Volume 13 — North Carolina Reports

From Orange. After the new trial granted in this cause, at December Term, 1827, (ante 1 vol. 291) it was again tried before Ruffin Judge, on the last circuit, when the case upon the record was, that the Plaintiff, as Treasurer of the town of Hillsborough, had sued out the following warrant against the Defendant. “ To the Constable, &c. You are hereby commanded to take the body of T. S &r. o answer the complaint of T. D. W. Treasurer, &c. for the sum of ten dollars, for…

From Pitt. Detinue for a slave, and on the trial the Defendant set up title in one Jackson, against whom lie produced a judgment rendered before a single Magistrate, with au execution thereon, and a bill of sale for the slave in rjuestion, made by the Constable to whom the execution was directed.

w , , >From Pasquotank. Debt upon a bond given by one Muse, as guardian to the relators, to which the Defendants were sureties, payable to “John Mullen and Ambrose Knox, and the rest of the Justices of Pasquotank.” The writ was “ to answer John Mullen and Ambrose Knox, and the rest of the Justices assigned to keep the peace, &c.” Upon the trial on, non est factum, it turned out that the Defendants were two of the acting Justices of Pas-quotank, at the. date of the…

From Washington. Assumpsit for the balance of an account. On the trial, the Plaintiffs introduced an account, at the foot of which there was a memorandum signed by the Defendant, in the following words : “ June 10th, 1826. I have to-day examined the abova account with Cox, Maitland & Co. and find a balance due them of five hundred and seventy-nine dollars seventy-two cents.

From Lenoir. Trotee for a slave, brought by the Plaintiff, the Sheriff of Lenoir, against the Defendant, the Sheriff of Jones, both parties claiming under levies made by them upon the same slave. On the trial before his honor Judge Martin, on the last circuit, the Plaintiff introduced a judgment against one White, and an execution thereon directed to him, upon which he had endorsed a levy upon the negro in question.

From Rutherford, This was an action of assumpsit, tried on the last circuit,before his Honor Judge DaNIEx,.

<p>From Franklin.</p> <p>The Plaintiffs obtained judgment before a Magistrate, against the Defendant Thomas Yarborough, for the sum of sixty dollars sixty-seven and a half cents. A ca. sa. issued thereon, and upon its being executed, the Defendant gave bond under the act of 1822, payable to the Plaintiffs in the sum of one hundred and twenty-one dollars thirty-five cents, with a condition to be void, if the Defendant Thomas should appear at the next term of the , County Court.</p> <p>Default being made, judgment upon the bond was moved for, but the County Court disallowed the motion, and dismissed the proceedings, because the bond taken, was not double the amount of the debt, interest and costs. From this judgment the Plaintiffs appealed to the Superior Court, when his Honor Judge Norwood affirmed the judgment of the Court below, and the Plaintiffs appealed to this Court.</p>

<p>Under the act of 1790, (Rev. ch. 327,) Justices of the Peace are liable to an action of debt only when they take no bond from the Sheriff — they are not liable where they have committed an honest mistake in the form of it.</p> <p>The acts of limitations of 1715 and 1814, (Rev. chapters 2 & 879) do not bar the action against the Justices given by the act of 1790. Where the Clerk certified that “the following and none other” were the bonds executed by the Sheriff, the certificate was held not to be evidence that no other bond was given.</p>

From Chowan. DetiNUE for a slave, tried on the last circuit, before his honor Judge Strange. The Plaintiff produced a judgment and execution against one John B. Blount, as executor of one Muse, and a bill of sale from the Sheriff to him. The Defendant claimed under a bill of sale made to him by the administrator de bonis non of Muse.

From Edgecomb, Assumpsit brought to recover the balance of an account, including the sum of thirty-seven dollars for the funeral expenses of the Defendant’s intestate. On the issue of fully administered, it appeared that the Defendant had notice of the claim before the action was brought, and tiie only question was, whether the Defendant could retain the assets in his hands, to satisfy a judgment he had obtained against the intestate in his lifetime.

¡>From Franklin. At June term, 1828, of Franklin County Court, the Sheriff of that county had in his hands the following writs oijierifadas, all, except those issued by a Justice of the Peace, tested of the preceding term of that Court, viz., No. 1. In favor of the State Bank against Thomas Yarborough, Lark Fox and James 0, Jones, issued the Míe 1 tb March, 1.828, No. 75.

From Craven. CoveNAnt tried before Martin, Judge, on the last Circuit. The Defendant’s intestate on the fth of September, 1818, conveyed to the Plaintiff a tract of land “ begin- The deed contained the following covenants, “ And t( the said Thomas 0. Bryan for himself and his heirs, “ doth covenant with the said George Wilson, his heirs The only breach assigned was of the covenant of sei-sin.

From Caswell. Ejectment for a lot in the town of Milton, tried on the last circuit before Ruffin, Judge. Held: that where a party does ail the law imposes upon him, to procure bis deed to be registerd, that the laches of the officer shall not affect his rights — and contended that the vendee Smith, was in fault, the witness who proved, the deed being his agent, and having neglected to do that which the law imposed upon the vendee, when he had…

From Jones. An indictment for murder had been found against the prisoner, a slave. On the last circuit, a nolle prosequi was entered, and upon the motion of the owner, who had been duly notified of the charge, the prisoner was discharged. But his honor Judge MartiN, ordered the jail fees and other costs to be paid by the owner, from which the latter appealed to this Court.

<p>From Northampton.</p> <p>Negro Charles, the property of the Defendant, had been convicted of a rape, and executed.</p> <p>A question was made before his honor Judge Norwood. on the last circuit, whether the Defendant, as the owner of the slave, was liable to his prison charges, and to the lee of ten dollars allowed for carrying.,the sentence oí death into execution. Both questions were decided for the State, and the Defendant appealed.</p>

From Currituck. The prisoner was indicted as an accessory before the fact, to the murder of Joseph S. Lindsey. The indictment charged March, a negro slave, to be the principal felon. On the trial, before his honor Judge Strange, on the last circuit, the prosecuting officer offered in evidence the record of the conviction of March, which was objected to by the Counsel for the prisoner.

From Burke. The Defendant was indicted for the murder of Levin, the slave of one Mclntire. On the trial, the evidence was, that the deceased, a waiter in the tavern of his master, at 12 o’clock of the night of his death, went to the lot of the Defendant about one-fourth of a mile' from Mclntire’s house.

From Warren. The prisoner was indicted for passing counterfeit bills purporting to be issued by the Bank of Augusta, in the State of Georgia. On the trial, the only question was the scienter of the prisoner. On this point he proved tiiat he had formerly been a resident of Person County, in this State, and had but recently removed to the State of Georgia.

From Washington. Assumpsit against the Defendants, as the drawer and endorsers of a bill of exchange, drawn by the Defendant Ely, upon his correspondent in New-York, which was regularly protested for non-acceptance and non-payment. To prove notice to the Defendants, the Plaintiff introduced the deposition of the notary, who swore that he addressed to each of the Defendants at the proper Post Office, a letter giving them notice of the dishonor of the bill.

