Volume 19 — North Carolina Reports

The defendant was put upon his trial at Rowan, on the last Circuit, before his Honor Judge Settle, for the murder of his wife. In the course of the trial, it appeared in evidence that the deceased came to her death by a stroke upon her head, and by choaking and strangulation by means of a rope.

Detinue for • two slaves by the names of Esther and Bob. Pleas, non detinet and statute of limitations. Upon the trial at Anson, on the last Circuit, before his Honor Judge Saunders, the plaintiff claimed the slaves under a parol gift to his wife, made by her father, Richard Russell, Sen., in the year 1802, and introduced several witnesses, who, if they were to be credited, clearly established the fact of the gift as alleged.

<p>In ejectment for land purchased at a sheriff's sale, under an order of sale made by the County Court upon the return of a constable that he had levied on the lands of the defendant, the purchaser must show the justice’s judgment returned to court according to the directions of the act of 1794, (Rea. ch. 414, s. 19); and an entry on the trial docket of the court at the foot of the case of an “ order of sale,” is not such a judgment as the law requires to be shown.</p> <p>Where a justice’s execution has been levied upon lands and returned to the County Court, the production of the trial docket of the court containing a mere note or memorandum of the case, with an “ order of sale,” entered at ■ the foot of it, together with the testimony of the clerk that after a diligent search he had been unable to find the original papers in the suit, is not sufficient evidence of the loss of the justice’s judgment, if evidence of such loss'be admissible.</p> <p>The cases of Bryan v. Brown, 2 Murph. 343, and Hamilton v. Adams, lb. 161, approved.</p>

This action was brought by the plaintiff, who is a citizen of the state of Georgia, against the defendant, as the executrix of one Finley G. Stewart, deceased. The defendant plead, “ ne tinques executrixto which the plaintiff replied, that she was executrix of her own wrong; and upon this replication issue was joined.

This was an action of assumpsit, to which the defendant plead “infancy,” and the plaintiff replied, that “the articles furnished were necessaries.” Upon the trial at Stokes, on the last Circuit, before his Honor Judge Settle, it appeared that the defendant lived separate and apart from his father, with one of his brothers, for whom he laboured, and from whom he received compensation for his labour, for his own use.

This was an action of debt upon a penal bond payable to “ the Chairman of the County Court of Guilford,” and conditioned for the building and keeping up a public bridge.

The defendant was convicted, together with one Alexander Hill, at Surry, on the last Circuit, before his Honor Judge Dick, upon the following bill of indictment: “The jurors for the state upon their oath present, that Moses Ritchie and Alexander Hill, both late of said county, and both white men, on the first day of March, in the year of our Lord one thousand eight hundred and thirty-four, with force and arms, in said county, unlawfully did play at a game of cards with two…

<p>Where statute creates an offence, and not only declares the specific penalty, but also the mode in which it shall be recovered, that particular method, and no other, must be pursued. Hence it is not indictable, for a justice of the peace to celebrate the rites of matrimony, without a license from the clerk of the County Court, under the act of 1778, (Rev. ch. 134,) as thatact not only makes that an offence, which was not so at common law, but also annexes the penalty, to wit, fifty pounds; and the mode of recovery, to wit, by action of debt.</p> <p>In an indictment on a statute, no allegation of unlawfulness, nor of being against the statute, nor any conclusion, will make good the indictment, if it docs not bring the fact prohibited or commanded, in the doing or not doing whereof, the offence consists, within the material words of the statute.</p> <p>Hence, if the statute ibrbids the doing of a particular act, without the authority of either one of two things, the indictment must negative the existence of both those tilings, before it can be supported.’</p>

At the Fall Term, 1833, of Rutherford Superior Court, the following bill of indictment was found against the defendant, to wit: • “ The jurors for the state upon their oaths present, that Dunlap Scott, late of said county, on the first day of October, in the year of our Lord one thousand eight hundred and thirty-three, with force and arms, in said county, one steer, of the value of five dollars, of the goods and chattels of one Levi M'Clure, then and there being, then and…

This was an action on the case, for slanderous words; to which the defendant put in the pleas of general issue and justification. Held: that if Spencer Rice heard the remark of Radfofd to Mrs. Carter, and made no reply, the evidence was proper for the purpose of discrediting him.

<p>The plaintiffs, by their attorney, issued a notice on the 15th of February, 1828, to the defendants, stating, that at the next term of the Superior Court for the county of Chowan, they would move the court for judgment against the said defendants, as being the justices who were upon the bench of the County Court of Tyrrel, when Wilson B. Hodges was appointed clerk of said court, and was permitted to officiate as such, without having first given bond according to law, for a certain sum of money which had been collected by the sheriff of said county of Tyrrel, on an execution in favour of the plaintiffs, and paid by him into the clerk’s office, while the said Hodges was officiating under the appointment aforesaid, which sum, the notice further stated, the defendants were bound to pay; and for which they were proceeded against as the securities to the said Hodges’s clerk’s-bond would have been, had he given any, according to the act of assembly in such cases made and provided. Upon the return of this notice, the defendants appeared, and put in the pleas of the “ general issue,” and “ that there was no demand ma(^e Previous to the service of the notice.”</p> <p>At October Term, 182S, of Chowan Superior Court, case came on to be tried before his Honor Judge Strange, when it was proved, that the sum demanded by the plaintiffs was received by Hodges, in his official character as clerk of Tyrrel County Court, from the sheriff of the said county, it being the amount of an execution collected by the said sheriff, for the plaintiffs ; and that the said money had been demanded of the said clerk by the plaintiffs’ attorney, previous to issuing the notice. It was proved, by the records of Tyrrel County Court, that the defendants were the justices who were upon the bench; when Hodges was appointed clerk; under which appointment he was acting, when the money in dispute was paid to him. The same records also stated, that a bond had been given by Hodges; but the bond which was produced, and which had accompanied the record, was defective, in having no sum whatever inserted in the body of it. The jury, upon this evidence, returned the following verdict: “ that the money mentioned in the plaintiff’s notice, was paid to the clerk of the County Court of Tyrrel, at July Term, 1827; and that a demand was made by the present plaintiffs, upon the said clerk, Wilson B. Hodges, previous to instituting this action.”</p> <p>Three objections were made by the counsel for the defendants, to the plaintiffs’ recovery, viz.</p> <p>1st. That although no evidence was offered, as to the residence of either of the parties, yet that the court could judicially know, that the State Bank, being a corporation, could not have a residence anywhere; and that the Justices of Tyrrel could not live in Chowan; so that the Superior Court of Chowan could not have jurisdiction of the case.</p> <p>2nd. That the same record which stated the fact, that ■the defendants were upon the bench, at the time of the clerk’s appointment, proved that a bond had been given; therefore the plaintiffs could not, or if they could, had not shown, that the defendants had failed to take a bond.</p> <p>Sd. That the act of 1819, (Rev. ch. 1002) only gave the summary remedy against the sheriffs, clerks, and officers, and their sureties, eo nomine, and did not extend . • • r-to the justices, who, by the acts of 1790, (Rev. ch. 327,) and 1809, (Rev. ch. 777,) were rendered liable to all the responsibilities there existing, and liable to be proceeded against, in the same manner that the sureties might then be, as a penalty for their neglect in taking no bond, pursuant to the duty of their office; and that the justices, not being mentioned in the act of 1819, giving the extraordinary remedy resorted to by the plaintiffs, could not be subjected in that way.</p> <p>His Honor overruled these objections, and gave a judgment for the plaintiffs, for the sum demanded, with interest; and the defendants appealed.</p>

This was a petition, filed under the act of 1809, (Rev. ch. 773,) for damages, which the plaintiffs alleged that they had sustained, by the erection of a mill and dam by the defendants. The suit was instituted on the 29th day of October, 1832, in the County Court of Guilford, from which it was carried by appeal, to the Superior Court, where it was tried, at bar, on the Fall Circuit of 1835, before his Honor Judge Norwood.

