Volume 18 — North Carolina Reports

This was an action of Debt in which the plaintiff declared upon an injunction bond drawn according to the act of 1800, (Rev. ch. 551). The execution of the bond was admitted; as was the fact that the injunction had been dissolved before this action was brought.

Ejectment tried before his Honour Judge Martin, at Lincoln, on the last Circuit. On the trial, it appeared that the land in dispute was patented in the year 1768 by Gillespie. Sloan conveyed the same land to Robert Wear, in the year 1798, and Wear to the lessors of the plaintiff, in the year 1826.

This was an action commenced originally by warrant before a single magistrate, and carried by successive appeals to the Superior Court where it was tried on the last Spring Circuit, before his Honour Judge Settle. It is unnecessary to make a statement of the facts of the case, as they will sufficiently appear in the opinion of the Court.

<p>This was an action of Ejectment. And on the trial at Caswell on the last Fall Circuit, it appeared in evidence that at the commencement of the action, and continually up to the time of the trial, both the lessor of the plaintiff and the defendant were in possession, living in different houses on the lands in dispute, claiming adversely under their respective titles. His Honour Judge Seawell, considering the action as possessory, and the ouster stated and admitted in the pleadings as only fictitious for the purpose of trying the right under which the plaintiff claimed, held that, as the plaintiff was in possession, living on the land, though it was competent for him to maintain trespass against an invasion of his possession by one having no title, yet that he could not bring ejectment to recover a posses“ sion, which he then had, and which he had never lost. The plaintiff in submission to this opinion suffered a nonsuit, and appealed. r r</p>

This was an action of Slander, for charging the plaintiff with having killed a certain man by the name-of Jones. ■On the trial at Surry, on the last Spring Circuit, before his honour Judge Seawell, the plaintiff having proved the words, the defendant attempted to prove that Jones, the person spoken of, was still alive.

This was a contest for administration on the estate of David Moore, deceased. The wife of the plaintiff, John Blunt, was a daughter, and the defendant a son, of the deceased. In the County Court, upon the respective applications of the defendant and John Blunt, the administration was committed to Blunt, and the defendant appealed to the Superior Court.

In this case, which was an action of Slander for words spoken, the plaintiff upon the trial before his honour Judge Martin at Rutherford, on the last Circuit, proved the speaking of the words alleged; whereupon the defendant offered to prove, in mitigation of damages, that the plaintiff, before the speaking of the words, was in the habit of vilifying and abusing him. This evidence was rejected by his honour, and the plaintiff obtaining a verdict, the defendant appealed.

Detinue for several slaves. Plea non-detinet, and on the issue made thereon, the cause was tried before Martin, Judge, at Rutherford on the last Circuit. The plaintiff made title under his late wife, Phebe Simmons, and having proved her possession before their intermarriage, and his own after that event for more than three years, rested his case.

Assumpsit for the balance of an account, tried before his honor Judge Seawell, at Randolph, on the last Fall Circuit. The account had a credit as well as debit side.

Trespass vi et armis, — and on the trial before Nor-wood at Surry, on the Spring Circuit of 1827, the jury returned the following special verdict: “ That the plaintiff is a permanent jeweller and silver smith in the town of Salisbury, that he or some one of his co-partners are in the habit of attending the different Courts that are convenient to them, for the purpose of retailing jewelry, &c. not the manufacture of the state; that for that purpose he went to Rockford in said…

The plaintiff, as the widow of James Murphey, filed her petition in the County Court of Burke,' for the year’s allowance which the act of 1796 (Rev. ch. 469,) secures to widows, out of the personal property of their husbands, when they shall have died intestate. ■■ The case was carried by appeal to the Superior Court, where the defendants, relied upon the covenants in an ante-nuptial contract between the plaintiff and her late husband, as a bar to. her claim.

<p>After the new trial granted in this - .case, at December Term, 1833, (4 Dev. Rep. p. 926,) it was again tried at Hyde on the last Circuit before his honour . Judge Norwood, when the following entry on the minutes' of the Court of Pleas and Quarter Sessions of Hyde county, was offered in evidence on the part of the defendant, viz.: “ Court of Pleas ■and Quarter Sessions for Hyde County, November Sessions, Á. d. 1816. It is ordered that Stephen Gibbs be appointed administrator of the estate of Jeremiah Gibbs, on his entering into bond in the sum of $4,000 with John J. Bonner and William Selby, securities,” Much parol evidence was admitted by the Court to show the nature of the bond offered by Stephen Gibbs, and his qualification as administrator; but it is unnecessary to state it, as the opinion of the Chief Justice is founded entirely upon the effect of the entry on the minutes of the County Court, In the Court below, his honour was of opinion, that Stephen Gibbs had been duly constituted thé administrator of Jeremiah Gibbs; whereupon a verdict was' rendered in favour of the defendant, and the plaintiff appealed.</p> <p>referred to the cases of Hoskins v. Miller, 2 Dev. Rep. 360, and this case when formerly here, (4 Dev. Rep. 226); and argued that the fact of the acceptance of the administration bond by the Court, and also of the qualification of the administrator, must be entered of record; and that if such facts do not appear of record, they cannot be supplied by parol evidence, and the grant will, consequently, be of no effect, the grant being predicated upon the giving bond, and qualification as conditions precedent.</p>

This was an action upon the covenant for quiet enjoyment contained in a deed of bargain and sale, executed to the plaintiff by the defendant, and the only question was, whether the plaintiff had been evicted under a better title than conveyed to him by the defendant.

This was an action on the case, in nature of an action of waste, commenced in the county of Franklin, but removed to the county of Warren, where, on the last Circuit, it was submitted to his honour, Judge Donnell, on the following case agreed. In the year 1827, the defendant intermarried with Sarah M. Fenner, widow of Richard J. Fenner, and the plaintiffs are the children of the said Sarah by the said Richard.

This was an action for a deceit in the sale of a negro, tried before his honour Judge Mab.tin, at Burke, on the last Circuit. The sheriff of Burke had levied sundry executions against the defendant, on several negroes, and taken bond for their forthcoming on the day of sale. The negroes levied upon, were not produced at the sale, but the defendant substituted another, which the sheriff accepted, and sold to the plaintiff.

Trespass quare clausum eregit, tried before his honour Judge Martin, at Buncombe, on the last Circuit. On the trial, the plaintiff gave in evidence a grant from the state to James Miller, and a deed of conveyance from Miller to John Carson, and then offered a registered copy of a deed from Carson to himself. The reception of this copy was objected to, on the ground that the original should have been produced, or its loss accounted for, and was rejected by the Court.

<p>Where a person assigned his distributive share in an estate, and afterwards collected and used the amount due upon it, assumpsit will not lie against him at the instance of the assignee.</p>

This was an action on the case tried at Pitt, on the Fall Circuit of 1830, before his honour Judge Daniel. The declaration contained two counts, on the last of which the question arose.

This was an action of Assumpsit, tried at Franklin, on the last Circuit, before his honour Judge Donnell, in which the plaintiff declared against the defendant for contribution, as the co-security with her intestate, for one Thomas Yarbrough.

This was a Scike Facias to revive a judgment, and the question arose on the pleas of payment and satisfaction.

At Surry, on the last Circuit, before his honour Judge Martin, the plaintiff filed an information, in the name of the Attorney General, in the nature of a quo warranto, founded upon the following affidavit: “ State of North Carolina, Surry county. Superior Court of Law.

Ejectment for a tract of land in Haywood county, tried before his honour Judge Martin, at Burke, on the last Circuit. The plaintiff produced in evidence a deed from Yonah alias Big Bear to the ancestor of the lessors, dated 1st November, 1819, which was in fact, according to the testimony of the subscribing witness, executed and delivered on the 1st day of November, 1820.

Ejectment-, tried before his honour Judge Martin, at Lincoln on the last Circuit. The principal question in the cause was one of boundary, arising upon a grant to John Graham, the ancestor of the defendants.