<p>From Richmond.</p> <p>Debt upon a single bond, made, by tiie Defendant, payable to one Daniel McKennon, and assigned to the Plain* tiff by one John McLeod, the administrator of the obligee. '</p> <p>The Defendant, besides the pleas of payment and a set off, pleaded “ that the writing obligatory declared on, is of right the property of Archibald Gilchrist and Polly McKennon, to whom .letters of administration on the es» tate of Daniel McKennon, the obligee, issued from the Court of Common Pleas, &c. of Richmond County.”</p> <p>■ On the trial, it appeared that McKennon, the obligee, died in Marion District, South-Carolina, in February 1825, that in March following, letters of administration, on his estate were issued by the Ordinary of that Bis» trict, to John McLeod, who in September, 1825, assigned the bond in suit to the Plaintiff — -that in April, 1825, letters of administration upon the estate of McKennon, the obligee, issued to Archibald Gilchrist and Potty McKen-non, from the County Court of Richmond. That the Defendant at the date of the bond, and ever since, had resided in Richmond county, where it was executed, and that Daniel McKennon, had at that time, and up to the period of his death, no fixed habitation, but that he resided sometimes in this State, and sometime,s in Sonth-Carolsna-</p> <p>His honor Judge Daniei, instructed the Jury that the plea must be taken to be a denial of the validity of the assignment, and that the administrator appointed by £[)e Ordinary in South-Carolina, could not make a legal assignment of the bond, so as to enable the assignee to maintain a suit in the Courts of this State.</p> <p>In submission to this opinion of his Honor, the Plaintiff suffered a non-suit, and appealed to this Court.</p> <p>The cases which decide that a foreign administrator cannot sue here, are not disputed. This is entirely a different question. It is, in whom was the right to the bond ? The reason why a foreign administrator cannot sue here, is not that there is a defect in his right of property, but that he cannot, in the way required by law, show his authority, and prove his right of property, when he brings an aetion in his own name, as administrator. In such case, he must make profert of the letters of administration, so that the Court may judicially see that he is properly administrator, and that his letters have been granted by the proper ordinary. The Court cannot judicially take notice of the laws or judicial proceeedings of another government, such matters being facts to be ascertained by a jury. But when the question presents itself in a shape which makes it the province of the jury, according to the course of proceeding in our Courts, to determine it as one of right of property, instead of the Court deciding it as one of authority to sue, the right of the foreign administrator to sell, or otherwise to use and have the benefit of the chattels of his intestate, must be passed on and supported by the jury, in the same manner as any other right acquired in a foreign country, under the laws of that country. The administration then becomes a link in the title, to be proved on the trial, and bo profert is necessary, and no oyer can be claimed: as if an action be brought by an administrator on, his own possession of a specific chattel. It is in such case immaterial where the administration was granted. The en-quiry is, has it been lawfully granted any where, and has the administrator been in possession under it; if he has, tiie title is in him and be may recover; but all parts of this title must be made to appear by proof before the jury.</p> <p>I see nothing to impress upon this bond the character of North-Carolina property. Suppose it to be a slave, of which McLeod had got possession in South-Carolina, it cannot be doubted, I think, that lie might maintain detinue here on his own possession, against any person subsequently detaining the slave; nop that his vendee could in like manner assert bis property. If it be not so, a purchase in another state from an administrator of that state, can in no way be shewn or supported in our Courts — a doctrine fall of evil consequences, especially where so much of men’s substance, as in Nortb-Carolina, consists of slaves bought abroad. This bond, in this respect, does not differ from a specific chattel. An administrator in possession of a bond payable to his intestate, may transfer it by endorsement. He has done so here; and it must be sustained in the same manner and upon the same grounds that his sale and deed of a slave would be.</p> <p>What is there to make this bond North-Carolina property l Nothing, but that the debtor lived in this State, and no case can be found which lays down such a rule. Several well established, and old maxims of the law prove it to he South-Carolina property.' Heal estate is transferred, and descends according to the law of the country in w hich it is situate. Personal things follow the person, and are distributable according to the law of the country to which the owner belongs. If, therefore, McICennon was a citizen or inhabitant of South-Carolina, at the time of his death, the law of South-Carolina disposes of bis chattels and personal rights, no matter where they are situate, or where reduced to possession.— He- is to be taken to be an inhabitant of that country in which he actually is, unless he have a domicil — unless his home — be shown to be in some other. The country where one is born, how accidental soever his birth in that place may have been, and although his parents belong to another country, is that to which he owes allegiance. Hence the expression natural born subject or citizen, & all the relations thereout growing. To this there are but few exceptions, and they are mostly introduced by statutes and treaty regulations, such as the children of seamen and ambassadors born abroad, and the like. The correlative doctrine is, that the place in which one dies is that whose law is to dispose of the moveable and personal effects which he leaves. To this an exception is allowed in reason, that when t)ic deceased had an actual residence — home—in another place, to which he had animum revertendi, at the time of his last illness and death, that home shall be deemed the place of his death, for the purposes of disposing of his personal property. In all other cases, the place of the death must regulate it. If this he not so, then the nature of the property is changed, and the maxim governing realty is extended to personalty also, and each part of the personal effects is to be distributed, according to the law of the country where such part be found, and not of the country in which theperson was, and died. But no such principle has ever yet been laid down in this country, England, or any other nation of Europe, as far as I have learnt. The case here states expressly, that Ma-Kennon had no settled iiabitafion | was a transient person, sometimes working in North, and sometimes in South-Carolina j that he died in South-Carolina; that administration was there granted to McLeod, who got possession of the bond, and endorsed it to the Plaintiff. An adjudicated case in Mew-Fork lays it down, that a voluntary payment by Gilchrist to McLeod would have been a good discharge to the debtor. (Doolittle v, Lewis, 7 John. C. C. 45.J This establishes the right to receive, and consequently the right of property. As a necessary consequence from that, we infer the right and power to transfer tiie title by endorsement.</p> <p>There is also a point in the pleadings against the Defendant. The special plea, which affects to deny the validity of the endorsement, would amount to the general issue, if the action were assumpsit-; and for that reason would be bad. But as we brought debt, in which the general issue is non est factum, perhaps the better opinion is, that the special plea of “ no assignment” is admissible, But as a special plea, it is bad upon its own principle. Every special plea ought to contain in itself a complete bar. The principle of the plea is, that an administration can only operate in the country where it is granted, ft is true, we deny that, and say, that when property is once vested by the law of the country where it then is, it may be afterwards transferred any and every where. But the plea, in relation to the rights of an administrator, asserts the contrary. I must admit, therefore, that the transfer would be good -in South-Carolina, where the administration was granted. It ought, consequently to have averred, that the endorsement was made in North-Carolina, or some other place out of South-Carolina. And for want thereof the plea is defective, and the Plaintiff was, notwithstanding it, entitled to judgment.</p>

From Burke. Case for slanderous words, spoken by the Defendant of the Plaintiff.

From Warren. Debt upon bond, and on the trial, before his honor Judge Strange, on the last circuit, on the plea of non est factum, the case was, that the Defendant being' the Clerk of one Robert R. Johnson, in the town of Warren-ton, was sent by him to Petersburg, in Virginia, to purchase goods.

<p>Where an agreement was made that one of two similar suits should abide the event of the other, upon a dispute as to the terms of that agreement, it was held that the decision of the Judge of the Superior Court thereon, was eo elusive, and a judgment entered according to tlie facts ascertained by him, was affirmed.</p>

From Wake. The Defendants were sureties for one Utley, in an appeal prayed by him to the Court of Pleas and Quarter Sessions, from the judgment of a Justice of the Peace. The judgment of the Justice was affirmed, and judgment rendered against the Defendants for the amount recovered in the County Court. From this judgment? Utley prayed an appeal to the Superior Court, and gave ether sureties, with tha usual condition.

From Wake. This was an action commenced by a warrant before a single Justice. On the trial, before his honor Judge Norwood, the case was, that the wife of the Defendant Jeptha, being the widow of the Plaintiff’s testator, took of the money on hand at his death, the sum of §47 -50.

<p>In declaring for slander, the office of an innuendo is to connect words not in themselves actionable, with some precedent fact formally averred, which explains their meaning.</p> <p>Words not in themselves actionable., cannot be rendered so by an innuendo, without a prefatory averment of extrinsic facts which explains their meaning, and makes them slanderous.</p> <p>Hence, when the words were, “ all W’s girls are big,” and the declaration contained no averment of a fact affixing a slanderous meaning to the words, an innuendo, affirming- the meaning to be “ big with child to negro B,” was held to be insufficient, and the declaration to be defective.</p> <p>The word “publish” is insufficient in a declaration for slander, without charging the words to be spoken in the presence and hearing of others.</p> <p>The act of 1808 ( Rev, ch. 748,) has given a precise meaning to the term “incontinent,” and having rendered a charge of it against a woman actionable, a Count, charging the Defendant with saying the Plaintiff is “ incontinent,” without prefatory mutter, and without an •innuendo, is good.</p>

From Buncombe. The Plaintiff declared against the Defendant in case for slander, as follows : “Philip Brittain complains of James Allen, in custody', &c. of a plea of trespass on the case, Etc. Tor that whereas the said Philip now is a just, honest and correct man and citizen of this State, and as such hath always, &c. and until the committing of the several grievances by the said Jumes, as hereinafter mentioned, was always reputed, &c. by all his neighbors, &c. to whom he…

From Rutherford. Ejectment for a tract of land situate in Buncombe, originally commenced in that County, and removed to Rutherford. On the trial before his Honor Judge Daniei, the lessors of the Plaintiff, who were William B. Smith, James M. Smith and Philip Brittain, produced a judgment and an execution thereon, against one James Greenlee, and a Sheriff’s deed to them for the land in dispute, as the highest binders at a sale thereof, on the above mentioned execution.

<p>From Moore.</p> <p>Trover for a horse, brought by the Plaintiff in his own name, “as guardian of Daniel Blue”</p> <p>The cause was fried on the plea of not gully, before his honor Judge Danied, on the last circuit.-</p> <p>The Plaintiff proved a gift of the horse to his ward Daniel Blue, by his gr&ndhtiher John Wadsworth, the late husband of the Defendant, and that he had by his will, bequeathed all his personal 'state to the Defendant during' her life. The executor o. John h a Isivovth lived at a distance from the Defendant, and in another county. All the property of the estate, together with the horse in dispute, was left by him on the plantation where the testator died, where aiso the Defendant continued to reside— she contending, that the horse had never been given to Blue, by the testator; but that it continued to be part of his estate, it was in proof, that after the death of her husband, the Defendant used the horse about the plantation — that she lent it to one of the witnesses to go to Fayetteville, and also to another person to go a short journey.</p> <p>The Plaintiff demanded the horse of the Defendant for his ward} she answered that it. was not in her possession, but in that of the agent of the executor, who lived some miles off — that she should do nothing until she saw the executor, and that she did uoi know that she would give it up at any rate. There was no proof of the Plaintiff’s appointment as guardian.</p> <p>His Honor instructed the Jury, that if they were satisfied that tiie Plaintiff had title to the property, their next enquiry should be the fact of a conversion by the Defendant. That on this point, if was not necessary for the Plaintiff to prove a demand by him, and a refusal by the Defendant, when the horse was in her possession, that it was sufficient if he proved to their satisfaction, that the Defendant had, since the death of her husband, exercised acts of ownership over it inconsistent with his title.</p> <p>Under this charge, a verdict was returned for the Plaintiff, and the Defendant appealed.</p> <p>objected 1st, that the writ was to answer i( Burton IV. Dowd, guardian of Daniel Blue,” which made Dowd the Plaintiff, when the property was shown to be in Blue, his ward.</p> <p>2d. That there was no conversion by the Defendant. Blue being an infant, the property coming to the possession of the Defendant by leave of the executor of the donor, and there being no proof that the Plaintiff had been regularly appointed bis guardian, the Defendant had as good a right to retain the custody of the property, as the Plaintiff had to demand it.</p> <p>He contended, that where property comes to the possession of any one, by finding or by a bailment, a demand must be made by one having an authority to make it, in order to prove a conversion.</p> <p>That the actual possession of the horse by another, when the demand was made, and the qualified terms in which the Defendant spoke, showed there was no conversion. It only disclosed her inability to deliver it up, and her want of authority, but asserted no right of property in herself.</p> <p>That Blue being an infant, the Defendant had a right to a reasonable use of the horse for the keeping of it, and that the. very fact of a delivery to any, but one who was a regular guardian, would have been such a disposition of the property as amounted to a conversion — that no misuser was proved, which he admitted would have been a conversion. In support of these principles, he referred to Bull.N. P. 44, and the opinion of Coke, Chief-Justice, in 2 Bulst. 312, cited 3 Selw. JV*. P. 1151.</p> <p>lie contended, that it was plain on the whole case, that the Defendant set up no right of property in herself, that she used the horse by permission of the executor, between whom and Blue, she did not intend to interfere. That she got the horse from the executor and returned it to him — that she exercised no acts of ownership inconsistent with the rights of Blue, but the horse being in her possession, she merely refused to decide between the right of the infant and the executor.</p>

From Franklin. Assumpsit upon a special contract. On the trial before his honor Judge Norwood, on the last Fall Circuit, the case was, that the Plaintiff being the Sheriff of Franklin, had in his hands sundry writs of Fieri Facias, against one Jeffreys. The Defendant, in consideration that the Plaintiff would suspend proceedings thereon, and wait with Jeffreys, promised that he, the Defendant, would pay the amount due upon the judgments.