This was an action of ejectment, tried at Tyrrel, on the last Spring Circuit, before his Honor Judge Dick. After the lessors of the plaintiff had made out their case, by producing a grant from the state, which covered the land in dispute, the defendant introduced and relied upon a grant from the state, of a prior date, which, he contended, also covered the disputed premises.

This was an action of trover, for certain slaves, submitted to his Honor; Judge Saunders, at Onslow, on the last Spring Circuit, upon the following case agreed : Mabury Petteway, in the year 1823, made a parol gift of the slaves in controversy, to his daughter Matilda, the wife of the defendant, William Todd. The slaves were placed in the possession of Todd, who kept them for more than three years, and had, them in possession at the time of the donor’s death.

This was a petition for a divorce, filed by the plaintiff, as husband, against the defendant, his wife, on account of the adultery of the wife. The petition was filed the 11th day of March, 1833, and stated, that the marriage took place in 1823, the petitioner then being in his eighteenth year, and the wife about twelve years older.

This was an action ■ of assumpsit, tried at Onslow, on the last Spring Circuit, before his Honor Judge Saunders. The case appeared to be as follows: One Hadnot, a constable, had given the defendant a receipt for a note on one French, for twenty-five dollars, and interest, to collect or return.

Tins was an action of trespass vi et armis, brought by the plaintiff to recover damages from the defendants, for taking the property of the plaintiff, tried at Cumberland, on the last Circuit, before his Honor Judge Saunders. After a verdict and judgment for the defendants, and an appeal by the plaintiff, a case agreed, of which the following were the material facts, was made up for the Supreme Court.

<p>A writ of venditioni exponas directed “ to the sheriff,” for the sale of land levied upon by a sheriff who has gone out of office, will not authorize a sale of the land by such late sheriff; for whatever power is granted by the writ, is given to him to whom it is directed.</p> <p>An ex-sheriff cannot sell lands levied upon by him under a fi.fa. while he was in office, without a venditioni exponas directed to him: and it seems, that when a sheriff has levied upon lands which remain unsold until after he goes out of office, the venditioni should issue to his successor, and not to him.</p> <p>Where a sheriff has levied upon both lands and goods, and gone out of office, a general venditioni may issue to the new sheriff, where the goods have been delivered over to him; but if he cannot get the goods from the old sheriff, a distringas should issue to him to compel the old sheriff to sell the goods ; to which may be added a special venditioni, in case the moneys thereby raised be not sufficient to satisfy the judgment, authorising the new sheriff to sell the land — or if the plaintiff chooses to waive the levy, a special,/?, fa. to the new sheriff for the residue.</p>

This was an action of ejectment, in which the defendant entered into the common'rule, and plead not guilty. The cause was tried at Bladen, on the last Circuit, before his Honor Judge Saunders, when it appeared that the lessor of the plaintiff was entitled to be let into the possession of the land mentioned in the declaration, as a tenant in common with the defendant and others.

This was an action of debt against the defendant, as sheriff, for an escape. Upon the trial at Nash, on the last Circuit, before his Honor Judge Strange, the plaintiff produced a judgment in favour of himself, against one Woodard, rendered by a single justice on the 12th of January, 1835. He then offered in evidence a paper writing, which he contended was a capias ad satisfacien-dum; on which was endorsed, “January 23d, 1835. Ex’ed, Samuel W. W. Vick, Shff.

After the new trial granted in this case at December Term, 1834, (see ante, 1 vol. 29,) it was again tried at Surrey on the last Circuit, before his Honor Judge Dick; when in addition to the facts as they appeared on the former trial, it was admitted by the defendant that he had notice of the pendency of the action of ejectment, brought against the plaintiff’s tenant.

This was an action of ejectment for a tract of land, tried at Ashe, on the last Circuit, before his Honor Judge Dick. The lessors of the plaintiff, and the defendant, both claimed under executions against one Morrice Baker.

This action was brought in the Superior Court of Macon county, and the defendant appeared and plead in bar at the Fall Term of 1835. At the next term the trial was, upon affidavit, removed to Buncombe Superior Court, in which the transcript was filed at the Spring Term of 1836. In the last term, to wit, the Fall Term, 1833, of Buncombe Superior Court, the defendant moved to dismiss the suit, because there was no prosecution bond on file.

This was an action of covenant upon an indenture, whereby the relator was, by an order of the County Court, bound apprentice to the defendant, until he, the relator, should arrive to the age of twenty-one years, and ■which the defendant covenanted,, among other things, teach him “ to read, write, and cypher, according to law.” The breach assigned was, that the defendant had wholly failed and neglected to teach the said relator to read and write.

This was an action of assumpsit, in which a nonsuit was entered at Wake, on the last Spring Circuit, before his Honor Judge Settle, subject to the opinion of the court, upon the following statement of facts. Willis Lewis, formerly of Granville county, was in the year 1828, largely indebted to the plaintiffs, on two notes, discounted at bank for his benefit.

This was an action of trespass vi et armis, brought to recover damages for killing the plaintiff’s horse. Pleas, general issue, and the statute of limitations. Upon the trial at Anson, on the last Circuit, before his Honor Judge Saunders, the jury returned the following special verdict: “ On the first issue, the jury find the defendant guilty of the trespass in killing the plaintiff’s horse.

This was an action of detinue for four slaves by the names of Viney, Barney, Areny, and Dorcas. Pleas non detinet, statute of limitations, arbitrament and award. Upon the issues joined on these pleas, the case was tried at Chatham, on the last Spring Circuit, before his Honor Judge Donnell, when the following facts appeared in evidence.

This was an action of detinue for a negro woman slave named Grace, and her four children, Juno, Beck, Wisdom, and Wesley, tried at Anson, on the last Circuit, before his Honor Judge Saunders, The plaintiffs claimed title under a paper writing, purporting to be the last will and testament of William Hicks, who resided in the state of South Carolina, and died there, in the year 1791.

Detinue for a slave named Bob, brought by the same persons who were plaintiffs in the preceding case of Knight et ál. v. Wall, and tried at the same time. One question was presented in this case, arising upon an exception to the charge of the Judge, by the defendant, besides those that were raised in that case. William Hicks, by his last will, bequeathed a negro girl,- Grace, to his daughter Frances, for life; and after the death of the said Frances, to her children.

This was an action of ejectment brought to recover the possession of a house and lot in the town of Edenton, tried at Chowan, on the last Spring Circuit, before his Honor Judge Dick. Held: “ that as Charles W. Skinner was the plaintiff in the attachment, and also the purchaser at the sheriff’s sale, he was affected with notice of any irregularity in suing out the attachment, or any of the subsequent proceedings thereon.

