Volume 14 — North Carolina Reports

Ejectmkst, tried before his Honor Judge Mártir, uí Mecklenburg, on the last circuit, when the following facts were given in evidence. The lessor of the plaintiff purchased at a sale made by the Marshal, under a warrant of distress issued against Archibald Frexo. the husband of the defendant, by the Secretary of the Treasury. After the sale, Frexv continued in possession until his death j when dower in the premises was assigned to the defendant.

Ejectment, tried at Duplin on tlie last circuit, before his Honor Judge Strange. “ The lessor of the plaintiff claimed under an execu- “ tion sale against one James Pickett, the father of the “ defendant, who had previously made a deed of bar* “ gain and sale to the defendant for the same land— “ which deed the lessor of the plaintiff alleged to be frau- “ dulent.

EJECTMENT, in which both parties claimed iindeC Robert Wier.

TMs was an issue of devisavit vd non, as to tlie will of one Ricks Fort. On the 1st of July, 1828, the supposed testator applied. to bis counsel, Mr. Whitaker, to have his Will drafted, expressed great anxiety to die testate, declared that he should not live long, and gave particular directions as to the disposition of his property.

Assumpsit, and upon the general issue, the case was, that the plaintiff was sheriff of Wilkes, and received a writ at the instance of one Gilí, against one Shackelford, returnable to Iredell .Superior Court — that the plaintiff arrested Shackelford, and permitted Mm to go in search of hail; informing him that the writ would be left in the hands of the defendant, who was deputy sheriff, and to whom he, Shackelford, might give hail — and the plaintiff directed the defendant to…

Assumpsit for money had and received by the defendant, to the use of the plaintiff tried on the fall circuit of 1880, before his Honor Judge Strange. Upon non assumpsit pleaded, the case was, that the defendant had sold the plaintiff a tract of land, and had executed a bond to make a title at a future period. The plaintiff gave his promissory note to secure the purchase money, and made some partial payments.

EjectmeNt, tried before his. Honor Judge Strawge, on the fall circuit of 1830. On the trial, the lessor of the plaintiff claimed title tinder a deed from one James Veaaey to one William Jones,- and by other mesne conveyances to hihisclf. The defendant proved that William Jones was dead, and objected, that the deed from- Veaaey to him created only an estate for the life of the vendee.

This was a scire facéis under the act of 1806 (lien. The- defendant denied, upon affidavit, having any of the goods ox* estate of Joseph Wier in his possession, under any conveyance made by the latter to defraud his creditors.

Debt upon a single bond, executed by the defendants to James Mitchell and Alexander Cheek, and by them assigned to the plaintiff.

<p>Where evidence proper for one purpose was, by the counsel who introduced it, urged to the jury as proof of a fact to which. it is incompetent, and the counsel on the other side replied to.this argument, but moved for no specific instructions on this head from the bench, it was held, that the judge committed no error in not noticing it in his charge.</p> <p>A plat, made on an. order of survey in one cause, is not evidence on the trial of another between different parties.</p> <p>Actual possession of land consists in exercising1 that dominion over it, and ¡making thatpro-fit from it, of ■which it is susceptible in its natural situation.</p> <p>But these- acts must be characteristic of ownership. If at long intervals,and con sistent with the acts of a trespasser, they are not. sufficient.</p>

<p>Assumpsit, in which the plaintiff declared for the sum of §253, due him as sheriff of the county of Washington, for commissions upon an execution, which came to his hands in favor of the defendant against one Ely.</p> <p>The defendant pleaded the general issue, and upon the trial, before his Honor Judge Daniei, a verdict was entered for the plaintiff, subject to the opinion of the court upon the following case.</p> <p>A fi.fa. upon the judgment, in favor of the defendant against Ely, first issued to one Garrett, then sheriff of Washington, who levied it upon the property of Ely, and shortly thereafter died, having appointed an executor. Upon the death of Garrett, the plaintiff was appointed his successor, and a writ of venditioni exponas issued to him, directing him to sell the property levied upon by his predecessor. The plaintiff having this writ in his possession, demanded of Ely a bond for the forthcoming of the property levied on by Garrett. This bom! My refused to give, aud insisted that the writ was improperly issued to the plaintiff, and that the duty of col-lectinu the money due upon the judgment, on the death of Garrett, devolved upon lus executor. Upon the plaintiff’s threatening to seize the property, Ely complied with the demand and gave the bond. The plaintiff neither levied the execution, nor collected the amount of it. He however advertised the property for sale, which was prevented by an injunction obtained by Ely, pending which, the defendant received his debt directly from Ely. Upon these facts, his Honor sot the verdict aside, and entered a nonsuit, and the plaintiff appealed.</p>

<p>,4 special administrator, in an action by the general administrator, may show, that property which he received and inventoried, as belonging to the intestate, is in fact the property of a lunatic, of whom the special administrator was appointed guardian after the repeal of his. letters of administration.</p> <p>Estoppels which arise from the mei!e act, °J a which a conclu-fon law IS U1" favored,</p> <p>a¿^nt'oi’blT ee, cannot dis-Ppte the title of his landlord or bailor, without sulTendering'th« foundedinaprin-d^snot*" permit possestion of the faith ^saeguhed^</p> <p>But if, possession under bailee is by act with1 an Vofíice the duties of’ bim^to ^dispute the title of his netted icTthe^-tie thus acquir-'vithout a breach of faith, retain the possession.</p>

Beet, upon tlie act of 1741 (Rev. c. 28) “ for restraining the taking of excessive usury.” The writ was in the usual form, but was tested “ the “ second Monday of September, in the 53d year of our “Independence, A. D. 182” and by a memorandum at the foot, was stated to have issued tlie 12th day of September, 1828.

Trespass, against the defendant, for seizing a quantity of salt, the property of the plaintiff.

This was a special action on the case tried before his Honor Judge Swain, atllandolph, on the last circuit. The plaintiffdeclaredagoinsttho defendant, as sheriff, in two counts ; first, in neglecting to execute a writ of capias ail respondendum, sued out by the plaintiff in 1824, against one Shubal Gardner ; and second, for making a false return to the writ.

This was an action on the case, in which the plaintiff declared in two counts ; 1st, for slanderous words, in accusing the plaintiff of stealing sheep ; 2d, for maliciously prosecuting the plaintiff for stealing sheep. The defendant pleaded not guilty, and the statute of ^imitations. The cause was tried before his Honor Judge SwaiN, at Guilford, on the last circuit.

<p>Sureties for the prosecution of a suit, are hound for the costs accruing’ before, as well as after the execution of the bond.</p>

Assumpsit, upon an express contract by the defendant, to receive a quantity of pork from the plaintiff, and to pay the stipulated price in good promissory notes. Plea — non assumpsit. The plaintiff having made out his case, the defendant proved, that after the delivery of the pork, he offered to pay the price in notes, which the plaintiff refused, insisting upon having some cash with them.

<p>Altliougli by tlie acts of 1715 and 1777 (Rev. c. 6, 8c 114) the beds of livers and creeks are not subject to entry, yet where the rive» or creek is not navigable, in the' ordinary meaning of the term, the owners of the banks have a several fishery oppdsite their land, to the middle of the'stream.</p> <p>The ebb. and-flow of the tide is not a proper criterion to determine whether a river of this state is naviga* We.</p> <p>It seems, tha£-a fishery in a ri-i ver which is not affected by the ebb and flow of the tide, but which is in fact navigable, belongs to the riparian proprietor.</p>

Assumpsit, upon a special contract, tried before Martin, Judge, at Nash, on the spring circuit of 1830.

After the new trial granted in this case (ante 2 vol. 415) it was tried again at Lincoln, on the last circuit, before, his Honor Judge Martin. The lessors of the plaintiff claimed title, 1st, under a grant to James Dickson, dated in 1785. 2d, By a deed of bargain and sale, dated in 1791, front Dickson to Wallace Alexander, for lot number S, in the town of Lincolnton, which had been laid off on the land covered by the grant to Dickson.

