Volume 2 — North Carolina Reports

ACTION of Detinue, for a negro boy given to the Plaintiff by bis uncle San (lifer.

The lands were devised after payment of debts to the Plaintiff, and there was judgment against the ancestor in his lifetime.

<p>If a father, at the time of the daughter’s marriage, puts a negro or other chattel into the possession of the son-in-law, it is prima fade a gif Int rest in the event of the question, but not of the cause, Wdi not exclude a witness.</p>

Assignee, brought an action against the drawer*, having waited two years after the assignment, obtained judgment, and took the drawer in execution by ca. sa. . Fer curiam, he has forfeited his recurrence to the assignor by u-ng delay ; certainly a y ear ought to-be considered the longest time to be allowed.

They had received of the State at different times for the purpose of discharging the debt due from this State to the Government of Martinique, by commodities to be purchased and shipped, the sum of thirteen hundred — eleven hundred pounds they laid out accord-ingiy, the rest they never applied ; and the question now was, whether interest should be allowed.

<p>Ill tiie year 1728, the premises in question were granted to one Foster; in 1730, Foster conveyed to Governor Burrington, who soon afterwards went to England In the year Burrington sold_ and conveyed to Strud-wick, by á general description of all ids lands in North* Carolina. Strudwick came to this country in the year but soon went to England again, and in 1 he year returned to Carolina, where he remained, and in 1787 brought suit. — One Hopkins settled on the lands in question in 1751, and lived upon them 13 years, when he died in possession, leaving a son. This right of possession was afterwards assigned by him to some person, who assigned it to the Defendant, who, under this right, had lately procured a grant from the State.</p> <p>The Plain-1 tiff has shewn a title as his Counsel alleges, to tiic premises mentioned in the declaration, and the location being settled by former determinations, Shall not be brought into question at present: but there are several material objections against the Plaintiff’s recovery.</p> <p>1st. It does not appear that there has been any actual possession in the lessor of the Plaintiff, or the persons under whom lie claims since the year 1738; therefore, if the Plaintiff ever liad a right to recover in an action of ejectment, that right has been lost by his laches.</p> <p>The nature of the title to lands is such, as to make it divisible into three distinct species of property, or kinds of right. It may consist of the naked possession or a right of possession, or a mere right of properly. The first, may happen, where a person in this country should enter upon a woodland, though granted estate, and settle and cultivate it, and thus actually occupy, without the shadow of right or colour of title, as it is called in our Courts. The second will take place, where the patentee submits to the unsanctioned occupation of the settler, who has the actual possession, while the right of possession resides in the person to whom the land was granted. The third species of property will be found, where the grantee may have “ the true ultimate property of the Sands in himself, but by the intervention of certain circumstances, either by his own negligence, the solemn act of his ancestor, or the determination of a Court of justice,* the presumptive evidence of that right is strongly in favor of his antagonist, who has thereby obtained an absolute right of possession.” ZBl.Com.l 95,196, 197. Co. Lit. 345, 385. Gilb. Ten. 18.</p> <p>Ejectment being a possessory action, it lies only where the lessor of the Plaintiff could rightfully enter, and the title to support a recovery must therefore he inseparably connected with the right of possession, and must have this ingredient at least. The title of the Defendant is entirely out of view. It is an old maxim that a man must recover by the strength of his own title in ejectment, not in consequence ofauy weakness in that of his adversary. Every Plaintiff in ejectment, says Lord Manseiei», in the case of Mkins v. Horde, must shew a right of possession, as well as a right of property j therefore, the Defendant, need not plead the statute., and the must shew that his lessor had a right to enter: and this can only be effected by proving a possession within seven years in tiie Plaintiff, his ancestors, or the persons under whom he claims, and such possession must be an actual possession. I Burr. 119. Bunn. 113, 113.</p> <p>By the statute of 31 Jac. 1 ch. 16, “None shall make an entry into land, but within twenty years after their right or title shall first descend or accrue.” Our own act of limitations only alters the phraseology to “ shall thereunto enter or make claim,” and shortens the limitation to seven years : so that the English decisions may be considered authorities as to the operation of tills part of the statute; and it will appear by all these, as well as the opinions of every writer on the subject, that where there hath been no possession during the time limited in the statute, either in the lessor, his ancestors, or the persons under whom he claims, the Plaintiff in this action will be nonsuited, unless his case may be brought within some of the exceptions allowed by the act of Assembly. The action of ejectment is only competent where the Plaintiff may enter -, and the right of entry is, in this case, completely taken away, by the statute, and the claimant, by such default, utterly excluded and disabled from any entry, or claim to be made, after the seven years are expired. This is not only the plain letter of the law, bnt the construction- has been uniform. Bunn. 14 to 17. Salk. 305. 5 Bur. 2635. 6 Mod. 44. Cas. K. B 5.73. 2 Keble 137. 1 Bur. 119.</p> <p>Thus the neglect, of the Plaintiff, in this case, to enter, or make claim, as I take it, has wrought an actual bar ; not by the Defendant acquiring title, but by his losing or destroying his own right of action; and to the authorities already adduced, may be added the case in Strange 1142, and the law as stated in 2 Black. 196, 197, 198. The law presumes that the tenant in possession, either had at first, a good title, in consequence of which he entered on the lauds in question, or that since his entry he had acquired one $ and therefore, after so long an acquiescence, his possession shall not be disturbed, without enquiring into the absolute and real right of t.he property, unconnected with the right of possession.</p> <p>He said that the legal notions of possession in tin’s country have been extremely vague and indefinite, but he did not recollect any case in which this doctrine had been settled with due precision. The constructive possession, mentioned in some cases by our Judges, is doctrine unknown to the common law ; but he held that the correct idea of that possession, which would arrest the operation of this act, is such a possession as is described by Coke Inst. IS. Quasi pedis positio — That the claim must be made by suit in law under the express terms of the 2d sec. of the act, and that the entry must be an actual entry, and the possession an actual possession. Bui. 102, 103. 1 Balk. 285.</p> <p>Independent of the operation of the 2d sec. of our act of limitation, by the determinations in England, received as authority here, seven years adverse possession is not only a negative bar to the action, or remedy of the Plaintiff, but a positive title to IhcDefcndaut j and therefore, where A had the possession of lands for twenty years in England, without interruption, and then B got into possession, on which A was put to his ejectment,: here, though A was Plaintiff, yet his possession for twenty years was deemed a good title, and lie recovered accordingly. This was ruled by Hoit, Chief Justice, saying that a possession for twenty years, was like a descent, which tolls an entry, and gives a right of possession, which is sufficient to maintain an ejectment. Salk. 421.</p> <p>In the present case there lias been an actual uninterrupted and adverse possession for thirty-six years by the Defendant, and those under whom he claims, whereby be has acquired a title, upon the strength of which he could recover in this form of action against the Plaintiff himself, who has now nothing left but the mere right of property.</p> <p>The Court will also please to observe, that this objection, under the form of the title acquired by the Defendant from possession, collects additional force from a comparison of the statute of James w itli the act of North-Carolina. The 3d sec. of our act is an abstract from the 1st sec. of the English statute, and operates on the right or title of the person who is out of possession, without appearing to touch in any manner whatsoever, the right or title of the tenant in possession.</p> <p>The 2d sec. of our law enacts, “ that ail possessions of, or titles to any lands, tenements or hereditaments whatever, derived from any sales made either by creditors, executors or administrators of any persons deceased, or by husbands and their wives, or husbands in right (>f their wives, or by indorsement of patents, or otherwise, of which the purchaser or possessor, or any claiming under them, have continued, or shall continue in possession of the same, for the space of seven years, without any suit in law, be, and are hereby ratified, confirmed, and declared good and legal, to all intents and purposes whatsoever, against all and all manner of persons: any former or other title, or claim, act, law, usage or statute to the contrary, in any wise, notwithstanding.” In the whole of the statute of James, there is nothing like this section, yet the adjudications in this country have always followed the construction of that statute, and have generally fallen short of them, without noticing the extensive and beneficial operation of this clause.</p> <p>It will be remarked, that this clause relates only to the right of the tenant in possession, operating in such a manner as to ripen an inchoate or defective right into a complete title.</p> <p>That the act embraces “all possessions of lands,” as well as “.titles to lands,” derived from any sales made to creditors, &c. or by indorsement of the patents, or otherwise. Thus every “ sale,” whether of the possession, or right of occupancy, or the title comes within the purview of this clause, which goes to the absolute confirmation of the title of the purchaser.</p> <p>The act appears to have embraced expressly both the cases of a mere right of occupancy, and what is usually called a title, by the expressions of “ all possessions of,” or “titles to,” “which the purchaser or possessor So that sales of the right of occupancy, a very common case in this country, ever since its first settlement, are clearly within the letter and policy of the act. The sale and assignment of the possession by the heir of Hopkins, connected with a continued possession, a possession that has not been interrupted by any suit at law, wc contend has now ripened into a complete title, absolutely ratified and confirmed by this act to the Defendant, any former or other titles notwithstanding.</p> <p>It is not necessary to enquire in this case, whether the Defendant has acquired a title under the 2d sec. of this act, that would resist a writ of right: the Court, however, would permit him to observe, that if this act contained no more than the statute of James, there could have been no question as to this point; but our law has a much higher regard for possession, and connecting it with the circumstance of time, makes it the strongest evidence of title; and it is from the full and strong tx-pressions of this clause of the act, that he liad held, a title like this could not he disturbed by a writ of right in this country.</p> <p>The statute of limitations, as far as it respects real estates, is a law of the utmost importance to the peace and happiness of the community. The leading motive of entering into society, was the protection of property, and the great object of the law is, to secure and quiet men in the possession of it: this policy is strongly expressed in the preamble of the act, “ Whereas great suit, debate, and controversy hath heretofore been, and may hereafter arise, by means of ancient titles to land derived from patents granted by the Governor of -Virginia, the conditions of which patents have not been performed, nor the quit-rents paid, or the lands have been deserted by the first patentees, or for, or by reason, or means of former entries or patents granted in this Government; for prevention whereof, and for quieting men’s estates, and for avoiding suits in law, Be it enacted,” &c.</p> <p>The case under the consideration of the Court, is precisely one of the cases contemplated by the act. Where patentees have deserted their lands still a wilderness, and others, ignorant of such appropriation, have settled upon them, and improved them by the labor of many years, expecting to acquire a title in the course of time, on the usual terms from Lord Granville or the King; it would be incompatible with the principles of justice, or the policy of an infant Government, struggling wit!» the difficulties of settlement and a feeble population, to turn the improving tenant out of possession.</p> <p>11c said he relied with confidence upon these objections arising out of the statute, supported by an uniform train of decisions, and no determination in this country could be said to have shaken these authorities, unless the case of Mallett and Minns in this Court, should be considered as militating in some measure against the construction contended for on the first point. In that case, two points were determined, 1st. That the delivery of the grant to the grantee, should raise a constructive possession, sufficient in law to preserve the grantee’s right of entry where there is not an adverse possession. 2d. That the Plaintiff shall be put to prove an actual possession in himself within seven years, only where the Do-fetulant sets up an adverse possession for that time. In this case, there has been an actual adverse possession ever since the year 1751 ; and for more than seven years by the Defendant himself; so that this new doctrine of constructive possession, which owes ils birth to this case of Mallctt and Minns, will not serve the Plaintiff in this instance.</p> <p>It may perhaps be said, that the absence of Burring-ton beyond sea, as well as that of the lessor of tiie Plaintiff, and the time struck out on account of the interven.tion of the war, will bring this case within the exception of the act of Assembly.</p> <p>To this he answered, that the proviso of the act of Assembly saves the right of action to persons beyond seas, only for eight years after their title shall accrue, the words of the act being, “ or persons beyond seas, within eight years after the title or claim becomes due, shall lake benefit and sue for the same.5’ So that it becomes necessary to bring suit within eight years after the adverse possession took place, even upon the doctrine delivered in the case of Mallett and Minns. It is also to be observed, that Mr. Sirudwick came to this country in the year , after the sale of Barrington to him, and that the act certainly attached upon his right at that time, and his returning to England would not prevent the statute running ; so that after strikingNout the ten years from March ’73 to ’83, there is sufficient time for the statute to have complete effect; and when the act begins to run, it cannot be suspended on account of any after defect or impediment whatsoever. To prove this point, he cited Plowd. 368 to 376, saying that indeed this was the case of a fine, but that the reason and principle was the same in a common case under this act; and that the determination upon the statute of limitations bad ever since followed the decision in the case of Stowell v. Lord Zouch. See 2 Will. 582 3. I Will. 134. Stra. 556.</p> <p>There is one other point of great importance, which lias not yet been sanctioned in this country by any direct decision. He said, I admit the doctrine has been questioned, but there is no part of the common law more clearly settled than that, when a descent is cast, the heir of the disseisor has the jus possessionis, because the dis-seisee cannot enter upon bis possession, and evict him, but is put to his real action, because the freehold is cast by the law upon the heir. Howell was thirteen years in possession, died in actual possession, and the law cast the freehold upon his son ; and the reason of the law as stated in 2d Black. 177, applies to this country as strongly as any other. The law, says he, will presume that the possession, which is transmitted from the ancestor to the heir, is a rightful possession, until the contrary be judicially shewn; and therefore, the heir shall not he evicted by a mere entry, although such a measure would have been competent in law to have dispossessed the ancestor. The alteration by the statute of the S2d Henry 8th, of this common law rule, only requires that the disseisor should have five years peaceable possession next after the disseisin, and a descent cast-under these circumstances tolls an entry, unless the dis-seisee should have made continual claim. He therefore concluded, that there being a descent cast in this case, the right of entry of the lessor was also thereby taken away, arid that therefore, the .Plaintiff could not recover in tills action j and relied as to this point, upon Inst. 250, 223'. Sec. 426. fritó. Ten. from 21 to 36.</p> <p>cited Burr. Rep. 60, to shew the doctrine of seisin and disseisin, and to prove there could be no disseisin in Ibis country. The Court, consisting of Judges Wiiiiams and Macay, after advising together on the bench for some time, said that the jus possessions was lost by the Plaintiff; and without giving their opinions at large, directed the Plaintiff to be called : and accordingly he was called, and nonsuited.</p>