The case, made for the Supreme Court by his honour Judge Strange, at Tyrrell, on the last Circuit, stated that “ this was a penal action for the violation of an act passed at the last session of the legislature, (viz. 1833,) ch. 133, entitled ‘ An act regulating lay days on Frying Pan in Tyr-rell county.’ The facts were clearly proven, and the defendant relied entirely upon the ground that the act of assembly was unconstitutional and void; but the Court being of a different…

<p>This was an issue of Devisavit vei won as to a script produced by the plaintiff as the will of John G. Smith.</p> <p>On the trial before Norwood, Judge, at Granville, on the last Spring Circuit, the plaintiff having made out a prima facie case, by proof of the formal execution of the supposed will, for the defendants, the caveators, it was objected, that the deceased, at its execution, was not of perfect memory, and if he had been, that he was at its execution weak in body and mind, and in extremis, and that the execution by the supposed testator was, under these circumstances, procured by the fraudulent practices of the plaintiff, who was the executor, and took a large beneficial interest under the supposed will.</p> <p>Upon the issue much testimony was offered by both parties. It was alleged by the defendants, that the supposed will never had been read over to or by the testator; to establish the contrary, the plaintiff, among other things, endeavoured to prove, that an interlineation near the end of the paper, was in the hand-writing of the deceased. The deceased, when in health, was a man of a clear head, an acute intellect, and of decided business habits; but at the time of the execution of the will was labouring under a lingering disease, which had prostrated his physical powers, and had affected his understanding, as was contended by the defendants.</p> <p>It was admitted that the will was in the hand-writing of the plaintiff, who was a favourite nephew and confidential agent of the deceased; but it was contended that it was written from instructions given by the deceased. To establish the fraudulent practices of the plaintiff, the counsel for the defendants read a part of the deposition of one Dawes, and stopped at an account of a conversation between him, Dawes, and James Downey, the father of the plaintiff. The counsel of the plaintiff then observed, that the other side might read the account given by the witness of that conversation; but the counsel of the defendants declining to accept this permission, his honour was moved to direct that the whole deposition should be read; but the presiding Judge refused to give this direction, observing, that the party offering a deposition was bound to read every thing in it relevant to the cause; but if the witness added matter which was illegal and irrelevant, the party offering it was not bound to read the objectionable parts, and if disposed to do so, would be prevented by the Court.</p> <p>To impeach Dawes, the plaintiff offered the deposition of one Terry, who, upon his examination in chief, deposed, that he would not believe Dawes upon his oath; that he did not believe him, Dawes, to be an honest man, and that he had, known him to steal. Upon his cross-examination, the witness stated, that he did not know the general opinion concerning Dawes’s character in the neigh-bourhood ; that he only stated his own, and that he never had any conversation respecting his, Dawes’s, character, with the neighbours. The reading of the examination in chief being objected to, his honour refused to let it go to the jury.</p> <p>The counsel for the plaintiff then proposed to read that part of Dawes’s deposition in which he related the conversation with James Downey, avowing his intention to call the latter to contradict him, but his honour refused to suffer this to be done.</p> <p>His honour, in his charge to the jury, informed them, that in order to the validity of a will, the testator must have a sound and disposing mind and memory; but that though his mind might be weakened or impaired from age and bodily infirmity, still if he retained intellect enough to make a rational disposition of his estate, it was sufficient: that as with a deed, so with a will, in general, if executed by the party, it was sufficient, though not read over, or the contents thereof shown to be known to him — the act of execution recognising and adopting the instrument. But that there might be circumstances which would require a different rule; that a will being written by a legatee, was looked upon as a suspicious circumstance, the suspicion being greater or less according as the interest was greater or smaller; and that where a will was written by one taking a large and beneficial interest under it, for a testator, in his last illness, and under great weakness from disease, and the writer was a confidential agent and adviser of the testator, it was necessary, in support of the will, to produce some evidence to show a knowledge by the testator of its contents, as that it was read to him or by him; or if not so read, proof that it was written from instructions by the testator, and according to them, would be sufficient, as showing that he knew the contents; that for this purpose the testimony as to the interlineation being in the hand-writing of the deceased was submitted to them, and if in his hand-writing, it would be important evidence ; the evidence and the inference to be drawn from it, was for them.</p> <p>A verdict was returned for the caveators, and the plaintiff appealed.</p>

<p>This was an action to recover damages for the breach of a covenant of quiet enjoyment, contained in a deed, whereby the defendant conveyed land to the intestate of the plaintiff. The breaches assigned, were; 1st. The eviction of the intestate by paramount title. 2nd. The eviction of the bargainee of the intestate.</p> <p>The plaintiff having made"out a prima facie case, for the defence it was proved that the interest of the intestate in the land, had, before the eviction, been sold under afi.fa. against the intestate, to one Marcum, and that the latter was the person who had really been evicted.</p> <p>Upon this fact being admitted, his honour, Judge Sea-well, at Rowan, on the last Circuit, ruled that the plaintiff, to entitle himself to a verdict, should “ show a disturbance, either of his intestate, or of some person holding under him, as his tenant, whose possession was that of the intestate. That the plaintiff as administrator, could not recover for a disturbance, when the person disturbed could claim the benefit of the covenant, in the deed to the intestate. That the covenant declared on, either ran with the land to the assignee, or it did not. If the former, the assignee being the person disturbed, was entitled to its benefit — that but one action could be maintained for the disturbance, and to allow that action to be brought by one whose interest had passed away, and who had received the full value of the land, for a disturbance which in no way molested him, and this to the prejudice of the person really injured, who had lost both the lands and his money, was not consistent either with reason or justice. That if on the other hand, the covenant did not run with the land, and extend to the assignee — the purchaser under thQfi.fa. —then it had not been broken by the eviction of the latter.”</p> <p>In submission to this opinion, the plaintiff suffered a non-suit, and appealed.</p>

Assumpsit brought to recover damages for the breach of the following written contract, viz.: “ I, Sarah Irvine, do agree to convey to Wm. Held: that no consideration being mentioned in it, the action could not be maintained. The plaintiff then proposed to prove by parol evidence, that the contract was founded on a valuable consideration.

This case came on before his honour Judge Seawell, at Randolph, on the last Circuit, when it appeared, that the defendant had been… Held: that “ it was not competent for the defendant to object to the informality of the bond, which by the act of assembly he is required to tender for his release from confinement,” and reversed the order of the County Court, and adjudged that the defendant should be imprisoned until he should be discharged therefrom by due proceeding of…

The defendant was convicted on the last Circuit, at Anson, before his honour Judge Settle, of being the father of a bastard child; “ whereupon,” the record stated, “ a rule was moved for and obtained to show cause why a new trial should not be granted for misdirection of the Court, which, on argument, was discharged. From which the defendant prayed an appeal to the Supreme Court, and it was granted.”

The defendant was put upon his trial at Caswell, on the last Circuit, before his honour Judge Sea well, upon the following indictment. “ The jurors for the state upon their oaths present, that Hugh Cobb, late of the county of Cas-well, (farmer,) since the first day of February, a. d. 1834, that is to say, on the twentieth day of February, a. d. 1834, with force and arms in the county of Caswell aforesaid, unlawfully and maliciously did fell timber in the channel of Hogan’s…

The defendant was tried, and a general verdict of guilty found against him, at Green, on the last Circuit, upon the following indictment, viz.: “ The jurors for the state, upon their oaths present, that William Ormond, late of the county of Green, on the first day of January, one thousand eight hundred and thirty-four, with force and arms, at and in the county aforesaid, unlawfully did bite off the ear of one Charles Joiner, at and in the county aforesaid, with intent him,…

This was a petition filed in the County Court of Craven, under the act of 1790, (Rev. ch. 326,) to correct an error in a patent. In the petition, copies and subpoenas were prayed to be served on the defendants, and they were issued and served accordingly.

<p>The rule that a grant cannot be presumed from one who is forbidden by law to make it, applies only where the person is forbidden under all circumstances from making it: Therefore, where the commissioners of a town were required to set apart a lot for a school, and it appeared that they had done so, yet a grant of that lot to an individual might be presumed, as the grant might have been made before the selection took place, or the first might have been given up and another selection afterwards made.</p> <p>To establish a presumption of title from possession, it is not necessary "to prove that the possession was under a claim of right, as every possession is, unexplained, taken to be on the possessor’s own right.</p> <p>If the judge leaves it to the jury to presume a deed from length of possession and other circumstances, without stating particularly the weight which the law attaches to each circumstance as tending to establish or rebut the presumption, it is not erroneous, unless such particular instructions be prayed and refused.</p> <p>It seems, that an inhabitant of a town, may be a witness for the town, where he has no distinct individual interest in the suit: and where the subject-matter of the controversy is a public charity belonging to the town, he is undoubtedly competent.</p>

Petition to have an alleged will repropounded for probate. Margaret and Mary Harvey infants, by their next friend, at May Term, 1833, of Perquimons County Court, filed their petition, in which they set forth, that Eliza Harvey late of that county had died in the month of September, 1830, being at the time of her death, the wife of Edmund B. Harvey, of said county; that by a certain contract or settlement entered into between the said Eliza, and her husband previously to…

This was an indictment against the defendants, seventeen in number, in the following words. “ The jurors for the state upon their oaths present, that James Baldwin, Senr. &c. all late of Bladen, on the ninth day of August, in the present year, at a certain public place, to wit, at Swindall’s Meeting House in said county, unlawfully did assemble and gather together, and then and there in the hearing of divers good citizens of the state then and there assembled, unlawfully and…

This was an indictment in the following form. “ The jurors for the state upon their oaths present, that Zachariah Blythe, late of said county, on the twenty-sixth day of October, 1834, and on divers other days and times before said day, at and in the county aforesaid, did unlawfully traffic with, sell, and deliver to certain negro slaves, whose names are to the jurors as yet unknown, a a quantity of spirituous liquors, not having then and there any written authority from the…

This was an attachment and interpleader under the following circumstances. The defendant, John H. Harry, on the 7th January, 1832, sued out an attachment returnable before a single justice, against John R. Dunn, an absconding debtor, and summoned William Boydton, as a garnishee. On the same day, Boydton appeared, and acknowledged that he had money enough in his hands (of the said Dunn’s) to pay the amount claimed by the plaintiff in the attachment.