This was a warrant upon the following instrument; u On or against the 1st of March 1829,1 promise to u pay John Mingus forty two dollars seventy-five cents, Upon the trial before his Honor Judge Mabtin, at Macon, on the last circuit, the defendant relied upon the plea of tender, and proved that the 1st of March 1829-was Sunday — that on thé Friday’preeeding, he gave the plaintiff notice to attend on the next day at the plantation of the defendant — that the plaintiff refused…

<p>ÍÁ an action by an administrator, for an injury done to bis intestate* after a plea in bar, the defendant cannot impeach the grant of administration.</p> <p>Where an administrator seeks to revive a suit commenced by his intestate, the defendant may,' by motion, put the administration in issue.</p> <p>It cannot limy-ever,be impeach, ed as a ground of nonsuit at the trial.</p> <p>But where the defendant claims title by a grant of administration, previous to that of the plaintiff, or relies or his possession. against the first administrator.lie geiferal1"1 issue,1C prove the first nistration *because this is in plaintiff’s title,</p>

Ejectment, in which the lessor of the plaintiff claimed as purchaser at a sheriff’s sale, under an execution against JohnMcLelland, for a default in the discharge of his duty in the oiflee of sheriff of Cabarrus, which he resigned in April, 1823. The defendant claimed title under a deed from the same John McLelland, who was his father, executed in July, 1823. There was contradictory evidence as to the consideration, upon'which the deed to the defendant had been executed.

Debt on a bond, executed by one John Sutton, as ■principal, and the defendant as surety.

Debt, upon a penal bond, executed by tbs defendants,' as sureties for one John McRae, sheriff of Cumberland, tried before bis Honor Judge Norwood, in that county? on the spring circuit of 1830, The only, plea relied on by the defendants - was that of a former recovery — and a verdict was taken for the plaintiff, subject to the opinion of the court on the following case: 1 ' • The bond was for ¿£5,000, payable to u Iris Excellency John Branch, Esquire, Governor, &c.” but…

Assumpsit, tried before Norwood, Judge, at Chowan, on the last fall circuit.

Debt, upon an administration bond, executed by the defendant’s testatoi*, upon a grant to him of administration upon the estate of Jonathan Dalton. The bond was in the usual form, and after oyer., the defendants pleaded non infregerunt conventionem — -md perform’are. On the last circuit, at Surry, the case was submitred, to his Honor Judge Martin, upon the following facts, in the form of a case agreed.

Ejectment, and after not guilty pleaded, the cause was referred to arbitrators, who made the following award: “ We, the undersigned, to whom was referred the The lessors of the plaintiff excepted to this award : 1st. Because it did not set forth the parties to the suit, they being Ben on the demise of James McK. Oneal and others v. John E. Butler. 2d. Because the award did not conform to the submission, or the rule of reference, 3d. Because the award was Void for uncertainty.

The defendant Bass was arrested upon a ca. sa. and gave bond under the act of 1822 {Tuylor’s Rev. c. 1131) for his appearance at the August term, 1829, of Nash County Court. At that term, the following entry was made in the cause : “ Continued, upon cause shown by the defendant.” At the ensuing- term, upon a default by Bass, judgment was rendered «gainst the defendant and his sureties “ now as of the last termfrom which the defendants appealed.

The plaintiff sued out an attachment-in the County Court against one Alexander Rea, and summoned as garnishee the defendant’s intestate; who stated in his affidavit, that he had no effects in his. hands belonging to 'Rea, hut that he had received of Rea several ai>-tidcr <■»? ■■ ,vperty, specifying them ami their value. hi duK-N.j-yr of x debt due to himself.

Detinue, for a negro, tried on t he last circuit, at New-Hanover, before his Honor Judge Daniex.. The plaintiff’s claimed title as follows : The slave in dispute had belonged to one James Saltar, who had died intestate ; and administration upon his estate had been committed to one Locke', David J. Melvin, who married a. daughter of Saltar, had mortgaged the whole of his interest in the estate of Saltar to the plaintiffs.

.Debt, upon three-judgments entered up against the defendant) as the administrator of William W. Chaffin, The writ demanded 282 -10, which the-defendant owe» and detains, See.” Upon nil debet pleaded, a verdict was taken for the plaintiff, for g 125 75 principal, besides damages — subject to the opinion of the presiding judge upon the following facts: The plaintiffs commenced actions upon three several bonds against the defendant, as the adminisra-for of William W, Chaffin,…

<p>To let in secondary evidence, the best evidence of the loss of the oiv ginal document, that the nature of the case admits of, must bo produced.</p>

EjectmeNT, tried on the last circuit,, at Rocking-ham,- before Swaiít, Judge. The lessor of the plaintiff claimed title under a judgment against the defendant, Zuchariah, obtained in 1825, and produced a ’sheriff’s deed for the premises in dispute.

Ejectment, tried at the last circuit, at Rowan, ber fore his Honor Judge Swain. The lessors of the plaintiff claimed as heirs at law of Mary Brinegar ; the defendant lindera deed of bargain and sale from the same Mary Brinegar, which purported to have been executed by her under the name of Mary Jacks, jointly with a second husband, Richard Jacks; and the only question was as to the validity of this deed.

AssuMrsrf, tried'before Ms Honor Judge Danieu,. a-t Franklin, on the last fall circuit. The plaintiff declared in two counts : 1st, or;-a special contract, and 2d, lor money paid to the use of the defendant. Pleas — general issue, and the act of .1826 {pamphlet c. 10) requiring a special promise to answer the debt or default of another to be in writing, in order to' charge the defendant therewith.

The defendant, was convicted, on the last circuit, at Buncombe, before Martin, Judge, upon an indictment for perjury. A motion for a new trial was made in the-court below, but as that motion ivas not pressed in this court, it is unnecessary to state the case-sent np with the record.

The defendant was indicted under the act of 1801, (Rev. c. 581) to prevent excessive gaming, in the following words : u The jurors, &c. that William Hix, on u &c. being a keeper of a house-of entertainment, unlawfully did permit and suffer certain persons to play in said house an unlawful game, &c. against the form “ of the statute, &c.” On the fall circuit of 1830, at Montgomery, before MaetiN, Judge, the jury returned the following special verdict: “ that certain persons…

The defendant was indicted for petit larceny, at Jones, on the spring circuit of 1828. After not guilty pleaded, the cause was removed, upon the affidavit of the defendant, to Lenoir, and was there tried on the last fall circuit, before his Honor Judge Donnexx.

<p>In the'actof 1801 {Rev. c. 572) to prescribe tile punishment forforgei’3 , the words “ shall show forth in evidence any forged deed,” &c. are confined to the exhibition of it as evidence upon a judicial proceeding, and are not equivalent to the words “ utter and publish” in. the statutes against counterfeiting.</p> <p>The forging' delivery ^of goods is within the act.</p> <p>p02¡eLiM™ofa forged order in pl.e^cd diher have forged befórgvd/un-t'd the contrary aPpear'</p>

<p>An assignment made by an insolvent of all his estate, whereby some of his creditors are preferred, with a stipulation that the property shall remain in his possession, until a sale should be directed by a majority of the creditors named in Hie deed, is not in law fraudulent upon its face, so as to authorize the court to pronounce it void ; but its validity must be submitted to a jury upon proof of the actual fraudulent intent.</p> <p>Where a deed of trust was duly proved, but by reason of the death of the register was not registered within six months, but was registered as soon as a successor was appointed, it was held, Ruffiit, J. dissert* tiente, that the deed was available, as if duly registered.</p> <p>^ Assignments’ m£4e Insf1-a preference is ^ c°"^_ tors, are not ^“yf and were the question res pe^declared1'1 fraudulent,</p> <p>JPer Ham, J. Registration being required bylaw for tlie public benefit, & registers being officers ofthe public, if such officers are not provided, or if by their neglect a deed be not registered within the time prescribed, it is available without registration.</p> <p>■Peris.ymmj. signment of his oneP<£bt t<fano-dier? andaltho' prcfeéncímay be dclay a such^elay "was not the intent of the debtor, tlte deed is valid.</p> <p>An assignment, purpose ofpay-witu^an express result, asao-nor* is not on that account ^f^entupon</p> <p>from which the jury may infer a fraudulent intent. ' But if the more*S'vakabieS than the debts circuinstance &</p> <p>Per Eotfiíi, J. An act required by law is not considered as performed, altho’ the p erformance was prevented by the act of God. Hence, where a deed was not duly registered by reason of the death of the register, it passed no title to the vendee.</p> <p>The case of ■Jtidky v. McQe-hte f uatt 2 ml. 40) doubted by Hums', J.</p>

This was an action of trespass, for seizing and taking away sundry articles of personal property, tried before his Honor Judge Norwoob, at Guilford, on the last circuit. The defendant pleaded not guilty and a special justification under process against one Kirkman,. and on the trial the case was, that Levin Kirkman, jun. was indebted to John Kirkman and James Hendricks, in the sum of $600 ; and in part satisfaction thereof, conveyed to them his land at the price of $ 550.