<p>This was an action of trespass quake clausum pregit, to which the defendant entered the pleas of “general issue; liberum ten ementum ; and statute of limitations.” Upon the trial at Tyrrell, on the last Spring Circuit, before his Honor J udge Dick, the plaintiffs deduced title by a regular chain of conveyances, from one Daniel Sawyer to themselves; and then exhibited a deed from the said Daniel Sawyer to the defendant, for the land on which the trespass was committed, of a younger date than the deed under which they claimed. Neither party appeared to have been in actual possession farther than by getting shingles on the land, which was a juniper swamp. The defendant then offered in evidence a grant from the state to one Belangee, of older date than either the deed from Sawyer to the plaintiffs, or that to himself; but showed no title out of Belangee. The plaintiffs objected to the introduction of this grant; alleging that the defendant was estopped to deny the title of Sawyer, under whom both parties were claiming’; and contending that he should not, in this action, be allowed to show title in another person, and out of them both. His Honor overruled the objection ; and the plaintiffs submitted to a judgment of nonsuit and appealed.</p>

The defendant was indicted in the Superior Court of the county of Nash, for an assault and battery, upon one Cullen Floyd; and at the last term of the said court, in September, he plead a “ former conviction for the same oifence, in the County Court of Nash, at its August Term, 1836to which the Attorney-General, for the state, replied, that before the prosecution commenced in the County Court, to wit, at the Spring Term, 1836, of the Superior Court, the present bill was…

This was an application for the discharge of the prisoner, a slave, from confinement in the jail of Craven county. In the last vacation, his Honor, Gaston, was applied to for a writ of habeas corpus, which he issued, and, on account of the graveness of the question likely to arise, made returnable before the judges of the Supreme Court.

<p>’ This was an indictment for mdeder,. tried at Caswell on the last Circuit, before his Honor Judge Settle.</p> <p>In proving the case for the state, the solicitor called as a witness, a slave named Mima, who was the only person that saw the rencounter in which thé murder was alleged to have been committed. The prisoner’s counsel objected !to the competency of the witness, upon the ground that she was the wife’ of the prisoner; and to sustain this objection, A. M.!Lea, the owner of the wiinessj was introduced, who ’testified that the prisoner'ftnd witness Mima, had cohabited as man and Wife for about ten years successively, and had had five children ; that in the month of August last, he heard a ‘quarrel1 between the prisoner and Mima, when the prisoner took a bundle of clothes, which he was about1 t ¿¡carry off, saying, he“ intended to part with his Wife.1 Lea compelled the prisoner to leave ¥he clothes, ‘and told him to bring an order from his master if'h'e'wished to take them avvay. In the course of lá fortnight, ‘the prisoner returned with an order from his oWner, procured the clothes, and was commanded by Lea tint to return. Soon afterwards the deceased applied to Lea for permission to take Mima as hi’s wife, and Upon being told that he might do so, he took her as a wife accordingly. His Honor overruled the objection to the competency of the witness Mima, and the prisoner was convicted. A new trial was moved for and refused ; upon which a motion in arrest of judgment was submitted, because the indictment concluded at common law ; but this being also overruled, and judgment of death pronounced, the prisoner appealed.</p>

This was an action of debt, upon a single bond, for the payment of the sum of five thousand dollars, and dated the 13th February, 1834.

The prisoner was put upon his trial at Sampson on the last Circuit before his Honor Judge Saunders, upon a charge of murder. When the jurywasabout to be formed,it appeared that there were present seventeen jurors of the original venire, and thirty talesmen.

Assumpsit, originally commenced before a single magistrate. Plea, the general issue. Upon' the trial at Chatham, on the last Circuit, before Dick, Judge, a verdict was taken, subject to the opinion of the Court upon the following facts. The defendant was indebted to the plaintiff by a bond, upon which sundry payments had been endorsed.

This was an action commenced by a warrant before a single magistrate, in which the defendant was required “to answer the complaint of John Hamilton, in a plea of debt, the sum of one hundred bushels of corn.” The obligation declared on was as follows : “ On or before, &c., I promise to pay John Hamilton, the sum of one hundred bushels of good sound corn, at the place where,” &c. “ May Jervis. [ u. s. ]” On the trial before Pearson, Judge, at Yancy, on the last Circuit, the…

The plaintiff had brought an action for slanderous words, against the defendant; and before the return of the writ, the parties agreed.to refer the controversy to arbitrators; and a covenant was executed, in which it was stipulated, “ to refer this cause” (the action for slander,) “ to the arbitrament, award, and final determination of, &c.; and which award when made in writing, and signed by the arbitrators, if made on or before the first day of January next, shall be made…

Assumpsit for money lent, and for money paid, laid out and expended by the plaintiffs, for the use of the defendant. Plea, non assumpsit.

This was an action of assumpsit, commenced by a warrant before a justice of the peace, tried at Orange, on the last Circuit, before his Honor Judge Dick, upon the pleas of the general issue, and the statute of limitations. On the trial, the plaintiff proved a book account dated in 1826, and an express promise to pay it made by the defendant about two months before the warrant was issued.

The defendant was convicted of petit larceny in the County Court of Randolph, and appealed to the Superior Court. In that Court an order was made for the removal of the cause for trial to the county of Guilford, where, upon the cause being reached on the last Circuit, Mr. Solicitor-General Poindexter, moved to dismiss the appeal, because no appeal bond had been given.

This was an action of assumpsit, commenced originally by a warrant before a single justice of the peace. Plea, non assumpsit.

Ejectment, tried at Ashe,. on the last Circuit, before his Honor Judge Saunders.

Detinue for a yoke of oxen, tried at Robeson, on the last Circuit, before his Honor Judge Settle. The plaintiff, in proof of his title, offered in evidence the deposition of one Malcom Patterson, in which the witness gave the copy of a letter from the plaintiff to him, ■the witness; but this part of the deposition was objected to by the defendant, and rejected by the Court.

This was a scire pacías, at the relation of Benjamin O’Kelly, to vacate a grant issued to the defendant, Richard O’Kelly.

This was an action of assumpsit, upon a promissory note purporting to have been signed by the defendant, as the surety of one Hathaway. At Wake, on the last Circuit, the defendant filed an affidavit stating that the note was a forgery : that he had for many years resided in- the state Of South Carolina; and that the only witness he could rely upon with certainty to disprove the pretended signature being his, also resided in that state.

This was an action of trover, brought to recover damages, for the conversion'of a negro slave named Charlotte, tried at Richmond, on the last Fall Circuit, before Saunders, Judge. The facts of the case appeared on the trial to be as follows: Thomas Foxhall, by his will, made in the year 1791, bequeathed a female slave named Fann, and her increase, to his daughter, Joanna Surginor, for life, and after her death to be equally divided between all her children.

This was an action of assumpsit, tried before his Honor Judge Saunders, at Rowan on the last Circuit.

Detinue for sundry slaves, in whieh a case agreed, containing the following fauts, was, on the last Circuit, at Sampson, submitted to his Honor Judge Settee. The slaves demanded by the plaintiff, were the property of Susan B. Cox, who, prior to her marriage with Abner Branson, executed articles by which the intended husband- and the plaintiff, as- trustee, joined.