Indictment for feloniously and burglariously breaking and entering into the dwelling-house of one Rice, and feloniously and burglariously stealing thence a twenty shilling bill, &c. the jury find him guilty of the larceny, but not guilty of the, burglary.

In this case, the debt bad accrued above three years before the commencement of the action, hut there was an acknowledgment of the note having been executed within three years : and per Wiliiams, on a motion for 'a' new trial, that is sufficient to prevent the bar by the the sia-tute, as well in the case of an executor as of the party himself who made the contract. He relied upon Salk. 29. PI. ¡9. Adopted by S Bac. 517. L. Ev- 181. 1 Morg. Ess.

The Plaintiff, a merchant, employed the Defendant, fbr a reward, to bring goods and merchandize from Virginia, to Hillsborough, in this State, in his waggon , the Defendant received the goods in Virginia, and in bringing them to Hillsborough, when about to cross a river, the flat receded from one of the fore wheels of the wag-gon, and it ran with the goods into the river, and the goods were greatly damaged and impaired in value, The Defendant did not make it his common and…

<p>This was an action of covenant, brought upon an instrument executed by two, and appearing to be under seal, but not attested by any subscribing witness. There was no witness to the execution, but proof was offered by tjie Plaintiff, of an aeknowledgment by one of the co> venantors that the instrument was executed by both : which Judge Spencer would not admit, and no other evidence being; offered, the. Plaintiff was ordered to be nonsuited; the Court saying, he ought to have brought his action on the case, an ! proof that the instrument was acknowledged, is no proof of the sealing, and will not make it to be a deed.</p>

Action of debt against Defendant, naming him executor. Plea in abatement, that be is administrator and not ex'cutor.

Plaintiff’s wife, while sole, lent to Defendant specie certificates, to be returned in three weeks, or at any time when requested.

<p>la the case of boundaries expressed in deeds and patents, the courses and distances mentioned in such deeds or patents, must be observed, except when a natural boundary is called for and shown, or when marked lines and corners can be proved to have been made at the original survey.</p>

Ejectment. The declaration stated the lease to be of a messuage and tenement, bounded by metes & bounds particularly expressed, including a tract of two bun-deed ami sixty-three arres of land.

The case was, A intrusts the horse tó B for a particular pui pose; B remains at Salisbury sometime, and contracts debts with several persons, and gives a bill of. sale for the horse to Hughes, and also to one Brem ; his sale to Hughes is prior to the date of the bill of sale to Brem.

