Volume 11 — North Carolina Reports

From Rockingham. This was an action on the Case, brought by the sheriff of Rockingham county, against the defendants as administrators of one Solomon Parks. Held: that he may have an action for them against the person for whose benefit he levied. Bingham ut step. 1 Sellon 541. 1 Salk. 209. 2 L. Raym. 1212.

From Chowan. This was a set. fa. to the defendant as a defaulting witness, to which lie appeared and pleaded, “nultiel record, never summoned, prevented by sickness.” The jury found the issues for the plaintiff, and the Court adjudged there was such a record, and gave judgment for plaintiff: w'hereupon defendant appealed to this Court.

From Northampton. This was an action against the defendants as securities of a constable on his official bond.

<p>Parol evidence shall not be received to contradict an acknowledgment in a deed of the payment of the purchase money.</p>

From Currituck. Tiie distributees oí James Dozier, deceased, filed a petition against Mitchell Simmons, as administrator oí Dozier, for their shares of the estate. The petition stated, that Enoch Dozier (who was the plaintiff in this proceeding) was one of the distributees, and had been advanced by James Dozier in his life time, and he was made a defendant in the petition.

<p>A vendee or assignee cannot sue in his own name for property which the vendor or assignor, at the time of sale, could only recover by a suit.</p>

From Cumberland. This was an action of debt, brought against the defendants as securities to a guardian bond, given hy one Archibald Smith, as guardian to those for whose benefit this suit was instituted.

From Mecklenburg. This was an action of debt on an administration bond, tried below, before Nash, Judge; and on the trial it appeared that George Hampton bad been appointed administrator to the estate of Thomas Henderson, and entered into bond with the defendants as his sureties. M* Bride, a creditor of Henderson, had sued Hampton and recovered judgment, which was unsatisfied.

From Beaufort. This was an action of debt, brought-on the official bond of Slade Pearce, former sheriff of Beaufort county, against the securities to said bond. Held: that the plaintiff should take nothing by his vvrit, and that the defendants go thereof without day. Whereupon the plaintiff appealed.

From Wake. At February Term, 1815, of Wake County Court, tbe last will and testament of Nathaniel Jones was admitted to probate, and Edward Pride, who was nam ed therein as executor, qualified as… Held: that where the next of kin claim the slaves from the executor, he cannot resist that claim by showing a direction to emancipate, which by law cannot now be carried into effect.

From Rutherford. This was an action on the case, brought to recover the amount of two orders drawn by one Nelson, in favour of the plaintiff’s testator, on the defendant, and which had been accepted by the defendant in 1812.

From Pasquotank. EjECTMfiXT* The lessors of the plaintiff claimed under a grant from the state, dated 18th of March, 1823, to themselves, for the island marked X in the annexed diagram- The… Held: that the interest of the witnesses was removed by tiie release, and they were sworn.

From Beaufort. This was a petition filed in 1816, in Beaufort County Court, under the act of 1809, against several defendants, complaining that the mill dam of the defendants caused the lands of the petitioner to be overflowed; and prayed a writ to the sheriff commanding him to summon a jury to meet on the premises, inquire what damages petitioner had sustained, and assess the amount to be paid annually by defendants to the petitioner.

<p>A discharge by a magistrate upon a warrant for a felony, is prima■ fa-cie evidence of the Want of probable cause in an action brought by the defendant against the prosecutor for a malicious prosecution.</p> <p>In such action, the defendant may give in evidence in mitigation of damages, that after the prosecution instituted by him, the character of the plaintiff was bad, upon subjects unconnected with the felony for which he was prosecuted.</p>

From Halifax. This was an action of detinue for slaves, tried below before Donneix, Judge. The plaintiff claimed title under a parol gift from his mother, Ann Gkmterr made pri- or to the year 1806, and offered evidence to establish the fact of such a gift. The mother was living with Peter Morgan, the. father of the plaintiff, at the time of the alleged gift, but was not his wife at that time.