<p>An administrator who is surety to a debt of his intestate, by giving his own bond in lieu of that of his intestate, and taking up the latter, intends prima facie a payment of the debt, and not a continuance of it.</p>

This was an action of covenant upon a warranty contained in a deed of bargain and sale from the defendant to the plaintiff, tried before his Honor Judge Saunders at Iredell, on the last Circuit. The case was, that Thomas Sharpe made his will, and thereof appointed his wife and the defendant executors, and authorized them to sell his land. After the death of the testator, his widow and the defendant both proved the will, and proceeded to sell the land at public sale.

This was an action of debt, upon a bond given by the-defendant’s testator to the plaintiff, the sheriff of Hyde-county, to indemnify him against loss by reason of any misconduct of the testator, upon receiving from the plaintiff the appointment of deputy sheriff.

The defendant was indicted as follows : “The.jurors for the state upon their oath-present, that James R. Love, late of the county of Buncombe, on, &c., with force and arms, in the county aforesaid, one grey horse then and there being in the possession of one Abel B. Hyatt, then and there, with force and arms, and with a strong hand, did take out of the possession of him the said Abel B. Hyatt, and did lead away, against the peace, &c.” Upon the trial at Buncombe, on the last…

'On the last Circuit at Halifax, a verdict was taken for the plaintiff, subject to the opinion of the Court, upon the ■following facts. The negroes in dispute originally belonged to the defendant, and upon the marriage of his daughter with John B. Mebane, had, with several others, been given by parol to the said Mebane. All these negroes continued in Mebane’s possession from the time of the .gift, in the year 1813, until his death in 1820.

Debt, upon a bond given, by the defendants, conditioned for the defendant Patience, well and truly to administer and distribute the assets of her intestate. After oyer, the defendants pleaded “ performance.” The accounts of the defendant Patience were, under the usual order, referred to a commissioner to audit.

This was an action on the case, for slanderous words, in which, on the trial before Pearson, Judge, at Buncombe, on the last Circuit, it was proved, that during an altercation between the plaintiff and the defendant, in the streets of Asheville, the former called the latter a mean man ; to which thedefendant replied, “ If I had cooped as many hogs as you have been guilty of, I would not say ‘ mean,’ to any man.” Upon the plaintiff’s asking what was meant by that observation,…

After the new trial awarded in this cause, at December Term, 1835, (ante, vol. 1, page 362,) it was tried again at Caswell, on the last Circuit, before his Honor Judge Dick. The plaintiff declared for a breach of a covenant war•ranting a slave to be sound.

Assumpsit, in which the plaintiff declared against the defendant for the sum of four hundred dollars, being the price which he alleged that the defendant had agreed to pay him, for an assignment of the mail contract from Raleigh to. Greensborough. Plea, non assumpsit. The case was submitted to Settle, Judge, at Wake, on the Spring Circuit of 1836, upon a case agreed, stating the following facts.

After the new trial granted in a case for the same matter between the same parties, at December term 1831, (Vide 3 Dev. Rep. 231), the plaintiff submitted to a non-suit, and subsequently brought this action.

This was an action of ejectment, tried before his Honor Judge Pearson, at Rutherford, on the last Circuit. The- lessors of the plaintiff deduced title in the feme lessor, as one of the heirs at law of Catharine Bailey, who purchased the land about the year 1800, and lived upon it until she died intestate, in the year 1811, leaving three legitimate and several illegitimate children.

Ejectment, tried on the last Circuit at Buncombe, before Pearson, Judge. The lessors of the plaintiff having made out a title in the feme lessor, the defendant produced a bond from her, dated in the year 1795, before her marriage, with a condition to make him a title before the year 1799. He then proved that he went into possession of the premises in dispute in the year 1803, and continued that possession until the commencement of this action, in the year 1834.

Trespass for mesne profits, tried atBuncombe,on the last Circuit, before his Honor Judge Pearson. The plaintiff produced and gave in evidence the record of a recovery in ejectment, between the parties, of the same tract of land. In the ejectment, the demise was laid on the 1st day of January, 1830, and the trial was in October, 1833.

<p>The prisoner was tried at Craven, on the last Circuit, before his Honor Judge Nash, upon an indictment containing two counts, the first of which charged hirnwith a rape; and the second with an assault with intent to commit a rape, upon the body of a white female. He was acquitted upon the first count, but ■ found guilty upon the second, which was in the following words, to wit:</p> <p>“ And the jurors aforesaid, upon their oath aforesaid, do further present, that Jesse, a slave, being a person of colour, late of the county of Craven, the property of Miss Sarah Green, on' the first day of October, in the year of our Lord one thousand eight hundred and thirty-six, with force and arms, at and in the county aforesaid, in and upon one Bransy Witherington, in the peace of God and the state then and there being, did make an assault; and her the said Bransy Witherington then and there did beat, wound and ill-treat, with intent to commit a rape upon the body of her the said Bransy Withering-ton, being a white female, and with intent her the said Bransy Witherington, violently, .forcibly, and against her will, then and there feloniously to ravish and carnally know; and other wrongs to the said Bransy Witherington contrary to the form of the statute in such case made and provided, and against the peace and dignity of the sta te.”</p> <p>On the part of the state, the assault, with intent to commit the rape alleged, was fully proved; but it was contended for .the prisoner, that he was under the age of fourteen years at the time, and evidence as to this fact was laid before the jury, both for him and the state. His Honor, after directing the jury to acquit the prisoner upon the first count, instructed them, “ that if they were' satisfied from the evidence, that the prisoner had committed the assault, as alleged in the second count, and with the intent to commit a rape upon the person of the prosecu-trix, they ought to return a. verdict of guilty on that count, unless the prisoner had succeeded in showing them that he was at that time under the age of fourteen years: that if they were satisfied such was the fact, they ought to acquit him on that count also. The Court further instructed them, that though this was matter of defence on the part of the prisoner, yet if, «pon the evidence before them, they had a reasonable doubt whether, at the time the crime was perpetrated, the prisoner was of the age of fourteen years, he was entitled in law to the benefit of that doubt.”</p> <p>After the conviction of the prisoner upon the second count, his counsel moved for a new trial, upon the ground that the Court had erred in instructing the jury, that the fact of the prisoner’s being under the age of fourteen years at the time the crime, was committed, was matter of de-fence to be made out by him. This motion being overruled, the counsel then moved in arrest of judgment, because the indictment concluded contrary to the form of the statute; whereas, it was contended, that it should have concluded contrary to the form of the statutes. But this motion was also overruled; and judgment of death being pronounced, and execution awarded, the prisoner appealed.</p>

This was an action of assumpsit, in which the plaintiff declared against the defendant as administrix of Noah Odom, as follows: For that whereas the said Noah in his lifetime having sold and delivered to the said Morris a certain negro-slave, as and for a sound slave, at the price of five hundred and eighty-four dollars, by the said Morris to the said Noah in hand paid, which said slave was at the time of süch sale, unsound and greatly diseased, and by reason thereof of no…

This was an action of ejectment, submitted to his Honor Judge Toomer, at Perquimons, on the last Circuit, 'in the form of a case agreed, presenting the following ■facts:— Josiah Rogerson died seized of the premises in dispute, 'in the year 1806, having made his will, whereby he. ‘devised them as follows. “I lend to my grandson, Obadiah Rogerson, a tract of land, that I purchased of,” &c., (describing the premises in dispute), “ three negroes,” &c. “ Now, if the said Obadiah…

This was an issue of devisavit vel non, as to four scripts propounded as the will of William Bethell, tried at Caswell, on the last Circuit, before Dick, Judge. One of them consisted of several sheets of paper stitched together, and purporting to be a will executed at Natchés, in the state of Mississippi, in February, 1833: and was attested by Samuel S. Cartwright, Stephen Lanier, and John Kerr.