<p>Fr om Randolph.</p> <p>Case against the Defendant, the Sheriff of Randolph, iu two counts : — first, for neglecting to arrest one Shu-bat Gardner, upon a capias ad respondendum, in debt, at the instance of the Plaintiff, sued out by the Plaintiff j and second, for making a false return to that writ. Upon the plea of not guilty, the Plaintiff, on the trial before Rufetn Judge, made out his case by proving the issue of a writ of capias ad respondendum in debt, from the County Court of Randolph, in which he was the Plaintiff, and Gardner Defendant — that the Defendant had been guilty of negligence in not serving that writ, and had made a false return thereon.</p> <p>The defence set up was» that tli; paper which purported to be a writ in that cause, was a nullity, and upon this point the Defendant proved that it was not written, signed or issued by the Clerk of the County Court of Randolph, but that, it was signed by a gentleman of the bar. This gentleman testified that the Clerk was not present when the paper was signed and issued, and that the whole of it was in his (the witness’s) hand-writing — that lie had been an attorney of the County Court of Randolph, whence the writ purported to issue, for twelve years — that the person, whose name was signed to the paper as Clerk, had filled that office daring the whole of that time' — and that from his admission as an attorney, he, together with all the other attorneys of the Court, had been expressly authorized, by a verbal deputation of the Clerk, to fill up and sign writs of subpoena and of capias ad respondendum, which writs had always been recognised by the Clerk as valid and lawful, and that the writ in question was, upon the return thereof, by the Defendant, put upon the files of the Court, as a writ, by the Clerk, who ratified and confirmed the act of the witness — and that the writ was now in the record of the County Court.</p> <p>Upon this testimony, the Jury, under the instruction of the presiding Judge, returned a verdict for the Plaintiff, and the Defendant appealed.</p> <p>cited the Constitution of the State, sec. 36 — act of 1777, sec. 61, SI — The Govfr. v. McRae, (3 Hawks, 226,) — 9 Rep. 75, 6. 76, a — -Go, -Lit. 48 b — Parker v. Kelt. (1 Salk. 95.J Ruffin contra.</p>

From Duplin. In this case, the writ was sued out in the name of the Plaintiff, as “administrator of Muncy Glissonby it, the Sheriff was commanded to take the bodies of the Defendants, “ to answer Daniel Glisson, Jim. administrator of Nancy Glisson, of a plea of trespass on the case, to his damage five thousand dollars.” The declaration was in the following form : “ -D. H. and W. II were attached to answer H G. Jan. of a plea of trespass on the case, and thereupon the said II.

From Stokes. Case for words tried on the Fall Circuit of 1827, before his honor Judge Strange. The declaration contained two sets of counts. In the first the words were alleged to be, “ he, (the Plaintiff,) has stolen my bee tree in the second, “ he (the Plaintiff) was a rogue, and kept at home a rogue-hole, and harboured rogues”.

<p>From Anson.</p> <p>Case for maliciously prosecuting tbe Plaintiff for stealing a negro, tried on the last circuit before his honor judge Daniel.</p> <p>The following is an abbreviation of the statement made up by the presiding Judge, and attached to the record :</p> <p>The Plaintiff tv as a resident of Anson, and took a female slave belonging to him, and started on foot to tbe State of Missouri, for the purpose, as he said, of selling the slave, and securing the titles to some laud he owned there. On the way, lie and the slave stopped at the shop of the Defendant, six miles west of Morganton. The Plaintiff and Defendant were perfect strangers to each other — the former applied; to the latter to purchase the</p> <p>slave, offered her at a very low price, and agreed to take a horse at a very high price — said he owned land, slaves , and horses in Anson, yet was on foot, and without endues except those, he liad on. The Plaintiff staid all night at the house of the Defendant, who caused the arrest complained of, to be made in the morning.</p> <p>One of the Magistrates who issued tiie warrant was examined, on the (rial — he proved that the Defendant made oath to the abovementioned facts, and further, that he (the Defendant,) having his suspicions awakened, went during the night to the house where the negro slept, and examined her as to the truth of the story told by the Plaintiff. The negro informed the Defendant that she did not belong to the Plaintiff, but had been taken by him from Anson county by stealth. The Counsel for the Plaintiff objected to this testimony, so far as it related to the conversation with the negro, but the objection was ov erruled by his Honor. Two witnesses were examined by the Defendant without objection, one of them proved that the Plaintiff and the negro passed his house two miles east of Morganton, that the Plaintiff and the negro were on foot, the former appeared to be drunk, and was behaving in an unbecoming manner towards the latter. — The other witness swore that lie was in Morganton when the Plaintiff arrived there — that both himself and the slave were on foot, and had no clothes except those they had on — that the manner and appearance of the Plaintiff excited suspicion, and a man had talked of having him arrested on a charge of stealing the negro — but that he disturbed no person, and the next morning paid his bill and departed. The arrest complained of took place the succeeding morning.</p> <p>His Honor left the credibility of the witnesses to the Jury, and instructed them that if they believed the facts deposed to, there was probable cause for the arrest, and that they might take into consideration t?ie conduct and. action of the Plaintiff before he arrived at the Defend ant’s house, as circumstances to aid them in forming their opinion, as to the truth or falsity of the facts de-p0ge[¡ p,y ^he plaintiff, before the magistrate.</p> <p>verdict being returned for the Defendant, a rule was obtained by the Counsel for the Plaintiff to show cause why a new trial should not be granted.</p> <p>1st. Because the Judge permitted the Magistrate to give in evidence the Defendant’s declaration, as to the conversation between him and the negro.</p> <p>. 2d. Because as there was no proof that the Defendant knew the facts deposed to, as to the conductor the Plaintiff before he reached Morganton, and while he was in that place, it was an error in the Judge to instruct the jury, that they might estimate it in ascertaining the truth of other facts, upon which the Defendant might, or might not be pronounced, in law, to have had a probable cause for the arrest. The rule was discharged, and the Plaintiff appealed.</p> <p>Tire warrant and the proceedings formed part of the case. By them it appeared that the trial was postponed from the 5th of May, 1824, to the 5th of June following, and the Plaintiff gave bail to enable him to return to Anson county and procure testimony. On the day to which the trial was continued, two Justices gave judgment “ that the said Duncan McRae shall be discharged “ on his paying a fine of ten shillings, and all accruing "costs.”</p>

From Pith. Ejectment originally commenced in the County Court, at M,ay Term, 1823, against the Defendant Bre-non alone. At November Term, 1824, of the County Court, Mooring, upon his own motion, was made a Defendant. On the trial, before his honor Judge Norwood, on the last Fall Circuit, the lessor of the Plaintiff produced a judgment and execution against John Brenon, anda Sheriff’s deed to him for the premises in dispute.

£>From Rutherford, After the arrest of judgment in this cause, (Jlnte 1 vol. 153,) it continued on the trial docket of the Superior Court of Rutherford, without any entry of the judgment in arrest. The Counsel for the Relators obtained leave to amend the writ and pleadings, at the last Fall Term. And on the last Circuit, before his honor Judge Mangum, amotion was made to dismiss the suit, which was allowed, and the Relators appealed.

From Washington. Trespass q,uare ceausum pub git, tried before his honor Judge Strange, on the last Fall Circuit. The locus in quo was a cypress swamp, which had never been in the actual possession of any one. The Plaintiff offered no evidence, of title, but the will: of one Eleazjcr Swain, by which the land was devised to his son Thomas Swain, and a judgment and execution against the latter with a Sheriff’s deed to himself.

From Lenoir. Trover for a horse, tried before his honor Judge Martin, on the Fall Circuit of 1828. The Plaintiff claimed title through his father Lemuel. Bird, by a sale made in August, 1823. The Defendant claimed under Josiah Bird, a brother of the Plaintiff, to whom the property was bailed by Lemuel, the father.

<p>The holder of a note payable in specific articles, is not bound to receive them at a place, or on a day different from that appointed in the note.</p> <p>IF such a note be assigned as collateral security to a bond, and the as-signee make a new contract with the maker, the note becomes his own, and all parties to the bond are discharged.</p>

From Perquimons,. DetiNüe for several slaves, the issue of the negro woman Odia, mentioned in the bill of sale hereinafter mentioned.

Front Craven. Ejectment tried on the last Circuit, before bis honor Judge Norwood. The lessor of the .Plaintiff and the Defendant, both claimed under one Polhk, jjand the only question on the trial was (he boundary of a lease made by Pollok to one Coart, in the year 1756, for the term of seventy-five years, under which the Defendant held the premises in dispute.

From Martin, Debt for the balance of an account for goods and wares sold and delivered, tried before his honor Judge Strange, on the last Spring Circuit.

From Onslow. This was a special action on the case, founded upon the act of 1007, {Rev. ch. 723) entitled “an act for relief of purchasers at execution sales, in certain cases,” which provides that where any property shall be sold under any execution, &c, and the sale be legally and bona fide made, if the property so sold be not the proper goods and chattels, lands or tenements of the Defendant in the execution, by reason whereof the purchaser at such sale may he deprived of…

From Robeson. EjectmeNT, fried oh the last Spring Circuit before bis honor Judge Daniejl. The lessor of the Plaintiff produced a grant to one Thomas Filman, of the premises in dispute, dated November, A. I). 1779, and a deed of bargain and sale from Thomas Pitman the grantee, to Isham Pitman for the same land, dated in 1792.

<p>An indictment on the acts of 1798 anil 1816, (Tira. chs. SOI and 906} prohibiting the retailing of liquor by a measure less than a quart, which charges the retailing to be “ by the small measure,” is defective — the words “ tes than a quart,” should be superadded to the description of the offence.</p> <p>The Defendant was indicted for retailing spirituous-liquors without a license, in the following manner;</p> <p>The Jurors for, &c. on &c. pre^nt that JV, S of &c. on he. and. divers other days 8tc. in ike. did refciil spirituous liquor by the small •measure without having a license according to law, contrary &c.</p> <p>After a verdict for the Slate, his honor Judge Daniei, on the motion of the Defendant’s Counsel, arrested the. judgment, because the indictment charged a retailing by the small measure generally, without showing what the measure called small was, or in any manner describing a sale by quantities less than a quart, except by the word sin all, which his Honor thought too indefinite 5 whereupon Mr. Solicitor Troy, for the State, appealed to this Court.</p>

om Iredell. The Defendant was indicted in the following form : The Jurors, &c. that Moses Justice being an evil disposed person, and designing fraudulently to cheat and inh overbli one Anne Fox, on &c. did become the security of thejsaid Anne Fox in a bond then and there executed by her for the faithful performance, &c. And the jurors, See. that the said Moses Justice, afterwards, to-wit. on &c. did write and cause to be written a certain deed of bargain and sale, from her…

From Wake. The Defendant was indicted in the following form : The Jurors for the State upon their oath present, that TV.

