Volume 15 — North Carolina Reports

<p>A clerk appointed under tlie act of 1806, (Rev. c. 693,1 has an estate in his oflice, and although the Legislature, may destroy the oflice and by consequence the estate m it, yet the act of 1832 which continues the office, but transfers the estate in it to another is unconstitutional and void.</p> <p>It is competent for the judiciary to declare an Act of Assembly to be unconstitutional and void.</p> <p>But' prima fa-cie, every act of the Legislature is within its authority, and is to be declared unconstitutional only in cases where no doubt exists.</p> <p>don oftheBMof .Rights declaring that the Logisla-j^caf™ 0re ought to he ^“¡tinct, deprives this State of all judicml power.</p> <p>A determina-iighí between2 two classes of per-sofs 1S|a judicial act, although pro-nouneed in the of a stay</p> <p>its terms^flect its charactof.</p> <p>Thaact of 1832 does not modify the tenure of the office of clerk; neither does it affect the interest of the ineumbents, but leaving the office and its privileges untouched,it directs the Courts to remove one class of individuals without a trial, and induct another, it is then judicial in its character and effects.</p> <p>sA legislative act which deprives one person of a right and vests it in another is not a “ iavr of the land” within the meaning of the Bill of Rights.</p> <p>Neither is one which professes to punish the citizen or to deprive him of his property without a trial according to the course of the common law.</p> <p>The Mate v. -f 1 Hay. ‘¿9,J Hen v. Singleton, (Martin 48,J University v.Poy, (1 Murph 58, 2 Hay. 310,) Hen v. Mams, (%Murph.\0\,) Hoe v. Hatfield, (lb. 391J Allen v. Peden, (t Lato Hepos. 638,^ approved.</p> <p>An office is the fncumtait 1 °</p> <p>In the absenpe airestrktimfthe creation, continu Súmente ofd an office ave mat-expediency ^and to be judged of gisfafum fllG Le"</p> <p>But it cannot continue an office, and oust the incumbent, and transfer ids right t0 another,</p> <p>tw^tlbe" which are mere which a personal “^ecf The first may be vacated at an? tíFe’ tlle conviction for default.</p> <p>tedby stSutemay be destroyed by but itcTOnotcrai-tmue the office, the tenure ÓTthe incumbent, or another 14 *°</p>

Debt in which the plaintiff claimed in his writ to recover of the defendant the sum. of $213 .82, which the defendant “ owes and detains to bis damage $213'32.” The declaration contained two counts: The first was in debt for $213 32 upon the Statute of usury (Act of .1741, Rev. c. 23) for the corrupt loan by the defendant to one John Cook and Daniel Casey of $80, and taking for the forbearance thereof, from the 26th of September, 1826 until the same day in the following…

Debt upon a bond given by the defendant Alley as principal, and several others as his sureties to “David “ Dickey, chairman of the county court of Rutherford, “and tho rest of the Justices composing said court,” with a condition for the faithful discliage by Alley, of the duties of sheriff of that county.

Debt upon a bond of the defendant’s intestate. Pdea — piene adminislravit. On the trial before Daniei, ' Judge, at Chowan, on the Fall circuit of 1829, the only question was, whether the defendant could protect the assets in his hands from the claim of a specialty creditor, by the payment of a prior judgment quando upon a simple contract debt, after notice of the specialty. By the directions of his Honor a verdict was returned for the plaintiff, and the defendant appealed.

<p>Covenant upon the following deed: — “ Received of “ James Cowan, four hundred and seventy-five dollars, ‘‘ it being in full payment of a negro woman called il Boreas, which said negro woman I do warrant and “ defend the same, to James Cowan, his heirs and assigns “ forever; — this said girl I do warrant to be good sound “ property, and healthy. Witness, &c. James Silliman."</p> <p>The breach assigned was, 1st. the defect of title in the defendant at the time of the sale.</p> <p>2d. The disturbance of the plaintiff’s possession by the demand of one Mexander Silliman who had a title to the slave at the time of the sale.</p> <p>Tee as— non est factum, and non infregit conventionem-</p> <p>On the trial before Norwood, Judge, at Rowan on the Fall circuit of 1831, the case was that the sale was. made in June, 1818 — that one Mexander Silliman then had title to the slave, and demanded the possession of her of the plaintiff in the Fall following, which was refused, and that thereupon he threatened to bring suit for her, but never had done so. The slave died soon after the demand, and this suit was commenced in March, 1826. His Honor charged the jury that the bill of sale contained a covenant of title, and in legal construcion a covenant that the defendant had title in the slave at the time of the sale. That if the covenant was for quiet enjoyment only, the demand of Mexander Silliman yas a disturbance of the plaintiff’s possession which gave him a right of action, as by that demand his possession was rendered adverse, and Mexander Silliman might charge him w'ith the value of the slave, notwithstanding her subsequent death. And further, that the fact of Mexander Silliman’s not having brought suit against the plaintiff for more than three years after his demand, was no defence to the present action, because as the slave died in the same year, the plaintiff could not have had an adverse possession of her, which, under the act of 1820, {Rev. c. 1055,) would have given him a title.</p> <p>A verdict was returned for the plaintiff, and the defendant appealed.</p>

It appeared from the transcript of the record, that the plaintiff commenced his action by a warrant, dated the Sd of January, 1831, returnable before a justice of the peace within thirty days after the date thereof, Sundays excepted; that a judgment was rendered thereon, on the 22dFebruary, 1831, and au appeal taken from that judgment to the County Court; that pleas were there entered, issues joined, a verdict given and a judgment render-, ed; that from tins judgment there…

Detinue for six slaves, tried on the last Spring Circuit at Currituck, before Norwood Judge. On non detinet pleaded, the case was that the plaintiff claimed under a bill of sale made by Wm. Perkins hearing date the 9th day of July 1826, which was proved in November 1830, and registered in February 1832. The defendant claimed under a sale upon execution against the same Wm.

Detinue for a female slave and her child, tried before Norwood, Judge, at Gates, on the last Spring Circuit. Pie a — non detinet. The plaintiff claimed title under one Elisha Walton by a purchase made in consideration of the sum of. $250, which was evidenced by a bill of sale, dated in February, 1832.