Detinue. Plaintiff by one Tally, proved that Barton, who was a legatee, went with him to Rush, and informed Rush that the negroes mentioned in the declaration were of the estate of Elwiek ; that he, Barton, was a legatee, or heir of that estate : and that Col. Taylor was executor and demanded the negroes.— El per Judge Williams, a (It maud is necessary to entitle to the action, audit most be made by the Plaintiff, or by some one by his authority ; here he did not inform the…

Certiorari. The Plaintiff after obtaining the certiorari to remove 1 his cause from the Court below, into which it liad come by appeal from the judgment of a Justice of the Peace, had removed into South-Carolina ; and now upon motion to the Court for that purpose, Judge Wiii-xiams upon the bench, it was ordered, that unless by the next term or before, the Plaintiff put in sureties for prosecuting this cause, and for paying costs in case he fail therein, that this cause shall…

<p>A common inn-keeper is liable for any loss which his guest may sustain in his property, except'it be by the agency of a servant or companion of the guest himself, or when the guest is admitted upon terms when the inn is full. The possession of money gives the property of it as to any disposition which the possessor may make of it.</p>

This was an action of trespass in ejectment, wherein the Plaintiff deduced his tille as follows: 'Phis land was granted the 2d day of April, 1741, by the Earl Gran-ville to Benjamin M’Kinnic ; by him… Held: or supposed to be valid ? Has it not always been thought, since the passing of this act, as well as before, that the executor will be liable to the action of the heir, if he should enter upon the lands for any other purpose than that of making an inventory ?

<p>This was an action of covenant, founded upon certain articles of agreement, executed the 13th of November, 1811, whereby the defendant, who was Clerk of the County Court of Person, employed the plaintiff as his deputy, and authorised him to retain, for his services, “ one half the profits arising from the date of the contract,” which they calculate to be one hundred dollars; which the said Haralson promises, at every term, the sum of twenty-five dollars, to pay the said Dickens as Clerk of said county—also, one half of fees on marriage licences, said Dickens is entitled to—and agreed to between both parties.” The concluding clause of the agreement is as follows : “ And the said Haralson doth oblige himself to pay over to the said Dickens, as before mentioned, one half of the profits which may be collected, which is one hundred dollars a year, to be in four instalments, viz. twenty-five dollars every court in a year; also, one half of the fees collected on marriage licences.”</p> <p>The Judge before whom the cause was tried,directed a non-suit, from which decision the plaintiff appealed to this court.</p> <p>—This contract is rendered void by the statute of 6 Ed. VI. c. 16, which enacts, that all agreements, covenants, bonds or assurances for any of the public offices therein specified, or the deputation thereof, shall be void. Such contracts are void where a certain annual sum is reserved to the principal, though the profits amount to more than the sum reserved to be paid by the deputy. Mod. Ca. 234. A sum in gross cannot be reserved to the principal. Sal. 468.</p> <p>—The statute does not affect those contracts where the sum to be paid is reserved out of the profits of the office; for then, the principal only reserves part of that which was wholly his before. This is settled in Godolphin v. Tudor 6 Mod. 234; and in Culliford v. Codonny, 12 Mod. 90, the very point came in question, and it was held that a bond by a deputy to account for the profits he receives, and to pay his master one half of them, is not within the statute; for it is reasonable that the deputy should be paid for his trouble. In the case before the court the covenant is to pay half the profits, which amounted to one hundred dollars a year. But if this point should be adjudged against the plaintiff, he is at all events entitled to recover half the money received for marriage licences; that being, clearly, only a reservation of half the profits which have arisen from that source.</p> <p>—The profits of this office were altogether uncertain. It was impossible to estimate them prospectively; yet the sum to be paid is fixed, so that whether twenty or two hundred pounds were received by the plaintiff, he was bound to pay over one hundred. If by the parties arbitrarily stating a certain sum as the profits, a sum in gross might be reserved, the provisions of the statute light easily be evaded. On this point, the reasoning of Lord Loughborough, in Garforth v. Ferson. 1 H. Bl. 331, is strong and conclusive. As to the claim for marriage licences, we resist it on the ground that if any of the conditions of a bond be void by statute, the whole bond is void. Willes 574.</p>

<p>This was a bill in equity, in which the complainant referred to a statement annexed to his bill, and which he prayed might be taken as part of it.</p> <p>The defendant pleaded in abatement, that he had not been served with a copy of the bill ten days before the court, for that no copy whatever of the statement, had been served on him. The plea was overruled in the Superior Court, from whose judgment the cause was brought by appeal to this court; where it was submitted without argument,</p>

<p>This was a petition to establish a public ferry on the Yadkin River. The reasons why the prayer ought to be granted were stated at length in the petition, and a diagram accompanied the papers, shewing the respective distances by the way of the old ferries and the proposed one.</p> <p>the principal topics urged on either side are noticed in the judgment of the court.</p>

<p>The defendant was indicted for an assault, by the name of William B. Newmans, without any addition. To this he pleaded in abatement, “ and the said W. B. Newmans is by trade a ship carpenter, by which addition he ought to be distinguished, &c.” To this plea a demurrer was entered on the part of the State, which coming on before Lowrie, J. was by him referred to this court.</p> <p>It was submitted without argument.</p>

A certiorari had been granted in this case by Lowrie, J. upon the affidavit of Smith, which stated in substance, that a suit was instituted against him and Walker in New-Hanover county court, by McMillan; and that the cause was pressed in the deponent’s absence, on Monday early in the afternoon of the first day of court, and a judgment obtained.

This was an action of covenant founded on a charter party entered into between the plaintiff, and the defendant, as agent for Paul Errill Lorent, of Charleston. The defendant is described as agent in every part where his name occurs, and he signs and seals it, also as agent. The question submitted to the court is, whether he is personally liable to the action. The cause was submitted without argument.

This was an action of covenant on a deed, which is in the words and figures following, viz. “ Covenant and agreement made and entered into this 13th day of November, A. D. 1800, by and between John Wallace of Shell Castle, in the county of Carteret, and John Gray Blount of the town of Washington and county of Beaufort, of the one part, and James Taylor, Surveyor of the port of Beacon Island, and, in this instance, special agent for and on the part of the United States, of…

<p>Fraud is not barely to bo suggested, but must be proved. A judgment by default upon a tobacco bond, is not final. A judgment (final) binds hnds, from the time of its rendition, as to purchasers, from the Defendant, but not so as to defeat the title of one purchasing under the execution of a subsequent judgment. As between creditors, it is not the first judgment, but the first execution, that gives the preference.</p>

The plaintiff became purchaser of a tract of land sold by the sheriff, under execution, on the 10th November, 1804, but the conveyance was not made until the 18th July, 1805. In the intermediate time, viz. on the 10th February, 1805, the defendant committed the trespass for which the suit is brought. The execution issued from an order of the county court, directing Bolin, the prosecutor in an indictment, to pay the costs on the defendant being acquitted.

The defendant had been tried and found guilty on an indictment for a trespass in taking from Hughes, the prosecutor, a bank note of $ 100. On a motion for a new trial, it was agreed that this court should decide whether the facts alleged in the following affidavit of Hughes, the prosecutor, constitute an indictable trespass or not, and a new trial to be awarded or refused accordingly. AFFIDAVIT.

Detinue for several slaves which the plaintiff Elizabeth owned, and possessed before her intermarriage with Johnston.