From Wayne. The Defendants were indicted for a riot, and on the trial before his honor Judge Norwood, on the last circuit, the Defendants introduced witnesses for the purpose of discrediting the evidence offered by the State, and proposed to ask whether from their knowledge of the general character of the witnesses for the prosecution, they would believe them upon oath $ and this before the discrediting witnesses had expressed any opinion respecting the general character of…

From Currituck. The Defendant was indicted under the act of 179Í» (Rev. ch. 354,) for not keeping up a lawfui fence as prescribed by the act of 1777.

<p>From Wayne.</p> <p>This was a sdre facias in the usual form, upon a recognizance for the appearance of the Defendant at the Spring Term, 1828, of Wayne Superior Court, to answer the State upon a charge for an assault and battery. The sdre facias recited that the Defendant “ was duly-called, and failed to appear, and was fined nisi according to act of AssemblyUpon the plea of nul tiel record, Me. Solicito!’ Miller produced the following entry made at Spring Term, 1828 : “Fhilip Baiford, who was bound to appear at this term to answer the State on an indictment against him, was called and failed.” Upon this evidence bis honor Judge Norwood, found the issue in favor of the Defendant, and Mr. Solicitor appeal'd.</p>

From Onslow. The prisoner was indicted for murder, and tried on the last circuit before his honor Judge Norwood. In making up the jury it was alleged on the part of the State, and assented to by the Counsel for tiie Prisoner, that the jury ought to be entirely composed of slave owners. The question being considered doubtful by his Honor, he consented to the adoption of that rule in this case,-especially as it could not operate injuriously to the prisoner.

From Guilford. The Prisoner was tried on the last circuit before ids honor Judge. Martin, on the following indictment: “The furors &c. on their oath present, that T. iK late of &c. on &c. in &c. did marry one JU. B. spinster, and tier the said JH.

From Moore. Assumpsit, originally commenced by a warrant before, a Justice of the Peace. On the trial before his honor Judge Str&Nge, upon the general issue, the case was, that the Defendant promised the Plaintiff to pay him the amount of a debt due him by one Rigan, if the Plaintiff would give him, Rigan, some time, as soon as the Defendant should collect certain notes, which had been put into his hands by Rigan, and which the Defendant represented to be good.

From Burke. Ejectmekt for 400 acres of land, tried on the last Circuit, before his honor Judge Martin.

From Orange. Detinue foe a slave, tried on the last Spring Circuit, before his honor Judge Martin. After the Plaintiff had made out his case, the Defendant proved, that upon his marriage with a daughter of the Plaintiff, in the year 1821, the slave in question had been put into his possession by the Plaintiff — that this possession continued until the year 1825, when the Plaintiff received the slave again, and hired him out for a part of the years 1825 and 1826.

f-From Rowan. Debt upon two promissory notes, made by the Defendant to the Plaintiff. Plea in abatement, s‘ that another action is pending on the same, in the Court of Common Pleas for Fairfield District, in South-Carolina.”&emdash; Demurrer by the Plaintiff and joinder. From a copy of the record of the Court of Common Pleas in South-Carolina, it appeared that the action in that Court was brought in the name of one Daniel Casey, the endorser of the Plaintiff.

<p>A receipt for a specific sum of money, which it states to be in full of all demands, is not conclusive evidence that the specific sum was paid, or (hat it was in full of all demands. But sach a receipt is prima facie evidence of a settlement between the parties, and of a payment of the balance — and it is incorrect to say, that it is only evidence of a payment of the sum mentioned in it.</p>

From Surry. In this case the Jury returned a verdict for the Plaintiff, subject to the opinion of the Court upon a point reserved — and judgment. was rendered for the Defendant by his honor Judge Mártir, from which the Plaintiff’ appealed, hut upon the transcript sent to this Court, the question reserved did not appear.

From Caswell. Assumpsit for money had and received by Hie Defendant’s testator, to the use of the- Plaintiff. On the trial, before his honor Judge Norwood, upon the general issue, the Plaintiff offered one Jesse Jl. Uol~ lerhide as a witness to make out bis case.

From Edgecomb. One John J. Mooring having been arrested by the Sheriff of Pitt County on a ca. sa. at the instance of the Plaintiff’s intestate, returnable to the Fall Term, 1827, of Edgecomb… Held: that both the right and the remedy survived to the Plaintiff. But upon the third ground, he held that there had been a compliance with the condition of the obligation, and accordingly overruled the motion for judgment, whereupon the Plaintiff appealed.

^>From Mecklenburg. In this action the lessors of the Plaintiff claimed title to the lands represented in the annexed plot, by the lines ABODE and F, under a Sheriff’s deed, dated June 25th, 1795, reciting a sale for the taxes. The Defendant claimed title to the lands represented in the plot by the lines GBIKL & M, under a deed from the Sheriff to one Purser, dated October 26th. 1795, and also re. citing a sale for taxes,.

<p>The Master is not liable to an indictment for a battery committed upon bis slave.</p> <p>One who has a right to the labor of a slave, has also a right to all the means of controlling his conduct which the owner has.</p> <p>Hence one who has hired a slave is not liable to an indictment for a battery on him, committed during the hiring.</p> <p>But this rule does not interfere with the owner’s right to damages for an injury affecting the value of the slave, which is regulated by the law of bailment.</p>

<p>Provoking language dees not justify a blow, and if an instrument calculated to produce death be used, the slayer is guilty of murder.</p> <p>Malice is presumed from the nature of the instrument and from the want of a legal provocation, and it is a matter of indifference whether the temper of the prisoner be mild or violent.</p> <p>Dut as the State has no light to enquire into the temper of the Prisoner unless it be put in issue by him, where proof was received of the Prisoner’s violent temper, it was held per HESDEitsoir & Hale, that as this question may have affected the verdict, a new trial' should be granted.</p> <p>But Burns', dissentienie, held that as the evidence although improper, could not vary the result, it was useless to disturb the verdict.</p>

From Franklin. This was an action of Ejectment for land, of which one William Keeling died seised. Held: from very slight expressions in a will, to be charged with the payment of debts, were founded upon the inclination of the Chancery Courts to protect simple contract creditors, and did not apply in this State, where lands are made liable to those debts at law. argued that cases by which lands were held to he charged with the payment…

From Surry. Trover for a slave, and on the. trial before Daotee Judge, the Defendant, under the gpneral issue, gave in evidence, that an execution against one Isham Choat, came to his hands as Sheriff of Surry, under which he seized the slave, and the only question was, whether the Defendant in that execution had a title to the slave.

<p>(-From Burke.</p> <p>This was an issue of devisavit vel non, as to the will of Thomas Hemphill, senior.</p> <p>On the trial before his Honor Judge Daisies;, the case was, that the will was in the handwriting of one Logan, who was a subscribing witness, anti who was dead— that the testator was very old and infirm, and had nearly lost his sight. That the other subscribing witness came to the house of the testator on the day that the will was executed, and saw the testator and Logan up stairs, and was asked not to go away, as they would want him presently. That the witness was told the testator was making his will, and he heard Logan’s voice in a low tone, as if he was reading, but could not distinguish the words. That when the witness went up stairs, he was asked by the testator to attest a paper, which was already attested by Logan. It was not read over in the presence of the witness, neither was he informed by the testator that it was his will ", but the testator simply acknowledged his signature, and asked the witness to attest it. The band writing botli of Logan and the testator, and the sanity of the latter, were proved.</p> <p>It was objected, in the Court below, that the will was not properly proved, because the mental weakness of the supposed testator, and his loss of sight, had disabled him. from knowing whether the writing was his will, or not, and having to depend upon the witness for that Ipiow-]Pf]gft, j,e should be able to swear that (lie paper was read to the supposed testator, and also that it was truly and 1 fairly read.</p> <p>The presiding Judge instructed the Jury, that the law did not require proof that the will was read to the testator in the presence of the witnesses — that if the testator acknowledged the paper to be his will, and was in his senses, and the will was subscribed by the witnesses in his presence and at his request — in law it was properly executed. A verdict being returned in the affirmative, the caveators appealed.</p> <p>contended, that the Judge ought to have instructed the Jury, that if the testator was unable to read, at the time of the publication of the instrument, it should have been read, or the purport explained to him ; or that they should be satisfied from positive testimony, that he understood its contents, — He commented upon the act of 1784 ("Rev. c. 204) arid the Case of Longford v. Eyre (1 P. W. 740) as proof of the great solicitude of the Legislature and of the Courts, to guard testators against fraud arid imposition. He distinguished the case of a deed from the present, and argued that in executing a deed, the very nature of the transaction tended to put the grantor on his guard.</p> <p>cited Longchamp v. Fish (2 New. Rep. 415).</p>

From Orange. The Plaintiff sued out his writ in Jlssumpsit, for goods sold and delivered to the Defendant, on the 16th of May, 1828, returnable to the County Court. The amount of the Plaintiff’s claim was originally $114 85; but on the day the writ issued, the Defendant rendered an account against the Plaintiff for $85 70, which the Plaintiff instantly passed to the credit of the Defendant.

^•From Washing ton. Debt upon an administration bond, executed by the intestate of the Defendants, as the surety of one William B. Harramond, as administrator of one Benjamin Fes-senden. The breach assigned was, that Harramond had not paid a judgment, which the testator of the relator had obtained against both Fessenden and Harramond, in the lifetime of the former for $1350 50. After oyer, the Defendants pleaded, 1. Mon est factum testatoris. 2. Payment., 3. Set-off. 4.

I-From Orange. Dkbt upon a single bill made by the Defendants, and assigned to the Plaintiffs. The Defendants, among other defences, pleaded the act of 1788 (Rev. c. 284) avoid-¡rig securities given upon gaming contracts.