From Perquimons. This was a proceeding by Arrenton, as plaintiff in error, to reverse a judgment which Jordan had recovered against him in Perquimons County Court.

From Caswell. This was an action of debt, brought on the following instrument: I promise to pay John Stamps for John W. Graves, the sum of two hundred and eighty-six dollars and 32-100, out of a bond when it shall be collected on James Daniel for the sum of four hundred and fifty-two dollars, due the 1st of March, 1820, eighteen hundred and twenty. 30th Dec. 1819. (Signed) «4. Graves.

From Iredell. Ejjsctmejvt. The plaintiff’s lessor claimed the land in dispute, lying in Lincoln county, by virtue of a grant issuing to his father in 1768 from the crown of Great Britain. Held: that as this resolve was intended for the very purpose of removing the difficulty of proof as to where the object referred to in the contract was, and to establish a certain boundary, the resolve, having the force of a law, was conclusive, and could not be contradicted.

. , From Rutherford. This was an action on the case, brought by Arthur M'Clure against the defendant for the seduction of his daughter. Held: that by the death of Arthur McClure the suit had abated, and gave judgment accordingly; whereupon the executors appealed. ' - The question is, whether an action for loss of the services of a servant abates by the death of either party. There is no difference in principle between this action and any other for the los.s of service/.

From Orange. John .u.lison, on the first (lay of May» 1821, executed a paper writing in the presence of David Yarbrough and William Horton, subscribing witnesses thereto, with tiie solemnities… Held: that the paper writing constituted one will, and rendered judgment accordingly, from which an appeal was taken to this Court. The questions which appear to present themselves in this case, are two. First, whether the paper writing in the form of a deed be testamentary?

From Tyrrel. Chaplin, the defendant in this action, had brought an action of trover in Currituck County Court, against Truett, the present plaintiff, to recover damages for the conversion of a certain vessel called the Farmer’s Daughter; both parties claiming to have title to the vessel. Chaplin had also stayed Truett, by injunction, from carrying away the vessel.

<p>Where iron was left with one for a certain purpose, who after using part retained the remainder to his own use, a warrant cannot be brought, before a single magistrate, to recover the value of the iron retained: the act allowing warrants “for specific articles, whether due by obligation, note or assumpsit,” does not embrace this case,</p> <p>Perjury cannot, therefore, be committed on the trial of the warrant before the magistrate.</p>

From Wilkes. Indictment for the murder of a slave, tried before Nash, Judge. The jury found the prisoner guilty of manslaughter, and the Court sentenced him be imprisoned eleven calendar months, and to receiye at two several times thirty nine lashes. The prisoner, by his counsel, objected to that part of the sentence which imposed whipping; tlie objection was overruled, and the prisoner appealed.

<p>The Governor cannot, constitutionally, add to or commute a punishment; but under the power of pardoning, he may remit part of a fine.</p>

From Lenior. The question in this case arose upon the indictment, which was in these words, viz: The Jurors for the state upon their oath present, that within the county of Lenoir there now is, and from time immemorial there hath been, a certain common jail, for the purpose of keeping in safe custody offenders and prisoners within the same, situate and being in the county of Lenoir, known by the name of the jail of Lenoir; and that on the first day of January, in the year of…

From Johnston. This was a proceeding which commenced by scire fa-cias, issuing under the act of 1823 to promote agriculture, &c. against the defendant, as former clerk of Johnston County Court, to show cause wherefore judgment should not be entered against him for the sum of Si,000, for his failure to make return on oath of all monies in his hands as clerk, pursuant to the act.