<p>The defendant had purchased, before the year 1777, an improvement on a tract of vacant land, and in 1778 duly made an entry. He was drafted before the 17th April, 1780, to serve in the militia, which he failed to do, or to find a substitute; and being delinquent, on the 24th June following, a warrant was on that day issued by the Colonel of the county, and directed to the deputy sheriff, commanding him to sell so much of the defendant’s property as would make the sum of £3500. This warrant was issued under the 2d section of an act, passed on the 17th April, 1780. The deputy sheriff levied upon the entry abovementioned, and sold it publicly to Daniel Mitchell, who sold it to the complainant’s father, who had the land surveyed and procured a grant to issue for it on the 18th August, 1787, in the name of the defendant. The sheriff afterwards in 1789, executed a deed to Payne, in completion of the sale by his deputy. The bill prayed a conveyance of the land, or a repayment of the purchase money.</p> <p>stated several objections to the complainant’s recovery.</p> <p>1. That the entry being a mere chose in action, was not liable to execution. 1 Cruise 459. 1 Bl. Rep. 170. 1 Saunders 108.</p> <p>2. The unconstitutionality of the act of 1780, under which the warrant was issued. 2 Haywood’s Rep. and Mr. Justice Patterson’s opinion in the Wyoming cause.</p> <p>3. That the warrant was directed to the deputy sheriff, whereas by the act it should have been directed to the high sheriff. 1 Wils. 155. 1 Vesey 195. Yelv. 175.</p> <p>4. When the land was sold by the sheriff, he could not convey any title, because Hubbard himself was incapable of doing so. Act of 1777, Cap. 33, Sec. 7.</p> <p>cited on the first point, Shepherd’s Touchstone 501. 1 Saund. 56, 172, 45. 1 Brown 81. Finch 202. 3 Atkyns 309. On the second, Vattel, B. 1, Sec. 1, 2, Cap. 2. Cap. 20, Sec. 244.</p>

Since the last continuance of this cause Keziah Knowis, one of the defendants, intermarried with Hance Baker, who at the fall term of 1814, was made a defendant, and thereupon moved for a removal of the suit upon an affidavit, which stated in substance, that he did not believe he could have a fair and impartial trial in that county; that the subject of the suit had been much talked of, and improper impressions made as to his case, which would operate injuriously on the trial…

This was a bill in equity calling upon the defendants to execute the trusts of a deed of gift for a female slave and her increase, in favor of the children of John Carraway, jun. from whom the complainant purchased. The defendants are purchasers from John Carraway, jun. and demurred to the bill for want of equity.

<p>This was an action on the case for debauching the plaintiff’s daughter, and for the trouble, expences and loss of service, incident thereupon.</p> <p>To prove that the defendant did debauch and get the plaintiff’s daughter with child, the plaintiff’s counsel first offered the examination of the daughter, Catharine McFarland, deceased, which was taken before two magistrates, wherein she charged the defendant with having been the father of a child with which she was then pregnant, in order to charge the defendant with the maintenance of said child, according to the act of assembly. Objections were made to this testimony; and the presiding Judge decided it to be inadmissible. The plaintiff then offered to prove the declarations of the daughter, in her last illness and made in view and expectation of death. To this evidence, also, the defendant objected; but the objection was overruled.</p> <p>The plaintiff then proved that the daughter was sick in childbed for about ten days, at his house, which was her usual place of residence—that three medical gentlemen were called to her, two of whom attended her together, and the other some time afterwards—that several times during that illness, she declared that the defendant was the father of the child with which she was then pregnant; and that after all hope of life was gone, she desired that defendant might be sent for, and upon being informed that he would not see her, exclaimed, “ I am going—he will soon go too—where he will be obliged to see me and will not dare to deny the truth.” Upon this evidence, the jury found for the plaintiff.</p> <p>1. If the said examination of the daughter was admissible in evidence, then the verdict to stand:</p> <p>2. If neither the examination, nor the declarations of the daughter which were received, should be deemed admissible, then the verdict to be set aside and a new trial granted.</p> <p>—The examination of the woman ought to have been admitted as evidence against the defendant. The act of assembly is positive, that it shall be conclusive evidence to charge him as the father; and that is the fact now in contest between these parties. The examination and the consequent judgment formed a judicial act, done by persons having a competent authority, in a case too where the defendant was a party. But if this point should be ruled against us, we contend</p> <p>2. That the dying declarations of the daughter were properly received. It is unnecessary to cite authorities to prove the uniformity with which such evidence is received in criminal cases. The same motive which led to it’s propriety there, is equally forcible here, necessity; because the fact can alone be proved by the daughter. There is, however, an authority for its admission in civil cases, in 3 Burr. 1255, where the dying declarations of Medlicott were received to prove his having forged a will.</p> <p>—The only case which gives any countenance to the competency of the examination, is that of Rex v. Eriswell, 3 Term, 307; but the opinion of two Judges in that case was overruled, in 2 East 54. It is entitled to no higher respect than hearsay evidence, which is received only in certain excepted cases, probably as old as the rule itself. The correct principle is, that, except in cases of felony, and that by statute, informations or examinations of witnesses, taken before magistrates, in the absence of the party charged, cannot be admitted as evidence, either at common law, or by statute. 1 McNally 313.</p> <p>It is not established as an exception to the rule of evidence in civil cases, that the dying & durations of a witness are admissible. In the case cited from Burrows, the declarations of Medlicott were received only to invalidate the effect of his signature to the will.</p> <p>—The point decided in Burrows is, that a subscribing witness to a will, acknowledged upon his deathbed, to the person giving the evidence, that he, the subscribing witness, did himself forge it; and this was held proper testimony. It is then a substantive ground of evidence.</p>

<p>This was a petition on the equity side of the court, to set aside an interlocutory order, made at April term, 1813, whereby the administrators of H. Hunter, were allowed to file their answer to the complainant’s bill of complaint. The bill was served on the intestate, who neglected to answer, and the cause was set for hearing in his lifetime, at April term, 1810, after which he died, and his administrators were made parties at April term, 1811, before which time the complainant had completed his depositions, with notice to the other defendant, Coman, but without any to Hunter. At the term when the administrators were made parties, they offered to file their answer, but were not allowed to do so by the court. At the before mentioned term, of April, 1813, the motion to file their answers was again renewed, and allowed by the court; and this is the order complained of. The defendants, in their answers, state, that the intestate, for, a considerable time previous to his death, was reduced by, intemperance to such a state of mental and corporeal debility, as unfitted him for business.</p>

<p>This was an action of covenant founded upon articles of a race, entered into between the plaintiff and defendant, in the following words, to wit:</p> <p>“ Articles of a race, made this the 3d day of October, 1809, between Robert Tinnen, of the one part, and Joseph Allison, of the other, witnesseth, the said Tinnen runs his stud horse, known by the name of Solon, against Joseph Allison’s stud horse Grey Medley, alias, Palafox, for the sum of two hundred dollars, carrying one hundred and sixty on each horse; the said race to be run on the paths known by the name of Bason’s paths, on the 21st day of November next, as witness, our hands and seals, this day and year above written.”</p> <p>Upon the trial, the counsel for the defendant insisted that the plaintiff was bound to shew that the money was stated, and the court being of that opinion, the plaintiff suffered a nonsuit.</p>

Action of debt upon a judgment—Plea—Payment. On the trialof this cause, the following facts appeared in evidence : At January term of Onslow county court, in the year 1783, Richard Ward obtained a judgment against Samuel Green for the sum of £500* The action in the county court was commenced on the following instrument, viz. “ I promise to pay Richard Ward, or order, the just and full quantity of seven hundred and twenty-five bushels of good merchantable boiled salt, to be…

This was an action of trespass, for an assault and battery on the person of the Plaintiff. There was a plea ¿arrein continuance — that he had recovered in an ac~against another Defendant, who was a party to the same trespass, and had judgment against him : and neither Plaintiff nor Defendant had witnesses now ready to prove the trespass, or that it was the same trespass for which damages had before been recovered.

This was a sci. fa. vs. the defendants, suggesting assets, who, at the return, pleaded nul tiel record and no assets; and at a subsequent term the defendants pleaded the following plea, viz. “ And now at this day, that is to say, on the 26th of October, until which day the plea aforesaid was continued, comes the said Peterson Brown, by William H. Murfree his attorney, and the said Robert Teare, by his attorney William Slade, Esq. and the said Peterson Brown saith, that the…

The following facts were stated in this case by the parties as a case agreed, and submitted to a jury on the issue non detinet, under the direction of the court as to the law. Facts agreed to, in the case of Lazarus Carter, Executor of Isaac Carter, v. Shadrach Rutland, 8/uulrach Rutland and Parthena Carter, daughter of Isaac Carter, of Hertford comity, were married the 12th day of November, 1775.

Ejectment. Plaintiff in making out his title, produced a grant from the State without the seal appendant, but it had been registered in the Register’s office. It was signed the Governor, and countersigned by the Secretary. It was objected by JIvertj and Henderson, that tiie seal being not appendant, the gr.ant is nullified,and therefore itcannot.be produced in evidence; in like manner, if the seal of a bond be torn off. the bond cannot be read in evidence. They cited Bull.

In this case the Defendant, who had been bail for his son, applied to the Court upon an affidavit filed, to be relieved from the forfeiture of his recognizance, upon which judgment final had been entered under the act of 1788, eh. oi. sec. 2. and to be permitted to enter into new recognizance to attend as a witness at the next term : but it was said he was about to move out of the State.— Whereupon the Attorney-General opposed this application.