The defendant was convicted at Burke, on the last Circuit, before his Honor Judge Settee, upon the following indictment. “ The jurors for the state upon their oaths present, that Solomon Roper, late of said county, on the first day of September, in the year of our Lord one thousand eight hundred and thirty-three, with force and arms in said county, being an evil disposed person, and contriving and intending to debauch and corrupt the morals of the citizens of said county, on…

<p>This was an action of ejectment, tried before his Honor Judge Strange, on the last Fall Circuit, at Curri-tuck.</p> <p>Upon the trial, the plaintiff, in support of his title, offered in evidence an original grant from the state to Daniel Van Pelt. The grant was No. 531 — was under the great seal, signed by the Governor, and countersigned by the Secretary of State, dated the twenty-fourth day of May, 1810, for one hundred and fifty acres of land, lying in the County of Currituck, described more particularly by certain lines and boundaries, and corresponding with the tract described in the declaration. This grant was duly registered in the Register’s office of the County of Currituck, and this memorandum was indorsed on it: “ Recorded in the Secretary’s office, Wm. M. White, P. Sec.” To show that this grant had been recorded in the Secretary’s Office, the plaintiff introduced as evidence, what he alleged was a copy of the grant from the books of that office, certified by the secretary himself. This document purported to be a copy of a grant of the same number to the same person, for the same quantity of land, (interposing, however, between the words “ acres of” and “ land” the word “ marsh,”) lying in the same county, of the very same date, the same beginning, and also describing the boundaries as mentioned in the original grant, except in two particulars, viz. First, the distance and termination of the first line, as described in the original, were, “ 85 chains to the point next to Anderson’s Island.” In the copy, they were “ 85 chains to the point next to Adderson’s Island.” The second variance was in the description of the second line. The original calling for a course and distance “ S. 55° E. one chain and seventy-five linksthe copy for “ S. 55° E. seventy-five,” leaving out the words one chain and also the word links. The defendant contended, from these variances, that in law, the grant had never been recorded in the Secretary’s Office, and was therefore void, and should not be readjjjin evidence. His Honor permitted the grant to be read; whereupon the plaintiff had a verdict, and the defendant appealed.</p>

This was a petition for dower, and damages for detention, filed by the feme and her second husband, against the heirs and the assignees of the heirs at law of the former husband. It appeared, that the former husband of the feme died seized in 1804, intestate, and that no steps had been taken to assert this claim until 1832, during all which ^me land had been in the legal possession of the heirs and their terre-tenants.

This was a rule obtained in the County Court of Beaufort, upon the defendant, as the sheriff of said county, to show cause why the plaintiffs should not have their rateable proportion of a sum of money, raised by him under the circumstances set forth in his return, which was as follows: “ A writ of attachment was sued out by John Myers v. Lawrence Van Busltirh, on the 17th day of January, 1834, and the same was by him delivered to the sheriff of Beaufort County, and was by…

This was a petition filed in the County Court of Robeson, at February Term, 1834, under the act of 1809, (Rev. ch. 773,) in which the plaintiff sought to recover damages for an injury sustained by the erection of a mill. The petition stated, that the defendant, by the erection of his mill and dam, had not only overflowed the plaintiff’s land, but had also greatly impaired the operation of his cotton gin, by throwing water back upon its works.

This was an action of debt commenced by warrant before a single magistrate, and carried by successive appeals to the Superior Court, where it was tried at Rutherford, on the last Fall Circuit before Martin, Judge.

Ejectment for land in Wake County, brought on the joint and several demises of Rebecca W. Lucas and Simon Turner, and submitted to his Honor Judge Norwood, at Wake, on the last Circuit, upon a case agreed, of which the following were the material facts.

This was an action of detinue for a slave; and pending the action, after issue joined upon certain pleas, the plaintiff regained possession of the slave. The defendant by plea since the last continuance, insisted upon this in bar of the plaintiff’s action, as well for damages for the detention of the slave, as for the sjave himself.

This was an action of trover, to which the defendant plead “ not guilty.” A case agreed was submitted to his Honor Judge Strange, on the last Circuit at Green, of which the following are the material facts. The plaintiff had heretofore brought his action of detinue, against the present defendant, for two female slaves, and obtained a verdict and judgment therefor, in which the value of the slaves was assessed.

This was an action of trover, tried on the last Circuit, at Haywood, before his Honor Judge Settle. Upon opening the plaintiff’s case, it appeared, that in May, 1833, he purchased a. growing crop of wheat, oats, and rye, under an execution against the present defendant. The levy upon the crop was made in April preceding, and the sale took place at the Court-house, at the distance of two miles from the premises where the grain was growing.

After the new trial granted in this case at June Term, 1830, (see 2 Dev. Rep. 383,) it was again tried at Cumberland, on the Spring Circuit of 1834, before his Honor Judge Sjeawell, when it appeared to be an action brought against the surety of the coroner, upon his official bond. The breaches assigned were, that on an execution against the sheriff at the instance of the relator’s intestate, the coroner had failed to collect the money, and to return the execution.

Assumpsit brought by the administrator de bonis non of Isaac Dozier, against the executor of his former administrator.

This was an action of assumpsit, upon an alleged parol warranty of soundness in the sale of a vessel. A bill of sale under seal, was executed by the defendant for the vessel in question, containing only a covenant of warranty as to the title. The plaintiff proposed to prove by a witness, that at the time the contract was made, and the bill of sale executed, the defendant warranted the soundness and sea-worthiness of the vessel.

<p>Under the act of 1782 (Rev. ch. 177, s. 3), the sheriff must be proceeded against by sci.fa. as hail, for not taking bail upon a capias, in equity; and an action on the case will not lie against him for such failure or neglect.</p>

<p>This was a hule to show cause why the report and confirmation thereof, of an allowance to a widow for her year’s support, should not be set aside, as irregular and void.</p> <p>Harriet Beasley, the widow of Valentine Beasley, filed her petition at March Term, 1834, of Chowan County Court, in which she stated, that her husband had died, leaving a will, to which she had entered her dissent of record at that term; and further, that said will had been proven at the preceding November Term of said Court, by Lemuel M. Pettijohn. The petition prayed, that commissioners might be appointed, to allot to her one year’s provision out of the estate of her said husband, which was granted; and the commissioners made their report to the ensuing term in May, when it was confirmed by the Court. At the August Term following, this rule was obtained against the said Harriet, and Robert Beasley, whom she had married since filing her petition. Upon the return of the rule, it was made absolute, and the defendants appealed to the Superior Court, where, at Chowan, on the last Circuit, his Honor Judge Donnell dismissed the rule and proceedings thereon, being of opinion, that if there was error in the proceedings, on the application of the widow for her year’s support, it could only be reached by certiorari or writ of error. From this judgment the plaintiff appealed.</p>

This was a petition for partition. The heirs at law of Leonard Barbrick, filed a petition for partition of the lands of their deceased ancestor, in the County Court of Cabarrus ; an order was made for the appointment of commissioners, and the commissioners made return of their proceedings to the Court.

<p>A deed conveying slaves to the trustees of a religious society, for the use of the society, vests no beneficial interest in the trustees individually; and if it is intended to confer on the slaves the rights of freemen, while they are nominally held in bondage, it is inoperative as being against public policy.</p> <p>The possession of slaves for more than three years, by the trustees of a religious society, for its benefit exclusively, and against the rights of all others, ' is a bar to an action of detinue for the slaves, notwithstanding the society considers slavery as sinful, and holds the slaves for the purpose of giving them the advantages of freemen ; because the cause of action arose from the conversion, and not from the intent with which it was made.</p>

This was an action of assumpsit brought to charge the defendant as a common carrier, for not delivering within a reasonable time, certain articles in pursuance of the following written agreement: “Received from Alpheus Forbes, junr. on board the Schooner Carolina, Cork, one hogshead molasses, three barrels whiskey, two barrels flour, one barrel sugar, and one keg tobacco, which I promise to deliver unto Messrs.

Tins was an issue of devisavit vel non, upon a paper writing offered for probate, as the last will and testament of Hugh M‘Camm, deceased, by the plaintiff Carr, one of the executors therein named, and by the other plaintiffs, the trustees of the University, as residuary legatees in said supposed will.

This was an action of ejectment, brought by the lessor of the plaintiff, to recover the possession of a small parcel of land, included between the dotted lines B. K. P. C., as represented in the annexed diagram. On the trial at Stokes, on the last Circuit, before his Honor Judge Norwood, the lessor of the plaintiff made’ out his case by producing a grant from the state bearing date in 1832, covering the land in dispute; and proving the defendant in possession.