Ejectment, tried on the last circuit at Chowan, before Seawell Judge* The plaintiff claimed title under one Halsey, and produced a deed whereby the latter conveyed the- premises in dispute, to the lessors of the plaintiff, by a deed which-recited several debts to which they were his sureties, and that he “was desirous of securing the said Lemuel, &c. “ against any loss or injury they may sustain, by reason of tbeir several obligations aforesaid.

Case in which the plaintiff declared against the defendant for barboring a female mulatto by the name of Lydia Burnet, who had, with four others, been bound to him by the county court of Moore, and who had abscond ed from his service. Piea — not guilty.

Trover for a slave tried before Strange, Judge, at Pitt, on the last Spring Circuit. The plaintiff produced a deed, whereby one William Butler conveyed the slave in dispute to him, in trust for liis, Butler’s, family.

“ This was an action of Detinue tried at Iredell, “on the last Fall Circuit, before Seawexi, Judge, to “recover a slave. The plaintiff made title by an alleged purchase at auction, under the following circum- ‘‘ stances.

This was an action of trover for the value of several slaves, and was tried in Lincoln Superior Court at Fall Term 1831, before his honor Judge DaNiei. Walter Pollard by his will made in 1768, bequeathed three negroes to Morris Roberts and his wife during their lives, and after their death, to Joshua, Martin, Mary, Susan and Jane Roberts, and the defendant, equally to be divided between them.

This was an action of debt grounded upon the statute of 1741, to prevent excessive usury — tried atFall Term of Granville Superior Court, 1832, before Martin, Judge.

This was an action of DetiNue to recover a negro slave, tried before his Honor, Judge Seawexx, in Iredell Superior Court. The plaintiff and the defendant claimed title each under the same person — the plaintiff as a purchaser under a deed, professing on its face to be made for a valuable consideration paid by the plaintiff, and the defendant as a creditor under a purchase at sheriff's sale, upon an. execution posterior in time to the deed to the plaintiff.

This was an action of Assumtsit, brought in 1827 for goods sold and delivered to the defendant, in which the plaintiff claimed the sum of eighty dollars and seventy-five cents, and was tried on the plea of non assump-sit, in Mecklenburg Superior Court, before his Honor, Judge Donnei. The defendant and one Thompson were partners in trade, and became indebted as such to the plaintiff for goods sold and delivered.

<p>In ail action of covenant for uncertain damages, no set off or a claim in nature of a set off, can bo allowed; and hence in an action against a lessee for breach of his covenant to build a mill -within the term, hold that he was not entitled to show in mitigation of damages the building of the mill after the term, more especially when he had held over, and put his lessor to bring ejectment against him — pending which the mill was built.</p> <p>It seems that a part performance of the covenant during the term is an answer to the damages pro tan-to.</p> <p>The case of Wilson v. Forbes (ante %vol.p.30,') commented on, approved and distinguished from this ca,se.</p> <p>n seems thaUn an action for mes-ry may consider ™ mitigation of damages, perma-nentimprovement |j°"ef,!fendant & actually enjoyed by the plaintiff.</p>

Scire eacias against Smith as the bail of one Peter Newton. The memorandum of the pleadings on the transcript was in these words: Plea — “the, capias was “ not directed to the Sheriff of Buncombe, which was “ the proper-county to which it should have been direct- “ ed “ Special replication,” that the capias issued to the “ county of Lincoln, which was tire domicile of the defendant Peter Newton, and therefore was the proper “county to which it should have been issued —…

Arnold sued out an attachment returnable before a justice of the peace, against Dougan, a resident of Indiana, and caused a levy to be made upon a tract of land, on the return of which the justice ordered an advertisement for the appearance of Dougan, to be published for thirty days, and no appearance being entered, a judgment by default was rendered, and the proceedings filed, in the County Court, where an order was given for the sale of the land, and a writ of venditioni…

Debt upon a bond executed by one William W. Chqf-jin as principal and the defendants as sureties, payable to the plaintiff. Peeas — non estfachim. Payment — and an accord and satisfaction.

This was an action on the case tried in Rutherford Superior Court, before Nohwoob, Judge, at Fall term last.

Ejectment tried on the Fall Circuit of 18SQ, before Danier Judge, at Edgecombe.

<p>This was a PetitioN by the plaintiff for a year’s support out of the estate of her husband, the intestate of the defendant.</p> <p>The intestate died in January, 1829 ; no application was made by the plaintiff for administration upon his estate, at the next County Court. The defendant took out letters of administration in February, 1831, and the petition was filed in February, 1833.</p> <p>His Honor Judge Norwood, at Mecklenburg, on the last Circuit, dismissed the petition, because the plaintiff had not filed it at the term of the County Court, next succeeding the grant of administration to the defendant; From this order the plaintiff appealed.</p>

Assumpsit upon the endorsement of a single bill, or promissory note under seal, made by Jlsa and Isaiah Eogerson in Virginia, payable at a bank in that State, to the… Held: that as the endorsement was made in North-Carolina, it was to be governed by the laws of this State; and as by the act of 1827, c. 2 the endorser was made a surety and liable as a co-obligor, notice of nonpayment need not be given to him. A verdict was taken for the plaintiff, and the defendant appealed.

Ejectment for two lots in the town of Nashville. On the Spring Circuit of 1830, at Nash, before Norwood, Judge, a verdict was taken tor the plaintiff subject to the opinion of the court, upon the following facts: Both parties claimed under Mhelston Jhiderson, who died in August, 1826.

The plaintiff brought his action by warrant, returnable before a single justice, and in the said warrant stated his claim to befor “ debtdue by account for the amount of seventy-six dollars.” Having failed to sustain his demand before the magistrate, he appealed to the County Court, where a verdict was rendered against him, and he then appealed to the SuperiorCourt.

Trover for slaves. On the trial at Duplin, on the last Spring Circuit before Donnell, Judge, the only question was as to tbe effect of the following deed:— ‘ ‘ To all people, See.

Assumpsit tried at the last Autumn term of Burke Superior Court, before Sbaweeu, Judge. The plaintiff, as Sheriff of the county of Burke, by virtue of a writ of fieri facias levied upon certain lands, and sold them at public auction to the defendant, as the highest bidder.