<p>Trespass, for suing out an execution, and soiling the property of the defendant, under process upon a judgment of the County Court which had been set aside.</p> <p>Plea, not guilty, and a special justification under final process'.</p> <p>Upon the trial before his Honor Judge Strange, at Lenoir, on the last spring circuit, a verdict was entered for the plaintiff subject to the opinion of the court, upon the following case.</p> <p>At the April sessions, 1827", of Lenoir County Court, a writ was returned at the instance of John Tull to the use of the defendant, Jlskew, against the plaintiff and two others. The return was, “ executed on all but Bender.” An appearance was entered, and pleas filed for those taken, and an alias ordered as to the plaintiff. At January term, 1828, a, nolle prosequi was entered as to all but Bender, and a judgment final by default entered up against him — upon which a fi. fa. issued returnable to the ensuing April term; which was levied upon his property. And afterwards the same property was sold under a venditioni exponas, returnable to July term, 1829 ; at that time it was ordered, “that the judgment and execution against Bender be set u aside, it not appearing to the court that said Bender “ had been served with process.”</p> <p>Upon these facts, his Honor set the verdict aside, and entered a nonsuit, from which the plaintiff appealed.</p>

Trespass q,uare ciausum ere git, originally, commenced by the plaintiff, McPherson, and one Samuel Proc-. lor ;■ but upon the death of the latter, .revived by Ms heirs at lawn Upon liberum tenementnm pleaded by the defendant; the cause was tried at' Cates, on the-last circuit, before his Honor Judge Mártir, when the plaintiffs produced 1st.' A grant to one John Fontaine, for 6000 acres of' land. 2d. A deed from one Morris to the plaintiff) McPherson, dated in 1818, calling…

<p>Ño matter can be pleaded in discharge of the liability of bail, except the death or surrender of thcprincipal.</p> <p>If it is unlawful for the principal to come into the state, or if he is imprisoned abroad for a criminal offence, the court will in its discretion relieve the bail.</p> <p>But no relief will be given, where the baili§ imprisoned abroad for debt.</p> <p>A plea of the death ofthe principal cannot be received in this court, because it has no jury to ascertain its truth.</p>

■ Ejectment, submitted at Franklin, on the last spring circuit, to his Honor Judge Norwood, on the following facts : A judgment was obtained in Bertie County Court against one William J. Jfewbern, at August term 1828, upon which a fi. fa. was made out, tested of that term, but by an agreement between the parties, not delivered to the sheriff.

Detinue for a slave, tried before his Honor Judge Martin, at Mecklenburg,, on the-last spring circuit.

After the new trial granted in this case, (ante Sdvol, 120) it was tried again at Buncombe, ontíic fall circuit of 1830, before his Honor Judge Mangum.

This was an action of trespass, for faking from the possession of the plaintiff two negroes, David and Charlotte. Plea, not guilty, and a special justification under final process to the defendant, the sheriff of Pitt, against the property of one Peyton II. Tunstal.

This was an action for the breach of a covenant of quiet enjoyment, tried before his Honor Judge Norwood, at Pitt, on the last spring circuit.

Debt, upon the statute prescribing the rules to be observed in solemnizing the rites of matrimony.

<p>The treaty of 1782 between the united States and the Netherlands provides, that the subjects of either party may dispose of their effects by testament, and that their heirs shall receive such succession ub intestate, although not naturalized. It was held, that the word effects includes real as well as personal estate.</p> <p>An alien ( hold lands agí the soverejs until his estat divested by inquisition ¡ certaining his lienage.</p> <p>The sovereign cannot seize lands, and prove the alienage in pais upon the trial of an ejectment. It can be proved only by an office found. So in cases of forfeiture for felony, the record of the attainder of the tenant must be produced.</p> <p>The native born child of an alien succeeds asheir, where the estate of the ancestor has not been divested by an office found in his life time. An office found after -his death does not affect the estate of the heir.</p> <p>The law will ^ cast a» es-who cannot hold d s and for dus quest of office is not necessary to prevent an alien from succeeding1 t0 an estate'</p> <p>' CourtB cannot judicially notice countries are question must3 be determined by the executive,</p> <p>If th 1 ' b unable to take by reason °f any disqualification, which is not per-alienagef btíielHS next in’degree succeeds, topre-vent an escheat. But where the disability is per-soiicilj fis by fin attainder, the cannot.1 succeed^ but the estate will escheat.</p>

This was an action for the breach of a covenant of quiet enjoyment, in a deed from the testator of the defendant to the intestate of the plaintiff, conveying to the latter an estate for life in two hundred acres of land. The breach assigned was the eviction of the bargainee from ninety acres of the land by one Wingfield, under a better title than that of the bargainor.

This was au action of debt originally commenced by warrant upon a bond executed to Stephen Eure, as administrator of John Tillery, upon the sale of the personal property of the intestate. After the execution of the bond, Stephen Eure died intestate, and administration de bonis non upon the estate of Tillery was then committed to the plaintiff*.

Trespass qtjare ceausum eregit, tried on the last circuit, at Wayne, before his Honor Judge DowNEEE.

'This was an action of assumpsit, tried before Martin, Judge, at Gates, on the last circuit. The question arose upon the plea of nc nnques executor. The facts were, that Thomas Riddick died intestate, and letters of administration on his ostate issued to the defendant, before the commencement of this action.

Debt upon a single bond ; and on the trial before his Honor Judge Martin, at Camden, on the last circuit, the only question was upon the plea of munques executor.

<p>Yfhere an opportunity of appealing has been lost by the neglect of an officer of the law, the contrivance of the opposite party, or improper conduct in the inferior court, a certiorari will be granted without reference to the merits.</p> <p>The cases of Chambers v. Smith, (1 Hay, 366,) McMillan v. Smith, (0 Laxo Rep.75,) Davis v. Marshall, (2 JJawhs 59,) Staler, Williams, (2 JIaxoks 100,) and Estés v. llair-slon, (ante, 1 Vol. 354,). approved by Rums', Judge.</p> <p>If an appeal neglect 'of the applicant or of not be granted.</p> <p>It is otherwise where it is lost tal tnabihty^of the applicant to fheappeSty °l</p> <p>Bpt in such case it is not granted, when applied for mere ly to delay the other party,or to avoid a decision on the merits.</p> <p>And the applicant will also be laid under terms not to avail himself of a technical advantage, arising fróm a mere informality</p>

<p>This was an action of debt, brought upon the defendant’s indorsement of a single bond made by Asa and' Isaiah Roger son, for $500, payable to the defendant; and on nil debet pleaded, the cause was tried before Martin, Judge, at Pasquotank, on the last circuit, when the case was, that Asa Bogerson had drawn a bill upon' Garrison and Ford, of Norfolk, for glOOO, payable to the plaintiff who indorsed it to the defendant, by whom it was indorsed to the office of the Bank of the United States at Norfolk. At its maturity this bill was protested, and the drawer and acceptor having become insolvent, the plaintiff took it up. One witness stated, that the bond which the defendant had indorsed, and on which the suit ■ was brought, was executed for the benefit and accommodation of the plaintiff, to enable him to receive its amount from the bank, and when received it was to be applied to the-payment of one half of the bill of exchange; and a letter' of the plaintiff was .produced by the defendant, in which he said, “ I have paid an indorsement of yours for glOOO, “ I have agreed to waive it for half, $500, at sixty days “ for Asa Roger son’s note, with your indorsement.”</p> <p>His Honor charged the jury, that the plaintiff as the first indorser of the bill was liable for the whole amount of it, and if the bond in question was made and indorsed for his accommodation in order to raise funds for its payment, he could not recover on the indorsement.</p> <p>A verdict was returned for the defendant, and the plaintiff appealed.</p>

This was an action of debt upon a bond executed by the defendant to David Barnes, and by him assigned to. Sherwood Haywood, the first administrator of J. G. Blount. Upon the death of Sherwood Haywood, administration de bonis non upon the estate of Blount issued to the plaintiff. The cause was defended upon the ground, that the bond was overdue when assigned, and that the defendant had a set-off against Barnes, to a greater amount.

Debt,, upon a single bond, executed by one Pinkit,' with the defendant as surety.- Plea — payment, on which it was tried before S waín, Judge, at Martin, on the last circuit, The defendant proved, that the plaintiff came to the house of Pinkit, and purchased from him a negro for $550, from which was to he deducted the amount of,the bond, and the residuo to be applied to other debts due the plaintiff — that the hoy was not then delivered, and «that the sale was to ho…

Debt upon the following bond of the defendant’s in-testate : “ One day after date, I promise to pay J, W. P. the just sum of nine hundred and eighty seven dol-il lavs fifty seven cents, for value received. Witness my i! hand and seal, this 11th November, 1821.” Plea — non est factum, upon which the cause was tried •before Swaist, Judge, at Wake, on the last circuit.