<p>This was an action of detinue for certain slaves, tried at Caswell, on the last Circuit before his Honor Judge Norwood.</p> <p>The plaintiff claimed the slaves sued for under the following clause in the will of her father, Emanuel Wicks. “ I “give and bequeath unto the children of my daughter “ Lucy Bennett, Lydia and her sister Mary, all which with “ their future increase, I give to them and their heirs for- “ ever; it is my will that Walker Bennett shall not have “ the use or control over the negroes given as above to my “ daughter Lucy’s children. But if she survives him, then “ my said daughter Lucy may have the use of the said “ negroes during her widowhood and no longer.” The death of Walker Bennett, and the identity of the slaves sued for, with those mentioned in the will, were proved.</p> <p>His Honor held, upon this statement of facts, that the plaintiff could not maintain an action at law; that the words in the will of Emanuel Wicks, “ may have the use of the said negroes during her widowhood,” gave her only an equitable interest, such as a Court of Equity alone could protect. In deference to this opinion, the plaintiff submitted to a nonsuit, and appealed.</p>

This was an action of trover brought by the plaintiffs to recover the value of certain slaves alleged to belong to the estate of their testatrix, tried at Iredell on the Fall Circuit of 1834, before his Honor Judge Martin. The defendant set up a claim to the slaves in question, as the administrator of James MlKnight, whose title to them was as follows.

This was an action of assumpsit, to which the defendant pleaded the general issue, payment, and set-off; upon the issues joined on which the case was tried at Jones, on the Fall Circuit of 1834, before his Honor Judge Norwood.

<p>In warrants upon penal statutes before a single Justice, there must he some r°fereilC0 to the statutes which give the penalty; and the omission of such reference in the process, is a substantial defect that will he fatal even, after verdict.</p> <p>That clause of the charter of the Buncombe Turnpike Company, (act of 1824, Taylor’s Rev. ch. 1258, sec. 13), which compels all persons living within two miles of tho road of said company, and who are by law liable to work on public roads, to perform six days’ labour on the said road in each and every year, is not unconstitutional, inasmuch as they arc by the the same charter exempted from paying tolls for passing over the road.</p> <p>Whether a person subject to pay toll could be constitutionally compelled to work on the road ? Qu.</p> <p>The books of a corporation, containing entries, in accordance with its charter, when identified, are admissible to prove the organization and existence of tile corporation.</p> <p>The Board of Directors of the Buncombe Turnpike Company may, under its charter, appoint a manager, or overseer of the repairs of the road, without a deed under the corporate seal; and this appointment may be shown by the production of their books containing an entry of a resolution to that effect.</p>

Aster the new trial granted in this case at December Term, 1822, (see 2 Hawks, 235,) it was again tried at Iredell (to which county it had been removed) on the Fall Circuit of 1831 before his Honor Judge Daniel, when the defendants again had a verdict, and the plaintiffs appealed.

<p>This was an action of assumpsit, tried at Davidson, on the last Circuit before his Honor Judge Norwood. The declaration contained counts for work and labour done in the service of the defendant’s testator; goods, wares, and merchandize sold and delivered, and moneys paid to the use of the testator. Pleas, — set-off; and the statute of limitations. To the last plea the plaintiff replied, that the defendant’s testator assumed within three years before the issuing of the writ. The plaintiff offered evidence to establish his "account, and to show the value of his services, which commenced in 1821 and ended in 1832. The defendant did not produce any account of articles furnished, or debts owing by the plaintiff to her testator, but offered evidence that the plaintiff drew his support, and all the means of his annual necessary expenses from her testator, while engaged in his service. She insisted that the jury should lake this into consideration; not as a payment on account between the parties, nor as a set-off, but as affecting the rate of compensation for the plaintiff’s services. The plaintiff admitted that he had drawn annually from the estate of the defendant’s testator, articles and money for his support and maintenance, up to the year 1832. The defendant further proved, that in May, 1831, her testator paid to a creditor of the plaintiff, at his request, the sum of three hundred and thirty-two dollars, which she insisted upon as a set-off. The defendant’s testator diea in April, 1833, and the writ was issued the 30th of July, 1833. His Honor charged the jury, that there were mutual accounts between the parties; and the last items in the”defendant’s account being within three years, the whole claim of the plaintiff was taken out of the operation of the statute of limitations. Under this instruction, the jury returned a verdict for the whole amount of the plaintiff’s claim, deducting the sums paid by the defendant’s testator; and the defendant appealed.</p> <p>contended: 1st. That the rule as to accounts-current, was laid down too bi’oadly by his Honor, and was not applicable to the case before the Court. The rule is admitted in cases falling within the exception to the statute of limitations, 1715, {Rev. ch. 2, sec. 5.) It extends to actions on the case, as well as actions of account, and includes mutual current accounts between other traders, as well as merchants. Bull. N. P. 149-151, Coles v. Harris. Cranch v. Kirk-man, Peake’s N. P. 121. To get the benefit of that exception, a special replication is necessary. Webber v. Tivill, 2 Saund. Rep. 125.</p> <p>The rule does not extend further as a rule of law, but is a question for the jury. In Catling v. Skoulding, 6 Term. Rep. 189, it was held, that mutual accounts containing items in time, take the case out of the statute of limitations, independent of the exception; for the entering a new item, and giving credit by a party, is evidence to prove a promise to account. Bee Heyling v. Hastings, 1 Lord. Ray. 421. 2 Saun. Rep. 127, a. note. But whatever might have been the old doctrine, as to an acknowledgment taking a case out of the statute, it is now the' better opinion, that the action is founded on the new promise, which must be an express one; or there must be such an admission of facts, as clearly shows, out of the party’s own mouth, that a certain balance is due, from which the law can imply an obligation and promise to pay ; or that the parties are yet to account, and are willing to account and pay the balance then ascertained. See Bank of Newborn v. Snead, 3 Hawks, 500. Peebles v. Mason, 2 Dev. 368. Ballenger v. Barnes, 3 Dev. 460. Danforth v. Culver, 11 John. 146. Lawrence v. Hopkins, 13 John. 288. Coliman v. Morsh, 3 Taun. Rep. 380. Pitman v. Foster, 8 Eng. Com. Law Rep. 67. Acourt v. Cross, 11 Eng. Com. Law Reps. 124. And the case, upon all the circumstances, ought to be left to the jury to find the promise.</p> <p>2nd. This is not an account current; on one side there is but one item; and accounts to take a case out of the statute must be mutual, and must have reference to each other. Mere counter-charges will not have that effect.</p>

This was an indictment at common law for a forcible entry and detainer, tried at Wilkes, on the last Circuit, before his Honor Judge Martin.

This was a petition filed by the widow of Zachariah Littleton, against the children and heirs-at-law of her deceased husband, alleging, that he had died seised of three several tracts of land therein described; in which she claimed dower, and prayed that it might be assigned ta her. The defendants pleaded, that their father was not seised or possessed of the lands mentioned, at the time of his death; and thereon the plaintiff took issue.

This was an action of detinue brought by the administrator de bonis non, with the will annexed, of Hugh Black, for the recovery of certain slaves; and tried before his Honor Judge Strange, at Moore,… Held: and then gave to each of the defendants a copy, and another to the witness.

<p>Detinue for a negro slave named Harmon, tried at Stokes, on the last Circuit, before his Honor Judge Nor-wood.</p> <p>The case, as it appeared in evidence upon the trial, was, that the slave Harmon was the property of the plaintiff’s testator in 1810 or 1811, when one William G. Haynes married his daughter; that upon, or soon after the marriage, the slave in question was put into the possession of Haynes, by his father-in-law, and so continued until the death of Haynes, in 1834; that in 1823, Haynes, who had treated the slave all along as his own, conveyed him by a deed to the defendant in trust, to secure a debt which he then owed, and which he continued to owe until his death, and which was still subsisting at the time when this suit was brought; but by a stipulation in the said deed of trust, the possession of the slave still continued with Haynes; that Robert Hill, the plaintiff’s testator, died in August, 1834, and soon after, the plaintiffs as his executors, brought this action to recover said slave of the defendant, who, after the death of Haynes in the fall of 1834, had taken him into possession, for the purpose of closing the trust.</p> <p>For the defendant it was contended: 1st, That from the great length of time that Haynes had had possession of the slave, all the writings necessary to prove the gift ought to be presumed.</p> <p>2ndly, That'the plaintiff’s testator, by permitting Haynes to hold the slave out to the world as his own, and thereby to get credit, upon the faith that the title was in him, was guilty of such a fraud, as to prevent him or his executors from setting up their title, to the prejudice of such creditors.</p> <p>3rdly, That as the deed of trust stipulated that Haynes should remain in possession of the slave, the possession of Haynes, from the making of the trust in 1823, up to his death in 1834, was the possession of the defendant, the trustee; and that therefore the statute of limitations was a bar to the plaintiff’s recovery.</p> <p>His Honor instructed the jury, that since the act of 1806, (Rev. ch. 701,) a parol gift of a slave operated as a bailment only; that in cases of bailment, the statute of limitations did not run until the termination of that contract ; that the fact that Haynes claimed, and used the slave as his own, would not terminate the bailment, nor would the conveyance to the defendant have that effect, unless accompanied with actual adverse possession for three years; and that the possession of Haynes could not have that effect. He charged further, that there was no evidence that Hill, the father-in-law, knew of the conveyance to Hughes; that without such knowledge, there could be no fraud in the case, unless at the time of putting the slave into the possession of Haynes ; and that it was not seen how that could be a fraud upon the creditors of Haynes. He also charged that the presumption of title was, like any other presumption, subject to be contradicted by evidence. A verdict was returned for the plaintiffs, and the defendant appealed.</p>

This was a petition filed in the County Court of Jones, at September Term, 1829, to recover damages caused by a grist-mill, erected and occupied by the defendant.