This is an action of ejectment to recover a tract of land to which the plaintiffs claim title in the following words, viz. Anthony Markham, who was seised and possessed in fee of the premises in dispute, by deed with warranty, conveyed to John Pointer, in 1757—John Pointer died about the year 1783, and the plaintiff is his heir at law.

Indictment for stealing a horse in the county of Burke; The jury found specially that the felony was committed in the Territory South of the Ohio, and that the trespass •was continued info this State, where he. was taken.

<p>This is an action on the case, on an open and unliquidated account. The writ issued 28th of May, 1810. At August term following, the defendant, by his attorney, entered the following pleas: “ Gen. issue, set off, stat. lim. fully administered, no assets, judgments and bonds, &c. no assets ultra, property sold under act of assembly, money not yet due." The plaintiff in order to shew assets in the hands of defendant, introduced an account of sales returned by the administrator into the county court, which sales were made on the 1st day of May, 1810, under an order of the county court, to the amount of £ 182</p> <p>Money received by administrator in possession of deceased 32 10</p> <p>She also proved that, after plea pleaded, the administrator sold property of the deceased, on the 1st of September following, to the amount of 377 6</p> <p>That the deceased being a Physician and in partnership with Dr. Haywood of Tarborough, was, at the time of his death, entitled to one-third part of the bonds, notes and accounts of said firm. That Dr. Haywood was surviving partner, who placed these notes and accounts in the hands of Trustees for collection, and that the defendant agreed to receive one-third of these notes and accounts in discharge of his claim as administrator against said Haywood, in the month of February preceding the issuing of this writ, and by him received on the 31st of May, 1810, but received no part of the money arising from said collection, until November thereafter, to the amount of 375 £ 966 16</p> <p>And the witness thought these notes and accounts good, except as to fifty dollars. It further appeared that the money arising from the first sale, was not received by administrator until after plea pleaded, as well as the amount of the money arising from the notes and accounts aforesaid.</p> <p>The defendant, to shew his disbursements or application of assets, proved that three several writs sued out in June, 1810, on bonds due from the intestate, were prosecuted to judgments, subject to such assets as should come to his hands after the date of said judgments, to the amount of £ 531 15</p> <p>That the intestate was, by a division made by commissioners of his father’s estate, indebted to the amount of 71 17 which, from a receipt, he paid in March preceding the plaintiff’s action.</p> <p>Two judgments, before a justice of the peace, on notes, of hand 38 14 6</p> <p>Judgment on a signed account 12</p> <p>Account for funeral expences 5</p> <p>Fees paid clerk for taking-out administration 1</p> <p>Allowance for commissioners 41 12 6</p> <p>Retainer for his own account for making a shirt 12 6</p> <p>Sawyer’s bond paid 71 17 7</p> <p>£ 774 91</p> <p>On the above statement of facts, it is submitted to the Supreme Court to decide, whether the above sum of £ 182, arising from the first sale, was or was not assets subject to the plaintiff’s demand, the money arising from said sale not having been received until November after the plea pleaded?</p> <p>Whether the agreement of the defendant to receive a third part of the notes, bonds and accounts of the firm of Haywood and Hooker, in discharge of his claim against said firm, in February preceding the plaintiff’s writ, although no part of the money arising therefrom was received until November thereafter, was or was not assets subject to the plaintiff’s demand?</p> <p>If the £182 should not be considered assets liable to the plaintiff’s demand, ought they not to be considered as the assets out of which the debt of £71 17s. and the remainder of the vouchers claimed by defendant ought to be paid, and thereby leave the balance of the assets liable to the demand of the plaintiff?</p> <p>The jury found a verdict for the plaintiff for the sum of £ 81 8s. 5d. that the defendant had assets, under the charge and direction of the presiding Judge. Motion for new trial.</p> <p>The verdict has been properly found, because the plaintiff obtained the first lien upon the produce of the sales, which ought to be applied to the payment of this debt. The act 1794, Cap. 14, makes it the duty of the administrator to recover and receive the money on such sales, when the time of payment is past, or otherwise he is chargeable for it; and the monies when received shall be liable to the satisfaction of judgments previously obtained.</p> <p>The money received from the partnership debts is also liable to the plaintiff’s demand; because the agreement to receive it in discharge of the surviving partner, was made in February preceding the issuing of this writ. It is very clearly laid down, that executors may make monies assets in their hands, without having received them, by making releases, or acquittances, or acknowledgments of satisfaction. This amounts to a receipt and charges the executor 1 Wentw. 70. 2 Wentw. 147. Comyns. Dig. Tit. Adm.</p> <p>The money arising from the sale was not received until after the plea pleaded, and cannot, therefore, upon these pleadings, be made chargeable as assets in the defendant’s hands. 1 Saunders 336. 2 Saunders 216. The general doctrine is not denied, that an administrator may charge himself, without having received the money; but that is where he has a legal right to receive it. The remedy upon these partnership debts survived to Haywood, from whom the defendant might claim his intestate’s proportion of the balance. The defendant acquired only an equitable right to receive the money by the transfer from Haywood The subject then should be considered in the manner that it would be in a court of equity, where it is held, that an executor shall not be held charged with the money by altering the security. 1 Cases in Chanc. 74.</p>

was indicted for horse-stealing, and upon the trial the Attorney-General offered (o give iu evidence the deposition of one. Young, to whom he had sold the horse in South-Carolina, but a very short time after the horse was stolen ; and cited in support of this attempt, 2 H. H P. C. 284. 11. P. C. 429. Bull. 252. La. JSvid. 140, 142. 5 Term Rep. 713.

<p>Former administrators removed, and another appointed, but not made ; a party to this suit. The latter administrator will not be allowed to plead any thing to this suit $ and the former administrators cannot plead the repeal of their letters, after the first term since their repeal. An account settled and signed by one adminístralo]' is binding upon all, and will bear interest from the time it was signed.</p>

This is an action of debt brought upon the bond, which accompanies this case. This bond was given for the hire of a negro. A few months after the hiring, the negro being in the possession of the defendant, and in the ordinary discharge of his duty to the defendant, cut his knee pan with a drawing knife.

Ejectment. The Plaintiff produced a state grant for the lauds in controversy, and rested his cause upon it.

An action had been brought against these Defendants jointly, for a joint debt contracted by the Defendant Cla-ry, and tiie intestate David Craig, with the Plaintiffs, pursuant to tiie act of 1789, ch. 57, sec. 5» “ And whereaS it is a rule of pmmsn htw, that in case of the death of a joint obligor, the debt Can never survive against his heirs, executors or administrators, which rule is frequently injurious and oppressive to the surviving obli-gor or obligors; to remedy…

He was indicted, for that he, on sucii a day and place, made an assuit on one Joshua Coffee, and of his malice aforethought, struck and put out his right eye with an intent to maim and disfigure, against the form of the act of'Assembly, which is in these words, to-vnt: “If any person or persons shall of malice aforethought, unlawfully cut out or disable the tongue, or put out the eye, of any person, with intent to maim or disfigure; the person or persons so offending, their…

Ejectment. At the last le.rm of this Court this eject-incut came on to he tried, and the jury were empanelled and charged : but before any evidence given, Mr. Williams, for the Defendant, took an exception to the form of the declaration, which stated the demise to have been .made on the fifteenth day of September, in the year of our Lord one thousand seven hundred and ninety-one, to have and to hold from the said fifteenth day of September, for and during the term of five…

<p>Words in an action of slander bear that signification, which the y have in common parlance ; therefore to say one lias sworn false in Court, implies malice, and, also in this country, must mean such a Court as has power to administer an oath ; and it is therefore actionable.</p>

The bill stated, that two executions being writs of fi. fa. issued from the County Courts of Mecklenburg• and Iredell, at the instance of different Plaintiffs, and were levied by the Sheriff' on the property of the testator in his lifetime, and particularly on a negro fellow named -1 and that the property was advertised for sale— that before the day of sale, this negro privately murdered the testator, and that on the. day of sale the perpetrator of the murder had not been…

