of the race, in cash, good property or bonds; the nags to be turned thirty feet from the starting poles,…

Debt against the defendant: pleas — payment, satisfaction, release. The defendant produced a receipt signed by one of the plaintiff’s, administrators of W. Mangrum, for a proved account of Ballard v. the intestate, “which I receive as payment of a bond by Sims to the administrators of W. Mangrum.” The question submitted is, whether such receipt maintains either of the pleas?

The paper was signed by the magistrate in his proper name, but nothing was annexed to the signature, denoting the act to be official.

This was an action in the case brought by the plaintiff against the defendant, as stake-holder at a course race. The plaintiff and one Chartres started their horses, and in running the last round of the first heat, at the commencement of the straight, the horse of Chartres left the tract and run within the poles, but was reined into the track, in time to be within less than a distance of Moore's horse when he passed the poles.

Ann Johnston by her last will, amongst other things, devised as follows: “I give and be-“queath unto my beloved nephew, Charles Earl “Johnston, all my land, as follows: One tract “of land in Chowan county, lying on Indian “creek, called and known by the name of Boyds-“borough, containing six hundred acres; the “other tract lying on Chowan river, in the “county aforesaid, containing two hundred a-“cres, and known by the name of the Rice “Banks.

<p>Action of debt on a bond, plea Non est factum, payment, set off, and the act of Assembly directing the manner in which bets on horse-races shall be recovered.</p> <p>The subscribing witness proved the signing and sealing of the bond, and that it was given for money won on a horse-race, to wit: The best two in three heats, one mile. The defendant’s counsel then asked, if the bond was delivered by the defendant to the plaintiff, or to any other, person, upon conditions. To this question, the counsel for the plaintiff objected on the ground that it was intended to shew the bond was delivered as an escrow, without pleading that it was so delivered. The court over-ruled the objection; and the witness answered, that the bond was delivered to one Copeland, to be the deed of the defendant, if the plaintiff won the race. The plaintiff could not shew articles in writing containing the terms of the race, and that he had won the race; and, therefore, the defendant had a verdict.</p> <p>It was, in the course of the trial, contended by the plaintiff’s counsel, that this case being within the first section of the act of Assembly, and the race a course race, within the proviso of the act, he was entitled to a verdict.</p>

<p>“Appeal to Newbern Superior Court, on a guardianship. The questions reserved for the opinion of this court were “Whether the choice “of a guardian made by a person between the “ages of fourteen and twenty-one years, is ab-“solute, so as to preclude the exercise of the “judgment of the county court, on any point “not relative to the security to be given.” If this question be determined in the negative, “Whether the court, who rejects the choice, is “not to give leave to the minor to nominate a “more proper person?" or, “Whether the “court may not appoint the person to them “most proper."</p> <p>If the court are of opinion that the county court may appoint without regarding the choice of the infant, or offering him a second nomination, the judgment to be for the defendant, otherwise for the plaintiff.</p>

Indictment for murder on the high seas. Before PATERSON, Circuit Justice, and S1TGREAVES, District Judge. Mr. Attorney of the United States Hill offered to give in evidence the examination of the prisoner before his commitment.