At the last Spring Term of the Superior Court of law for New Hanover County, the grand jury found the following bill of indictment against the defendant, to wit: “ The Jurors for the State upon their oaths present, that Elijah Dickinson, late of New Hanover, on the tenth day of March, in the present year, and on divers other days and times before and since, in said county, did commit fornication with one Mary Ann Paget; and then and there did bed and cohabit with her; and…

Detinue for a slave, tried at Person, on the last Spring Circuit, before his Honor, Judge Martin. On the trial, the plaintiff, in support of his title, produced and proved a bill of sale from Reuben Jones, his father, to himself, for the slave in question.

<p>Land cannot bo sold under a fi.fa. which issues and boars teste, afier the death of the debtor, without bringing in the heirs by scire facias: and this, although the fi.fa. may bo an alias, the original of which issued and bore teste in the lifetime of the debtor.</p>

Debt upon a bond. Pleas,' — payment; set-off; accord and satisfaction. Held: and the balance in money : that the bond was not then delivered up, nor any money paid, the plaintiff not having the bond with him; but it was agreed, that the defendant should call at the plaintiff’s house, in a few days, execute a bill of sale for the boy, and receive the bond, and the balance of the money, in payment for him: that…

This was a petition by the next of kin of Andrew Young against his administrator with the will annexed, for distribution, to which his widow vras also made a party defendant, submitted to his Honor Judge Martin, at Rutherford, on the last Circuit, upon the following case, agreed:— Andrew Young died without children, leaving a paper writing, which was duly admitted to probate as his last will and testament, in the words following, to wit: “ January the 8th, 1833.

<p>When a record from one state of our Union, is declared on, or pleaded in bar in another, the only proper plea or replication, is nul tiel record ; and that, both as to its existence and effect, is to be passed on by the Court upon inspection, and not by the jury.</p> <p>What is the effect of an entry in the record of a suit in Virginia, that “ by consent of the parties it is ordered by the Court, that this cause be dismissed, and that the defendant pay to the plaintiff his costs by him in this behalf expended ?” Qu.</p>

This was an action of trover, for two slaves, tried at Bertie, on the Fall Circuit, of 1834, before his Honor Judge Strange. The plaintiff, in support of his title, proved, that the slaves once belonged to Holt Hotchkiss; that Hotchkiss, by a deed, bearing date the seventh day of October, 1828, conveyed them to Abram Hoadley; and that Hoadley subsequently conveyed them to him, the plaintiff.

This was an action of trespass quare clausum fregit, tried at Buncombe on the last Circuit, before his Honor Judge Martin. The only proof introduced by the plaintiff to establish an act of trespass, was, that the defendant had entered on the unenclosed land of the plaintiff, with a surveyor and chain carriers, and actually surveyed a part of it, claiming it as his own, but without marking trees or cutting bushes.

The defendant was summoned as a juror on the original panel to the last Term of the Superior Court of law! for Surry County; when he appeared in open court before Ws Honor Judge Martin, alleged that he was a postmaster under the authority of the United States, and claimed an exemption from serving on the jury under an act of Congress.

The defendant was convicted of murder at Guilford, on the last Circuit, and on his behalf a motion was made in arrest of judgment. It is stated in the transcript to have been founded on the following reasons. 1st. That «the caption of the record of the sitting of the Court, was not written in full, the entry on the minutes being * October Term, 1835: Present, the Hon’ble William Norwood, Judge.’ ” 2.

The defendant was convicted of forgery at Chatham, on the last Circuit, before his Honor Judge Norwood, when his counsel submitted a motion in arrest of judgment, under the following circumstances.

<p>' This was an action of trespass vi et armis, brought by the plaintiff to try his right of freedom. The defendant pleaded that the plaintiff “ Abram, is the proper slave of the defendant, and that he cannot maintain an action.”</p> <p>Upon the trial at Craven, on the last Circuit, before his Honor, Judge Donnel, the following facts were admitted. The plaintiff was originally the slave of one Elizabeth Henry, of the County of Craven, who at the March Term, 1808, of the County Court, filed the following petition, to wit. “ To the Worshipful, the Justices of Craven County Court. The petition of Elizabeth Henry respectfully show-eth, that she is possessed of the following slaves, whose meritorious services she desires to reward with the blessing of freedom, viz.” (here follows the names of several slaves, among whom is the plaintiff Abram.) “ She prays that she may be permitted to emancipate the said slaves at such time as she may think proper.” On the records of the Court at the same term, appeared the following entry: “ Read the petition of Elizabeth Henry, praying permission to emancipate” (the slaves named in the petition,) “ for long and meritorious services ; ordered that the petitioner have the permission prayed, upon complying with the directions of the acts of General Assembly in such cases provided.” On the 11th day of June, 1808, the said Elizabeth Henry and John C. Stanly, as her security, signed, sealed and delivered two penal bonds, one of which was payable to Benjamin Williams, governor of the state of North Carolina, for the sum of two hundred pounds, conditioned as follows: “ Thecondition of the aboveobligation is such, that whereas at the Court held for Craven County at this day, permission has been granted to Elizabeth Henry, by the said Court, to emancipate and set free a certain negro slave named Abram: Now, if the said negro so permitted to be liberated, shall, during his residence in the state of North Carolina, behave himself as an honest and peaceable citizen, then the above obligation to be void.” The other of said bonds was payable to John Tillman, Esq. Chairman of Craven County Court, for the sum of one hundred pounds, conditioned as follows: “ The condition of the above obligation is such, whereas at the Court held for Craven County at this day, permission' has been granted to Elizabeth Henry, by the said Court, to emancipate and set free a certain negro slave, named Abram. Now if the said negro so permitted to be liberated, shall not become chargeable to the parish of Craven County, or of any other county of this state, then the above obligation to be void.” These bonds were filed in the office of the clerk of Craven County Court, and were now among the records of said Court. The present plaintiff, was the slave mentioned by the name of Abram, in the petition of Elizabeth Henry, and in the order or judgment thereon, and in the bonds aforesaid.</p> <p>The plaintiff, before and at the time of filing the petition above mentioned by Elizabeth Henry, and obtaining the order or judgment thereon, and afterwards, until the 1th day of January, 1820, was, and continued in the possession of the said E. Henry, and during the whole of that time she claimed and held him as her slave, and exercised control over him as his mistress and owner. To some of the slaves mentioned in the petition, the said Elizabeth Henry executed and delivered deeds of manumission, (though she still continued in the actual possession of them,) but to the plaintiff, Abram, she made no such deed, nor did any act, (except the proceedings as above stated,) whereby t<5 express her determination to liberate him; but on the contrary, on the 4th day of January, 1820, she for a valuable consideration, duly sold and delivered him to one Thomas Wadsworth, from whom the defendant purchased him; in whose possession he continued until the bringing the present action. Upon this statement of facts, his Honor, pro forma, rendered a judgment for the defendant, and the plaintiff appealed.</p>

Ejectment for a lot in the town of Plymouth, tried at Washington, on the last Circuit, before his Honor Judge Settee. The lessors of the plaintiff claimed title to the lot in dispute, as the heirs-at-law of Levin Bosman, deceased; and the defendant set up title under the will of the said Bozman, and a conveyance from William A. -Bozman, in pursuance of a power therein contained.

This was an action of debt brought against the defendants upon an administration bond, which had been executed by one James Martin and Joseph Martin, as administrators with the will annexed, of John Martin, deceased.