Ejectment for a tract of land, tried at Mecklenburg, on the last Circuit, before his Honor Judge Saunders; when, the case appeared to be as follows. Thomas Houston was seized in fee of the premises in. the declaration mentioned, under the will of his father, subject to a term therein given to the testator’s wife; and being so seized, conveyed the premises by deed of bargain and sale, to the lessor of the plaintiff, on the 19 th day of November, 1827.

<p>Assumpsit, in which the plaintiff declared, first, upon a promise by the defendant to pay as soon as he, the defendant, was able, averring his ability. Secondly,, upon a promise to pay on request. Pleas, non assumpsit,, and the statute of limitations.</p> <p>Upon the trial, at Beaufort, on the last Circuit, before his Honor Judge Nash, the plaintiff proved that the defendant was indebted to him in two several sums, one for two. hundred dollars, which'accrued in the year 1830 ; and the other for five hundred dollars, due in the year 1833. The defendant proved a payment of the last, and relied upon his plea of the statute of limitations, as to the first debt-To repel this defence, the plaintiff read the following extract of a letter from the defendant to him, dated January the 19 th, 1836.</p> <p>“Dear Brother: — Having been engaged rather more than common, since my return, I have neglected to answer your letter. You say I have property worth twenty-five thousand dollars : I suppose this so, taking into consideration the present price of slaves. I do now, and have always appreciated your favours and kindness to me: they shall not go unrewarded by me; but I shall want some little time to meet your demand.’*</p> <p>His Honor instructed the jury, that this letter prevented the statute from barring the plaintiff’s claim for the two hundred dollars; that the word demand contained in it extended to every debt which the defendant, at the date of it, owed the plaintiff, whether consisting of one, or of several distinct sums: that from it, they had a right to infer the contents of the letter to which it was an answer ; and if they believed that the plaintiff’s letter contained a demand for the two hundred dollars now in controversy, as well as the five hundred dollars which had been paid, the answer took both sums out of the statute; and that it was the duty of the defendant to show them, that the promise contained in the letter of the 19th of January, 3836, did not extend to the two.hundred dollar claim, but was confined to that for five hundred dollars. A verdict was returned for the plaintiff; and the defendant appealed.</p>

<p>Asstjmpsit brought by the plaintiff as assignee, upon the following instrument, to wit:</p> <p>“ This 27th April, 1835. Then received of William. Long one note on Cornelius Shields and William Carr, for three hundred and fifty dollars, which I promise to give him two hundred and sixty four dollars twenty-five cents? and I have paid him sixty-four dollars twenty-five cents; and the two hundred I promise to pay him, the said Long, whenever he calls on me for it. — Samuel Smithekman.”</p> <p>Which was. endorsed as follows: “ April 30th 1835. I asssign the within note to Henry B. Elliott, value rec’d.</p> <p>W*. Long.”</p> <p>The defendants pleaded the “ general issue,” and spe-. cially that there had been no assignment of the note.. Upon the trial, at Randolph, on the last Circuit, before, his Honor Judge Dick, the plaintiff having proved the' execution of the instrument, the endorsement to him by the payee, and a demand after the endorse-ment but before suit, the defendant objected, that the note was not negotiable ; and moved that the plaintiff be nonsuited; which was refused. The defendants then offered to prove, that the note set forth as the note of Cornelius Shields and William Carr, was a forgery, and that, therefore, there was no consideration to the maker of the note declared on; but the Court rejected the evidence. The defendants further offered to prove, that the person who signed the endorsement, and to whom the note was made payable- by the name of William Long, was not in fact named William Long, but had assumed that name with a fraudulent intent to defraud the intestate, or the plaintiff, or some other person, and that, therefore, the endorsement was a forgery: but the Court rejected this evidence also, and charged the jury, that the instrument declared on, was a negotiable note; and that if they believed it was executed by the defendants’ intestate to a man calling himself William Long, and the same man endorsed it by the same name to the plaintiff, the latter had a right to recover; and this, although the endorser was not in fact named William Long, but had fraudulently assumed that name for the purpose of defrauding the maker, or the assignee, or any other person. Under these instructions a verdict was rendered for the plaintiff; and the defendant appealed.</p>

<p>The statute of frauds of Virginia, making a possession of slaves for five years under a bailment, fraudulent, as to the creditors of the bailee, has no effect unless the full term of the possession takes place within that state; and where it commenced there, but was completed in this state, it was held, that a purchaser under an execution issuing here against the bailee, acquired no title.</p>

The defendant was indicted in the county of Stokes, as follows: “ The jurors for the state, on their oath, present that Ezekiel W. Morgan, late of, &c., on, &c., with force and arms in, &c., of his own head and imagination, did wittingly and falsely make, forge and counterfeit, and did wittingly assent to the falsely making, forging and counterfeiting a certain bond and writing obligatory in the words, letters and figures, that is to say, &c.>” (setting out a bond for eight…

This was ah action of debt against the defendant, the sheriff of Northampton, for an escape, submitted to Baí-eey, •Judge, on the last Circuit, upon the following facts, in the shape of a case agreed.

The defendants, together with one Rogers, were im-pleaded in the Superior Court of Buncombe, by the plaintiff in an action of trespass vi et armis. The writ was executed on all but Rogers.

<p>A bond with a condition to bo v.oid’ upon the payment of such damages as Blight be recovered of the principal obligor, for wrongfully bringing a suit in equity against the obligee, is a guaranty that the principal shall be able to satisfy any judgment obtained against him, in an action on the ease, for wrongfully filing the bill i and no action can be brought on such bond, until the obligee has obtained such a judgment, and foiled to procures satisfaction.</p> <p>A court of law can determine whether a’ suit in equity was wrongfully brought or not.</p> <p>An action on the ease lies against any person who maliciously and without probable cause prosecutes another before any tribunal, and thereby subjects him to an., injury, either in his person, property, or reputation.</p>

This was an action of assumpsit, in which the plaintiffs, “Philip Brittain, president, and Samuel Chunn and James M. Alexander, directors of the Buncombe Turnpike Company,” declared against the defendants, for tolls due them from the defendant, for passing over their road. Plea, non assumpsit.

This was an indictment for an assault and batteRY, tried before Dick, Judge; at Caswell, on the last Circuit. On the trial the facts were, that the defendant kept a school for small children: that upon one occasion, after mild treatment towards a little girl, of six or seven years of age, had failed, the defendant whipped her with a switch, so as to cause marks upon her body, which disappeared in a few days.

The defendant was arrested upon a warrant issued by two justices of the peace, undei\the act of 1741, (Rev. c. 30, sec. 10,) upon the examination of Esther Parker, a single woman, declaring him to be the father of her bastard child. This examination was defective, in that it did not state the child to have been born within three years before it was taken.