<p>When lands havebeen overflown by a mill pondfor forty years without any claim for damages by the owner, the juiy may from the acquiescence, presume a grant of the easement.</p>

Ejectment tried on the last circuit at Lincoln, before Seaweed, Judge. The lessor of the plaintiff was not in possession and to locate his grant the plaintiff offered declaration, of one Moan who was dead, which were not objected to by the defendant, and were received by the Judge. The plaintiff did not claim under Sloan. The plaintiff having made out a prima fade case, the defendant offered to ^ prove a possession under color of title for more than sev-ven years.

This was an action of Covenant brought on a warranty of title in a bill of sale of certain slaves, tried before Bonn eh, Judge, in Granville Superior Court.

On the last circuit at Anson, the plaintiff filed-an affidavit, stating that at the July term of the County Court, a supposed will of one Benjamin Pratt had been offered for probate and contested by the plaintiff and others— that thereupon the plaintiff moved that letters of administration pendente lite might issue to him, \vhich motion was refused, and the letters were granted to the defendant —upon which the plaintiff prayed an appeal to the Supreme Court, which was also…

Fherebee Williams, by deed, bearing date the 20th of November, 1827, .reciting that she had in. consideration of natural love, by deed… Held: and again for 1829 ; that a daughter of the donor’s brother Samuel, (who had three other children, all living when the deed was executed) married the defendant, McKay; that no division of the slaves had been made, and that he did not know all the persons who were entitled, as the families were numerous, and there were conflicting…

This was an action of Ejectment, tried in Stokes Superior Court, before his Honor Judge Norwood, in which the plaintiff claimed, and sought to recover possession of the tract marked on the diagram “ 50 acres No. 1,” also of the tract marked “50 acres disputed,” and of the land lying south of. the last named tract, and. included between the lines S B, 53 0 and the river, of which the defendant was in the possession.

Ejectment tried in Orange Superior Court, at Autumn Term 1832, before Martin, Judge.

The plaintiff brought a suit by warrant against Gilliam and one Gays. In the County Court they joined in their pleas, and upon the trial, a verdict was found for the plaintiff against them both and a joint judgment rendered thereupon, from which Gilliam alone prayed and was allowed an appeal to the Superior Court.

Ejectment, tried Spring Term, 1832, at Pitt, before' Daniee, Judge. The lessor of the plaintiff claimed title to the premises in dispute, under the will of Thomas Carson, who devised the same to her for life, and after her death to his three daughters with one of whom the defendant intermarried.

This was a petition for partition, to which the defendant pleaded : 1st. That site was not tenant in common with the petitioners, 2dly. That site was not tenant in common in possession wTith petitioners. 3dly. That she was in the sole adverse possession of the premises. To these pleas replications were entered.

Detinue for sundry slaves, tried at Spring Term,. 1831, before Martin, Judge, Fleas — general issue, and statute of limitations. The plaintiff' claimed title to the slaves, as administrator de bonis non of one Jeremiah Gibbs. The defendant set up title under a purchase from one Stephen Gibbs, who he alleged, had been previously appointed administrator of said Jeremiah.

<p>The act of 1819, (Rev. c. 1004,) only applies to complete and finished instruments, but does not prohibit the introduction of parol evidence, to show that a paper writing offered for probate, was never in fact the will of the deceased.</p> <p>A widow who dissented from her husband’s will, and had her dower and share of personal estate allotted to her as in case of an intestacy, is a competent witness to prove declarations made to her by her husband in his life time, as to the factum of a paper offered as his will, on an issue of devisavit vel non to which she is no party.</p> <p>thÉsuhjecttifcon-fidentiai commn-SeScarbrtdoes not apply to such •Wife“-Alfalew of being by her such as are made as to a matter of fact to be operated upon after his death, where it must be (he wish of the husband that such operation should be according to the truth of the fact, as established by his declaration.</p>

Trespass -quare ceausum ere git, tried before Settee, Judge, at Fall term, 1833, of Duplin Superior Court. The plaintiff claimed the land on which the alleged trespass was committed, under a deed from Daniel Glis-son, sheriff of Duplin, to one Jacob Williams, dated 23d January, 1793, and produced the judgment and execution under which the land was sold.

<p>Ejectment, tried Spring term, 1833, at Columbus, before Martin, Judge.</p> <p>Verdict for the defendant and the plaintiff appealed.</p>

Trover for a negro slave Lary, tried at Person Spring term, 1833, before Settee, Judge. The plaintiff proved title to the slave, and the question was as to the conversion by the defendant. The plaintiff proved by a witness, (Turner,') a confession made by the defendant in a. conversation with a runaway slave named Jack, sufficient to authorise a jury to find that a conversion had been made by the defendant.

Detinue for three negro slaves, tried at Edgecomb, Spring term, 1833, before Strange, Judge,-on a case agreed. The opinion of the court being for the defendant, judgment of nonsuit was rendered and the plaintiffs appealed. The case stated that Miles Hardy made his last will and testament, and thereby devised lands and bequeathed specifically several slaves to each of his two children Henry and Harriet.

EjectmeNT, iriecl Spring term, 1833, at Washington, before Norwood, Judge. It appeared on the trial that John Dorsy, an Irishman, came to the United States in 1798, removed from Peters-burg,Virginia, to this State in 1800, and in 1801 intermarried withtlie lessor of the plaintiff alsoa native ofireland, then 22 years old. Dorsey became possessed of several lots in Plymouth, and among them of the lot in dispute, (No. 120,,) and died so possessed in 1805.

<p>C, by his will devises certain lands and slaves to his son R; he then devises other lands and property to be sold on a credit of 1, 3, or 3 years, and all the residue of his estate, (not otherwise disposed of,) to be sold on a credit of 13 months, “ lands rented and negroes hived, except ft’s lot of “ land and negroes, the possession of which, I wish him to have at my “-doath.” Hefhen directs "the money arising from the sale, rent, hire, &c, to be applied to the settlement of his estate, &c. Held that on the construction of the whole will, R’s share was not exempted from the payment of debts, on a deficiency of the fund appropriated to that purpose,by the tes. tator.</p>

Troves for several negro slaves, tried before Nor-wood, Judge, at Spring term, 1833, of Perquimans Superior Court. The material Facts of the case will be found in the opinion of the court.