<p>This was an action of covenant brought upon the following instrument: “ This indenture, made the 22d day of January, a. d. 1827, between John D. Clancy, of, &c. of the one part, and Benjamin Overman, of, &c. of the other part; Witnesseth, that the said John D. Clancy doth bind unto the said Benjamin Overman a negro boy, named Essex, for the term of three years, commencing from the date above written, during all which time the said negro boy his master shall faithfully serve, his lawful commands every where readily obey; he shall not absent himself at any time from his said master’s service, but in all things as a good and faithful servant shall behave towards his said master: And the said John D. Clancy doth further agree to furnish the said negro boy with materials for clothing: And the said Benjamin Overman doth covenant, promise and agree to and with the said John D. Clancy, that he will teach and instruct, or. cause to be taught and instructed, the said negro boy, the art and mystery of the coach-making business; that he will sustain the expense of making his clothes, and that he will provide the said negro boy with sufficient diet and lodging. In witness whereof, &c. “ John D. Clancy, [l.s.J</p> <p>“ Benj. Overman, [l. s.]</p> <p>“ Test. Jno. Conrad</p> <p>The breach assigned in the plaintiff’s declaration was, that the defendant had not taught and instructed, nor caused to be taught and instructed, the slave Essex, mentioned in the covenant, the art and mystery of the coach-making business.</p> <p>Pleas. — Covenants performed and not broken; previous covenants not performed.</p> <p>Upon the trial at Guilford, on the last Circuit, before his Honor Judge Norwood, the plaintiff offered evidence to show that the slave Essex did not understand the coach-making business at the expiration of his term of service with the defendant. The defendant, on his part, offered evidence to show that he made all proper exertions to teach the slave Essex, but that said slave had not capacity enough to learn the coach-making business. He proved further, that the said Essex, during his apprenticeship, frequently, in the absence, and without the knowledge of the defendant, would go to a neighbouring store and procure spirits, by which he would sometimes become moderately intoxicated. The defendant offered to prove further, that when he would instruct Essex about his work, and threaten to punish him if he did not exert himself to learn, as soon as he, the defendant, was absent, Essex would declare that he did care about learning the trade; it was no profit to him; and if he could avoid the lash, it was all he cared for. This evidence of the declarations of Essex was rejected by his Honor. Upon the evidence given, the defendant’s counsel insisted that, if the defendant had made every proper exertion, and the slave Essex had not capacity to learn the coach-making business, the plaintiff could not recover. He insisted, also, that the covenants of the plaintiff were precedent and dependent, and that a breach of them on the part' of the plaintiff was a valid defence for the defendant. His Honor instructed the jury that the covenants of the plaintiff were not precedent and dependent; but that the covenants on both sides were mutual and independent, and that if there had been a breach thereof by the plaintiff, it was no defence to the defendant. He also charged the jury that the covenant of the defendant was absolute, and that he could not be /excused from its performance, for want of capacity in the boy Essex to learn the coach-making business; but that jury might take that into consideration in estimating the damages, if they should find for the plaintiff. Under this charge a verdict was returned for the plaintiff; and the defendant appealed.</p> <p>1st. That the defendant had entered into an absolute covenant that the apprentice should be taught and instructed the art and mystery of the coach-making business ; and that this covenant had not been performed, unless the apprentice had become a good workman. The stipulation contains no exceptions, nor does it simply oblige the master to endeavour to teach, or to instruct in the art of coach-making; but positively undertakes that he shall be taught the trade. This not having been done, the master is not excused by want of capacity in the apprentice, or any other of the circumstances exhibited by the evidence, though they were properly considered in estimating damages. Where the law imposes a duty which it becomes impossible to perform, the non-performance is excused; but where a party covenants to do a particular thing, and receives a reeompence therefor, he is responsible in damages for a failure, although it be impossible. Parodine v. June, Aleyn, 26. Monk v. Cooper, 2 Ld. Ray. 1477. Appleton V. Bink, 5 East, 148. Shu-brick v. Salmon, 3 Burr. 1637. 1 Sel. N. P.</p> <p>2dly. The jury were properly instructed, that the covenants in apprentice bonds are mutual and independent. Winston v. Linn, 4 Eng. C. L. Rep. 131. This is the more particularly true where the apprentice is a slave, and the authority to enforce obedience is almost unlimited.</p> <p>3dly. The idle declarations of the slave, made to the other apprentices when the master was absent, and which do not appear ever to have come to his knowledge during the apprenticeship, were properly rejected as res inter alias acta. In Winston v. Linn, the declarations of the apprentice were admitted, but only those made in the presence of the master.</p>

A writ of mandamus was obtained at the instance of Jesse Dickens, directed to the Justices of the County Court of Person, commanding them to restore said Dickens to the office of Clerk of their Court, from which he alleged he had been illegally ejected, or to signify their reasons for failing to do so.

The defendant was convicted at Macon, on the last Circuit, before his Honor Judge Martin, upon the following indictment, to wit. “The Jurors for the state, upon their oaths present, that Samuel Fitzgerald, late of, &c., on the first day of April, in the year of, &c., then and there being constable of the county aforesaid, by virtue of which office of constable he, the said Samuel Fitzgerald, had levied various executions on the property of one Purnel Wrathbone, in the county…

This was an action of debt brought on a bastardy bond, the condition of which was as follows; “The condition of the above obligation is such, that, whereas a certain Samuel Stewart is charged with having a certain illegitimate child begotten on the body of Lucy Show ; now if the same Samuel Stewart, his heirs, executors, &c. shall provide for the support and maintenance of the said child to the indemnification of the parish of the county aforesaid, and shall perform such…

<p>The summary proceedings authorised by the act of 1830, c. 68, for the relief of persons likely to be injured by the burning of the records of Hertford County, partake of the nature of proceedings in equity; and the rules of equity practice should therefore, when applicable, govern them.</p> <p>In proceedings under this act, to recover upon a guardian bond, it is sufficient to show, that a guardian bond was given, with a penalty large enough to cover the amount claimed, and that it was executed by the defendant; without showing the names of the Justices to whom it was made payable, or the exact amount of the penalty of the bond.</p> <p>Guardian bonds being taken by public authority, have a high character of authenticity, and need not be verified by the ordinary tests of truth applied to merely private instruments, namely, the obligation of on oath, and the cross-examination of witnesses; therefore, when the execution of such bonds, taken from their proper repository, is denied by plea, it is only necessary to prove the identity of the defendant, in order to sustain the affirmative of the issue.</p> <p>When a witness is called upon to prove facts originally entrusted to memory, he may use a written memorandum which he has formerly made in order to refresh 1ns memory; but if after such help, he cannot recollect a particular fact, the writing is not admissible to supply it. This rule, however does not apply to proof of written instruments or documents ; for where such are lost or destroyed, so that they cannot be produced, a copy of them verified in Court by the copyist to have been taken from the original, is admissible even in preference to a professed full recollection of their contents by the witness, because such a copy is less liable to error than the memory of the witness. And so, for the same reason, an abstract of the original, taken and verified in the same way, is admissible, independent of the recollection of the witness, and even in preference to it, as to the facts which it contains.</p>