From Camden. This was an action of E jectment, tried before his Honor Judge Strange, on the Spring Circuit of 1827. The lessors of the Plaintiff claimed, as heirs at law of cue Sarah Burgess ; the Defendant, under a deed from the said Sarah, and Lemuel Burgess„ tier husband, to one Dempsey Sawyer ; and the only question was, whether that deed was acknowledged so as to bar the feme covert.

<p>A writ of error can be brought only by parties and privies. Hence, in Ejectment, the tenant, before he is made Defendant, cannot bring error.</p> <p>In Ejectment, judgments by default against the casual ejector are set aside, when the declaration has not been served on the tenant.</p> <p>A return of executed by the Sheriff on a declaration in Ejectment, is not sufficient foundation for a judgment by default against the casual ejector. Affidavit should be made of personal service on the tenant.</p> <p>When, a declaration in Ejectment is served, by leaving a copy at the house, or , with the servant of the tenant, judgment by default against the casual ejector, should not be entered, without a rule upon the tenant, to show cause why such service should not be sufficient.</p>

From Lincoln. .Ejectment upon the joint demise of Andrew Hoyle and the heirs at law of Mason Huson.

V-From Caswell.. Detinue for a female slave, Hannah and her four children.

From Surry. Assumpsit for the breach of an express promise.— The Defendant pleaded the general issue, and on the trial before his Honor Judge Daniee, the case was— that the Plaintiff’s testator was surety for one- William Chaffin, in a bond to one Dalton, for 700 dollars — that William Chaffin was dead, and the Defendant had taken out letters of administration upon his estate — that a suit had been commenced in the County Court on the bond, and the Plaintiff’s testator…

<p>There being in the act of 1715 (.Key. c. 10) no saving of the rights of persons under any incapacity, that act is a bar to the claim of an infant creditor of the decedent, preferred more than seven years after his death.</p> <p>The act of 1715 is a protection both to the executor and the heir, and the acts of 1784 and 1809 {Rev. c. 205 & 763) directing the surplus to be paid into the Treasury and to the University, do not affect the real assets, but apply only to the personal estate, and give a remedy to the creditors, &c. against the State and the University, without affecting the protection given to the executor by the act of 1715.</p> <p>Where a cause of action accrues against the estate of a deceden' after his death, when does the limitation prescribed by the act of 1715 begin to run, Qu ?</p> <p>The cases of M’Lellanv. Hill ( ConfqrenceRep. 479) and Jones v.Brodie, (3 Murph. 594,) held by Rvifxk J. to be contradictory, and the former approved.</p>

<p>This was a petition for a writ of Supersedeas. The petition set forth the fact that the petitioners had been sureties for one Cooke, in an appeal to this Court — that the judgment below had been affirmed, and judgment entered up against them — that execution issued, which was levied upon sundry slaves the property of Cooke, sufficient in value to satisfy it — that the Sheriff took a forthcoming bond for the delivery of the slaves at a day appointed for the sale of them — that Cooke, the Defendant in the execution, had forfeited that bond ; and that the Plaintiff in the execution had proceeded against thg property of the petitioners.</p>

J>From Johnston. These were rules obtained on the Defendant, to compel him to pay to the Plaintiffs certain monies received by him from the Sheriff of Johnston, on a writ of ven-ditioni exponas, sued out by the State Bank against Yeargain.

<p>From Mecklenburg.</p> <p>Upon a rule nisi against the Defendant, the Sheriff of Mecklenburg, to show cause why an amercement nisi, for not returning an execution in favor of the Plaintiff, should not he made absolute, the following facts were stated for the opinion of the Court; and it was agreed, that if the Plaintiff was entitled to all the money in the hands of the Defendant, the rule was to he made absolute —if otherwise, it was to be discharged.</p> <p>The Plaintiff had sued out a warrant against the administrator of oneMiller, who had pleaded plene administravit, which [ilea was by the Justice found lor the Defendant. An execution was issued by the Justice, which, in default of chattels, was levied on the lands which had descended to the heirs of Miller. A return thereof was made by the Constable to November term, 1826, of the County Court— writs of scire facias regularly issued to the heirs to show cause why tiie land should not be sold, and final judgments were obtained thereon at. tiie August term following, when the execution, upon which the amercement, nisi was obtained, came to tiie hands of the Defendant.</p> <p>At February session, 1827, of the same Court, verdicts were obtained by other.creditors of Miller against his administrator, establishing the amount of their debts ; but in those cases, the issue of fully administered was also found for the Defendant.</p> <p>Writs of scire facias also issued on these verdicts against the heirs oí Miller, and were regularly prosecuted to judgment, at the following May term — the term before the Plaintiff obtained his judgment against the heirs. On these judgments executions issued to the Defendant, under which the lands were sold.</p> <p>His Honor Judge Daniei, holding that the lands were bound from the levy of the Plaintiff’s execution, so as to give, him á preference over the other executions, made the rule absolute, and the Defendant appealed.</p>

From Martin. This was an action of Debt upon the official bond of the Defendant Griffin, as Sheriff of Martin. The breach assigned, was the non-payment by the Sheriff of the amount of an execution in favour of the relators, which be had collected from the executors of Jeremiah Slade. A verdict was returned for the Plaintiff, subject to the opinion of the presiding Judge upon the following facts: .

<p>l-From Craven.</p> <p>The Plaintiffs at November term, 1828, of Craven County Court, obtained a judgment against one Harvey. From the ensuing February term, a writ of fieri facias, purporting to be an alias, issued upon that judgment. Other judgments were entered up against Harvey at the same term, upon which original writs offi.fia. issued. Tiie Sheriff returned upon the execution of the Plaintiffs, and upon those which first issued from February term, that he had sold all the property of Harvey — that after satisfying other executions which were prior to that of the Plaintiffs, he had iu his hands a sum equal to the satisfaction of the latter, if it had a priority — and that he never had in his hands any other execution upon the judgment in favor of the Plaintiff, except the one ftoo vC“Hicn tioncd*</p> <p>A rule was obtained by the Plaintiffs upon the Defendant, the Sheriff, to show cause why the money in his hands should not be applied to the satisfaction of their execution. Upon the return of the rule, affidavits were filed on both sides, subject to all just exceptions. From them it appeared, that the Attorney of the Plaintiffs had agreed with Harvey, for a judgment at the return day of the writ of the Plaintiffs (November term, 1828) upon condition that execution should not go into the hands of the Sheriff until after February term following — that in pursuance of this agreement, the Attorney took out an -original execution returnable to February term, 1829, which he retained in his own possession until the return day, when an alias, the writ in question, issued, which was delivered to the Sheriff. It further appeared, that the object of this arrangement was to give to the Plaintiffs a priority, without subjecting Harvey to the costs of levying the execution.</p> <p>At the request of the parties, his Honor Judge Dosr-NEi.ii, pro forma, discharged the rule, and the Plaintiffs appealed.</p> <p>insisted, 1st. That an execution bearing the earliest teste, was entitled to be satisfied wholly, in preference to those of a junior teste; far this be cited Green v. Johnson (2 Hawks 309.)</p> <p>,2. That an alias fieri facias relates to, and binds the property of the Defendants from the teste of the original. (Brasfeld v. Whitaker, 4 Hawks 309.)</p> <p>3. That this efficacy of the alias writ, did not depend upon the fact that the original had ever been placed in the hands of the Sheriff. (Yarborough v. State Banks ante p. 25, Gilky v, Dickerson, 2 Hawks, 341, 3 do-293.)</p> <p>cited Kellogg v. Griffin (17 Johnson’s ^eP' 274)'</p>

From Frank,¡D Ejectment, in which both parties claimed under one Jeffries. The lessor of the Plaintiff produced a judgment in his favor against Jeffries, upon which an original writ offieri Jadas issued, tested, of the February term, 1820, of Nash County Court, which was returned, 41 stayed by the Plaintiff.” From the ensuing May term *.n alias writ issued, under which the land in question was sold to the lessor of the Plaintiff.

From New.flanover. Detinue for several slaves. The Defendant pleaded the general issue, and the statute of limitations, On the trial, the Plaintiff offered one Herring as a witness, who being sworn on his voir dire, deposed, that • u * ' he had married a granddaughter of the Plaintiff’s intestate — that botli the parents of his wife, as well as his wife herself were dead intestate.

From Randolph. Deet upon bond, originally commenced in the County Court, where the Plaintiff prevailed, and the Defendant appealed. After a verdict for tiie Plaintiff in the Superior Court, the Defendant moved in arrest of judgment, because the original writ was signed by the Plaintiff’s attorney, in the name of the Clerk of the County Court. His Honor Judge Norwood overruled the motion, and entered judgment according to the verdict, and the Defendant appealed.

From Lincoln. Assumpsit upon a special agreement. On the trial before his Honor Judge Daniei., the case was, that the Plaintiff, at January term, 1824, of Lincoln County Court, had obtained a judgment against one Cox — that the Defendant had, iri November preceding, bought Cox’s land at 500 dollars, and had agreed to discharge several executions which were levied upon it, and to pay the balance of the purchase money to such of Coat’s creditors as he, Cox, should direct.