Ejectment for a lot of ground in Elizabeth, tried on-the last circuit, at Pasquotank, before Ills Honor Judge Martinv The plaintiff proved, that the defendant had admitted that William T. Muse and John Mulleniisiá bought the lot for him, and that he was to have it when.he paid the purchase money — that he had complied with this .engagement, and claimed the lot as his property, The plaintiff then introduced the record of a suit in equity against John B• Blount, the executor…

This was an action commenced by a warrant, wherein the plaintiff sought to recover live dollars for the season of a mare belonging to the defendant, to the horse of his, testator.

This was a scire pacías against tlie defendant, as the bail of one Newton. The sci. fa. recited that the original writ against Newton had issued to the defendant as sheriff of Buncombe, who executed it, but took ho bail bond.

This was a scire facias, reciting that the plaintiff obtained a judgment against Isaac Dalton, administrator of Jonathan Dalton, upon which a fi.fa. had issued, which was returned nulla bona ; and it ivas suggested that assets of the said Jonathan had come to the hands of the said Isaac, and had been by him wasted. After the return of this writ the death of Isaac ivas suggested, and process issued to revive the suit against the defendant, his executor.

Assumpsit for money paid to the use of the defendant, tried before his Honor Judge Daniel, at Cumberland, on the last spring circuit- On the trial, upon non assump-sit pleaded, the case was as follows: The plaintiff was the surety of the defendant’s intestate'and of one William Hodges, upon a bond payable to one McArthur ; before the bond became due the principal debtors died, and the plaintiff administered upon the estate of William Hodges, and the defendant upon that of…

The plaintiff declared as follows: “ And the said Muer complains &c. that heretofore- “ &c. they the said JVoodhouse and Saly.ear together with “ other persons &c. did conspire, combine, confederate “ and agree to accuse and charge the said Mner, together “ with J. P. and W. G. of a conspiracy, to cheat and “ defraud the said William Woodhouse of one half of a “ vessel,- called &c. and to give and procure evidence a- “ §a*ns^ sa'^ •ftbveT, J, P. and W. G. sufficient to con-…

This was an action of assumpsit, tried at Granville, on the last circuit, before Norwood, Judge. Pleas — general issue .and the statute of limitations. The plaintiff excepted to the charge of the judge upon the plea of the statute of limitations. The jury returned the following verdict: “ that the defendant’s testator did not assume.” Upon this verdict judgment was rendered for the defendant, from which the plaintiff appealed.

After the new trial granted in this cause (ante 2 vol. 4'0f) it came on to be tried again before bis Honor Judge Daniel, at Burke, on tbe last circuit; when the only question was, as before, whether Greenlee, under whom the defendant claimed, had a seven years possession, so as to perfect a paper title originally defective.

Ejectment tried before Strange, Judge, at Anson, on the last circuit.

Detinue for a slave, tried on the last circuit, before his Honor, Judge Norwood.

At August term, 1829, of Orange County Court, the plaintiffs obtained a judgment against Thomas Clancy and James Child for $9r9, and also against the same persons together with the defendant as their surety, for the sum of $3283. Writs of fi.fa. issued on each of these judgments, returnable to February terra, 18S0, which were levied upon the property of the principal debtors.

The plaintiff sued out in the County Court, an order for the processioning of five acres of land lying in Lincoln, adjoining the lands of the defendants, to which the processioner returned that he had run several lines, and had been forbidden by the defendants from' proceeding further with the survey.

This was a petition for partition. The demandant averred, that John Baird being seised of the land of which partition was sought, devised them to John ICerr and his wife Margaret, for their joint lives, with remainder to the issue of the wife — that the wife died leaving several children, and among them Margaret, the wife of the de-fondant Wagstaff — and that the demandant had purchased the interest of Wagstaff at an execution sale.

<p>Ejectment, tried on the spring circuit of 1830, before his Honor, Judge Norwood, at Cumberland.</p> <p>The plaintiff claimed title under a sheriff’s deed for the premises in dispute, dated June 2d, 1823, and reciting “ an execution” which issued from the County Court of New Hanover, against Peter Perry and Dominie Ca-aauajfor g662 90, and produced the record of a judgment against Perry and Gaaaux entered up in New Hanover County Court, at August term, 1819, and aJi fa. thére-on, tested the 2d Monday of August, 1820, and returnable the 2d Monday of November following, which was returned levied upon the land in question, on the 11th of November, 1820, as the property of Perry, subject to sundry prior levies,made under executions issuing from Cumberland County and Superior Courts, at the instance of the defendants. The plaintiff also produced a vemicioni exponas tested the 2d Monday of November, 1820, and returnable the 2d Monday of February, 1821, which recited the former levy, and upon which the sheriff returned that he had on the 9th of February, 1821, sol'd the land levied on under thefi.fa. to the lessor of the plaintiff.</p> <p>The defendants objected that these writs did not confer upon the sheriff a power of sale ; and to support the objection, produced the original venditioni exponas, and proved that it had never been sealed with the seal of New Hanover County Court, and urged 1st, that for this reason the writ, was a nullity, and 2d, that as the sale took place after the return of the ft-fa. it was made without any .authority in the sheriff, and consequently was inoperative. But his Honor overruled the objection, thinking that although the writ was not legally authenticated, yet if the sheriff thought proper to act under and recognize it, it warranted his subsequent sale.</p> <p>The plaintiff also offered in evidence several judgments and executions in favor of the defendants against Perry, and proved that they were in the sheriff’s hands at the time of the sale; and that the proceeds of the sale had been applied to their satisfaction ; but it appeared that the .agent of the defendants had directed the sheriff nofc to sell under these writs, although he had not withdrawn them, nor paid or tendered the sheriff bis fees. ■ ,</p> <p>The defendants claimed title from Perry under an assignment of a mortgage, prior in time to the lien of the execution under which the lessor of the plaintiff purchased. This was impeached as fraudulent ^ between the mortgagor and Perry, and a verdict being returned for the plaintiff, the defendant appealed.</p> <p>1st. That a seal was absolutely necessary to every writ, which issued to a sheriff of a county other than that in which the court was held, ( Act of 1797, Rev. c. 474, s. 5. Governor v. McRae, 3 Hawks 226 ).</p> <p>2d. He contended, that the rule laid down by the judge in the court below, in effect, gave the sheriff the power of deciding what was valid process and what was not; and of course, enabled him to determine the preference .to be given to one of two executions; whereas, his office was strictly executive.</p> <p>3d. That if tbe writ of venditioni exponas Vas inoperative for want of a seal, the prior/?, fa. which had been returned at the time of the sale did not authorize it. (Bar-den v. McICinnie, 4 Hatchs 279. Jlmyett v. Backhouse, 3 Mur. 63. Ellar v. May, 2 Hawks 568).</p> <p>1st. That the want of a seal did not invalidate the ven-ditioni exponas. If not scaled, the sheriff was excused from acting ; hut if he chose to act, a purchaser was not affected by the want of form. ( 1 Jirchb: Pr. 193, 324‘, Gill). Law of Evid. 40. Bull. JV‘. P. 234i Peake’s Evi. SO. Jackson v. Pratt, )0 Johns. Pep. 387. Crcsson v. Stout, 17 Id. 1! 6).</p> <p>2d. That a sheriff may sell land under a fi.fa. after its return, and without a venditioni exponas ; and they commented upon the case of Barden v. McKuinic, and endeavored to show that it stood upon its peculiar circumstances, and that it was inconsistent with the cases of fFhea-ioiiv. Saxton, (4 Wheat. 503). Toomer v. Purkey, ( l So. Car. Cons. Eep. 323). ' Tayloe v. Gaskins, (ante 1 vol. 295.)</p> <p>3d. That the plaintiff’s title was valid under the execution in favor of the defendants, and cited Haywood v. Hildreth, (9 Mass. Rep. 393). Prescott v. Wright, (6 Id. 20).</p>

<p>The acts of Assembly which direct the justices of the County Courts tp take bonds in certain cases, confer On them, as to such bonds, a cor- , porate character; and they may take a bond from one of their number to themselves.</p> <p>A bond payable to the justices of a county, which is not taken according to the directions of act authorizing it, may be supported as a valid bond at common law.</p> <p>But an action must be brought on if in the name of the surviving obligees,and not in that of the successors.</p> <p>And if one. of the obligees be a justice at its execution, it is void as to all.</p> <p>The case of Pearson v. Nes-hit, \ ante 1 vol. 31 ¿J approved by Rurnif, J.</p>

This was an action of debt upon a guardian bond. The bond was made payable to ff Willis Qtheriige, Jo-' ' sepjh Ferebee and the other justices of Currituck county.” uP°n °-icr ^a(^’ an(l nnn esi factum pleaded, it was proved that Dozier, one of the obligors, was at the execu--t[ori ()f tlie bond a justice of the peace. The action was brought in the name of those justices who were in office at its commencement.*

<p>Á bond payable to the justices of a> county, executed by several persons, one of whom is a justice of that county, is void as to all the ob-ligors.</p> <p>A personal incapacity of one obligor does not affect the validity of the bond as to the others; but it is otherwise where one of them is both obligor and ob-ligee.</p> <p>The case of JPearsmi v. JVes-bit, (ante 1 vol. 315.) approved by Rums, J.</p>

<p>Where an order of the County Court allowed a guardian to renew his bond with A and B, his sureties, and a bond not drawn according to the statute as an official bond, but good in its form as an obligation at common law, was sealed by A only and left with the clerk, it was held that a delivery could not be inferred, there being no evidence of an actual delivery.</p> <p>Per Hendee-sos-, c. J. A bond ^yable to Man and other íourt’’S&cf ism law payable to</p>

After the new trial granted in this case, ( ante 2 vot. 511) the cause was tried again on the last circuit, before his Honor, Judge Martin, at Pasquotank.