This was an action of assumpsit commenced by warrant before a single magistrate for $18 and interest, which came up to the superior court of Hay wood by appeal- It appeared on the trial before Norwood, Judge, that tlic plaintiff had caused one Slams to be arrested on a ca. sa. and committed to jail. While in custody the defendant agreed to see the jdaintiff’s debt, interest and costs, paid “in trade,” if he would discharge Slams from imprisonment.

This was an action of assumpsit, brought to recover /rom the defendant, money alleged to have been paid by him as co-surety with the defendant’s intestate, for one Mram Maer. It came on in the form of a case agreed at Spring term 1833, of Bertie Superior Court.

<p>This was an action of Detinue for several negro slaves, tried before Strange Judge, at Pitt, Spring term 1833.</p> <p>The plaintiff claimed title to the slaves under a deed of gift. The subscribing witnesses to the deed testified, that they saw the donor sign and seal the deed, when the donee was not present; that the deed was then taken away by the donor, and they saw nothing more of it till after his death, when they were called on by the plaintiff to prove its execution. There was sufficient evidence of its delivery, from other sources.</p> <p>It was objected by the defendant’s counsel, that under the act of 1806, the deed was not valid, unless the subscribing witness could prove the delivery, as well as the signing and sealing ; this - objection was overruled by the court. A verdict was returned for the plaintiff, and a rule for a new trial being discharged, the defendant appealed.</p>

Debt on Bond. Pleas — General issue, conditions performed and not broken. The Plaintiff offered in evidence a writing purporting to be a bond, payable to “ Bobert Vanhook Chairman and other Justices of the county of Person.” This paper was signed by John Garner as principal, and the present defendants, as his sureties. John Garner was, at the time of giving said bond, a Justice of the Peace for Person county.

Trespass q,uare cxausum pregit. Pica — general issue. On the trial before Norwood, Judge, at Fall term, 1833, of Mecklenburg Superior Court, the plaintiff proved that the defendant entered on the locus in quo. and committed the trespass.

The plaintiffs brought their action of debt against the defendants, in the Court of Pleas and Quarter Sessions for the county of ©range, returnable to May sessions 1833. The plaintiffs filed their declaration in the clerk’s office, within the three first days of the term.

This was a warrant brought by the endorsee of a promissory note, against the endorsers, tried before Seaweed, Judge, at Mecklenburg Spring term, 1833. The question was whether legal notice had been given to the endorsers, of the nonpayment of the note by the maker. The note had been made on the 3d of December, 1827, payable one day after date; and it was endorsed to the plaintiff on the 14th of December, 1827.

<p>A guardian appointed by a Court of Chancery, may, by order of the court, rightfully sell the personal property of bis ward. And the act of 1762, c. 69, confers the same powers on the County Courts in this State, The case of "Wesí v, ICittrell, 1 liarvks 493, cited and approved.</p>

This was an action on the case brought for an alleged breach of a contract, for the delivery of shingles. It appeared that the shingles were to be delivered at Gates Court House, vvithin five weeks from the time the contract was entered into.

Detinue, tried at Cabarrus, before Seawexx, Judge, Spring term, 1833. The action was brought by the administrator of Joseph M Welch, against Elizabeth Welch’s administrator, to recover a slave by tbe name of Esther, and her child by the name of Uhuerica. The defendant plead the general issue.

Ejectment tried before Strange, Judge, at Orange Spring term, 1832. Upon the new trial granted in this cause, (ante 315,) the following facts appeared in addition to those there stated. Ann Cloud, the lessor of the plaintiff, filed her petition for partition of the lands in controversy, in the. County Court of Orange, >vhich was carried up by appeal to the Superior Court.

Debt on single bill of the defendant, tried at Sampson Spring term, 1833, before Martin, Judge. Tiie plaintiff declared upon a single bill of the defendant, for the payment of the sum of four hundred and forty-seven dollars, sixty-six cents. On exhibition of the instrument offered in evidence, it corresponded in all respects with that set forth in the declaration, except in this — it promised the payment of four hundred and forty-seven and sixty six cents.

This was a contest between the parties for the ap - pointment of guardian to an idiot. The County Court of Nash gave the appointment to the defendant, and the Superior Court at Spring term, 1832, DaNiel, Judge, presiding, affirmed this order and the defendant appealed to this court.

Ejectment, tried Fall term 1833, of Currituck, be-* fore Seawebi, Judge. The material facts of this case will be found fully stated in the opinion of the court.

This was an action on tho case against the defendant as Sheriff of Wake, in which the plaintiff declared, 1st. That tho defendant has failed to make return of certain writs of execution, issued at the instance of the plaintiff against J?. 8. H, Burgess and others. 2d, for a false return, 3d, upon the special case or the facts stated.

This was an issue of Devisavit vee non, arising oh a paper writing, offered as the will of John Kea, deceased. On the trial before Martin, Judge, at Spring term, 1833, of Bladen Superior Court; it appeared that the paper offered in evidence had an attestation clause, without being attested by any witness; much testimony was given touching the execution of the instrument, which it is unnecessary to state.

The prisoner was indicted for the crime of Arson.— The indictment contained six counts. The first count charged the arson to have been committed by “feloni-ously, wilfully and maliciously,” setting fire to the dwelling house of one Richard Smith, in the City of Raleigh, ami concluded at common law. The second count was like the.first, except that it laid the dwelling bouse to be that of «mo John Rosea.

This was an indictment in tito following form. State oe N. C.ieoiisa, j Superior Court oe Law, Franklin Coiuitij, j Spring Term, 1833, R. M. SAUNDERS, At. Gen’l» - The defendant being, convicted of the offence charged ip the indictment-, a motion in arrest of judgment was Submitted, which being sustained by his Honor Judge Martin, the Attorney General appealed.

This was an Indictment under the act of 1779, {Rev. eh. 142,) for stealing a slave.

This was an indictment under the act of 1825, c. 22, for concealing a slave on board of a vessel, with the intent, and for the purpose of conveying said slave beyond the limits of the State, and of enabling her to effect her escape out of the State. There were several counts in the indictment.