<p>From Northampton.</p> <p>Assumpsit, upon an accountable receipt for sundry notes, dated in the year 1814. This suit was instituted in the year 1827. On the trial before his Honor Judge MaNGUm, is pon the issue under the plea of the, statute of limitations, the Plaintiff introduced a witness, who testified, that about two years before the trial, he heard a conversation between the Plaintiff and Defendant, in which the Defendant acknowledged, that lie had collected ail the claims mentioned in the receipt, except one ; hut alleged, that the Plaintiff’s testator was indebted to him; and that a settlement ought to have taken place between them, upon which there would be little if any thing due. The Plaintiff relied upon this, as a sufficient acknowledgment to take the case out of the statute. A verdict was rendered for the Plaintiff, subject to the opinion of the Court. The Judge being of opinion, that such declaration of Defendant was not sufficient to take the case out of the statute, set aside the verdict, and entered a judgment of nonsuit; from which the Plaintiff appealed.</p> <p>insisted, that a promise, made after an action is barred by the statute of limitations, does not revive tjie original debt, so as to enable the Plaintiff to declare upon the original promise. The de-clarafion mast be founded o» (he latter promise, the con-sidcration of which is the original debí. (Filtman v, Fos- ° v ter, 8 E. C. L. 67. Bell v. Morrison, 1 Fet. 3'1. Ban-forth v> Culber, 11 Johns. 146). The admission of the Defendant did not imply an acknow!e.dgment of an existing debt, nor a promise to pay.</p>

<p>From Haywood.</p> <p>- This was an action on the case for a malicious prosecution. The Defendant pleaded the general issuej and on the trial before his Honor Judge Daniei, the following facts were given in evidence.</p> <p>The Defendant had procured the Plaintiff to be arrested under a State’s warrant, for beating and harrass-ing the cattle of the Defendant, and driving them from their range on' his, the Defendant’s, land. While the Plaintiff was under arrest, the Defendant abused him very grossly, struck him, and spit in his face. Upon the examination, the. Plaintiff was discharged by the Magistrate. The Defendant.proved that the Plaintiff had beaten his cattle, and had driven them from their range on his, the Defendant’s, land.</p> <p>His Honor charged the Jury, that if the facts alleged by the Defendant were true, there was no probable cause for suing out the warrant — that if he did sue it out, and they were satisfied it was maliciously done, the Plaintiff was entitled to a verdict.</p> <p>The Jury found for the Plaintiff, and the Defendant appealed.</p>

<p>>From Surry.</p> <p>Trover, and after not guilty pleaded, the Jury returned the following special verdict: “ That the Plain- “ tiff was the owner of a judgment obtained before a roa- “ gistrate — that the Plaintiff and the Defendant played t( at a prohibited game, at which the Plaintiff staked the “ said judgment, which was Fairly won by the Defend- “ ant, and delivered to him by the Plaintiff — and that the “Defendant had received the amount of the judgment “ from the person against whom it was rendered.”</p> <p>His Honor Judge Daniel, on the Fall circuit of 1828, gave judgment for the Defendant, and the Plaintiff appealed.</p>

From Wake. The Plaintiff, in March, 1828, sued out a warrant against the Defendant, upon a judgment rendered against his intestate in May, 1821, and on which the lastren facias issued in September following.

From Montgomery. Detinue for a steam-engine. Plea Non detinet. On the trial before Norwood, Judge, a verdict was returned for the Plaintiff, subject to the opinion of the Court upon the following facts •; The Plaintiff claimed title to the engine, under a levy made by him as Sheriff of Montgomery, upon a fi.fa. against one Bosxvorth. The Defendant claimed under a sale made by a Constable upon an execution against the same person.

From Caswell. Debt upon a single bill executed by the Defendant as the surety of one John Campbell, payable to the Plaintiff.

From Chowan. Assumpsit, for the balance of an account due the Plaintiffs for an alleged ovcroherking, by the Defendant, of his account at the Eden ton office of the Plaintiffs.

From Cumberland. Df bt upon the official bond of Thomas Evans, Coro» ner of Cumberland County, to which the Defendant was surety. The writ was, “ to answer James Iredell, Governor and successor of Jesse Franklin, late Governor, who sues for the use, &c.” The bond was payable to “ Jesse Franklin, Governor, &c” and tbe condition was to be void “ if Thomas Evans shall well, truly and faithfully execute tbe office of Coroner.” There was no assignment of the bond to the relator.

j After the arrest of judgment in this cause (ante, val. 1, p. 153) the Clerk of this Court certified to the Clerk of the Court below, that the judgment of this Court was, “ that the judgment of the Superior Court of Rutherford “ be reversed, and that the judgment be arrested, and “ judgment against the relators for the costa of this Court Upon this certificate, the cause stood for several terms «pon the docket of Rutherford Court, and several rules were made in it.

From Guilford. This was an action of Covenant for* the breach of a covenant of quiet enjoyment, contained in a deed executed by the Defendant’s testator to the Plaintiff, the material parts of which are as follows: Have granted, J‘ bargained, &c. unto D. C. his heirs, &c. all that tract “ of land, situate, &o. the same being a tract purchased “ by John M* Gee from Hugh Smith, and by the said “ M’Gee willed to his daughter Jane, and by her bus- After the death of John…

From Camden. EjectmeNT, in which the lessor of the Plaintiff claimed title under a Sheriff’s deed, made upon her purchase of the. premises in dispute, at a sale, under an execution issued upon a judgment of the County Court in her favor against the Defendant.

Fl’otn Cumberland. Ejectment, in which the lessor of the Plaintiff claimed under the will of one Archibald McNeil. To entitle him to read the will, tiie lessor of the Plaintiff produced the following entry from the records of Cum* beriand County Court: “ Whereas the will of Archibald McNeil was offered t( for probate in this Court many years since, which was The Defendant objected, that this entry was not a probate of the will.

From D()pl.tu Ejectment tried on the last circuit, before his Honor Judge Strange.

<p>>From "Warren..</p> <p>This was an action of assumpsit, upon a promissory note of the intestate’s, payable to the Plaintiff, originally commenced in the County Court.</p> <p>At the return term, the Defendants, among other pleas pleaded, “ retainer, judgments outstanding against them, and also against their intestate — and as to the <s assets which have come to their hands which are un- “ protected by their former pleas, they plead fully ad- « ministered, except as to the sum of % 18,785 and with rt respect to that sum, that they have confessed assets to « that amount to other actions on claims of equal dignity “ with the Plaintiff’s, returnable, to the present term of « this Court and now depending.”</p> <p>No special replication was filed by the Plaintiff. After the cause was in the Superior Court, the following rule was made by consent:</p> <p>**•’Ordered, that the Clerk slate an account of the ad- « ministration of the Defendants,, showing the amount of “ assets, and how the same have been disbursed, con- “ fessed, or otherwise disposed of, specifying the time “ when such payments or other dispositions were made, 45 to whom and on what account, and that he state any “ question that may be desired by either of the parties, “ or on which he may doubt, for the opinion of the “ Court. It is farther ordered, that either ¡tarty be at “ liberty to except to the report of the said Clerk $ and it is agreed, that the account so taken shall bb received “ as evidence in the trial of the cause, on the plea of fully “administered.”</p> <p>The Clerk, in taking the account, rejected a judgment for g 409, and g 100 part of another, both of which were upon promissory notes of the intestate — and stated as his reasons, that the first was confessed upon a note which was not due at the time the writ was sued out,* and that the second was confessed for g 100 more than was due upon the note on which the action was brought. No exception had been taken to the report in either of these respects.</p> <p>On the trial of the cause before bis Honor Judge MarTIN, the Defendants claimed the benefit of both the judgments which the Clerk had rejected. For the Plaintiff it was insisted, that as no exception had been taken to these particulars of the report, it was too late for the Defendants now to object. The Counsel for the Defendants stated, that they did not wish to offer evidence to vary the state of facts reported by the Clerk, but only desired that the Court would re-examine the reasons of the Clerk, as stated by him, and insisted, upon the, face of the report, that both judgments should be allowed them in full. But, his Honor w as of opinion, that upon a proper construction of the rule of reference, an exception was necessary, not only to let in proof in opposition to the fa( ts reported, but also to enable the Court to reexamine any decision of the Clerk up,on the facts reported.</p> <p>The Defendants then offered to show debts of higher dignity than the Plaintiff’s claim, which, with the judgments confessed, as stated in the plea and allowed by the Clerk, would amount to the whole sum of j518,f85 of assets mentioned in the plea. But the Judge was of opinion, that the Defendants by their plea had admitted $i> 18,785 of assets, besides the judgments and debts of higher dignity, and had relied upon the confessions of judgments at that term for their protection as to that sum, and consequently, that the Plaintiff, by falsifying any of those judgments thus confessed, had shown assets to the amount of the judgments thus falsified, which were liable to his demand — and thereupon, the jury, under the directions of his Honor, found for the. Plaintiff.</p> <p>Another point was made in the Court below'. After the cause was in the Superior Court, the Defendants pleaded, “ that J. W. Hawkins liad sued out a writ “ against them, returnable at the same term with that of “ the Plaintiff’s, and since the. last continuance liad ob- “ tained judgment, &c.” To this the Plaintiff replied, mil fiel record. On this issue, his Honor pro forma gave judgment for the Plaintiff — and judgment being also rendered upon the verdict, the Defendants appealed.</p> <p>The point upon the plea since the last continuance was discussed, and the cases of Prince v. Nicholson (11Serg. & Low. 124) and Lyttleton v. Gross (10 jQUto, 93,) were’YeUed on for the Defendants, and fully discussed by the Counsel on the other side.</p>

From Hertford. This was an action of assumpsit fop money had and received by the Defendants, to the use of the Plaintiffs, commenced in… Held: that the Plaintiffs had no interest in the ferry, and gave judgment for the Defendants upon the verdict: from which the Plaintiffs appealed. that the exclusive right of keeping a ferry, is an incorporeal he-reditament annexed to an estate in land, which cannot |j0 exercised but by virtue of a grant from the sovereign., (Mar dr ess…

From Ber{ie Ejectment, tried on the Fall circuit of 1828, before bis Honor Judge Daniei. The only question in the Court below was, whether one Greenlee, under whom the Defendant claimed, had seven years possession, so as to perfect a defective paper title.

From Northampton. Tills was an action commenced by a warrant, which was sued out the 5th of June,. 1826. By a rule of the County Court, tiie Plaintiff had been permitted to sue in forma pauperis.

From Lincoln. EjectmeNT for a lot of ground in the town of Lin-colnton, tried on the Fall circuit of 1829, before his Honor Judge MartiN. The only question between the parties was, whether seventeen feet front was a part of lot number 3 in the plan of the town, to which the lessors of the Plaintiff had title, or of lot number 2, of which the Defendant was owner.

From Duplin. The Defendant was indicted for a forcible trespass.

j-From Hobeson. The Defendant, was indicted upon the act of 1791, (Tiet). c. 339) for biting off, on purpose, lite ear of one Duncan Mnnroe. On Ihc trial it appeared, that upon a quarrel between the Defendant and Mnnroe, the latter gave the former a blow, upon which the Defendant immediately threw him down and bit off his ear.