The defendant was indicted for retailing spirituous liquors by a less measure than a quart. On the trial, before his Honor Judge Strancíe, at Robeson, on thelast circuit, the charge of selling by the small measure being fully proved by the prosecution, it was contended for the defendant,- that the state must prove the want of a licence. But his Honor charged the jury, that it was incumbent on the defendant to show the existence of a licence.

<p>Where the plaintiff bailed a slave, and after the death of the bailee his executors continued in possession, it was held, per HeNderson, Chief-Justice, and Huí, Judge, that although the plaintiff mig-ht declare against the executors as executors, for a detention after the death of the testator, yet as the testator’s interest had determined, there was no proof to support the declaration. In the same case, held by Ruppiit, Judge, that detinue will not lie against an executor for a detention after the death of the testator.</p> <p>Although the netted18to° dispute the title of the bailor, yet if the latter by his own showing has nQne, he cannot recover.</p> <p>If any interest, however small, passes by a deed, -reates no es-</p>

Trespass vi et armis, tried before his Honor Judge Norwood, at Randolph, on the fall circuit of 1829. Upon the plea oí not guilty, the case was, that the plaintiff, as administrator of one William Coltraine, brought an action in the County Court of Randolph,, against one John Ramsour, on a bond made payable to his intestate, in which judgment was rendered in favor of Ramsour.

Ejectment, tried before his Honor Judge Martin, at Orange, on the spring circuit of 1829. Held: that the defendant could not by his denial of the title of the plaintiffs, and his claim of an absolute beneficial property in himself, alter the relation existing between him and the plaintiffs, arising from bis possession of the subject of the controversy.

The plaintiff had recovered a judgment in the Comity Court of Wayne, against one Slancil, upon which a ca. sa. issued. The defendant, under the act of 1822 (Rev. £. 1131,) became the surety of Standi for his appearance at’the County Court, for the purpose of taking the insolvent debtor’s oath. Standi made default, and a judgment was rendered on the bond against him and the defendant, for the amount of the debt.

The prisoner was tried on the last circuit, at Hyde, before his Honor Judge Martin, upon the following indictment: “ The jurors for the state, upon their oath present, that Martin, a “ slave, &c. not having, &c. but being moved, &c. on &c. with force “ arms at &c. in and upon one S. H. a white female, in the peace &c. “ violently and feloniously did make an assault, and her the said S. H- “ forcibly and against the will of her the said S. H. then and there “ did feloniously…

The defendants were convicted on the last fall circuit, at Lenoir, before his Honor Judge Doiseia, under the actof 1805, (JRev.c. 684,) to prevent vice and immorality.

<p>The defendant was indicted for murder. On the trial, at Burke, on the last circuit, before his Honor Judge BoNNEim, the state’s witnesses, at the request of the counsel for the prisoner, were separated. After the jury had retired and remained together all night, they returned into court and requested that some of the witnesses, who had been examined the day before, should be called again. The prisoner’s counsel objected, that the witnesses had had an opportunity of communicating with each other since their examination. But the presiding judge overruled the objection, and permitted the witnesses to be again called and examined by the jury, who were instructed, that they ought to give its due weight to the circumstance, that the witnesses had been together during the night. The jury returned a verdict of guilty, and judgment of death being pronounced, the defendant appealed.</p>

This was a scire eacias, reciting that the plaintiffs had recovered judgment in an action of detinue, brought by them against one John Holloway, for sundry slaves ; that pending the action two of the slaves came to the possesion of the defendant; and commanding him to show cause why he should not deliver the skid slaves to the plaintiffs.

This was a scire eacias against the defendant, which set forth that the plaintiff had. recovered certain negro slaves in an action of detinue against one Mark Cooke, and that pending the action, the said slaves had come into the possession of the defendant. On the fall circuit of 1831, at Wake, before his Honor Judge Swain, the following case agreed was submitted for the decision of the court.

<p>“Where the plaintiff and defendant claimed under two different grants, the junior of which called for the line of the elder, anda line of marked trees was found, corresponding in age with the junior grant, held, that this fact was not evidence of the boundary of the elder grant. '</p> <p>, A will cannot he offered m evidence for any a^certific-it^pf the probate,</p> <p>In no case is the declaration of the grantor admissible evidence for one claiming under him.</p> <p>Neither are the calls of a grant to him though of ancient date, evidence for those claiming under him.</p>

Detiwue for a slave, and on the trial at Halifax, on the Fall Circuit of 1831, before SwaiN, Judge, the case was, that the slave in dispute had been the property of the plaintiff’s husband, and was sold under an execution against his executor and bought by one Johnston, ■ who paid the purchase money, and to whom the sheriff returned he had sold.

Assumpsit for work and labor done by the plaintiff as the overseer of the defendant’s intestate, tried on the Spring Circuit of 1832, before Daniel Judge, at Northampton. Plea — Non assumpsit.

<p>Assumpsit commenced by a warrant, in which the plaintiff declared for work done by him upon a plantation of the defendant’s. On the trial, at Burke, on the Fall Circuit of 1831, before his Honor Judge Daniex, the case was, that the plantation upon which the work had been done, was, in the year 1819, demised by the defendant to the plaintiff by deed for three years ; in the lease which was executed by both parties, there was a stipulation on the part of the defendant, “ that for all the necessary rails made and put upon the fences, he (the plaintiff) is to be allowed 50 cents per hundred out of the rent.” After the expiration of the term, the parties came to a settlement, when the balance claimed by the plaintiff was found to be due him, which the defendant then promised to pay. At the same time, the lease having been deposited in the hands of a third person, an order for its delivery to the plaintiff was executed by the defendant.</p> <p>For the defendant it was objected, that the plaintiff had mistaken the form of action ; that covenant upon the lease should have been brought instead of the present action. The presiding judge overruling the objection, a verdict was returned for the plaintiff, and the defendant appealed.</p>

<p>A party is not bound to offer an incompetent witness in order that his adversary may waive the objection and cross-examine him.</p> <p>jPer Daniel, 3. An attesting- witness maybe asked his opinion of the testator’s sanity, but the same question to an.othe1’ witness, lsmvpiope1-</p> <p>AuatteSfng^itness is the wit-andmay^b^dis’ credited by any exa,n“</p>

<p>A general jurisdiction is not ousted, except by plain words or a necessary implication ; and notwithstanding' the act of 1828, c■ 9, giving’ a justied of the peace jurisdiction in cases where the debt and interest exceed one hundred dollars, and the act of 1826, c. 12, authorizing the courts to dismiss a suit for less, yet as there are no words in those acts ousting the jurisdiction of the Superior Courts, in cases of debt for one hundred dollars and interest, it remains.</p>

This suit was originally commenced before a justice of the peace; by a warrant sued out May 23d, 1831.

D ebt, upon the bond given by one Cook, upon his being appointed a constable. The breach assigned was, that Cook had failed to collect and account, to the relator, for a note put by the latter in his hands, made by one Jarvis.

This was an action of Debt, tried on the last Spring Circuit at Wake, where the plaintiff obtained a verdict, which was set aside, upon the payment of the costs of the term.

<p>In this case, the plaintiff, on the first day of Johnston Superior Court, went to the clerk’s office, paid the costs of the suit, and directed him to dismiss it, which was accordingly done. Afterwards, by the direction of Daniel, Judge, the entry was expunged, and the cause placed on the trial docket. The defendant, by leave of the court, appealed under the act of 1831, c. 34, allowing appeals from interlocutory orders.</p>

At the fall term, 1827, of Wake Superior Court, a judgment was entered up against the plaintiffs, at the instance of the Treasurer, for the amount of public tax due on the 1st of October of that year, by one Griffin, the sheriff of Martin. A rule was obtained by them upon the Attorney General, to set aside that judgment.