This was an action of assumpsit, commenced by the plaintiff’s intestate, for money paid, laid out and expended by the intestate, for the defendant. The only question between the parties arose upon the plea of the statute of limitations. On that, a verdict was taken for the plaintiff, on the last Fall Circuit, before Dick, Judge, at Iredell, subject to the opinion of the Court, upon the following facts.

This was a petition for a divorce from bed and board, and for alimony.

<p>An instrument signed and sealed in blank, and handed to an agent verbally authorized to fill up the blank and deliver it, is not the deed of the principal ; and after-declarations of the principal, approving of the delivery by the agent, made in the absence of the instrument, and without any act in relation to it, will not amount to an adoption and ratification of the delivery.</p> <p>The case of M'Kee v. Hicks, 2 Dev. 379, considered and approved.</p>

<p>This was an action upon the case, for harbouring a runaway slave, in violation of the act of 1791, (Rev. c. •335, sec. 4.) Plea, not guilty.</p> <p>There was no statement of the facts which occurred at the trial, certified in the record sent to this Court. But it appeared from the transcript, that his Honor Judge Toomer, had at Tyrrell, on the last Circuit, instructed the jury “ that the plaintiff should satisfy them that he was the owner of the slave, and that the defendant had har-boured or maintained him: that a construction had been given to the act of 1791, in the case of Dark v. Marsh, 2 Car. Law Repos. 249, which declared that ‘ harbouring,’ meant a concealment, and that the maintenance must be secret: that if they believed from the testimony, that the slave was in the possession of the defendant, or was at his plantation, and was not concealed nor secretly maintained there, the defendant was entitled to their verdict.” The jury found for the defendant; and the plaintiff appealed.</p>

The plaintiff sued out a scire facias, to revive a judgment, recovered by him in an action of debt, against Calvin R. Blackman, Stephen Smith, and John Barfield; on which the sheriff returned that he had made it known to the defendant, the administrator of said Smith, deceased, but could not find' Blackman or Barfield. The plaintiff then entered a nolle prosequi as to the two latter, and declared, against the present defendant alone, who pleaded nul iiel record, and payment.

The prisoner, with two others, were indicted at Rutherford, on the last Circuit, as follows: “ The jurors for the state upon their oath present, that John C. Hardin, John Haney and John W. Williams, all of, &c., on, &c., with force and arms, in, &c.., one negro-man slave, by the name of Eli, then and there being the property of Nancy Davis, of the value of fifty dollars, feloniously did steal, take and carry away, contrary to the form of the statute in such case made and…

The prisoner was one of those indicted in Rutherford county, jointly with John Haney, whose case came up to this Court, and has been decided during the present term.

<p>One who entertains strangers only occasionally, although he receives compensation for it, is not an inn-keeper; and if on such occasions, gambling, drinking and fighting take place, he is not indictable as the keeper of a disorderly house.</p>

Ejectment, tried at Mecklenberg, on the last Circuit, before,SAtJNDERs, Judge.

This was an action of ejectment tried at Pitt, on the last Circuit, before Bailey, Judge. The action was brought to recover a tract of land, which had been before assigned in severalty to the defendant by the final judgment of the County Court of Pitt, in a petition for partition of real estate.

The defendant was indicted in the Superior Court of Robeson county, for an assault and battery, and on being served with process, appeared and submitted to the Court; his Honor Judge Settle presiding.

Thomas Pool Williams, being seised of the premises in the declaration mentioned, made his will on the 24th of October, 1799, and therein devised two tracts of lands particularly described, to his son Samuel. The will then contains these clauses: “ It is my will and desire, that my executor hereinafter mentioned, pay all my just debts. Thirdly, I leave all my negroes to be equally divided between my wife, Elizabeth, my daughter, Peggy, and my son, Samuel.

The plaintiffs were incorporated by an act of the general assembly passed in December, 1835 (2 Rev. stat. 299,) “ for the purpose of effecting a communication by a railroad from some point, in or near the city of Raleigh, to the termination of the Greensville and Roanoke rail-road, at or near Gaston, on the Roanoke river.” After providing for the organization of the company, with the usual faculties of pleading and being impleaded, and purchasing and holding estates real and…

After the new trial granted in this case at the last term, (ante, p. 225,) it came on to be tried again at Chat-ham, on the last Circuit, before his Honor Judge Saunders, when it appeared that the defendant was indebted to the plaintiff upon a note in a balance of twenty-five dollars; that in discharge of this balance the defendant passed to the plaintiff two notes payable to the defendant, amounting together to that sum ; that the defendant refused to endorse these notes,…

This was an action of debt, to recover the penalty imposed by the statute against usury. On the trial before his Honor Judge Saunders, at Guilford, at the last Circuit, it appeared in proof, that one Alcy Merrett, had borrowed one hundred and twenty-five dollars of the defendant, who took a note at twelve months for one hundred and thirty-nine dollars, on which he brought suit and obtained a judgment, and sued out a fi-fa.

This was an action of covenant, brought for the benefit of an apprentice against the administrators of his master, upon an indenture of apprenticeship, containing, besides the usual stipulations on the part of the master, one that he should give the apprentice “ at freedom one horse worth fifty dollars over and above what the law allows.” The deed was executed in 1820; the master died in the fall of 1823; and the apprentice came of age in the fall of 1827.

<p>In a will, the words “ my will and desire is, that all my property that I have not before given away and lent, to be equally divided between,” &c., carries to the devisees every reversionary interest of the testator which has not been before specifically devised, whether they were in his contemplation or not, and whether known or unknown by him, unless there is a manifest intention to confine them to other interests; and a subsequent contingent limitation to the children of one of the devisees, is net sufficient to raise this intention.</p> <p>Thewords property» include thing, un-!ess th.e intention to the con-jj^^Tha case of 1 Dct. ReP' proved!</p>

Ejectment, tried at Stokes, on the last Circuit, before his Honor Judge Saunders. The case made out by his Honor for the Supreme Court, upon a verdict for the defendant, and an •appeal by the plaintiff, stated, that the question was one of boundary, both parties claiming under one Richard Bowman.

Covenant upon the following instrument: — “ Know all men by these presents, that we, Virgil M. Rainey, William M'Murray and Vincent M'Murray, are held and firmly bound unto Alexander Gordon, agent or president of the Union Steam Mill Company, in the sum of three thousand six hundred dollars, for which payment well and truly to be made, we bind ourselves, our heirs, executors, or administrators, unto him the said Alexander Gordon, his heirs, administrators, executors,…

The plaintiff, as overseer of a road, warranted the defendant, one of his hands, for the penalty incurred by the latter, in failing to work on the road, obtained a judgment, and had a capias ad satisfaciendum issued thereon.

The plaintiff, on the 20th day of September, 1834, sued out a writ in ca.se for slanderous words, commanding the sheriff to take the “ body of Henry Tritt for Archibald Tritt,” to answer, &c. At Pall Term, 1834, the sheriff returned the writ “ executed on Henry Tritt — A. Tritt not to be found.” No process issued from this Term against Archibald Tritt.