<p>From Wake.</p> <p>The record certified in this Court was as follows :</p> <p>“ Be it remembered, that heretofore, to-wit, at a Su- “ perior Court of Law, begun and held for the county of “Wake, at, &e. on the first Monday after the fourth a Monday of September, 1829 : present tiie Honorable il Wieeie P. MaNgum, Judge, W. R. H. Sheriff, and “ returns the venire facias to him directed, endorsed, &c. Upon balloting, the following persons are drawn to 61 serve as grand jurors, to-wit, William Peace, fore-a man, &c.</p> <p>4‘ A bill of indictment was preferred before onr said grand jury, against Elijah W. Kimbrough, which.js.ip 44 the following words and figures, to-wit: ' ■</p> <p>“ The Jurors for the State, upon their oath present, that Elijah W. Kimbrough, late, &c. not. having the fear, &c. but being moved, &c. on, See. in and upon one John Davis, in the peace, &.C. feloniously, wilfully, and of his malice aforethought, did make an assault, and that the said E. W. K. a certain rope about the neck of the said J. D. then and there feloniously, and wilfully, and of his malice atore, thought, did fix, tie and fasten, and that the said E. W. K- with the rope aforesaid, the said J. D. then and there feloniously, and wilfully, and of his malice aforethought, did drag, pull, choke, strangle, and dislocate the neck ; of which said dragging, pulling, choking, strangling, and dislocation of the neck, he, the said J. D. then and there instantly died. — And so the Jurors aforesaid, upon their oath aforesaid, do say, that the said E. W. K in, See. the said 3. D. in manner and form aforesaid feloniously, and wilfully, and of his malice aforethought, did kill and murder, against the peace, &c.</p> <p>And the Jurors aforesaid, upon their oath aforesaid, do further present, that the said E. W. K. with divers other persons, &c. afterwards -to wit, &c. not having the fear, Ike. in and upon the said J. O. in the peace, &e. feloniously, wilfully, and of their malice aforethought, did make an assault, and that the said E. IV. K. a certain rope about the neck of the said J. D. then and there feloniously, wilfully, and of his malice aforethought, did fix, tie and fasten ; and that the said E. W. K. by means of the said rope, the said J. D. then and there feloni-ously, wilfully, and of his malice aforethought, did drag, pull, choke and strangle ; and that the said E. W. K. with a certain drawn dag. ger, being part of a walking cane, &c. which he, the said E. W. K. in his right hand then and there bad and held, the said J. IJ. in and upon the forepart of the belly and divers other parts of the body of the said J. D. then and there feloniously, wilfully, and of his malice aforethought, did strike, thrust and penetrate, giving to the said J. D. then and there, with the dagger aforesaid, in and upon the aforesaid forepart of the belly and divers other parts of the body of the said J. JO. several mortal wounds of the breadth of one inch, and of the depth of six inches, as well of which pulling, dragging, choking & strangling, as also of the striking, thrusting and penetrating, &c. he, the said X D. from, &c. until, &c. did languish, &c. on which, See. the said X D. in, &c. of the pulling, dragging, choking and strangling, as well as of the mortal wound*, inflicted as aforesaid, died ; and that divers other persons, &c. And so the Jurors, &c. do further say, that the said E. TV K. and divers other persons, the said X. D. then and there in manner and form last aforesaid, feloniously, wilfully, and of their malice aforethought, did kill and murder, against the peace, &c.</p> <p>“ At Autumn term aforesaid of our said Court, the ie foregoing bill of indictment was returned into open ee Court, endorsed ‘ A true bill, fFm. Peace, foreman.”</p> <p>The record then set forth the arraignment of the prisoner, and his plea of not guilty — the continuance of the cause — the opening of the ensuing term-* — “ present the Honorable James Martin, Judge,” and the impanncl-ing of a jury — that at a quarter past eight, P. M. his Honor suggested, as the examination of the testimony could not be closed that night, the propriety of an adjournment — that the Attorney-General and the Counsel for the prisoner not being able to agree upon the time of an adjournment, the latter objected, and insisted that the trial should then proceed — but that his Honor, notwith» standing the objection of the prisoner, adjourned the trial until the next day.</p> <p>From the case attached to the record, it appeared, that two witnesses, Adolphus Davis and E%ra GiU,' were offered by the Attorney-General, and objected to by the Counsel for the prisoner, who, to sustain their objection, proved that Davis was a son of the deceased, and that Gill had married one of his daughters — that by a decree of the Supreme Court, made in a cause wherein the prisoner was Plaintiff, and the deceased and his wife Defendants CEquity Gases, vol. 1, p. 7"1) certain slaves were settled upon the prisoner for life, with a remainder, in case the prisoner should die without issue, to the children of the deceased — and further, that the prisoner was an unmarried man. To obviate this objection, the witnesses executed and delivered to tiie Clerk of the. Court, for )¡1C benefit of the other children of the deceased, a deed, whereby, “ in consideration of the love and affection which we have and bear unto the said, &c. (naming 0tber children) and for the further consideration of the sum of ten dollars, to us in hand paid, we have released, conveyed, assigned and quit claimed all our interest which we now have, or may, upon the happening of the contingency set forth in the said decree, hereafter have, in and to” the negroes, to the said children.</p> <p>The Counsel for the prisoner still objected, that the witnesses were incompetent, by reason of their interest ¡ but his Honor holding that the witnesses liad either divested themselves of all interest in the. event — or that they had done all in their power so to divest themselves, overruled the objection, and the witnesses were examined.</p> <p>One of the witnesses for the prosecution, in the course of his examination, stated that lie met a negro after night, and about the time the homicide was supposed to be committed. The Counsel for the prisoner proposed to examine him, as to the declarations of the negro made at that time. The Attorney-General objected to the question, and his Honor sustained the objection, because the declarations were apparently no part of the res gestae.</p> <p>The Attorney-Genera! then proved, that the prisoner wms in possession of sundry papers, and liad been served with the following notice :</p> <p>“ Wednesday morning, Oct. 7, 1829.</p> <p>“ You are notified to produce on your trial this day the following papers, [describing them] or I shall give parol evidence of their contents. “ R. M. S. Jlttorney-General.”</p> <p>Secondary evidence of the contents of the papers mentioned in the notice, was offered by the Attorney General. The Counsel for the prisoner objected to the sufficiency of the notice, because the. notice was to produce the papers on the 7th of October, 1829, and not generally, at the trial; and contended, that it was good only for the trial which was contemplated at the preceding term. But his Honor held the notice sufficient to authorize introiluction of secondary evidence, if the prisoner do-dined producing the originals. — The Counsel for the prisoner then objected to the secondary evidence, contending, that as the prisoner was not obliged to furnish evidence against himself, he was not- bound to produce the papers; and as the evidence offered was not the best, while the originals were in existence, it was not admissible. But bis Honor overruled the objection, and admitted the evidence.</p> <p>The prisoner was convicted, and judgment of death being pronounced and execution awarded, thepiisoner appealed.</p> <p>argued in this Court upon the motion for a newr trial, and also in arrest of judgment. Every point taken by them is distinctly mentioned in the opinion below.</p>

[•From Johnston. J The Defendant was indicted for passing a forged bill of fhe State Bank of Nortii-Caroiina. The indictment contained four counts. The first and third charged the Defendant with passing the bill ; the second and fourth with attempting to pass it.

From Craven, The prisoner was indicted in the Superior Court of Jones as follows: “ The jurors for the State upon their oath present, that Moses, a slave, &c. not having the fear, &c. but being moved and seduced, &c. on, &c. at, &c. with force and arms, at, &c. in and upon one Gabriel, a slave, &c. in the peace, Etc. feloniously, wilfully, and of his malice aforethought, did make an assault, and that he the said Moses, with a certain gun of the value, Etc. then and there…

From Wilkes. Tiie Defendant was indicted for Perjury. The suit in which the perjury was assigned, was set forth in the indictment as follows': that “ there was a suit came on to be tried before E. V. an acting Justice of the Peace “ for the county of Wilkes, by a warrant, wherein Wil-(i Us Alexander was Plaintiff, and Mam Grause Defend- “ ant, by which said warrant the said W. A„ claimed of “ the said A. C. among other things, the sum of twenty “ dollars for the sale and…

From Edgecomb. This was an 'action of assumpsit, in which the Plaintiff declared, 1st, on (he endorsement by the Defendant of a note made payable to him by one David Barnes. 3d, on the endorsement by the Defendant of a note payable to bearer. 3d, on a special guaranty of the Defendant, in consideration of money advanced by the Plaintiff to David Barnes, on the credit of the Defendant. 4th, on a promissory note of the Defendant payable to the Plaintiff. 5th, on a bill of…

From Craven- The Plaintiffs, together with other persons, and particularly'one Henry J], Jones, had obtained judgments at the same term of Craven County Court, establishing the amount of their debts against the administratrix oí John Harvey, and writs of scire facias were issued to the heirs of Harvey, one of whom was a minor, to show cause why executions should not issue against the lands of their ancestor.

From Franklin., Trover, for slaves, tried before his Honor Judge Martin. On the trial the Plaintiff introduced as a witness one JBawldns, who stated that he could not answer the question proposed, without subjecting himself to an action at the suit of the Plaintiffs, for the conversion of the same slaves, and on that ground claimed .the privilege of declining to answer the question.