<p>This was an indictment against the defendants for not keeping the streets of the Town of Halifax in repair. There were three counts in the indictment.</p> <p>It was admitted on the trial that the defendants liad expended in repairing the streets, and for other lawful ami needful purposes, all the monies which they were authorized to raise by taxation or otherwise, and that there were no funds at their command at the time laid in the indictment, and it was insisted that the defendants were not bound by the provisions of the private acts relating to the town of Halifax, to repair See., but that it was only their duty to make ordinances, rules &c. and use the pecuniary resources of the town for the purpose of repairing the streets.</p> <p>His Honor, Judge Mártir, before whom the cause was tried, charged the jury, that the commissioners had authority under the private acts, to call out the hands and command the personal labour of the inhabitants residing within the corporate limits of the town, for the purpose of repairing the streets, and that they were not excusable for the omission to repair, if there were hands enough in the town, though all the monies which had been, or ought to have been raised by virtue of their powers, had been properly expended at the time the streets were charged to have been out of repair.</p> <p>On the two first counts in the indictment the defendants were acquitted. On the third the jury returned a verdict of guilty.</p> <p>This count was in the following words :</p> <p>“And the jurors &c. upon their oaths &c. do further present that on &c. there was See. a public street and common highway in the town of Halifax &c. commonly called the main' street &c. for ail the citizens &c. and that tiie aforesaid public street &c. on &c. was out of repair Scc. so as &c. and thatM. It. J. S. S. J. C. A. W. See. all late &c. on &c. and from thence &c. were commissioners of the said town of Halifax, duly chosen, elected and sworn as such, and that they in their corporate capacity of commissioners of said town of Halifax, were and are bound and obliged by the act of the General Assembly of this State, to keep and maintain the public street and common highway aforesaid, in safe convenient and complete repair- Yet the commissioners afore-gaj(]t during &c. at &e. in &c. have and did neglect and refuse to keep the said public street and common highway in such repair, to the great injury &c. and against tlie peace and dignity of the State.”</p> <p>A rule for a new trial being discharged and judgment rendered for the state — the defendants appealed.</p>

A scire facias was sued out from the Superior Court of Nash, at the instance of John A. Binford, against Thomas P. Alston, George Cooper, and Henry Arrington, calling on them to shew cause wherefore an execution should notissue upon a judgment theretofore rendered against them in favor of the said Binford, on an appeal bond in said Court. The process not having been served upon Vision, the plain tiff entered a JV'oZ.

.Debt, on Bond for ,85000. Pirns — Payment and set pff, accord and satisfaction.

Assumpsit tried before Seaweed, Judge, at Tyrrell, Fall term 1833 — Pxea—non assumpsit. ■ The plaintiff was a merchant; and had sold goods to one (V. Jl. Tarkington, who being asked for payment, drew an order on the defendant, payable to Hathaway the clerk of the plaintiff. The order was presented, and the defendant promised to pay it, and requested the clerk ,to charge it as an item in his account on the plaintiff’s hooks, which was accordingly done.

Ass user sit, tried belfore StraNGE, Judge, at Johnston Spring Term 1833. The plaintiff was Sheriff of the county of Johnston, and for several years in succession had appointed the defendant to collect the taxes due in two districts in said county.

<p>This suit was commenced on the 20th January 1831, by a warrant returnable before a magistrate, and was carried by appeal first to the County, and then to the Superior Court of Northampton. In the Superior Court a verdict was rendered, subject to the opinion of the Court upon a case agreed between the parties. The case agreed stated that the plaintiff and the defendant were joint sureties for Miles Boon to John T. Binn; that the creditor . . . , , . obtained judgment against Boon and his sureties ; that on t]ie2(i of August 182.7,Boon being then insolvent, tlieplain-tiff satisfied the whole amount of this judgment; that af-terwards, and within three years before the suing out of this warrant, the plaintiff demanded from the defendant payment of the defendant’s share of the judgment as paid off by the plaintiff, and that the defendant refused to comply with this request. The statute of limitations having been pleaded, the question, and the only question submitted to the Court was, whether this statute began to run against the plaintiff’s claim from the 2d of August 1827", when the judgment was paid by him, or from the day when he made his demand upon the defendant</p> <p>The case being submitted íoDaniei,, Judge, at Spring Term, 1832, of Northampton Superior Court, and bis Honor being of opinion with ihc plaintiff, rendered judgment accordingly, from which the defendant appealed.</p>

Upon an an attachment issued at the instance of the plaintiff against one Kimble, the defendant, Smith, was summoned as garnishee. In his garnishment he stated 110 “°n°y °r effects of Kimble’s in his hands. On an issue made up to try the truth of this garnish-incut, it appeared .that one Elms borrowed from Smith $600, to bo paid in three months, and to secure the re-. j>ayment, passed Smith a note of one Gibson, (who was perfectly solvent,) for $900.

Attachment tried before Donneex, Judge, at Craven Spring Term, 1833. There was a mercantile firm in the city of New York, composed of four partners, viz : Garrett Hyer, Walter E. Hyer, Alexander Brimmer, and Jacob Burdett; they traded under the name and style of “ Hyers, Brimmer & BurdettDawson as one of the firm of Platt L. Wicks & Co. (of N. C.) became indebted to the said firm in New York.

This was an action of Ejectment, submitted to Nor-wood Judge, on a case agreed at Spring term, 1833, of Pasquotank Superior Court. The action was brought for the half of two lots oí land in Elizabeth City, known as lots No. 33 and 34.— Elizabeth B. Proctor was seised in fee of the two lots mentioned in the declaration.

Ejectment, tried before Norwood Judge, at Per-quimons, Spring Term, 1883.