<p>From Craven.</p> <p>This vras an indictment for murder, tried below before Norwood, Judge. The prisoner, upon his arraignment, pleaded not guilty, and suggested to the Court that he was an alien, and prayed that he might have a jury de medietate linguse; it was admitted on the part of the state that the prisoner was an alien. The Court overruled the motion for a jury de medietate, and the prisoner was convicted, and sentenced to death.</p> <p>Tiie prisoner moyed, before judgment, to set aside the verdict, and have a new venire because of the denial of his prayer for a jury de medietate, which' being refused, and judgment pronounced, the prisoner appealed.</p> <p>contended, that the stat. 28 Ed. S. ch. IS. giving a jury de medietate in England, and yet in force there, was unquestionably the law which our ancestors brought with them. That it was, before the revolution, the law of North-Carolina; for it was not “ incompatible with our way of living and trade.” Act of 1715, ch. 5. See also the act of 1746, ch. 2. § 23. § 10.</p> <p>It has been allowed also in several of the states; in New-York (2 Johns. Rep. S81.) and in Pennsylvania, (1 Balias 73.) and seems to have been used in the colonies of Maryland, Virginia and South-Carolina. (Mr. Gas-ton here read letters from professional gentlemen of the before named states, on the subject of allowing a jury de medietate in those states.)</p> <p>The bill of rights of North-Carolina declares, that« no freeman shall be convicted of any crime but by the unani'mous verdict of a jury of good and lawful men in open Court, as heretofore used.” And the act of 1778, ch. 133. JY. Rev. re-enacts “ all such statutes as were heretofore in force and use within this territory,” which are not repugnant to, or inconsistent with, our political institutions and form of government.</p> <p>The act of 1779, directing the mode of procuring juries in this state, cannot be construed a repeal, for the instructions there given can only be viewed as directory, and are subsidiary to the well known and established principles, and the general statutes in England prescribing the qualification of jurors have not been held to take away, by implication, the right to a jury de medietate. Then why should they here? The general regulations in Pennsylvania, also, are as strong as ours, and yet the right itf there allowed.</p> <p>In 1793, it was decided at Wilmington (as I have heard,) by the highest judicial authority known to the country at that time, that an alien was entitled to a jury me¿letate.</p> <p>Henderson. — Judge Williams informed me, that he allowed it at a Court of Oyer and Terminer held at Wilmington many years ago for the trial of some prisoners who were aliens and natives of France.</p> <p>Gaston. — It seems, then, to have been considered the law; the legislature has not since altered it.</p> <p>In 1817, the legislature appointed commissioners to enumerate and specify the British statutes in force in North-Carolina, and they have declared this of 28 Ed. 3. to be one. (1 JVkw Rev. 88.) In 1819, the legislature adopted their report, and ordered copies to be delivered to the Courts for their guidance: six years have since elapsed, and the legislature have not Seen fit in any way to alter it.</p> <p>— Upon an examination of the subject, it will be found to be at least a questionable point whether, even in England, at the prey sent day, a jury de medietate would be allowed. (3 Bl. 361.) But be that as it may, it ought clearly to be shown that such a jury was allowed, or in use here, when our act of 1778 was passed: It should be shown that while we were colonies it was the law and practice of North-Carolina.</p> <p>The true inquiry here is this, haye our acts regulating juries as to qualification, &c. operated a-repeal of the stat. of Ed. 3. According to the rules laid down for the construction of statutes, (Bac.M. “Statute” G. ll Co. 63.) it would seem to me that the directions given by our law for obtaining juries, and suited to the construction of our Courts, must operate a repeal of all other modes (supposing their previous existence to be undoubted,) which were inconsistent with the constitution of our Courts.</p> <p>If this be true, it will follow that an alien cannot claim a jury de medietate: for it does not seem to have been in the contemplation of our legislature to permit a Superior Court to issue a venire in any case, or under any circumstances; and the power given the Court to direct the sheriff to summon in certain cases tales de circumslantibus, plainly shows that it has no general power to have a jury summoned. Now, how does the motion for a jury de medietate operate? Hawkins says, as a challenge to the array, and that the Court must issue a new venire for the whole array; but, says our statute, the County Court alone shpll issue a venire, for it alone can determine as to competency in point of freehold.</p> <p>The sister states haye been resorted to. I can only say, that the practice or statutes of the sister states cannot affect a matter on which (as I contend) we have legislated for ourselves. But it may be remarked, that in Pennsylvania the practice rests entirely on usage, and the Court will not examine the right there because of such usage. In South-Carolina, an act of assembly gives an alien the right: if, ás has been contended for the prisoner, he had it by virtue of the stat. of Ed. why should a law be made to give it again? As to the phrase “ good and lawful men,” in the bill of rights, it does not include aliens; they are not deemed such by the law'.</p> <p>Of the case at Wilmington I know nothing; but I apprehend it must either have been a conceded point by the prosecutor; or the Court, not having an opportunity of examining the point, felt unwilling to withhold from a prisoner a right which might possibly be his, more especially when the prosecuting officer made no objection. But how'ever this may be, if circuit decisions are available, the point has more than once been ruled on the circuit against the alien’s claim.</p> <p>As to the report which has been made to the legislature by the commissioners, that the act of Ed. 3. is here in force, it seems to me that it can be viewed as nothing more than the opinions of professional gentlemen on the point- The legislature has done nothing, that I know of, to directly sanction or disapprove of the report. When, jj0wever, it means to give its sanction to such a compilation, it has commonly heretofore said so; its silence, therefore, on this occasion, would load my mind to results different from those of the prisoner’s counsel.</p> <p>The Court differed in opinion, Haie and Henderson holding that the prisoner was not entitled to a jury de medietaie, and the Chief Justice that he was, and they delivered their respective opinions seriatim, as follows:</p>