<p>From Pitt*</p> <p>This was an action for the breach of a covenant of quiet enjoyment, contained in a deed from the intestate of the Defendants to James G. Sheppard, dated December 4th, 1817, whereby in consideration of g4,125, he had conveyed to the vendee the land from which the Plaintiff was'afterwards evicted. The plaintiff offered in evidence a deed from Sheppard to John Glasgow for the same land, and upon an equal consideration, dated December 20th, J817, and a deed from Glasgow to himself, in consideration of g>S,500, dated the 15th of February, 1825.</p> <p>Robert White and wife having a title to the land liad, on the 6th of January, 1816, conveyed it to one W. J. Stanton, who immediately re-conveyed to White, in mortgage, for the purpose of securing the purchase money, and afterwards sold to Beeman&emdash;on the 4th of April 1826, a declaration in ejectment, at the instance of White, was served on the Plaintiff, and on the 4th of August following, he was evicted under final ° . process in that suit.</p> <p>Upon the trial, the jury found specially, that if the measure of damages was the original purchase money paid the Defendant’s intestate by Sheppard, with interest thereon from the date of the deed, they assessed the Plaintiff’s damages to $6,383 79. If the same sum with interest from the service of the declaration, then they assessed the damages to $4,447 53. If the purchase money paid by the Plainliff to Glasgow, with interest from tho date of the deed, was the measure of damages, then they assessed them at $4.302. If interest was to betaken only from the service of the declaration in ejectment, they assessed the damages to $4,050. The jury also, upon both views of the case, viz : the Plaintiff’s right to recover the whole purchase money paid by Sheppard, & that paid by himself assessed damages contingently from the time of the eviction, and also they found the actual value of the land and the improvements at the time of .serving the declaration, and at the eviction.</p> <p>His Honor Judge Norwood, upon the verdict, rendered judgment for the Plaintiff for $4,475 55, being the purchase money paid by Sheppard to the Defendant’s intestate, with interest thereon from the service of White’s declaration; from which judgment the Defendant appealed.</p> <p>Cur. vuiT. adv.</p>

From Orange. This was an action of debt upon the official bond given by the Defendant Coble will) the Defendant Smith as his surety, with a condition for the performance of ios duty as constable, for the year commmencing May 1823.

From Moore. This was a scike pacías to obtain judgment against the Defendant, who w;as the surety of one Brooks, upon an appeal from the County to the Superior Court of Moore, from a judgment recovered against him by the Plaintiff.

<p>From Person.</p> <p>This was an action of assumpsit upon a written instrument in form of an indenture of apprenticeship It was signed by the Plaintiff and Defendant. Th« re was but one seal to the instrument, which was placed over the name of the Plaintiff, his signature being the first.— Upon the opening of the case, his Honor Judge Strange, thinking that an action of assumpsit could not he sustained on the instrument, nonsuited the Plaintiff, who appealed to this Court.</p> <p>cited Warner v. Lunch f5 John. Rep. 239) Jervis v. Lockwood (1 Washington 42). Austin v. Whitlock (1 Mum. 487). Ball v. Sinister-ville (4 Term Rep. 313).</p>

From „lad Ejectment, tried before his Honor Judge Martin, on the last circuit. Oi> the trial, no evidence was offered tending to prove title in the lessor Smith — the en-quiry being solely directed to the title of Gautier. After the case was committed to the jury, and they had retired, his Honor left the bench, upon an agreement of the Counsel thai die verdict might be taken by the Clerk.

From Mecklenburg. , Debt upon the single bond of the Defendant, executed to the Plaintiff, dated December 17, 1819. The only question was, whether the statute of limitations which was pleaded, was a bar. On this issue it was proved, that on the 6th of March, 1812, the Plaintiff had, by endorsement, assigned the bond to one Douglas,'who, on the 20th July, 1826, commenced suit against the Defendant.

From Rutherford Assumpsit «pon a special count, and for money bad and received by (he Defendant (o the use, of the Plaintiff. Plea JS/bn Assumpsit. Held: tlnst no action for the rent could be supported in the name of the Tre. surer. (Piggot v. Thompson 3B.Sp P. 147). It is a gu.eral principle, that a person having a beneficial interest in a contract, may bring an action in bis own name.

From Lenoir. Debt upon a bond executed by the Defendants to the Plaintiff, for the sum of 2500 dollars.

From Pasquotank( Debt upon the following bond : “ Whenever the Court “ of Pleas and Quarter Sessions for the county of Pas- “ quotank sliall require, we the undersigned jointly and « severally promise to pay to the Justices of said Court, “ or theh order, the sum of, &c. In witness whereof, (C we have,” &c. - The writ and declaration set forth the names of the Plaintiffs, twenty-one in number, and averred them to be the survivors of the Justices, who were in office at the…

<p>From Burke*</p> <p>This was an action of assumpsit, tried before his Honor Judgr Mangcm, on the last circuit. The pleas were, 1 sf, general issue ; 2d, statue of limitations ; and 3d, set off. A verdict wa« taken for the Plaintiff, subject to the opinion of the Coart upon the fallowing facts. One Alexander Potter had obtained a judgment against the Defendant, before a single magistrate, upon an account due him by the intestate. Being in great want of money, Potter applied to ihe Defendant for payment, but was told b\ him that payment could not then be made, and advised him to sell the judgment for cash. Upon this, Potter sold the judgment to the Plaintiff, who applied to the Defendant for payment, and received a small part of the amount dup — and was it,firmed by the Defendant, that he the Defendant was about going to the Souih for a few weeks, and if the Plaintiff would wait until bis return, the balance should be paid. The Plaintiff, relying upon this promise, waited until the Dtfendant’s return, who then refused to pay him, admitting that he had assets sufficient. His Honor, upon these facts, set the' judgment aside, and entered a nonsuit — and the Plaintiff appealed.</p>

<p>From Person.</p> <p>Trover for a slave, tried before his Honor Judge Strange. On the trial, the only question was, whether one Turner, a witness for the Plaintiff, was worthy of credit. Many witnesses were examined to impeach him, and particularly one Morton. The Plaintiff examined testimony to support Turner, and impeach Morton, who was in his turn supported by the Defendant, one of whose witnesses swore, that he, Morton, was a man of gaud reputation. The witness, on his cross-examination, was asked by the Plaintiff’s Counsel, if he had not heard. Morton charged with stealing a penknife. The question was objected to by the Defendant’s Counsel, hut admitted by his Honor. After a verdict for the Plaintiff, the Defendant appealed.</p> <p>cited Rex v. Watson (3 Ser, & Low. 289) 1 Starkie Ev. 147,^,348.-Bull. JV*. F. 296.</p>

From Washington. The Plaintiff liad sued out an attachment against the effects of one J. E. Burrell, a resident of New-York, and summoned the Defendant, a resident,of Washington County, as a garnishee. The summons was executed Nov. 12th, 1828.

From Robeson; This was an action of debt brought against the De* feudmt, who is the Clerk of the County Court of Robe* son, for the penalty imposed by the act of 1786 (Rev.c. s&&5) fop not setting up in some conspicuous part of tfi© Court bouse, an alphabetical list of the taxables, and for not ad' ertisiug the- list of insolvents returned to August term, 1820, of the County Court.

From Perquimons. Ejectment tried before his Honor Judge Nouwoon. The lessors of the Plaintiff claimed title as heirs at law of Josiah Sumner. The Defendant claimed under James Sumner, who was the heir at law and devisee of Seth Sumner.

F Biadem Ejectment tried on the last Spring circuit, before his Honor Judge Norwood.

From Rowan. This was an action of assumpsit upon the following •written agreement: “ The underst- nd-ng between Messrs. Thomas L. Cowan and Wil-c “ P S. The above st:pu!aduns, it is agreed), shall extend and enure “ to all executions now out and unsatisfied.” The Plaintiff averred that Messrs.

From Iredell. This was an action of assumpsit, in many respects similar to that of Cowan v. Davulson. (ante p. 533.) The Plaintiff declared for the breach of an express agreement by the Defendant, either to pay the amount of a judgment obtained by the Plaintiff against one McCulloch, or to surrender certain negroes of McCulloch, on which he, the Defendant, had a mortgage, and permit the Sheriff to sell them, in satisfaction of an execution on that judgment.

J Detinue for sundry slaves, to which the Defendant pleaded, 1st, Non detiaet; 2d, a release $ 3d, the statute of limitations. Issue was taken on the two first pleas, and to that of the statute of limitations, the Plaintiff replied a former suit and a nonsuit therein, and that the present action was commenced within a year and a day. On this replication, issue was taken by the Defendant.

From Person. Case, in which the Plaintiff declared, 1st, for a breach of duty by the Defendant, as the agent.of the Plaintiff $ $d, for a neglect of the Defendant in the discharge of his duty as a Constable; 3d, for a similar neglect in the discharge of his duty as a deputy Sheriff. The ¡¡leas were, not guilty, and accord and satisfaction. The jury found “ all the issues in favor of the Plaintiff.” And the Defendant appealed.

From Jones. Case, for seducing from the service of the Plaintiff two coloured boys, who were bound to him by tlie County Court of Jones.

From Stokes. Detinue for several slaves. The Defendant pleaded the general issue, and the cause was tried before hia Honor Judge Strange.

From Orange. The prisoner was indicted for the murder of her own child, and was tried before his Honor Judge Strange, On the trial, the master was offered by the prosecution, to prove the confessions of the prisoner. This was objected to by the master and by the prisoner; but the objection was overruled, and the witness examined. The prisoner was convicted, and appealed to this Court.

From Martin. This was a scire eacias, originally brought in the County Court, upon a recognizance entered into in that Court. The set. fa. set forth a recognizance entered into at December term, 1828, for the appearance of the Defendant Cherry at the ensuing March term. PJea — nut tiel record and issue. After a judgment in the County Court for the State, the case was transferred to the Superior Court by the appeal of the Defendants.

I-From Caswell. At the Spring term, 1827, of Caswell Superior Court, upon the usual affidavit, it was “ ordered by the « Court, that the said John W. Grant be committed to “ the custody of the Sheriff of this county, until he en- “ ters into recognizance in the sum of j§ 2,000, and two (l snreyes eac{, jn the sum of g 1,000, for his appearance « at the next term of this Court, then and there to an- “ swer, &c. and also to keep the peace towards,” &c. †|16 ensning term of…

From Surry. The, Defendant was indicted for passing, on the 26th day of November, 1826, as genuine,- with an intent to. defraud one J. C, a counterfeit note, purporting to have, been issued by the President and Directors of the Bank of the State of South-Carolina, knowing the same to be forged.

<p>An averment of the. time When an offence was committed is unnecessary, unless the time is a constituent part of the offence.</p> <p>Such an averment is frequently made, where offences committed after a certain specified day are made criminal ; or where the statute increases the punishment. But it seems that it is now in no case necessary.</p>

From Craven. The prisoner was indicted under the act of 180% f£ev. c. 618) as follows : « THE 'jurors, &c. that Donum, a slave, the property of E. S. 21. “ Tom, a slave, the proper y of S. F. (and six others) on, &c, at, “ Sec. unlawfully did arm the mselves with guns uid fire-arms, and beet ing so armed with guns and fire-arms as oforesa'-d, unlawfully did “ assemble and meet together, and being so unlawfully assembled, “ &e. did then and there feloniously and wickedly…