Debt upon the following bond : “ Know all men by these presents, that wc R. H. J. “ and James Somerville of &c. are held and firmly “ bound to Peter R. Davis, Richard Bullock, and James “ Somerville, Justices of the Court of Pleas and Quar- “ ter Sessions for the county of Warren in the sum of “ &c. to be paid to the said Justices or the survivor or “ survivors of them, their executors or administrators on trust &c.” with a condition that R, H. J. should well and truly…

After the new trial granted in this cause at December Term 1831, (ante 3 vol. p. 126.) it was tried again on the Spring circuit of 1834, before Norwood Judge, at Chowan. ' ■ The statement of facts certified with the record, set forth the deed made by Creecy to the plaintiff, as it is stated in the before mentioned case; it is sufficient to say that it was executed to secure sundry debts of the bar-gainor, was dated the 15th day of September 1829, proved at the term of Chowan…

Case in which the plaintiff declared against the defendant, the collector of the port of Edenton, for so carelessly making out a coasting license of the plaintiffs sloop Martha Jane, that by reason of a mis-description, she was seized by the collector of Key West, and the plaintiff put to great costs and charges in defending her. Pxea — not guilty.

Trespass vi et armis, for am assault and battery. JPiiEA — not guilty. On the trial before'Settee, Judge at Warren, on the last Circuit, the plaintiff having made out his case,the defendant offered to prove, in mitigation of damages, that the plaintiff liad used very reproachful language of him, which had been communicated to him but a few minutes before the assault. This evidence was objected to by the plaintiff, but was received by the Judge.

This was an action of Debt, upon the official bond of John Black, former Sheriff of Cumberland. The breach assigned, was, that Black, while Sheriff, had become the bail of one Stephenson, by omitting to take a bail bond from him when arrested at the instance 0f (]10 relator, and liad neglected to render the body of Stephenson in his discharge as bail, or to pay the money in which he, Stephenson, had been condemned to the re-]atop.

This was a Petition and Scire Fndas to vacate a grant which issued to the ancestor of the defendauts for land in Haywood, on the 5th of December, 1798. The petition set forth many instances of alleged fraud and false suggestion, and the cause was much litigated in the court below. Judgment was entered on the Spring circuit of 1830, that the grant which issued to the ancestors of the defendants, be vacated — from which, an appeal was taken to this court.

<p>An insensible condition to a bond renders it single; but unmeaning words in the condition shall be rejected, so as to give the obligor the benefit of it. As where a forthcoming bond, dated in April, was for the delivery of the property the 15th Friday before May Court, the figures were rejected, and the County Court having a term in May, the deliveiy was held to be on the Friday before the ensuing term of that Court.</p> <p>Notice i» judicially taken of the time when the County and Su-commence.</p> <p>Á «Vriff- who has seised proper-satisfy^n^exeem tion, and surren-ceivhig aP°forthcoming bond, is breach^ ofPthe a bond, to recover the amount of the judgment; a1-noT^have'pai'd'h to the plaintiff in execution,</p> <p>a conveyance by a stranger to demnify him asamst by tion, is admissa-ble aF^ns?L bim> especially if it recites facts mate] ”alt° the issue, being similar to a declaration made and^not^coritra-dieted,</p> <p>An advance of money made by judgment,1 upon * an assignment of a saüs&ctíon° of it. The cases of (C Bowks 483,) o°¶01. p. 353,) Bodge? v Armstrong, (ante p. 353,) Shei'wood v Col-dert (Í5. 380,) 'approved.</p>

This was a petition originally filed in the County Court of Edgccomb against the defendant Collins alone. The plaintiffs stated that Francis Ferie died in the year 1810, having duly made and published his last will, whereof he appointed Beimel Barrow and James South-erland executors. That the testator left Elizabeth Redmond', the mother of the plaintiffs, his only child.

This was an action of Debt upon a single bond executed by the intestate of the defendant, to the intestate of the plaintiff, dated the 2d of January, 1817, and payable one year thereafter. The defendant pleaded that the action was not commenced within two years of the time when letters of administration issued to him. The plea did not contain an averment that the defendant had handed the assets of iiis intestate to the next of kin, and taken refunding bonds.

<p>Assumpsit, in which the plaintiff declared against the defendant, as a partner in the house of William 1). Murphey, & Co. in two counts.</p> <p>1st. Upon a promissory note, dated November 20th, 1829, payable at twelve months, for $251 73.</p> <p>2d. For goods, wares and merchandise, sold and delivered.</p> <p>Píea — Mojí assumpsit.</p> <p>On the trial before Norwood, Judge, at Orange, on the last circuit, the plaintiff produced in support of the first count of his declaration, an instrument signed by William D. Murphey, & Co. in all respects similar to that declared on, excepting that after the signature, it had a scrawl and the word “ seal” written within it, which liad been erased by drawing a pen through it; and adduced testimony tending to prove that Murphey had declared that he executed the instrumentas a bond, not knowing that one partner could not bind the firm by deed, and that in order to obviate this objection he had drawn a pen through the word “ seal” written within the scrawl, and had handed the instrument to the plaintiff as the promissory note of the company.</p> <p>The proof upon the second count in the declaration, was perfectly clear.</p> <p>For the defendant it was contended, 1st. That the instrument was a bond upon which this action could not be sustained ; and that the question whether the instrulnent was a bond or a promissory note, was one which must be determined by the judge, upon inspection, and that parol proof could not alter its character,</p> <p>2d. That if the instrument ever had been sealed, and the seal afterwards destroyed, the whole was annuled.</p> <p>3d. That although the jury might believe that the goods had been bought by the copartnership, yet that tbe simple contract which arose therefrom liad been merged in the specialty, and therefore this action could not be maintained.</p> <p>His Honor declined deciding upon inspection, whether the instrument was a deed or not, but submitted that question, upon the evidence, to the jury, informing them that if they should find that the scrawl made on it, bad originally been a seal, and that Murphey. afterwards drew a pen through it, with an intent to destroy it as a bond, and then delivered it as the promissory note of the firm, it was valid as a note. He also informed them that if the goods were purchased by the firm, the several bond of Murphey, given for their price, did not merge the debt as to the copartnership.</p> <p>A verdict was returned for the plaintiff and the defendant appealed.</p>

Assumpsit, “in which the plaintiffs declared against “the defendant as the contractor or owner of the mail ‘ ‘stage, for tolls alleged to be due for the passage of the “said stage along the Turnpike B-oad.

Case for slanderous words spoken of the feme plaintiff, before her marriage. Pieas, not guilty, and a justification. On the trial before Strange, Judge, at Lincoln, on the last circuit, the evidence was, that the defendant had said that it was reported the feme plaintiff was incontinent. The defendant offered proof of the existence of such a report, but of no fact or circumstance in any way impeaching her character.