<p>Case for a malicious prosecution, tried before his Honor Judge Saunders, at Orange, on the last Circuit. Plea— Not Guilty.</p> <p>On this trial the case was, that the defendant had preferred a charge against the plaintiff, and his brother and mother, for mismarking his, the defendant’s hogs; that it was found a true bill at the November Sessions, 1833, of Orange County Court; and at the ensuing term the plaintiff and his brother were convicted, and the mother acquitted; that the plaintiff and his brother appealed to the Superior Court, where they were acquitted. There was much other testimony on both sides, introduced by the defendant to show a probable cause, and on the other a want of it. The case was argued by the defendant’s counsel asoné for the jury. Authorities were read and commented on to the jury — that in the absence of express malice, the circumstances well justified the defendant in believing the plaintiff guilty of the charge, and the fact that the plaintiff had been found guilty in the County Court, ought to satisfy them that the defendant had probable cause for preferring the charge.</p> <p>“ The Court was not called upon to express any opinion “ whether the circumstances, if believed, constituted proba- “ ble cause; and as this was of that class of cases in which “ probable cause consists partly of matter of law, and “partly of matter of fact, (29 Eng. Com. Law Rep. 313,) “ the judge charged the jury, that it was necessary for the “ plaintiff to show a prosecution by defendant, and its- “ failure — malice on the part of the defendant in prefer- “ ring the charge, and that it was made without probable “ cause: that if the plaintiff had been guilty, it mattered, “ not as to defendant’s motives. So if defendant, from the “ circumstances, had grounds honestly to believe plaintiff' “guilty, although in fact he was innocent,.it was a suffi- “ cient defence to the action. That if the defendant had. “ grounds for this belief, then he had probable cause for “ the prosecution, and the verdict should be for him. That “if the circumstances did not justify this belief, and the “jury should think the defendant had been influenced by “ malice in making the charge — and malice in its legal; “ sense was not mere ill-will, but an intentional injury to. “ another, without just cause or excuse — then their verdict “ should be for plaintiff.” The counsel for the defendant then requested the Court to instruct the jury, that the fact of the parties living near each other, and the hogs being in the mark of the plaintiff, as had been proved in the course of the trial, justified the defendant in supposing that the h°Ss been marked by the plaintiff. “ The Court “ stated to the jury, that these circumstances were to be “ considered by them, and whether they justified the “defendant in the belief of the plaintiff’s guilt, — it was “for them to collect, after comparing them with the other “ circumstances in the case. And the Court, not “ conceiving itself called upon for an opinion as to whether “ probable cause had been shown if believed, and no “ objection being taken to what was said in reply to the “special instruction prayed for, left the case to the jury.” A verdict was returned for the plaintiff; and the defendant appealed.</p>

This was an action of detinue, for a slave. Pleas, non detinet, and the statute of limitations. Upon the trial at Chowan, on the last Circuit, before his Honor Judge Pearson, it appeared that the slave had once belonged to the plaintiff, who, by an inquisition, dated the 3d of June, 1818, had been found a lunatic, and to whom Henry Skinner had been duly appointed committee.

Debt, upon the bond given by the defendant as administrator of Benjamin Reddick, deceased. Pleas, performance, and non infregit conventionem. At Greene on the last Circuit, a case agreed, of which the following are the material facts, was submitted to his Honor Judge Dick. John Reddick died in the year 1820, and by his will gave to his son Benjamin Reddick, both real and personal property.

<p>This was an action of assumpsit, instituted in the County Court of Cabarras, by original attachment. The plaintiff gave the usual bond for prosecution, in which he was joined by one Miller, as his surety. The writ stated the oath of the plaintiff, that the defendant was an inhabitant of another state. But the affidavit returned set forth only the amount of the debt. The defendant replevied the estate attached, and pleaded non assumpsit; on which issue was joined, a trial had, and a verdict and judgment given for the plaintiff; from which the defendant appealed to the Superior Court.</p> <p>On the last Circuit, before his Honor Judge Toomer, the defendant moved to quash the writ, for the defect in the affidavit; which was refused.</p> <p>Upon the trial of the issue, the plaintiff, wishing to use as a witness a person who was the administrator and one of the next of kin of Miller, the surety moved for [leave to give another bond, with other sureties, and to have the first cancelled. To this the defendant objected, that the Court had no power to change the bonds, or discharge the first surety. But His Honor allowed the motion ; and the ■witness was examined ; and a verdict being returned for the plaintiff, the defendant appealed.</p>

This was an action of detinue, to recovet a slave, by the name of Harvey. Pleas, non detinet and the statute of limitations. On the trial at Wilkes, on the last Circuit, before his Honor Judge Toomee, it appeared, that the defendant had married a daughter of Thomas Fletcher, the plaintiff’s testator, who owned the slave in question, and in September, 1828, had sent him to the defendant, in whose possession he remained until the bringing of this action.

This was an action of trespass vi et armis for false imprisonment, tried at Guilford, on the last Circuit, before his Honor Judge Saunders. Plea, not guilty, and a special justification under process.

<p>Upon amotion to bo admitted a party to a suit under the act of 1798(1 Rev, Stat. c. 2, sect. 4,) suggesting that the person moving had married the feme sole plaintiff, any objections to the validity of the marriage must be then made, or on an application afterwards made for rescinding the order of admission as having been improvidently made. But while such order remains in force, no evidence can be received on the trial of the cause upon the issues, for the purpose of impeaching the validity of the marriage.</p>

This was an action of debt, brought by the plaintiff as assignee, against the maker and endorser of the following sealed instrument, to wit:— “1400. Thirty days after date, I promise to pay, William W. Long, or order, the sum of fourteen hundred dollars, in bank stock, or lawful money of the United States, for value received, this 4th November, 1831.

Ejectment, tried at Edgecombe, on the last Circuit, before his Honor Judge Nash. On the trial, the only question was, whether a certain line of the defendant’s land should run from an admitted point, north 85° east, or south 85° east.

Assumpsit, brought by the plaintiff to recover compensation for the services of his intestate, as a clerk in the store of Benjamin J. Parks & Co., of which firm the defendant was a member. The services were rendered from the 1st November, 1822, till the 20th October, 1825; and the account produced on the trial by the plaintiff exhibited a claim to compensation for that period.

<p>If a scire facias be sued out upon a judgment of more than ten years’ standing, without motion, supported by an affidavit of the debt being due, the judgment unsatisfied, and the defendant living, it may be set aside for irregularity, provided the objection be taken in the first instance; but if the defendant pleads to the merits, he cannot afterwards avail himself of this irregularity.</p>

<p>An arrest is an actual interference with the person, or a compulsory restraint ■of it. But these terms are not identical; and where an officer, having a warrant, went to the defendant, and informing him of the fact, said to him, “ do you submit ?” and he answered, “ certainly,” and went with the officer before a magistrate, and there entered into a recognizance to answer the charge ¡ it was held, to be such an arrest as amounted to an imprisonment of the person.</p> <p>A warrant to arrest persons neither named nor described, is void. And one reciting that A. B. “and company” had committed an offence, and commanding the officer to apprehend “ said company,” will ot justify the arrest of any person; for the mandatory part does not direct the taking of A. B. by name, or by any description, and it is not helped by the recital; for the words “said company,” refer only to the company with A. B. and not to A.B. himself.</p> <p>Criminal process, defective for uncertainty in the description of the defendant, is not aided by the act of 1794, (Re». ch. 414,) providing that warrants shall not be set aside for want of form ; for that act, in its terms, applies to civil process only; and, besides, the description of the defendant is matter of substance.</p> <p>In an action of trespass and false imprisonment for an unlawful arrest, it is admissible to prove that the plaintiff paid the defendant a certain sum of money on account of the transaction for which the arrest was made, in order to show the animus which influenced the proceedings.</p> <p>Whether a warrant containing a mandate for seizing a certain person, and others neither named nor described, is altogether null under the 11th section of our Bill of Rights; or whether it is null only so far as it is uncertain, and is good for the residue, Qu?</p>

This was an action of the same kind with the preceding one of Mead v. Young, arose out of the same transaction, and was tried at the same time.