<p>Detinue. This cause now came on to be tried upon the general issue, and the proof of the demand made by the Plaintiff previous to the institution of his action was, that Plaintiff demanded the negroes (James and Dempsey J of the Defendant, who acknowledged they were both in his possession, and said he should not deliver them ; and that this demand was in January or February, 1787. The Defendant then proved, that two years before that period he had given James to his son-in-law, Mr. Williams, and had at the same time given him possession, which lie had continued ever since; and that the negro James, in January and February, 1787, was in William’s possession. — it was argued by General Davie, that Glasgow, as a parent, was willing and intended to undertake the defence of the action himself, and his acknowledgment must be taken as evidence to that amount. Et per curiam, Ashe and Wiiliams — The evidence'must be so understood ; and they directed the jury that this evidence was sufficient proof of the possession having been in the Defendant at that time but the cause for another reason, was adjourned.</p>

<p>An affidavit of an agent, not a party in the suit, cannot be annexed to an answer to dissolve an injunction. But an order may be made to have (lie fact, which the affidavit was intended to show, tried by a jury at the next term.</p>

<p>Ejectment. Henry Eustace McCulloch had a tract of land in the county of Randolph, the first line of which began at a marked corner, thence a course and distance called for in his deed, and a second corner which was also marked j but the distance from corner to corner, was greater than the distance mentioned in the deed ; then the deed called for a second line, mentioning the course and distance, and a stake as the point of its termination. It was not marked, nor was there any stake to be found. In like manner the deed called for the third and fourth lines* describing their courses and distances. These were {I0f marked. He had also a second tract adjoining this, beginning at the stake, the third corner of the first tract, being the termination of the second line; from thence the course of the said second line of the first tract was continued. The deed called for a marked corner as' its termination, which was found ; but at a distance from, the stake much greater than that called for in the deed. The deed next called for a line of the same course with the third line of the first tract, but only half the distance of the said third line; thence by a line parallel to the first line of the second tract, calling for a corner at the intersection of the third line of the first tract. Sears had obtained a state grant for the land adjoining the other half of the third line of the first tract, but the surveyors appointed to run those tracts of McCulloch, previous to their being sold as confiscated land; had begun at the second corner of the second tract, and had run it by courses and distances; they then extended the second line of the first tract to the third line (as they surveyed it) of the second tract, being the fourth or concluding line from the beginning stake mentioned in the deed. This.made the distance of the second line of the first tract much greater than the distance called for in the deed, and of course the third line of the first tract drawn from thence, would include the land taken by Sears; but if the second line of the first tract should terminate at the completion of the distance mentioned in the deed, and the third line of the first had been run by its course and distance from thence, then it would leave out the land taken by Sears.</p> <p> </p> <p>B C represents the course and distance of the second line of the first tract. B D represents the second line of the first tract, as run by the surveyor to make it adjoin, to the line D G, being the third line of the second tract5 run by the surveyor by courses and distances from the corner I. Should the third line of the first tract be run from the point C, the distance and course called for in the deed, it would form the line CHE, and leave out Sears’s land, lying between the lines E H and F G; But if the distance of the second line be disregarded, and that be extended to the line of G D as laid off by the survey- or, and the third line of the first tract be run from the first point D, then Sears’s land is included. These two tracts were sold as confiscated property, and were described in the deeds granted to the purchasers as run by the surveyors, that is to say — the first tract was bounded by the line D F, and so included Sears’s land.</p> <p>The Counsel for Sears insisted, that where a deed calls for a course and distance, and there be neither a marked corner nor a natural boundary called for, that the line must of necessity stop where the distance called for in the deed is completed; and in the present case, that is at the point C, ana that is the beginning corner also of the second tract; consequently the lineC E is the third boundary of the first tract, and not the line D F, and consequently also Sears’s land is not included either in the first or second tract of McCulloch.</p> <p>It was argued by Mr. Moore for the Defendant, that old surveys ought to have a reasonable allowance made, since in almost all of them the lines are too long; the first line of the first tract in the case now before us, is a marked line, and too long ; if we allow the same measurement in the second line, that proportion will carry the second line beyond the point C and even to D,' and then the land entered by Sears and granted to him by the'State, was not vacant land at the time of his entry. Secondly, he argued, that the deed granted by the State to the purchaser of this confiscated property, expressly included the land now contended for by Sears ; and supposing it to have been vacant land, not included in-either of McCulloch’s tracts, yet having been granted by the State to the purchaser of the confiscated lands, prior to Sears’s entry and grant, the State could not af-terwards grant it to him, and so quacunque via data, Sears is not entitled to recover.</p> <p>The deed to the purchaser of the confiscated lands, expressly states that this land was sold as the land and estate of Henry Eustace M’Culloch confiscated by the Legislature$ which makes it evident that Do more was intended to be conveyed than tlie land which had been the properly of Henry Eustace M’QullocJi; and if by mistake or design the boundaries had been extended beyond what his grant covered, that, mistake was to be rectified by the express words of the. State grant, saying the State conveyed it as Ms land ; for whether it was his land or not was to be ascertained only by his grant, not by the description of the State grant to the purchaser; and upon inspection of M’Oulloch’s deed, and by running the land described therein b/ course and distance, where there is no marked line, we are ascertained that the land now claimed by Sears, is not any part of the lands formerly granted to M’Culloclw and as Ids to the purchaser of it as confiscated. Moreover the laws of this State gave authority to the Commissioners of confiscation to sell only suefs lands as had been appropriated, and belonged, and were legally secured to such persons as bad incurred the penalty of confiscation, not those laigls that were vacant and never had been appropriated intiividnally — for he disposal of these, other officers were appointed under the laws, for entering vacant and unappropriated lands. The officers appointed to dispose and make conveyances for these several descriptions of land confiscated, and vacant lands, were in the nature of attornies constituted by individuals, to sell lauds for their principals j with regard to whom it was a well known rule of law, that if the attorney exceeded bis powers, whatever he did beyond them was void, as being done without authority. Suppose an individual appoints two attornies, one to sell one tract, and another to self another tract adjoining; and the first sells the tract he was empowered to soli, and part of the adjoining tract, which the other only was empowered to sell — surely the sale would be void as to such part of the second tract as he had not been authorized to dispose of. So here, the Commissioners of confiscation were empowered to sell M’CullocWs tract, the Entry-taker for the County of Randolph, is empowered to sell the vacant and unappropriated land adjoining; and is not the sale of this vacant land made by the Commissioner void, as having no power tS intermeddle with it? If not, I would be glad to know, for I cannot with my utmost exertion discover the distinguishing mark that differs the case of these officers from that of the at-tornies of individuals. It seems to me, the rule of law is the same in both cases, and ought to be adhered to in the present case, more especially as the Entry-taker, the proper officer, having lawful authority to sell has executed his power by receiving the purchase money for the public, and issuing his warrant for the surveying this vacant land for the purchaser Sears, according to the laws of the country. It has been hinted by the Counsel for the Defendant, and indeed it must he acknowledged, that the Court in some instances formerly have decided, that a S'ate deed cannot be avoided either i« all or in part, upon evidence on a trial in ejectment, for the danger that would ensue to purchasers if their deeds could be avoided by parol evidence given to a jury. — With great deference to the Counsel on the other side, and to the former opinions of the Court, I must say, that I have considered of this position with the most anxious attention, and viewed it in every light which my imagination could place it in, and I could never attain to any view of the subject that could give it the appearance of consistence with the rules of law. Suppose a Commissioner of confiscated property, or an Entry-taker, had sold to A, who paid the purchase money, and the Governor and Secretary by mistake had made out and executed a state grant to B. and afterwards had made Qiit and executed a deed to A. shall not A. be suffer*! to shew this mistake upon a trial in an ejectment brought against B. to recover the land? Suppose the Governor and Secretary had been deceived into this measure by fraudulent and false representations of B. shall not. this fraud be shown upon a trial in ejectment, and the deed to B. avoided ? Suppose the warrant of survey as made, by the proper Eu-try-taker, the certificate of survey, and the plat annexed shall be falsely made out. and returned to the Secretary’s office, and by that means a grant procured in the name of the forger, or any other person, to the prejudice of a fair purchaser who afterwards obtains his grant, shall he not be suffered to prove all this upon a trial in ejectment? It is argued, that tins must be done in a Court of equity — but vvliy? I apprehend this doctrine is grounded upon a mistake of what is said in many books respecting the powers of a Court of Chancery to repeal letters patent improperly granted, or obtained upon misrepresentation or deception, if we attend to the different construction of the Court of Chancery in England, and of our own Court of equity in this country, the mistake will be discovered. The Court of Chan-eery in England excercises a common law jurisdiction with respect to the repeal of letters patent, and also an equity jurisdiction altogether distinct fr om that, upon a bill filed for that purpose. Their jurisdiction ' with respect to the repeal of letters patent is limited, and directed by the settled and known rules of the common law. 3 Bl. Com. 4-7, 261. Now our Court of equity is not vested" with this power, it possesses only all the powers and authorities within its district, that the Court of Chancery, formerly held in this State under the late government, used and exercised, and that are properly and rightfully incident to such a Court, agreeably to the laws in force in this State, and not inconsistent with our present constitution ; provided no final decree shall be passed by such Court, but where two of the Judges at least are present. 