<p>This was an action of ejectment brought to recover the possession of a tract of land; and upon the trial at Davidson on the last Spring Circuit before his Honor Judge MaRtin, the lessor of the plaintiff produced the following evidence of title to the land mentioned in his declaration.</p> <p>jn j u]y5 1774, a grant issued to Charles Thompson for one hundred acres of land, described as “ beginning at a stake among three small hickory saplings, pointers, standing on the north-east side of Barnes’ Creek, at the mouth of the Rocky Branch, thence N. 10° E. 127 poles to a black oak, then N. 80° W. 127 poles to a pine, then S. 10° W. 127 poles, then S. 80° E. 127 poles to the beginning. The plat annexed to the grant, and signed by James Cotton as surveyor, reversed the east and west lines of the grant, so that by the calls of the grant the land lay on the west side of Barnes’ Creek, but according to the plat it would lie on the east side of that creek, the general course of which is nearly south. The warrant of survey upon which the grant issued bore date in 1772, and directed the survey to be made on the mouth of the Rocky Branch of Barnes’ Creek. Thompson conveyed to James Cotton (the surveyor) in October, 1774, describing the land as it was described in the grant, with the following additional particulars, to wit: “including the plantation and mill whereon I now live.” From Cotton a regular and connected chain of conveyances was shown down to the plaintiff, in each of which deeds the same boundary was called for as that contained in the original grant. The dates of the mesne conveyances from Cotton to the lessor of the plaintiff were 1786, 1789, 1817, and 1826.</p> <p>It appeared from the evidence that the Rocky Branch entered into Barnes’ Creek about one-fourth of a mile north of the northern line of the land claimed by the plaintiff’s lessor. It appeared also, that Charles Thompson, before his conveyance to Cotton in 1774, had built a mill, erected a dwelling-house, and cleared a plantation on the land now claimed ; and that a continued possession of the plantation had been maintained by the plaintiff’s lessor, and those under whom he claimed, until a short time before the entry and possession of the defendant. The mill had decayed and disappeared many years ago.</p> <p>It did not appear that a mark was found upon any tree corresponding in age with the date of the survey, or the grant, but it was shown that a survey had been made thirty-one or thirty-two years before this suit was brought, the object of which was to'find vacant land; and at that time a white oak, now insisted on as the third corner from the beginning, of the original survey, had then marks as a corner of considerable age upon it. It was also shown that the white oak had been since killed by fire; that a red oak was found marked as a corner at the place claimed by the plaintiff’s lessor as the first corner from the beginning. At the second corner from the beginning there was a post-oak which either had been before, or was then marked as a corner, when one of the conveyances, under which the lessor of the plaintiff claimed, to wit, that of 1817, was made, as it appeared that the land now claimed was run for the purpose of making that deed. After offering some other evidence tending to establish one of the corners, the plaintiff’s lessor produced two grants for lands adjoining that now claimed, and calling for the lines of the tract as claimed by him; one issued in the year 1791, and calling for the third and fourth lines; the other in 1801, calling for, and proved to have been run according to, one of the lines now contended for. A grant was also shown, of a tract of land, to James Cotton (the surveyor of the land granted to Thompson), which was issued upon a survey made by Cotton himself in 1772, about six months after his survey for Thompson; and according to the calls of that grant, nearly the whole of the land granted to Thompson would be included in it, if the beginning of Thompson’s tract were at the mouth of the Rocky Branch.</p> <p>If the mouth of the Rocky Branch be the beginning of the grant to Thompson, the land in dispute was not within the boundaries of it. If the courses and distances set forth in the grant be followed, the land in dispute would not be covered by them, although the beginning be lower down the creek than the mouth of Rocky Branch, and be where plaintiff’s lessor contended it was. The suit was commenced in 1829, and a continued possession by the plaintiff’s lessor, and those under whom he claimed, of fifty-six years, was proved.</p> <p>A plat explanatory of the case was made part of it, and is represented by the annexed diagram.</p> <p>His Honor, upon this evidence, instructed the jury, “ that by construction no preference was given to a natural boundary over a marked line; but where there was in the grant a double description by natural boundary and marked line, it was a question of evidence to the jury, where the two were variant and irreconcilable; and in such a case they must decide which boundary would include the land intended to be granted. The course and distance in the grant must be followed, unless there was a line run and trees marked by the surveyor when the land was surveyed for the grant. A plat variant from the courses in a grant, would not control it.”</p> <p>He also charged, that a grant was presumed to have been issued for land after thirty years possession; but that such presumption, even after a longer possession, might be repelled by evidence to the contrary. That in this case the presumption was opposed by the averments of the plaintiff’s lessor, that the grant and mesne conveyances under which he claimed, covered the land in dispute. That the jury must decide between the presumption of a grant from the length of possession, and the evidence adduced by the plaintiff himself tending to repel it, whether in fact a grant ever did issue. If no grant could be presumed, and the land in dispute was not included in the grant and conveyances produced by the plaintiff's lessor, the jury were directed to find for the defendant; but otherwise to find for the plaintiff. A verdict was returned for the plaintiff, and a motion for a new trial was submitted by the defendant on the ground that the judge had erred in instructing the jury that it was matter of evidence and not of construction, where an irreconcilable difference existed between a natural boundary and a marked line: whereas, they should have been told that a natural boundary had a preference as a matter of law over a marked line. His Honor admitted the error, and would have granted "a new trial, but it was agreed by the parties that, in order to have the questions growing out of the case as stated above, settled by the Supreme Court, the the new trial should be refused; upon which being done, the defendant appealed.</p> <p> </p> <p>In the diagram, the land claimed by the plaintiff is represented by A. B. E. F.</p> <p>The land, according to the courses and distances of plaintiff’s title-deeds is represented by A. B. C. D.</p> <p>If run off from the mouth of the Rocky Branch, the land will be represented by II. L. M. N., or K. L. P. 0., according as the East and West courses are assumed.</p> <p>G. H. I. X represents the tract, if the beginning be opposite the mouth of a small branch, near which plaintiff alleges the corner to be.</p> <p>Q. R. S. T. represents the land granted to James Cotton, upon his own survey, in the year 1772.</p> <p>W. X. Y. Z. is a copy of the plat annexed to Charles Thompson’s grant.</p>

This was an action of assumpsit brought by the plaintiff to recover the value of a share of the crop raised, in the year 1832, upon the defendant’s farra, where the plaintiff was employed as overseer.

<p>The obligation of a bond for the forthcoming of property, is only that the property shall be delivered to the officer at the time designated, and not that the execution shall be satisfied; and therefore, if a surety to the forthcoming bond before it is forfeited, discharges the execution without the request of his principal, such surety cannot maintain an action against his principal for money expended for the latter’s use, although by the payment of the money in satisfaction of the execution, the bond was discharged.</p>

This was an action of trespass vi et armis, for shooting the plaintiff’s dogs and cattle, killing his horses and hogs, and burning his stables and fodder stacks. On the trial, before his Honor Judge Strange, at Burke, on the last Circuit, the plaintiff' having proved his case, the jury were instructed, that in assessing damages, they were not restricted to the actual value of the property destroyed, but might in their discretion award vindictive damages.

This was an action of ejectment, on the trial of which, at Anson, on the last Circuit, before his Honor Judge Norwood, it became important to establish the boundary of the grant under which the plaintiff’s lessor claimed.

This was an action of detinue, brought by the plaintiffs for a negro boy, by the name of Richard, tried at Mecklenburg, on the last Circuit, before his Honor Judge Strange.

<p>A person, who has title to a slave, will not be estopped, by reason of any concealment or misrepresentation of that title, from setting it up against one who claims as a volunteer.</p> <p>The title to slaves cannot be transferred without consideration, by virtue of an estoppel, arising from the misrepresentations of the owner, as that would be in contravention of the act of 1806, (Rev. ch. 701,) which requires gifts of slaves to be in writing; and an estoppel cannot be setup to defeat the statute.</p> <p>Where a son, to whom the father had conveyed a slave by deed of gift, but retained the possession by permission of the son, was alleged to have stood by, while his father was making another voluntary disposition of his property, by deed, among all his children, and to have fraudulently concealed or misrepresented his title, it was held, that a private conversation, which occurred between the son and father, just before the execution of the latter deed, in which the father assured the son, that, by becoming a party to it, his right under the deed of gift would not be prejudiced, was admissible to show that the son himself was misled; and that it was, also, to prove how the father held the slave.</p> <p>Where a specific consideration is set forth in a conveyance, and no others are referred to in general terms, none other than the specific one can be averred and proved. But if one consideration is specified, and others are referred to in general terms, it is competent to show them forth in evidence ; and where the deed is wholly silent as to the consideration, proof of the actual consideration is admissible.</p> <p>A mere trustee, who has no direct interest in the event of the suit, is competent to testify in that suit.</p> <p>The doctrine of legal and equitable estoppels partially discussed by Gasxon, Judge.</p>

This was an action of detinue for several slaves, tried at Iredell on the last Circuit, before his Honor,- Judge Strange. It appeared that the slaves in question had been delivered by the plaintiff to Charles Shelton, the defendant’s testator, upon his intermarriage with the plaintiff’s daughter, about the year 1811 or 1812, and that they had remained in the possession of Shelton, and the defendant, his executor, ever since.

<p>This was an action of slander, in which the declaration stated, that the defendant said of the plaintiff, “ that he harboured a runaway negro belonging to Jonathan Reddick, and he could prove it; and he should be prosecuted for it.” Upon the trial at Chowan, on the last Circuit, before his Honor Judge Dick, the jury found the defendant guilty of having spoken the words charged in the declaration, and assessed the plaintiff’s damages to three hundred and twenty-five dollars, but subject to the opinion of the Court upon the question'reserved, whether the words were in themselves actionable. Upon argument, his Honor being of opinion that the words were not of themselves actionable, directed a judgment of nonsuit to be entered, from which the plaintiff appealed.</p> <p>contended, that charging a man with harbouring a runaway negro, was actionable. It imputes an act of moral turpitude which subjects a man to indictment and punishment, and degrades him in the eyes of the community. It is certainly actionable, unless it is the law, that the offence imputed must be such, that the punishment of it must be hanging, putting in the pillory, or whipping.</p> <p>The words charged do not necessarily impute the offence of harbouring a runaway sinue. The charge is of harbouring a runaway negro, [belonging, &c., by which might have been meant, that the negro was only an apprentice. It should have been alleged that the defendant meant thereby the harbouring a runaway slave*</p> <p>But if the words do impute the offence of harbouring a runaway slave, they are still not actionable. They must impute legal infamy — the mere liability to punishment is not sufficient. Brady v. Wilson, 4 Hawks, 93. Liability to the punishment of imprisonment is not of itself sufficient.</p> <p>The case in Hawks has no reference to the present. There the charge itself was not actionable, because there was no averment of the guilt of the offence — like charging one with killing a man simply. But if the words themselves import a criminal offence, the defendant must show that they were not so used. Negro belonging to a man, must mean a slave — it is synonymous with .slaye. The criterion contended for by the defendant’s counsel is not the true one. If the punishment of whipping was taken away from stealing, still ■ it would be actionable to charge a man with stealing. It must therefore be the nature of the offence, and not the punishment, which renders the words actionable. Harbouring a slave partakes of the nature of larceny. In the act of 1816 (Rev. ch. 918,) relative to the punishment of manslaughter, the Court recognised a. distinction between crimes infamous or otherwise, and referred the infamous punishment therein directed to the offences of an infamous •nature. State v. Kearney, 2 Hawks, 53.</p>