The defendant had been arrested, upon a ca. set. at the instance of the plaintiff, and on the last circuit, at Halifax, applied for a discharge, upon the ground, that he had been arrested at the suit of one Bullock, and had then taken the insolvent debtors oath, and surrendered his property. It was admitted that the debt of the plaintiff was due at the time of that surrender, and that he had no notice of the defendant’s intention to take the oath of insolvency.

A difference of opi nion having arisen between the Treasurer and the Bank of Newbern, as to the obligation of the bank to pay the tax of one per cent, upon share» w the bank held by the President and Directors of the literary fund ; the bank contending that the stock held by the latter, was, to all intents, stock held by the State, within the meaning of the eleventh section of the act of 1814, (Rev, c. 870): The question was submitted to Judge Norwood at Wake, on the last…

This was a petition for partition, which was submitted to !) antee.

<p>A cause between the parties had been tried in the County Court of Greene, where judgment was rendered for the plaintiff, and the defendant prayed an appeal, which was granted, and his sureties allowed. At the ensuing term of the Superior Court, before Martin, Judge, the plaintiff moved that the appeal be dismissed, because the appeal bond was not executed until after the term of the County Court at which it had been allowed. This fact being established, his Honor sustained the motion. The defendant then filed an affidavit, in which he swore that he was ignorant of the rule requiring the appeal bond to he executed during the term of the County Court; that he thought it sufficient if the appeal was allowed by the court, and that the bond might be executed at any time; that he had brought his sureties to the clerk during the term, hut finding him busy, he had, in consequence of his erroneous impression, requested them to attend after its expiration. The affidavit concluded with an averment of merits. His Honor upon these facts, awarded a certiorari, from which order the plaintiff appealed.</p>

Detinue, for a slave, tried on the last circuit, at Wayne, before D antee, Judge. Plea — JVbtt delineh A number of points were intended to be presented by the case certified with the record j none of which it is necessary to state, except the following: The plaintiff claimed the slave in dispute under a deed of gift from his father, Jirthur Jones sen. dated April 5th, 1827, which was not registered until February 20th, 1830.

Debt upon a bond, given by one W. B. Green, upon taking out letters of administration upon the estate of Benjamin W. Caswell, to which the defendant was surety. The breach assigned, was the non-payment by Green, of a judgment recovered against him by the relators, upon a note of his intestate. Plea — Performance.

Trespass q,uarb cuausum eregit. Plea — JVbi guilty, and liberum tenementurn. The plaintiff claimed under one Whitfield, to whose title the case stated several objections, which it is unnecessary to mention. Whitfield had been in possession for many years, and in January 1830. sold to the plaintiff, who took immediate possession, but no conveyance was stated in the case to have been made by Whitfield to him. The defendant offered no evidence of title in himself.

Debt upon a bond given by John T. Scott and Hugh McKenzie, upon taking out letters of administration upon the effects of one Samuel Knox. Plea — Mon est factum. On the trial, before Daniei, Judge, at Anson, on the last circuit, the plaintiff produced the bond, which turned out to be made payable to “ Thomas Threadgill, chairman, his executors, administrators, &c.” instead of “ his successors in office,” as prescribed by the act of 1791.

Ejectment, tried on the last Spring Circuit, at Rutherford, before DoNNEIR, Judge. The cause was originally commenced in Buncombe, and notices were served upon James M, Greenlee, Henry Anderson and Stephen Edwards, the tenants in possession? Greenlee alone entered into the consent rule, and was made defendant.

Trespass qjjare ceausum eregtt, and upon not guilty pleaded, on the trial before DaNIEE, Judge, at Warren, on the last Spring Circuit, the case was, that one Robert Ransom, in the year 1826, bought the premises in dispute of one Robert R. Johnson, from whom, he received an absolute deed, and to whom he gave the following memorandum, which was without a seal: “I “ Robert.

Assumpsit, upon a promissory note, given by the defendants, upon an exchange of vessels. Plea — General issue. On the trial at Washington, on the last circuit, before Donnexu. Judge, the defendants offered to prove, that the vessel which they received from the plaintiff was not sea-worthy; and it was insisted for them, that this evidence should be received, to reduce the amount which the plaintiff claimed.

<p>Sc tee facias, against the defendant, the sheriff of Onslow, as special bail of one James Eslick, who had been arrested and suffered by the defendant to go at large, without giving bail.</p> <p>The only question in the cause arose upon a plea puis darrein continuance, filed by the defendant, the substance of which was, that Eslick had surrendered himself in exoneration of the defendant as his bail, and had been committed to the public jail, where he remained until discharged under the insolvent debtors’ act, of all of which, the plaintiff had notice.</p> <p>On the trial, before MaetiN, Judge, on the last circuit, the plea was fully supported by the evidence, but it appeared, that at the time of the surrender and discharge of Eslick, the defendant was still sheriff of Onslow.</p> <p>The presiding judge informed the jury, that if they believed the defendant elected to hold Eslick in custody as sheriff after the arrest, and had notified the plaintiff thereof, that it was in law, a bar to the action.</p> <p>A verdict was returned for the defendant, and the plaintiff appealed.</p>

<p>A devise to two, but if “ either of them die, leaving- no issue, that the whole should go to the survivor,” is a good executory devise — and the devisees take as tenants in common in fee, with a contingent limitation to each of them, of an estate in severalty.</p> <p>An executory-devise in land is not destroyedby a sale under an execution against the first devisee.</p> <p>A sale of the es. tate of one ten. ant in coiomon under an execution against al], does not divest the estate of the others.</p> <p>An executory devisee has no right of entry Until the contingency happens upon which his estate vests.</p>

Trover. Plea — JVof guilty, and on the trial before Swain, Judge, at Rutherford, on the last circuit, the case was, that the plaintiff and the defendant Wasson were joint owners of a quantity of cotton ; that the defendant Hardin, by the directions of the defendant Was-Son, carried the cotton away and disposed of it in some place not known.

DetiNtje, for a slave, and upon the general issue pleaded, the cause was tried before Martiw, Judge, at Beaufort, on the last Spring Circuit. The si ¡ve in dispute, was formerly the property of one D»rms Campbell, and upon her marriage with one John Chapman, was, with the rest of her estate, conveyed to one William Worley, in trust for her sole and separate Use, with a power to dispose thereof by any writing in the nature of a last will, attested in a prescribed manner.

Debt, upon an unsealed engagement of the defendant’s intestate, to convey to the plaintiff a tract of land. Plea — The act of 1814, (Rev c. 879,) requiring actions of debt grounded upon any lending or contract without specialty, to be brought within three years next after the cause of action.

<p>Ejectment, tried before Norwood, Judge, at Halifax, on the last circuit.</p> <p>The lessor of the plaintiff claimed under the following deed:</p> <p>“This indenture, made, &c. between James Grant and “ Eli B. Whitaker, vvitnesseth: that the said J. G. for “ and in consideration of the sum of S12.000, to him in “ hand, paid by the said E. LI W. the receipt, &c. hath “ bargained and sold &c. unto the said E. B. W his “ heirs and assigns forever, all the land which I am “ seised and possessed of (describing other lands not in “ dispute) ; also, the following negro slaves, &c. to have “ and to hold the said property to him the said “ E. B. W. his heirs and assigns forever; and the said “ James Grant doth, &c. (then followed a covenant for “ quiet enjoyment) ; also, I further convey unto him the “ said E. B. LV. his heirs, &c. a certain tract of land “ lying, &c. (describing the land in dispute.) which land “ I purchased at the trust sale of Thomas Bustin, the “ said land to go to satisfy in full, a certain power of at- “ torney by me held, in favor of Martha Jones, and the “ balance, if any, to be applied to another power of at- “ torney in favor of Fanning Jones. The first named “ property in trust for the following purposes then followed a declaration of trust in favor of sundry of Grant’s creditors, and directions to the trustee as to the mode of selling, which are not material.</p> <p>This deed was proved before his Honor Judge Da-Nibu, by one William Bustin. an attesting witness, and was registered within six months. The defendant objected to the reading of the deed, and offered to prove, that the witness upon whose testimony it was ordered to be registered, was a creditor who was secured by it, but Ms Honor held the probate to be sufficient, and the deed Was read.</p> <p>The defendant then objected, that the legal title to the land in dispute, (that mentioned in the deed as bought of Thomas Bustin,) did not pass to the trustee, Whitaker, because rio consideration was expressed in the deed upon which a use arose as to it. But his Honor thinking the consideration of gl2,000 extended to all the land mentioned in the deed, overruled the objection. A verdict y.’as then taken for the plaintiff, subject to the opinion of the court, upon the following case:</p> <p>Thomas Bvslinbeing largely indebted, applied to Grant, -¡jie bargainor in the above deed, to be his surety, who consented, upon condition that Bustin would convey all liis property to a trustee for his security, which was accordingly done. At the time of making this conveyance, Bustin was the executor of his mother, and had wasted the assets, and Martha and Fanning Jones, two of the legatees, had given Grant powers of attorney to collect their legacies. Bustin being insolvent, a sale of his property was advertised for the purpose of indemnifying Grant. Before this sale, Grant knowing Bustin to be insolvent, agreed with him that he. Grant, should purchase all the property, and if, upon a re-sale of it, any thing remained after paying the debts for which Grant was surety, it should be applied to the payment of the debts due Martha and Fanning Jones. In pursuance of this agreement, Grant bought the whole of Bustin's property, and after fully indemnifying himself, the land in dispute remained in his hands unsold. Afterwards, Grant became insolvent, and executed the deed to Whitaker, for the purpose of securing his debts ; at its date, he had collected nothing from Bustin, and was not indebted to cither Martha or Fanning Jones, but conveyed the land in dispute for the purposes mentioned in the deed, in execution of his agreement with Bustin, by w'hich he felt himself morally bound. The defendant claimed under an execution sale of Grant's property. If these facts made Grant’s deed to Whitaker fraudulent, then the verdict was to be set aside, and a nonsuit entered' — otherwise, judgment was to be rendered for the plaintiff His Honor being of opinion for the plaintiff, judgment was entered upon the verdict, and the defendant appealed.</p>