1782. ch. 11. s. 2. This vests in the Court of equity here such powers, and these only as the Court of Chancery in England exercises on the equity side of the Court. All the subsequent parts of the act cited, are directed and confined to process, powers and proceedings that were used on that side of the Court of Chancery in England, and speaks of none others. So that the whole texture of our act shews, that our Courts of equity are empowered to proceed by bill, not by sd. fa. The Court of Chancery in England, on the equity side, also proceeds by bill, answer and depositions ; but on the law side, and so far as regards the repeal of letters patent, it proceeds according to the rule of the common law. 3 Bl. Com. 47, 49. JVood’s Inst. 479. 4 Inst. 79 to 81. 1 Btr. 146. 1 Eq. Ca. Jib. 127. and this power has never yet been vested, by any act of the Legislature in our Court of equity. It has no power therefore to proceed by sd.fa. to repeal the grants of the State, as the Court of Chancery in England hath. The same reasons which renderd it proper there, that the Chancery should exercise that power, do not by any means here. The Chancellor has the possession of the great seal, which is necessary to give valiclity to these grants, and the records of them are preserved in his custody, and he for the most part knowing the suggestions upon which tiie grants issued, he is the proper officer therefore to be entrusted with the charge of detecting mistakes and rectifying them — he can perform this task with more effect than any other, and he can vacate the record of the grants improperly issued, these records being within his immediate power; but what would be the consequence of an attempt on the part of our. Court of equity to exercise this power? Can this Court govern itself by the rules of the Court of Chancery in England, when proceeding with the same object in view? If their rules will not apply here, then our Court must either frame new ones, which I apprehend it has no authority to do, or must relinquish its jurisdiction entirely. The Chancellor in England- issues his sci.fa. returnable either before him in his Court of Chancery, or into the King’s Bench ; when returnable before himself, the party either suffers judgment by default, or demurs, or take's issue; in the two former cases, the Chancellor gives judgment'; in the latter, he sends the issue into the King’s Bench to be tried. Dyer 197. 1 Mod. 27. Latch. .3. 3 Lev. 220. Cro. Jac. 12. 6 Mo. Hep. 229. 4 Inst. 72. 80. There is no bill filed against the Defendant, he is not required to answer on oath and discover; the issue is tried upon evidence as other common law issues are. How willour Court of equity proceed — will it issue a sci.fa. and send the issue to themselves, to be fried before themselves as common law Judges by a jury? What need of all this circuity? Or will-they proceed by bill, answer and deposition, leaving the chancery course of proceeding and mode of trial altogether? This will be entirely new, and the first precedent either here, or in England, from whence our laws are borrowed. If we proceed by pleading to the sci.fa. and making up an issue, cannot a jury upon the trial of an ejectment, under the direction of the Court, do the same law and justice as if they tried it upon an issue made up in the pleadings to a sci.fa? And after all, will not the evidence upon this issue be parol evidence, to shew the mistake, misrepresentation or deception in the same manner precisely as upon the trial of an ejectment? Where is the evil avoided then, or the advantage attained, by trying it upon a sci. fa. that may not be equally avoided or attained by trial in ejectment? The usual and ordinary method observed in England, is for the party injured to apply by petition to the King, for leave to use his name for repealing the letters* patent. 3 Bl. Com. 261. This perhaps may not be absolutely necessary, but if it be, who is to give that leave here? Has the State thought proper to vest that power any where ? If the injured party can institute process without any leave, thep why not institute an ejectment as well as a bill in equity? Where. is the law of th§ country, or any scintilla of legal reason, to determine to the latter rather than the former? The form of the judgment on a sci.fa. in England is, (¿uod prediefce literce pa-tentes dlcti Domini Recéis revocentur, cancellentnr, evacuen-inr. adnnllentur, et vacuce et invalidas pro millo penitus hdbeantur, et teneantur, ac etiam quod irrotulamentum eor-undem cuncelletur, cassetur et adnihiletur, &c. and then the Chancellor damns the enrolment thereof, by drawing strokes through it like a lattice, 4 Inst. 88, and for this propose the letters patent themselves are. recalled into the place from whence they issued, that is, into the chancery, that they may be cancelled. 1 Sira. 151, 8 Rep. 31, 35.</p> <p>, The judgment in the ejectment will indeed only he, that, the Plaintiff recover, without saying that the patent shall be recalled, and that together with the enrolment in the Secretary’s office, cancelled. But can the Court of equity say this in their decree? I believe there is no precedent of such a decree having ever been pronounced by any Court of equity or chancery that ever set in this country; if there has been any such, we have a right to challenge the production of it. indeed cases may exist, where a Court of equity, proceeding by bill and answer, would be found totally incompetent to afford any relief. Suppose the patent be obtained by some fraud or deceit, that would subject the patentee to a forfeiture, or to a criminal prosecution ; if if he obtained, for instance, means of a forgery, of a warrant of survey and return, as before suggested, or he transmitted to the Secretary by fraud betw-en the Entry-taker and patentee, to the prejudice of a third p-rson, shall he lile his bill against them, and compel the Defendants to answer to the fraud or to the forgery charged upon them ? Shall they be compelled to subject themselves to forfeiture or punishment ? And if they shall not be compelled to answer, what advantage is there ir proceeding by this mode, rather than that of an ejectment ? JNay, more — if ho is not compellable to answer, the Plaintiff’s bill must be dismissed. This Court will find itself incompetent to afford redress, in the most gross and flagrant instances of fraud, and the party injured must either be permitted to geok and obtain his remedy at law, or remain without any remedy at all ; and if suffered to proceed at law, he roust do that by some other means than that of a sci.fa. to repeal the grant; for the Supreme Courts of law i« this country, can only exercise such powers as were ercised by the former Judges in this country before the revolution, or more properly speaking, they cannot, exercise greater, 1777, c. 2, s. 2, and the Superior Courts in this country could never exercise greater powers at any time, than the Judges of the King’s Bench in .England, 1768, c. 1, s. 2, except in some few instances upon subjects of ecclesiastical jurisdiction expressly submitted to their cognizance. And the King’s Bench only proceeded upon the issue joined in a sci. fa. to repeal letters patent, when it was sent to them from the Petty Bag in chancery. 1 Mo. 29, Latch 3, 4 Inst. 80. Although it must be acknowledged, the contrary seems to be implied in favour of the original jurisdiction of th,t Court, in 6 Mo. 229, and 4 Inst. 72. But howeaer this may be, all the authorities upon the subject, disprove the position that the Court of equity can proceed to the repeal of public grants ; and should it be admitted that the sci. fa. for that purpose, may bo made returnable in the first instance before the Court of King’s Bench, yet it is to bo doubted whether the Chancel,'or must not render the judgment himself, upon the proceedings returned in the Potty Bag, when ripe for judgment. 4 Inst. 79, 80, 88, 294. Notwithstanding some contrary adjudications, and the opinion of Mr. Justice lilackslone in his 3 Coin. 48, Civ. Jac. 12, 1 Mo. 29, Latch 3, and if, by tlve rules of law, he is to render the judgment on the law side of the chancery, then it will also follow that as there is no Court in this country vested with an authority similar to that «C the Chancellor in the Betty Bag, there is none that can give the necessary judgment after the institution of the sci. fa..and ttial upon it. If on the oilier hand, such judgment may bo rendered in the Court of King’s Bench, and consequently by the wording our acts of Assentbly before cited, by the Superior Courts of this country, it will still remain true, that the Court of equity cannot interfere. And then a furl her enquiry will be, whether the Superior Court of buv cannot as well receive evidence of the invalidity of the grant, upon a trial in ejectment, as upon the issue joined in a sci. fa. to repeal it j as to which the rule seems to be this, that when the grant has issued under such circumstances as renders it void, for fraud, misrepresentation, deception or the like, the party injured may either proceed to have it recalled and cancelled, (2 Bl. Com. 348, Freeman j72,) or he may pro-ccetl to avoid -the effects of the grant, by recovering the property or right invaded by it, notwithstanding the grant, by such action as suits his case.- 3 Lev. %20, 3 JVbZs. M. 202, s. 14, 4 Bac. M. 416. The reason why they are sometimes and indeed frequently recalled and cancelled by sci. fa. as I apprehend, is, that they may not be set up to the prejudice of the injured party, after the evidence, to prove the circumstances that would invalidate them bath been lost. But in point of law, they •are equally invalid and void when granted by mistake and upon deception, either in matter of fact; or of law, as in case of false suggestion, misrepresentation or misreci-tal of former grants, of the interest of the grantor and the. like, before as they are after the judgment of cancel - lation is pronounced. 3 Term Rep. 242, 2 Bl. Com. 343. And these circumstances of invalidity may be shewn before that, repeal, in every possible action suiting the case of the party aggrieved, in which the point of invalidity can be brought before the Court ; as in assize of nui - sance, quod permiftat, information in the nature of intrusion, trespass, ejectment; for which I beg leave to cite 5 Rep. 94, 6 Rep. 56, 1 Rep. 52, 10 Rep. 67, 5. and particularly 2 Rep. 17. 33, 54, 10 Rep. 109, which arc cases in ejectment, in which the'invalidity of the King’s grants were expressly decided ; and prove beyond contradiction that the effects of an invalid grant may be avoided by proof of the circumstances that render them invalid upon the trial of the issue joined in that action. In (he last of them it was decided that the grantee shall not be permitted to claim by any other title, than that expressed in the grant itself; and that if the King grants the manor of I), expressing in the patent, that the said manor came to his hands by escheat, and in truth it did not come by escheat, the grant is void, because of the falsity of the suggestion, which shews him to have been deceived at the time. These cases are fully up to both points , we wisli to establish, namely, that the invalidity of the grant may be shewn in the ejectment, and also that a public officer granting land as the agent of the community, believing the title of the community to have come by one means, by means of confiscation for instance, when in troth it came by another, which if he had been apprized of, he would not and ought not to have executed the gram, does noi thereby convey any property to the grantee; and we therefore hope, that the objection taken on the other side will not prevail. One other argument hinted at in the course of the debate, and perhaps it fell from the Court, seems proper to be attended to — that the State having granted, if it were imposed upon in the grant, only has' the right to institute process for its repeal. If w6 proceed by analogy to the sci.fa, in England, this is not so. The King in his own name, or any private person using his name, may institute this process to remove out of the way, a grant prejudicial to his interest. 4 Bac. Jib. 416, S Bl. Com. 261, GMo.Eep. 229. So that altho’ ihe State may never think, proper to proceed in this case, yet Sears may institute the sci.fa. if it will lie in our Courts, and by the same reason may take advantage of the invalidity obliquely in this trial without any sci.fa.</p>