<p>Debí' upon a bond given by one John B:. Jasper and his sureties, upon his being appointed guardian to Martha' Jasper, with the Usual condition in the printed forms to improve the estate of the ward, and faithfully to account for it.</p> <p>The1 breach assigned was, that Jasper had not paid over to the husband of his Ward her estate in his hands.</p> <p>The only plea upon which a question arose', Was upon' that of performance; on which the following facts were proved before Donneul, Judge-, at Beaufort, on the last Fall Circuit. At February Term of the County Court of Hyde, the defendant filed a petition against Jasper for counter-security, Upon which' an order was made, " that Asa Bell & others, sureties for John B. Jasper, guardian Of, áre., be released from this time' for his guardianship, and that John B. Jasper enter into new bond with W. H. R. &c., suie'ties.” This order, so far as it extended to the execution of a new bond,- was complied with. By an account taken' in the progress of this- cause, which was not excepted to, Jasper was found to'have been indebted to his ward at the time the new bond was given, to the amount claimed in this suit. This amount was composed of money which either then' was, or ought to have been in' his hands, debts due her oft the hire'df her negroes, áre. Jasper had made no returns of his guardian account to the County Court, and, in fact, had kept pone. When the new bond was given he was embarrassed, but had property sufficient to pay the sum then due his ward. He had not paid any of the money in his hands, either to her or for her use, and became utterly insolvent, before this suit was brought. For the defendant it was contended, that, as Jasper was able, when the new bond was given,- to pay the amount due his ward, the law presumed an application of his property to that purpose, so as to discharge the sureties in the first bond. But his Honor instructed the jury, that whatever might have been the presumption of law, had Jasper, after the execution of the new bond,kept and rendered due accounts of his trust, yet as the contrary appeared to be the fact, no presumption of that kind arose.</p> <p>A verdict was returned for the plaintiffs, and the defendant appealed.</p>

<p>This was an action of petinue for a slave. Plea, non detinet. On the trial before Donnell, Judge, at Halifax, on the Fall Circuit of 1834, the jury returned a verdict for the plaintiff, subject to the opinion of the Court upon the following facts.</p> <p>In April, 1814, John B. Mebane, of Chatham, was in possession of this slave, and several others, claiming, holding and using them as his own, and so continued until his death, which took place in the year 1820. ' In July of that year he made his will, and thereby devised as follows:— “I give and bequeath to my two daughters, Cornelia and Martha, and their heirs forever, the following property, to be equally divided between them, whenever either of them shall marry, or come to lawful age, viz. all my land, with its appurtenances, the whole of my negroes, wilh their increase, until that time;” and thereof he appointed the defendant, his father-in-law, and John Mebane, his father, executors, and guardians to his children. This will was proved by the defendant and John Mebane, at the August Session, 1820, of Chatham County Court; and they immediately, in their character of executors, took all the slaves abovementioned into their possession, and hired them out every year, until the year 1832; first, as executors, and afterwards as guardians of the children.</p> <p>In the year 1831, the plaintiff intermarried with Cornelia, one of the children of John B. Mebane, mentioned in his will; and after the expiration of the time for which the negroes were then hired out, viz. in January, 1832, three persons were selected by the executors and the plaintiaff, to make a division of the slaves of which John B. Mebane died possessed, together with their increase. A division was made accordingly, and the defendant being present thereat, he delivered to the plaintiff, in right of his wife, one moiety of them, including the slave in dispute, as his property under the will; and the plaintiff accepted them, took possession of them, and retained them until some time in the following year, when the defendant took from the plaintiff several of the slaves, and among them that mentioned in the writ, and has ever since refused to return them to this plaintiff. Before the intermarriage of John B. Mebane with the daughter of the defendant, the slave was the property, and in possession of the defendant; and, upon the said marriage, was, with several others, sent by the defendant to his son-in-law, but no written transfer of them to him was executed by the defendant. In the inventory of the estate of John B. Mebane, returned by the defendant and his co-executor, these slaves were not included, and the defendant had, upon the death of his grand-daughter Cornelia, without issue, reclaimed them, contending they were his property.</p> <p>Upon these facts, his Honor set the verdict aside, and directed a nonsuit to be entered; and the plaintiff appealed.</p>

This was a Petition filed by the plaintiff, in which he stated, that he was the father, and next of kin of one Samuel Ralston, deceased, who had, by the contrivance of the defendant Telfair, made a will, whereby he bequeathed the bulk of his estate to the defendants, and whereof he appointed them executors. The' plaintiff averred, that he was a resident of the kingdom of Ireland, and that he had no notice of the will, nor of the probate thereof.

Trespass quare clausum fregit tried before Norwood, Judge, at Sampson, on the last Circuit. Pleas, 1st, Not guilty. 2d, A judgment in a former action of trespass, in which Ann Holmes, had recovered damages of the present plaintiff, for a trespass upon the locus in quo, with an averment, that the defendant entered by the direction of the said Ann.

<p>At the last term, the plaintiff, in an action between the parties to this motion, recovered judgment for his costs, and an execution issued for them, as taxed by the clerk. The defendant in that action, applied now to set the execution aside, upon the ground that costs were not recoverable in this Court.</p> <p>No counsel appeared for the plaintiff, in the motion which was brought on, in consequence of a written application of his, or from the return of the sheriff.</p>

This was a petition filed by the plaintiff, for an injury to his land and dwelling, caused by a mill-pond of the defendants.

An application was made ore-tenus to the County Court at Hertford, by James Maget, styling himself executor of Jethro Darden, deceased, for an order appointing commissioners to divide the negroes of the deceased among his legatees, according to the terms of the will.

The prisoner was tried before Settee, Judge, on the last Circuit, at Wake, for the murder of John Whitaker.

This was an action of debt, brought upon the following instrument. “ It is hereby agreed, between Amos Wade of the one part, and Daniel L. Russell of the other part, witnesseth that Amos Wade hereby agrees, that the Schooner Wade shall after she returns from New York, and makes another coasting voyage, return to Swansboro and take a load of turpentine, for the said Russell to New York, at fifty two and a.n half cents per barrel.

This was an action of ejectment, tried before Strange, Judge, at Rutherford, on the last Circuit. The lessor of the plaintiff claimed title under two separate grants; and to understand the case, it will be necessary to consult the annexed map.

<p>This was an action of trespass vi et armis ; and upon the trial at Buncombe, on the last Circuit, before his Honor J udge Strange, the facts appeared to be as follows : —One Kimsey obtained a judgment before a justice of the peace, against one Byers, and had an execution issued thereon, but Byers died before the levy, which was made afterwards, and the property sold, when the plaintiffs’ intestate became the purchaser, and took possession. The defendant, as the administrator of Byers, retook the property from the possession of the plaintiffs’ intestate,, contending that the operation of the act of 1828, ch. 12, sect. 1, the levy and sale by the officer after the death of Byers, passed no title to the purchaserand his Honor being of this opinion, directed a nonsuit‘T whereupon the plaintiffs appealed.</p>

This was an action of debt, upon a bond executed by the defendant, in the following words: “ On the 10th day of June next, with interest from the date hereof, I promise to pay to the President and Directors of the State Bank of North Carolina, at the agency of the said bank at Edenton, the sum of five thousand seven hundred and twenty-six dollars, for value of them received.

This was an action of trespass quare clausum fregit, for entering upon the possession of the plaintiff, and cutting and hauling off a quantity of wheat.

<p>If the defendant in an execution, places money in the hands of another person for the purpose ofpurchasing his own property, at a sale under the execution, with an intent to defraud his creditors, and that person buys itand takes adeed from the sheriff, the defendant is. still the owner ofit, and another ofhis judgment creditors may, at law, subject it to the satisfaction of his debt, although the first execution be for a bona fide debt, and the sheriff who sold- under it is not a party to the fraudulent contrivance of the debtor.</p> <p>The different jurisdictions at law and in equity, for the suppression of fraud, stated by Ruffin, Chief Justice.</p> <p>The cases of Den. d. MlKerall v Cheek, 2' Hawks, 343. Vick v. Flowers, 1 Murph. 321. And Brady v. Ellison, 2 Hay. 348, approved.</p>

This was an action of ejectment, upon the trial of which, at Bertie, on the last Circuit, before his Honor Judge Dick, the jury returned a special verdict, the mate-, rial' facts of which were as follows. Mary Sutton was seised in fee of the lands described in the plaintiff’s declaration when she intermarried with John E. Wood.

This was ah action of ejectment, tried at Burke, on the Spring Circuit of 1835, before, his Honor Judge Settle. Both parties claimed under one Joseph Dobson, the father of the lessor of the plaintiff; and the plaintiff having made out his case, the defendant set up title under a judgment and execution against Joseph Dobson, and a sheriff’s deed for the land in controversy.

Trover for a horse, tried at Haywood, on the last Circuit, before his Honor Judge Strange.