Assumpsit, and upon the general issue pleaded, the case was as follows: The plaintiffs had a bill of exchange drawn by a person resident in Wilmington, upon a house in Fayetteville, which they sent to the Branch Bank of Cape Fear at the latter place, for collection. At the time the bill was due, the parties to it wore insolvent, and the office at Fayetteville neglected to notify the drawer of its nonpayment.

<p>This was an action on the case against the defendant, as sheriff of Stokes, for making a false return to an execution which issued at the instance of the plaintiff, against one W. H. S. The record certified to this court, contained no entry of any pleas by the defendant.</p> <p>On the Fall Circuit of 1831, a case agreed was submitted to Danier, Judge, who gave judgment for the defendant, and the plaintiff appealed. It is not thought to be necessary to state the facts set forth in the case.</p>

This was an Ejectment, on the several demises of five persons as tenants in common- tried on the last circuit, before Strange, Judge, at Onslow. It did not appear how all the lessors oftheplaintiffclaim-ed title, but the plaintiff declared for onebnndred and thirty acres of land, part of a tract of six hundred and forty acres of which one Miner Battle and three others, had been tenants in common.

Ejectment, tried on the Fall Circuitof 1831, before Maetin. Judge, at Bertie.

<p>Where the same person is administrator, and also guardian of the next of kin, his returning an account of his administration, and acknowledging a balance due his ward, is not a performance of the condition of his administration bond. But it is otherwise if the money to pay the balance, is identified, and retained by the guardian, as the property of the ward.</p> <p>In such a case are the bonds cumulative. Q.u?</p> <p>The case of Chuwyv JJiJkey, (i '¿whs 4y7,) approyed.</p> <p>Where an act is rightful in one capacity, and wrongful in another, without proof to the contrary, it is taken to be in the first.</p>

After the new trial granted in this cause, at December term 1830, (ante 2 vol. page 493,) it came on to be tried again at Person, on the last Spring Circuit, before Strange, Judge, when the action was in assumpsit, and upon the objection of the defendant, that the contract of apprenticeship was under seal, and that debt was the proper action, the testimony was, that the brother of the plaintiff wrote the contract, and at the bottom of it made a scrawl, and wrote the word…

Assumpsit, upon the following accountable receipt: “ Received of Robert Simon!on, executor of J..mes Heart, $ 953 24 “ which I have received as an heir of James Heart, and if it is too much, “ I am to return the balance. James Mcknight.” Plea — The statute of limitations.

This was an action of debt, upon the act of 1774, (Sen. c. 105,) directing the duty of sheriffs with respect to insolvent taxables, and imposing a penalty of £20 for collecting taxes of one whom the sheriff has returned an insolvent.

<p>The estate of one who holds in toust fox- creditors, with a resulting trust for the grantor, is not within the act of 1812, (llev■ c. 830,) subjecting equitable interests to sale by execution.</p> <p>k* fb7’ aU Up*uw jj03®8 “ for an injury to lns estate without reference to the interest of frmlCeSÍUl ?lte</p> <p>Where the defendant must fi-naily prevail, a 1'¿Mho’ the judgment are°jdaintiff and he appealed.</p> <p>The vendee 0f land bound by a maintain^" ac-^on against the ing- that land un-niMhe”* chattels of the deienclan1;'</p> <p>. Su°b an ^action defendant in the fi /«•</p>

<p>A sale of land, under a fi. fa- made after the return day of the writ, but before it is returned, is valid — although the sale be not opened on the return day, and then postponed.</p> <p>The case of La-n.er v. Ptune, (1 Ha-tuku 329,) approved.</p> <p>The case of Pope v. Bradtiv, (3 Ilatvk' 16,) approved.</p> <p>Purchasers at a sheriff’s sale, are not reqirred to see that the sheriff' has complied with his duty.</p>

Debt, upon a bond made by the defendant’s testator. payable to tfie plaintiff, as the guardian of a female in fant. The ward married before this action was brought, and the only question on the trial was, whether the plaintiff was entitled to recover compound interest, after the marriage. Swain, Judge, at Bertie, on the last Spring Circuit, ruled he was not, and judgment being entered accordingly, he appealed.

This was a scire pacías against the defendant, as the bail of Joseph W. Stockton. The defendant pleaded several pleas wiiicii were tried before Daiíiel. Judge, on the morning of Wednesday of the Fall term 1831, of Ire-dell Superior Court. All the pleas being negatived, judgment was then rendered for the plaintiff. In the afternoon of the same day, the defendant brought Joseph W. Stockton, the principa!, into court, and moved to surrender him in his discharge.

Ejectment, tried on the Fall Circuit of 1831, at Anson, before Strange. Judge. The only question which it is necessary to present, arose upon the validity of a deed executed by the sheriff of Anson, to the lessor of the plaintiff, whereby it was recited, that the sheriff had sold the land in dispute to the lessor of the plaintiff, at a public sale made in April 1827', for the taxes due in the years 1824 and 1825.

This was a scire facias, which recited that the plaintiffs had obtained a judgment against Solomon Green, as the executor of William Green-; that Solomon Green was dead, having made a will, whereof he appointed the defendant executor, and praying to have execution upon that judgment, against the goods of the defendant’s testator.

This was an action of debt, upon a bond executed by the defendant’s testator, as surety to one Brinson, upon his being appointed a constable. The breach assigned was. that Brinson had not sued out execution for sundry small debts, placed in his hands by the relator. Plea — Performance of the condition of the bond.

This was an action of repievtn. tried before Daniei, Judge, at Martin, on the last Spring Circuit, in which the plaintiff sought-to recover several slaves. The defendant among other pleas, pleaded, -that the slaves in question, were the property of one Thomas Cox, and upon this plea, the only question-between the parties, arose.

This was an application to the County Court of Chowan, for an allowance of commissions to the administrator of Thomas B. Uaughton, deceased. The case commenced in the County Court, and came from the Superior Court of Chowan, upon the appeal of the next of kin. The facts attending the administration of the applicant, together with his accounts, were certified to this court, but need not be stated.

This was an issue of devisavit vel non, as to a \i ill of Benjamin Howell, sen. propounded, by the .plaintiff, which was tried before Mártir, Judge, at Greene, on the last Spring circuit. The plaintiff having made out a prima facie case, the defendants offered to prove declarations of the supposed testator, made after the execution of the proposed will, tending to show that it was obtained by the fraud and undue influence of the principal legatee.

The defendant Bryan, being clerk and' master of the court of equity for the county of Johnston, on the 26th of' March, 1823, gave abond and sureties, witlitheusual condition for the faithful discharge of the duties of his office: On the 24th of March, 1824, he. gave a similar bond with different sureties, and so also on-the 29th days of March, 1825, and 1826.

This was an action on the case, in which the plaintiff declared against the defendants for maliciously, and without probable cause, prosecuting him for perjury. — .