From Chatham. But one question wits presented in this case, viz, whether a legacy left to a legatee, which lapsed by his death in the lifetime of the testator, should be divided among his next of kin, or should belong to the -widow, tvho was residuary legatee.

From Bertie. The bill set forth, that the mother of Mrs. Heckstatl had died intestate, (leaving surviving her her second husband, Samuel Powell,) seised and possessed of certain land in Bertie county; that her heirs at law were Mrs. Ileckst'all, the child of her first marriage, and John Powell and Miles Powell, children of her second marriage; that afterwards Samuel Powell died; when a bill was filed in equity by Mrs. Meckstalí and John and Miles Powell, to sell the land of…

From Lenoir. The bill alleged that Philip Miller, the defendant’s intestate, some years before the filing of this bill, partly in consideration of value, and partly of natural love and affection, conveyed, by an instrument of writing under his hand and seal, a negro woman slave Judith, and a negro hoy slave Essex, to his daughter Nancy Miller; that in pursuance of the conveyance, Nancy took possession of the slaves and kept them for many years notoriously as her property,…

From Beaufort. This was a bill setting forth that complainant, some time before the 14th of August, 1811, owning and holding two several bonds of Joel Dickenson, William II.

This bill was filed in 1823 for foreclosure of a mortgage. Held: that heirs was not used in a technical sense, and as the females could not take in succession, they must therefore take by purchase to give effect to the intent of the testator, It was in that case said by the Chief Justice, that the reasoning as to the heir in the singular number at common law, applied to the heirs in gavelkind in…

From Wake. The bill slated, that one Peter Casso, being seised in fee simple of a lot of ground in the city of Raleigh, by deed dated December 23, 1800, mortgaged the same t® one Moore, a merchant of Petersburg, to secure the payment of g2,841 12; that Casso made large payments to Moore at different periods during his life, and afterwards to his executor; that Moore died in the year —, after devising the lot aforesaid to his son and heir at law, Archibald Moore, and…

From Beaufort. This was an action of Trespass ojn the Case, tried below, before Ruffin Judge. Held: “ that as the witness was out of the jurisdiction of the Court, so as not to he amenable to its process,” evidence of his hand-writing was proper.