This was an action of Debt upon the bond given by the defendant, to secure the discharge of his duty as administrator with the will annexed of William liayner. The breach assigned was, that the defendant had not accounted to the relators, who were some of the residuary legatees of liayner, for a negro slave named General, who was of the assets of his testator, and who had come to his possession.

Scire Facias against the defendant, the Sheriff of Randolph, seeking to charge him as special hail of one Joshita Cox, who lie had arrested, and discharged without taking bail. The set. fa. set forth the judgment in favor of the plaintiffs against Cox, the fact that it remained unsatisfied, and that the Sheriff had not returned a bail bond with the writ, but it did not set forth the ■issuing of a m. ■sa. against Cox, and a return of non est inventus.

Case — for an injury done to the plaintiffs reversionary estate in a house and lot in Elizabeth City.

Trespass, for seizing and taking* out of the possession of thc'plaintiff three slaves. The defendants justified under process against one Sears Bryan, whose property they contended the slaves were — upon this plea the following facts were in-evidence.

Trespass quark ciausum pregit, tried beforeJiis Honor Judge Settee, at Pitt on the last circuit. Pee a — not guilty.

This was an action commenced by a warrant in the common form, in which the plaintiff sought to recover the amount of a former judgment; the warrant was dated the 8th of May, 1832.

Ejectment, tried at Camden on the Spring circuit of 183á, before Swain Judge. The declaration set forth a demise by the lessors of the plaintiff of the several estate of the wife, and upon Hie trial it appeared that Isaac Guilford the father of the feme lessor, had died seized of the land in dispute, leaving three children to whom it, together with several other tracts of land, descended.

This was an action of Ejectment in which on the last circuit at Warren, before Settee Judge, a verdict was taken for the plaintiff, subject to the opinion of .the Court on the following case: Simon Williams the elder devised the land in dispute to bis wife for life, describing it “as the land and plantation whereon I now live, containing six hundred and forty acres,” By the two succeeding clauses of his will lie devised as follows : “I give and devise unto my son “William…

This action was originally commenced by a warrant, and came to the County court of Montgomery on the appeal of the plaintiff. The plaintiff having succeeded in the County court, the defendant appealed to the Superior court, when, at the Spring term 1833, the judgment was affirmed, and execution issued for the amount of the verdict, and the costs of both court.

<p>A deed for land, which is held adversely to the vendor, passes-no interest to the vendee, andiie cannot maintain a sci.fa. to repeal a grant under which the person in possession claims.</p> <p>An actual adverse possession of sirven years is a bar to a Sci. Fa. to vacate the grant under which the defendant holds.</p> <p>The case oí Me-Jtge V. Aiexan-as)-, {3d Ila-wks 322) distinguish-cd from this case, distinguished.</p>

Case against the defendant,the Sheriff of Martin, top'* a false return to a JL fa. issued at the instance of the plaintiff1 against the goods of one 'Tunstal, and also for improperly applying the amount raised by a sale of the said goods to another execution, instead of to that of the plaintiff. Plea — not guilty. On the trial at Halifax, on the last Fall circuit, a verdict was taken subject to the opinion of the court upon the following facts.

Detinue fot-' a male slave, named Willis. The case was submitted to Mahtin Judge, at Wake, on tire last Fall circuit, on the following facts. Dempsey Poxvell in the year 1818, put into Hie possession of Jhnelia Cook, the wife of the defendant, a negro girl pained Ferebe, who continued in the possession of the plaintiff during the life of Powell, the defendants usjng her and her issue, as their own.

This was an issue of devisavit, vex wow as to a script propounded as tbe will of Merrit Old, and was tried before Maiitiw Judge, at Camden on the last circuit.

Assumpsit, upon a parol demise of land, for rent in arrear. Peea — That the intestate before his death, had executed a promissory note to one R.C. for $2125, which was not due, and no assets ultra. Demurrer and Joinder. On the last circuit, his Honor, Judge Martin, at Bertie thinking that the arrear of rent due upon a parol demise was equal in dignity to a promissory note, gave judgment for the plaintiff, and the defendant appealed.

This was an action of Detinue for several slaves, ami the only question being upon the construction of the will of one Manj Jordan — the following caso agreed was submitted to Donnexx Judge, at Hyde, on the Spring circuit of 1833.

<p>Where a testator liy one clause of his will gave his daughter two slaves absolutely, arid by a subsequent clause gave her another, and proceeded as follows, “which negro together with those I formerly lent her, at her death, to he divided between, her children.”' Meld, that parol evidence that the slaves mentioned in the first clause had, before the making of the will, been lent by the testator to his daughter was admissible, and that fact being established, that the second clause reduced her property-in them to an estate for life, with a remainder to her children.</p>

Assumpsit for work and labour done, and materials furnished. At the trial before Mártir, Judge, at Bertie, on tbe last circuit, on -non assumpsit pleaded, the plaintiff produced an account containing the items of his demand and their amount, under which ivas set forth, in the hand writing of the defendant, a credit for a sum of money paid by him, and the balance due the plaintiff, after the ■deduction of the credit.

This was an attachment obtained by the plaintiff against the defendant. At Wilkes, on the last circuit, the following facts were stated in the shape of a case argued and submitted to StiiaNge, Judge. If upon them, the plaintiff was entitled to proceed, the suit was to progress; if otherwise, then the process was to be dismissed.

This was a Petition for the division of sundry slaves originally filed in the county court of Chowan. The plaintiff claimed as the administrator with the will annexed of Valentine Beasley, whose title, was as follows: The testator in the year 1833, married Harriet Beasley, who then was, and still continued an infant.

Ejectment, and at the trial before DoiraEii. Judge, at Wayne, on the last circuit — the only question was, whether the lessor of the plaintiff was estopped by a ' •deed made by her, and her then husband, to the ancestor of the defendants for the land in dispute. This deed was in all respects formal, and the objection was to the mode in which the privy examination was certified.

This was an action of D ebt upon a judgment obtained by the plaintiffs against the intestate of the defendant •Armstrong in his life time, and the other defendants, the latter being in fact his sureties. The judgment declared on was g3046. The only dispute between the parties arose upon the plea of payment, and upon a notice of a set off tor the sum of 0930, given at the trial before Seaweed Judge, at Cumberland on the last circuit.