Ejectment, tried at Rowan, on the last Circuit, before his Honor Toomee, Judge. The plaintiff, in support of his claim, first offered in evidence, an instrument duly proved and registered, which he alleged to be a deed for the land in dispute, from Andrew Bahel, to his son Jacob Bahel.

The plaintiffs were merchants in Charleston, South Carolina, to whom the defendant, Richardson, became indebted, in the sum of fourteen hundred and thirty-six dollars and fifteen cents, for goods to supply a country store, which he had established in Buncombe county. The debt was secured by Richardson’s note, which had been due a considerable time prior to the 20th of March, 1832; and the plaintiffs had indulged him on his application.

This was an action of ejectment, in which the following facts were submitted to his Honor Judge Saunbers, at Caswell, on the last Circuit. The plaintiff’s lessors claimed title to the land in controversy, by virtue of a judgment, execution, and sheriff’s deed; and produced the records of two judgments, rendered in Caswell County Court, in favour of himself and one Nannally, at July Term, 1833, against the administrators of Louis White-more, deceased.

<p>This was an action of assumpsit, commenced by a warrant before a single magistrate, and carried by appeal to the Superior Court of Haywood County, where it was tried, on the last Circuit, before his Honor Judge Settle.</p> <p>On the trial, it appeared, that the defendant in the present action had, on the 25th of September, 1835, warranted the plaintiff in a plea of debt “ due by book account,” for the sum of one hundred dollars, and obtained a judgment before a single justice, for eighty-six dollars and seventy-five cents, and cost. Upon this judgment the defendant had an execution issued, which was satisfied. The plaintiff, on the 5th of January, 1836, warranted the defendant for fifty dollars in assumpsit for money had and received to his use; it being part of the money which he had paid the defendant on the judgment above-stated.</p> <p>The plaintiff contended, that the judgment rendered against him, for eighty-six dollars and seventy-five cents, “ due by book account,” was null and void, being for a sum beyond the jurisdiction of a justice; but his Honor was of opinion, that the judgment was not void ; and the plaintiff was thereupon nonsuited, and appealed.</p>

This was an indictment for murder, tried at Perqui-mons, on the last Circuit, before his Honor Judge Pearson.

The prisoner, upon an indictment for murder, at Rutherford, on the last Circuit, before his Honor Judge Settle, was convicted of manslaughter; and was thereupon sentenced to be burned in the hand; and also to be imprisoned until the succeeding term of the Court. His counsel objected to that part of the sentence which directed the branding in the hand; and upon the objection being overruled, the prisoner appealed.

<p>Where one got staves upon the land of another upon a contract to have half for getting them, it was held, that while they remained on the land undivided, the manufacturer was neither a tenant in common with the owner of the land, nor a bailee of them ; and that therefore, he, or any other person with his connivance, might be guilty of larceny in taking them.</p> <p>Where one labours upon the farm of another, upon an agreement to have a share of the crop, before his share is separated from the general mass, and set apart for him, the property in the entire crop remains in his employer.</p>

<p>The defendant was indicted at Stokes, on the last Circuit, before his Honor Judge Saundeus, for obstructing a public highway.</p> <p>On the trial it appeared, that before the June Term, 1835, of the County Court of Stokes, the public road ran at some distance from a private way, which passed near the dwelling of John H. Bitting, and through the land of the said John unto and beyond the place obstructed, which was in the new road on the land of the defendant. Bitting being desirous of turning the public road so as to make it pursue the route of this private way, caused the proceedings to be had, which were set forth in a record of the County Court, viz. a petition or recommendation dated the 21st of May, 1835, addressed to that Court, signed by John Gordon and others, stating v that they had been called upon by Solomon Spainhour,” (the defendant,) “ a magistrate of said county, at the request of John H. Bit-ting, to view and examine the road fronting said Bitting’s house, on the hollow road ; and give it as their opinion, that to turn the road near his house will make it much better and firmer, and will also suit his convenience, and be no inconvenience to the travelling public; and do therefore recommend, that at the next term of the County Court, an order may be made that said road may be turned.” To this representation was appended a certificate, subscribed by the defendant, as a justice of the peace of said county, and declaring that he concurred fully in the above recommendation ; and that the road was principally on the said Sitting’s land. The record then pro-ceeded to state, that at June Term, 1835, of said Court, “said report was confirmed by Court, and duly entered of record.” It was proved, that none of the petitioners were sworn: that they made no view or examination of the new road intended, but were well acquainted with it as a private way : that the defendant was present when they made out and subscribed their recommendation; and that he understood the alteration proposed. It also appeared, that the overseer of the road had not been notified of the proceedings until after they had taken place, but when apprised of them made no objection, as he thought the change beneficial. The defendant, upon these facts being left to the jury by his Honor, was found guilty, and appealed.</p> <p>contended, that the old road was not altered; that the requisites of the act of 1834 were not complied with in several particulars, all which the public interest required should be strictly observed : that the defendant’s being the magistrate who called upon the freeholders, could make no difference: that the Court did not intend that there should be two roads ; and, as the old one was not changed, it could be no nuisance to obstruct the new one. The counsel also objected to the proceedings, as too indefinite, and therefore inoperative to effect a change of the old road.</p> <p>contended, that though the proceedings might be irregular, yet being before a Court having jurisdiction of the subject-matter, the order of the Court establishing the new road was valid, until the proceedings were rescinded or reversed.</p>

<p>A scire facias, reciting that the defendant “ was lately hound in a recognizance, in, &c., for the appearance of T. S., at, &c., that the said T. S. failed to make his appearance, as he was bound to do; and that it was thereupon ordered by the said Court, that he forfeit his recognizance, according to law,” and commanded the sheriff to make known, &c., is irregular, uncertain, and defective. And although the objections to it cannot be taken upon a plea of ml iiel record, a cassetur is the only proper judgment.</p> <p>A recognizance is a debt of record, and is of the nature of a conditional judgment, which the recorded default makes -absolute, subject only to such matters of legal avoidance as may be shown by plea; or to such matters of relief as may induce the Court to remit or mitigate the forfeiture; and the object of a sci.fa. is to notify the cognizor to show cause why the cognizee should not have execution, of the sum acknowledged. The act of 1777, (1 Rev. SStat. c. 35, sec. 39,) makes it imperative that the sci.fa. shall issue and judgment be had thereon, previous to suing out execution upon a forfeited recognizance. But no judgment of forfeiture is thereby required before the issuing of the scire facias.</p>

The defendent was indicted and tried at Guilford, oh the last Circuit, before his Honour Judge Saunders,. as-follows: — ■ “ The jurors for the state upon their oaths, present that Henry Humphreys, late of the county of Guilford, labourer, on the tenth day of October, a. d. 1837, with force and arms in the county of Guilford aforesaid, did issue a certain bill commonly called a due bill, in the words, letters and figures following, that is to say ‘25 25 Mount Hecla Steam…