This was a petition under the act of 1809, {Rev. c. 773) for damages done to the plaintiff’s land, by its being overflown by the defendant’s mill-pond. On the trial before Swain Judge, on the Spring Circuit of 1831, at Wake, the only question arose upon the validity of a deed, by the sheriff of Wake, for the land overflown.

Assumpsit in which the plaintiff, the sheriff of Johnston, declared against the defendant, for money had and received by her testator, Henry Barnes, to his use, and specially, that her testator, being a deputy of the plaintiff, collected the taxes in certain districts of the county, and had not accounted for them to the plaintiff. There were several other counts which it is unnecessary to state.

<p>The defendants were indicted for a forcible trespass in entering the dwelling house of one Philip Brooks and » • carrying away several slaves. On the last circuit at Moore, before his Honor Judge Damee, the jury returned the following special verdict: °</p> <p>‘‘That Randal McDonald, one of the defendants, was a constable of Moore county on the 29th day of August, 1831 — ’that on that day D. M. another of the defendants, gave information upon oath, of the facts stated in the warrant herein after set forth, to TV. B. a justice of the peace for the county aforesaid, who thereupon issued the same in the words and figures following: To any lawful officer, &c. whereas complaint has been made on oath before me, &c. by I). M. that a certain Philip Brooks, of &c. has tempted and persuaded liis negroes, <kc. to leave him, the said D. M. and now has the same concealed in his possession for the purpose of harboring the same, or conveying them out of the state — These are therefore to command you, &c. to search the possessions of the said P. B. and take the said negroes, if they arc found, 'together with the said Brooks before me or some other &c. That the said warrant was delivered to the said Randal McDonald to he executed, who thereupon, accompanied by the other defendants, who were summoned by the constable to aid in the execution of it, proceeded to the farm of the said P. B. and the defendants then, in execution of the warrant, took into their possession some of the ne-groes above mentioned, who were laboring upon the farm of the said P. !1. and in his service — that the defendants afterwards proceeded to the dwelling-isouse of the said P. B. and after the constable had demanded admittance into the house, and had beers refused, with force and violence broke open the door thereof, asid took into their possession others of the negroes abovementioned, who were then in the house, and carried them away. The jury further find that the said It. M. was entitled to the services of the above mentioned negroes, and that they were enticed and persuaded by the said P. B. to leave his possessions but that the said P. B. in good faith, claimed to be the lawful owner of them, and that lie acquired possession in assertion of his supposed title, and that the said negroes came to his house before day light on the morning of the said 29th of April, 1831. The jury be-inS ignorant, &c. Upon this verdict bis Honor gave judgment for the defendants, and Mr. Solicitor Troy ap-pea]e(K</p>

The defendant was convicted on the following indictment : “ The jurors for the Slate, upon their oath, present that Willie Clem“ons, late of, &c. on 8cc. with force and arms at, &c. unlawfully did “ permit his slave by the name of March to hire his own time to divers “ persons, to the jurors aforesaid unknown, contrary to the act of the “General Assembly, in such case made and provided, and against,' &c. The defendant was convicted and judgment for the State being rendered…

The défendant was indicted for petit larceny in stealing a shawl.

<p>This was an indictment for an assault upon one Con-nor, tried before Norwood, Judge, at Cumberland, on the last Spring circuit.</p> <p>On the trial, the defendants justified the assault, upon the ground, that Connor had illegally attempted to take from their possession a steam-boat. The pi-osecutor on the other hand, justified the seisure as the collector of tolls due the Cape Fear Navigation Company. The jury found a special verdict to the substance following:</p> <p>That the Cape Fear Navigation Company had appointed a place on the Cape Fear river, where tolls were to be paid, and had authorised the prosecutor to collect them — that on the day before, the assault was committed, the steam-boat John Walker, arrived in the river opposite to the place where the tolls Mere to be paid, when she was hailed by the prosecutor, who demanded of the defendants, who were on board, the tolls due on her cargo, which was refused and the boat kept under way, against the orders of the prosecutor, up the river to a wharf, about three hundred yards above the place where the tolls were demanded, where her cargo was usuajly discharged — -that on the next day, before the cargo was discharged, the prosecutor having again demanded the tolls, which were refused, attempted to go on board and seise the boat, which was resisted by the defendants, when the assault was -committed. Four points were' presented by the verdict, and in case either of them were decided negatively, then the jury found the defendants not guilty ; the points were:</p> <p>1st. Whether that part of the act of incorporation, which authorised a seisure of the boat, was constitutional.</p> <p>2d. Whether the demands for the toll could be made on the Cape Fear river.</p> <p>3d, Could the seisure be made on the day after the demand was made, and</p> <p>4th. When the boat had arrived at her place of dis, charge.</p> <p>BUs Honor being of opinion that the section of the act of incorporation, which authorised the seisure, was unconstitutional, discharged the defendants, and Mr. Solicitor Troy appealed.</p> <p>waived all the objections but the second. Upon this head they contended, that as by the first section of the act of 1815, (Rev. c. 897,) concerning the Cape Fear river, all the rights, privileges and franchises granted to the Roanoke Navigation Company, by certain sections of the act of 1812, {dev. c. 848,) were granted to the Cape-Fear Navigation Company, it was exactly as if those sections were literally inserted in the charter of the Cape Fear Navigation Company — that by the 8th section of the act of 1812 the Roanoke Navigation Company were au-thorised to demand and receive, at or near the Fails of Roanoke, certain tolls — -and that of course the Cape Fear Navigation Company were only authorised' to demand their toils at the same place.</p>

This was an indictment fop murder, tried before Strange, Judge, at Duplin, on the last circuit.

This was an action of Debt, upon a bond executed by the defendants, whereby they bound themselves to pay the plaintiffs 82,000, with a condition reciting, that there was a treaty for the purchase of a vessel by the defendant Williams, from the plaintiffs, and proceeding: “Now, if in addition to the sum of money which the. “ said Abner Williams hath already paid, he shall pay “ to the plaintiffs such further sum as the repairs they, “ the plaintiffs, have put upon said…

Assumpsit, upon the following guaranty: “ I, James Morgan, assign the note and judgment “ against Henry and John Wilkes, of the town and county “ of Halifax, which was made payable to me for the “ sum of g3,350, dated 15th February, 1823, to Henry “ Smith, and I, the said James Morgan, do guarantee Plea — Non assumpsit.

Troyek, for a slave. Tlea — Not guilty — and on the trial, at Lenoir, before Marti», Judge, on the last Spring Circuit, the case was as follows: John Waller, the father of the plaintiff, in November, ■1826, conveyed the slaves in dispute, to the plaintiff by a bin 0f sale, reciting a consideration of g 260 ; at that time, Waller, the father, owed debts to the amount of $1700 ; besides the slaves conveyed to the plaintiff, he then owned land worth g75Q, and other slaves worth…

<p>Where the parties to a deed intended to convey only land, to which the vendor had title, and also that it should set out the boundaries of the grant to him — but the land was especially surveyed and corners marked, and the deed made according to the survey, its courses are not to be controlled by those of the grant, and if it covers more land than the grant-, it. is color of title as to the excess.</p> <p>A.question of boundary discussed by HiuiDnnsoa', C. J.</p>

This was an application for a rule upon the defendant, to show cause why a certiorari should not issue.

Debt upon a bond, executed by the defendant, as surety of John J. Carrington, on his taking out letters of administration upon the estate of John Carrington. The bond was in the common form of administration bonds, am] the breach assigned, was the non-payment by the administrator, of the relator’s share of the residue of the intestate’s assets. After oyer, the defendant pleaded performance of the condition by the administrator.

This was an action on the case, for slanderous words spoken of the plaintiff, by the defendant. The writ was issued on the 27th of August, .1831, returnable to the ensuing term of Lincoln Superior Court.

Ejectment, which was submitted to Bantee, Judge, at Beaufort, on the last Fall Circuit, upon the following case agreed: One Cherry obtained a judgment against the administrator of Andrew Christie, in which the plea offulhj administered, was found for the defendant.

This was a petition for a divorce. The petitioner stated) that the marriage took place on the 18th of December, 1828 ; tliaf the parties “lived together in unin- “ terrupted harmony for near five months, when thein- “ fidelity and fraud of the defendant was manifested by “ an occurrence which admitted of neither explanation “ or palliation, and dissipated all hopes of happiness, “ &c.; that on the 1st of May, 1829, the defendant be- “ came the mother of a mulatto child.” The…

This was a petition for a divorce, in which the petitioner alleged that at the time of the marriage, he knew that the defendant had a child, but he thought it was his; that the defendant, by her artful conduct before the marriage, induced him to believe that she had ever behaved modestly and virtuously except in the instance above mentioned, which she pretended was the result of her attachment to him ; that, soon after the marriage, he discovered that the child was a…