From Surry. This was an action of debt on a Constable’s bond, brought against the Defendants, as securities to one Marlin, a Constable of Surry •, and was tried before Daniel Judge. — The condition of the bond was in these words: “ The condition of the above obligation is this, that whereas the above bounden Joseph Martin was duly appointed a Constable in Jonesville district, in the county of burry; now if the said Joseph Martin shall well and truly pay, unto the person or…

From Mecklenburg. Kirk sued out a writ against Hunter, the Plaintiff, returnable to August Term, 1824, of Mecklenburg County Court. The Sheriff returned this writ “ executed,” and. a judgment by default was taken. At the next term thereafter a writ of enquiry was executed, and the Juryas-sessed Plaintiff’s damages to §81-and costs. An execution issued thereon, and was returned satisfied.

From Wayne. Ejectment, tried before Ruffin Judge. — Plaintiff claimed title to the lands described in his declaration, as follows: — George Bradbury recovered a judgment in Wayne County Court, at May Term, 1820, against the Defendant William, M'ICinne, for S1096 33, with interest thereon and costs, on which judgment a fi.ja. issued, tested of May Term, 1820, returnable to the succeeding August Term ; this was delivered to the Sheriff on the 27th of May, 1820 ; upon which…

From Granville. This was an action originally commenced' by warrant, and by successive appeals brought into Granville Superior Court, where it was tried before Norwoob, Judge.

From Warren. Trespass for an assault and battery, tried below, before Paxton, Judge. Upon the trial, the only question was as to the amount of damages, it being admitted that Plaintiff was entitled to recover.

<p>Where a Plaintiff sued out twenty-one warrants on twenty-one notes, amounting in all to one hundred and four dollars, in cases where the causes of action were the same, and the defence was the same In all, the Court compelled Plaintiff to consolidate.</p>

From Hertford. This was an action on the case brought against the Defendants to recover damages for a violation of their duty as Magistrates.

From Wake. This was a case agreed as follows: the Plaintiff, David Brasfield, at the November Sessions 1820, of Wake County Court, obtained a judgment against one Mark Cooke, for g390 34, with interest, &c. and costs.

From Bertie. Special verdict as follows. — The Jury find, that the lands demised to the Plaintiff were gran ted to John Hardy in the year 1717, and were by his will in writing, duly executed to pass lands, dated 1719, devised to his daughter Elizabeth Hardy, in the words following, “ Also I give unto my daughter Elizabeth another tract of land, lying on the east side of Rogues Pocoson, containing four hundred and twenty-four acres, excepting the one hundred acres given to my…

<p>A Judgment obtained against a deceased person during his life-time, and a second judgment obtained thereon against, his administrator, after bis death, is, both as to the administrator and Insecurities, evidence of a debt due by the intestate ; but it is not evidence against the securities that the administrator- has or had assets to discharge it.</p> <p>But if the administrator has returned an inventory, such inventory is prima facie evidence against the securities of assets to that amount.</p>

<p>A. made a deed of trust to satisfy several creditors; after this, part of the property is levied on and sold under execution : The sale passes nothing’. A. had not such an interest as could be levied on under our act of 1812, subjecting equitable interests to execution.</p>

<p>Promissory notes are not public tokens of themselves; bank notes are ; an indictment therefore for a client at common law, by passing1 certain “promissory notes” us and for bank notes, without an averment that they resembled bank notes, cannot he sustained.</p>

From Pitt. ' This was an indictment against the Defendant, a single woman, and contained three counts.

From Person. The Defendants were indicted in the following words, “the Jurors for the State upon their oath present, that Thomas II Mien, and William II Royster, all late of the county of Person aforesaid, with force and arms, at Person aforesaid, on the 4th day April, A. 1). 1825, to, with, and against each other, did light, and make ail affray, to the nuisance of the citizens, and against the peace and dignity of the state.” The Defendants pleaded not guilty, and the jury…

From Hertford. The bill set forth, that about 14th day of August 1815, the Complainant and Defendant, at the request of James Jones, now deceased, became his sureties in a bond which was then executed to one John Coffield for ~950 ; that said Jones, at the same time, executed a bill of sale by which he conveyed unto the Defendant five negro slaves, conditioned to he void, if the said Jones should well and truly pay said debt to Coffield, else to bo in full force.