This was an action of Beet, commenced in November 1830, upon a bond, made by the defendants in the penalty Of $50,000, dated the zTth day of December, 1815, with the following condition: “ Whereas, the above “bound .Moses A. Locke, has been appointed Cashier of “'the Salisbury Branch of the State Bank of North-Ca“rolina, now- therefore, the condition of this obligation “is snob,-that-if the above bound Moses Jl..Locke, shall “and does well, truly, honestly and faith fully,…

Ejectment, which was submitted to Seaweed, Judge, at Burke, on the Spring circuit of 1833, upon the following case agreed. The land described in the declaration, was granted in the year 1796, to one William Cathcart. On the 19th of November, in the year 1814, the taxes being unpaid, it was sold by the Sheriff, and was struck off to the Governor, no person offering to pay the taxes for less than all the land covered by the grant.

This was an action of assumpsit, commenced the 2d of April, 1833, by the plaintiff, as chairman of Stokes County Court, (he being enabled to bring it by a private act of Assembly passed in 1825,) against the defendant, the executor of David Dalton, for money paid to the testator as Treasurer of Public Buildings, and not accounted for. Pieas — 1st. JNTon Assumpsit. 2d. Statute of Limitations.

This was an action of Trover, for the conversion of slaves, tried before his Honor, Judge Mangum, at Bertie on the Spring Circuit of 1830, when the following facts were in proof. In the year 1818, one Edmund Fleetwood, was the guardian of the plaintiffs and in their right had possession of the slaves in question. He died in December 1818, having duly appointed Benjamin Hardy, his executor.

Iredell, for the defendant upon an affidavit setting forth that this cause had been removed from Gates to Hertford by an order which was entered on the record of the cause, while pending in that court, but which had not been transcribed into the copy certified to Hertford; and that the plaintiff, who was the appellant, had assigned that omission as error, moved for a certiorari to Gates, in order to found a motion for an amendment, in this court, upon the transcript returned…

<p>Upon plene administravii, the defendant is allowed the costs of an action brought against him in his own right, for a conversion of chattels, which he bona fide thought were of tho assets of the decedent.</p>

This was a Scire Facias against the defendant to have execution cle bonis pr opr Us, for the costs of a former action of debt brought against the. defendant as the executor of John Howard. The sci.fa. set out an absolute judgment in favor of the plaintiff for g47 07i, the amount of assets in the hands of the defendant, and also for g49,55 the plaintiff’s costs, and judgment quaiulo for- a large sum.

This was an action of Debt upon a bond for ;S10Q executed by one William Riley and the defendant, to the plaintiff, with the following condition: “The condition of the above obligation is such, that “ whereas Doe on the demise of Jonas Ricks hath instituted anaction of ejectment against Richard Roe and “ the above bounden William Riley, and on motion the “ said W. R. hath been admitted to become a defendant “of record in said suit: Now if the said W. R. shall “defend the…

This was a warrant brought by the plaintaiff for a breach of an ordinance of the Town of Plymouth, in the following words: “ Whereas the Commissioners of the town of PIy- “ mouth view the practice of suffering cattle to lie in the “streets thereof after night, not only as a common nui- « sanee, hut as highly dangerous to persons coming in-li to town after night.

This was a Petition and Scire Facias to repeal a grant. On the Fall circuit of 1832, at Buncombe, before Swain, Judge, the facts were, that the plaintiff had made bis entry on the 18th of April, 1801, and obtained his grant on the 12th of December, 1812. The defendant made an entry which included a small part of the land covered by the grant to the- plaintiff, on the 22d of January, 1807, and obtained a grant on the 27th of January following.

This action was originally commenced by a warrant in which the defendant was to answer the plaintiff “ in a plea of debt, the sum of one hundred dollars with interest.” The plaintiff was nonsuited before the magistrate and appealed to the County Court of Buncombe, where he obtained judgment for $97 84, principal and $6 03, interest.

<p>The facts of this case, as -collected from the record, are these: Fentress, on the 24th November, 1818, sued out an original attachment against one Williams, returnable to the County Court of Randolph; in which Swaim appeared upon the first notice served on him as garnishee, and made bis garnishment on 6th February, 1821, at which term there was a conditional judgment of condemnation of the sum in his hands sufficient to pay the recovery the plaintiff might make. At November, 1821,a judgment by defaultwas entered againstthe defendant JFii-liams, and at February following,the writ of inquiry was executed & final judgmententered against Williams for the sum assessed and costs, and also of absolute condemnation of so much in the hands of the garnishee as was sufficient to satisfy the same. On the 28th Jan. 1829,Swaim applied for a certiorari and supersedeas upon his affidavit, stating that when he had made his garnishment,counsel had advised him,that an attachment would not lie against Williams upon that cause of action, and that he then believed the suit was ended; but that about two years after-wards an execution issued against him on the judgment, when he again applied to other counsel fo have it set aside for irregularity, and was informed that it had been done ; since which time he had not heard any tiling of the case,until, just before this application, he discovered that process liad been kept up against him, and that execution was then out.</p> <p>On this affidavit a certiorari was granted by Judge Martin-, and on the return of it with the record, various counter affidavits were filed upon the merits.— But it was insisted on behalf of the plaintiff in the certi-orari, that it was immaterial how the merits were; for that the judgment against him, as garnishee, was void, because the attachment was not at first served on him, but on another person, who disclosed that he, Swaim, was William’s debtor, and lie was then summoned and made his garnishment; whereas an alias attachment should have been levied in his hands; and also for that, the judgment against the principal defendant, Williams,was void, because an attachment would not lie for the de^ mand therein sued on, and because there was no sufficient affidavit of the demand, and because the attachment was not under the seal of the justices of the peace. For these reasons, his Honor Judge Norwood, at Ran* dolph, on the last circuit, sustained the writ, and made the supersedeas absolute; ami the defendant in the certio-rari appealed to this court.</p>

Tliis was an indictment for ARSON in burning the dwelling house of one McKendre, in Moore county.— The evidence was entirely circumstantial.

The defendant was indicted for receiving stolen goods, knowing them to be stolen.