From Franklin. The Bill alleged that the Complainant, in the spring of 1819, contracted with the Defendant Maer, for the purchase of fish, without specifying the quantity, though Complainant was to take as ñnany ash-said Maer would deliver at the following- prices, to-wit: §4 per barrel for trimmed herrings, *86 for shad, and the same price for rock ; that a few days afterwards, one Mburr, the of Maer, called on the Complainant, and presented an account, in which were…

From Wake. This was a Bill filed by the Complainant, as a surety to one Glynn, against the Defendant, as the administrator of George JSTichols, deceased, who was the obligee in the bond, alleging, that a short time after the bond was due, the principal offered to pay and discharge the same to the obligee, who refused to accept it, and gave further time t.o the principal to pay the bond, without the ledge or assent of the Complainant; that afterwards the principal again…

From Wake. Bill filed at April term 1822, the object of which was to set aside a conveyance fraudulently obtained from Complainant Williams. The last step taken in the cause appeared to have been at the. Spring Term of 1823, when commissions to take testimony were ordered, and at the Fall Term of 1825, Defendants moved to dismiss with costs for want of prosecution.

From Orange. This was a Bill filed August 28, 1812, setting forth that the Plaintiffs were heirs at law and distributees of John M’Kerall, late of Norfolk, Ya. who died intestate, January, 1776,… Held: that if the party, upon a notice that nothing veas due, did not investigate his own accouut, and never made any demand for the money, a demurrer should be allowed upon the statute of limitations. 19 Vesey 188.

From Edgecomb. The Complainants in their Bill set forth, that the Defendant intended to erect a mill and dam on a small stream in the vicinity of the town of Tarborough, and at. a short distance from… Held: that in cases of public nuisance, there should be an information by the Attorney-General on behalf of the public. (1 Maddock’s Chan. 128). Now if this be a nuisance, it must be ¡public.

From Lenoir. The ’BUI which wns filed loth April, 1820. stated that Bryan Whitfield died, having made a will, of which the Plaintiff was an executor, and the sole surviving executor of those who had qualified; that a difficulty had arisen in the construction of the will, whereby Plaintiff was likely to be injured, by reason of conflicting claims, and therefore lie prayed that the parties interested might be made to interplead with each other, and that for his protection, ho…

From Iredell. From Johnston. The Bill, in the first of these cases, was exhibited in the District Court of Salisbury, and afterwards upon the change of the Judicial system in 1806, was removed to the Court of Equity of Iredell County. In the latter Court, certain points were made presenting the whole case, and were transmitted to the Supreme Court,' under the act of 1799, ch. 520, JV*. II. for an opinion thereon.

From Orange. In this case one of the Defendants was a non-resident, and in the Court below', an order of publication was made, but it did not appear from the transcript filed this Court, that the publication had been made : nor was . thei’e any judgment pro conjesso entered against the absent Defendant — but the cause had been set for hearing below.

From Iredell. This cause having been retained, on a former motion to dismiss Cvide ante, Vol. 2, p. 490) now came on to be heard, when it appeared to be a Bill filed in 1817, setting forth, that one Gilbraith Falls died intestate, in June, 1780, and that in 1781, administration on his estate was granted to his widow, who in 1784 intermarried with Hugh Torrance : that Complainants were the children of Gilbraith Falls, and at the time of his death were infants; that some of…

From Hyde. The Complainant, who was the administrator of one Tooley, stated, that as adm’r he had recovered a judgment against Thomas Smith and his wife Jinn, for 25300 at May Term, 1822, of Hyde County Court j that he issued an execution thereon, which was returned “ nothing to be found that before the execution issued, the Defendant Dixon, who was a Constable, levied an execution on a negro man the property of Smith, to satisfy an execution of §8, and sold the negro at…