This was an appeal in an ejectment cause from the County Court of Nash. The jury below had found for the Defendant — and the appeal was returnable to this Court in October term, 1793. It was not then transmitted to the Clerk of this Court, but in April, 1794. The. Comise! for the Defendant having- a copy of the record in his hand, moved to have it entered of record in this Court, and the. judgment affirmed with double coats, agreeably to the. act of 1777, ch. 2, sec. 84.

Debt upon bond, and non est factum pleaded. The attesting witness was one Gordall Norfleet, and there was an indorsement on the bond, transferring it and its contents to him. The bond itself bore date prior to the time when bonds were first rendered negotiable in this State.

He was indicted of perjury, and convicted ; and bis Counsel moved for a now trial, upon the ground that,one of the jurors was riot a freeholder in this Slate. The juror had been examined before he was sworn on the jury, whether he was a freeholder or not, and answered in the, affirmative. The fact is, that he was a freeholder in South-Carolina, but not in this State. This appeared by the affidavit of the juror himself, now produced in support of the motion.

<p>in this case, the jury could not agree upon the evidence, and a juror was withdrawn: Butitseermd to be agreed by at’ the bar, and Judge Macay, that if the jury had found for the l'efinuant on his plea of “ tender and refusal at the day and place,” where he was bound by a seah d wrdng to deliver a certain parcel of cattle, iliac the Plaintiff would have been forever barred ni’ any recovery on the covenant.</p>

This was an action of covenant in the name of the Chairman or presiding Justice of the County Court, g-gairist the Defendant, to whom the real Plaintiff had been bound as an orphan child; and he declared upon the indentures, taken under the act of 1762, c. 5, s. 20, ami stated as a breach, that tlie Defendant bad not taught him the trade he agreed to teach him, that he had not taught him to read and write, &c. 1'he Defendant pleaded, that he had performed his covenants, &c,…

Detinue. For two resolutions of the General Assembly directing certain sums to be paid to Lewis and Graf-ion, for services peiformed as officers in the State legion — that which belonged to Grafton, liad been sold fay him to Lewis and delivered to him — they came after-wards into the hands of Lanier, who died possessed of them, leaving the Defendant, one of his executors, who by that means also came into possession.

<p>At this term the Defendant was indicted in the common form, for stealing a mare of one Samuel Parks, in the county of Randolph.</p> <p>It api>ears upon evidence on the trial, that the Defendant was a stranger to Parks, hut came to his house some time about the sixth of December last, offering himself to be employed asan oterseer; and after re-majning on Parks’s plantation three or four days, he borrowed the mare in question of Parks, to ride to the house of one Candles, who lived about four miles from Parks's, in the same county ; and he called at Candles’s accordingly, riding the mare 5 but from Candles’s went directly off, and in two days and a half arrived at a house in the county- of Lincoln, at the distance of eighty miles from Candles’s. Upon tliis state of the evidence, it was insisted by Jones, Solicitor-General, that the Defendant was guilty of felony — he argued, that tho* there were some dicta in the old books, and even some adjudge(| cases, which make a taking that would amount at ,least to a trespass, to be an essential ingredient in the constitution of felony, yet that the more modern authorities have decided in many instances, and uniformly, that a borrowing or hiring with a fraudulent intent not to return the property to the owner, but to convert it to his own use, and a subsequent going off with the property, and selling it or not returning it to the owner, will, amount to felony; and that in such cases the Court will charge the jury, to enquire, whether the borrowing or hiring was with such fraudulent intention ; and if they found il to be so, then to find the prisoner guilty. 1» support of this position, lie cited l H. P. C. 90, s. 5, 91, s. 10, Kelyng 24. 81, 35, Leach 95, 231, 266, 355, 213. Mr. Potter, for the prisoner, e contra, insisted, that a felony could not be grounded on a delivery by the owner to "the borrower, but il must he a taking without the consent of the owner. He cited 4 Bl. Com. 230, 1 H. H. P. C. 504, 506, 50?. And with respect to this point, there was some difference of opinion in the Court, and in their charges. Judge Macay seemed to incline that it was felony. Judge Haywood, that it was not. And the jury found a special verdict as follows : “ The jurors now here sworn, upon their oath say, that on the sixth day of December, in tiie year of our Lord, 1T94, in the comity of Randolph, in this district, Samuel Parks, sen. was in possession of the mare in the indictment mentioned, as of his proper goods and chattels ; and that on that day the aforesaid Bromjield Long, in the said indictment mentioned, did borrow the aforesaid mare of the, said Samuel- Parks, to ride to the house of John Candles, living in the aforesaid county of Randolph, about four miles fr in the house of the said Parks, a>.d that he, the said Bromjield Long, was to have returned the mare to the said Samuel Parks, after riding her (hither; and the jurors aforesaid further find, that the said Bromjielil Long did get the said mare into Ins possession hj >he means aforesaid, avid did ride her to the house of 'he said Candles» and that he did not return her to the said Sam-nel Parks; bin forthwith rode the said mare into the comity of Lincoln, to the distance of eighty miles from the honse of the said John Candles, and títere sold Ir-rto one Andrew Hoyle, as his own property. The jurors further find, that the said Brnmjield Long did tint take the said mare, or get her into his possession otherwise than is herein before stated. And the jurors aforrsvxd further say, that they do find that the said Long, at ’he time when he so got possession of the aforesaid mare as before stated from the said Parks, did the same with a fraudulent intention not to return the said mare to the said Parks, but to sell and dispose of her as aforesaid ; but whether upon the facts aforesaid found, the said Bronifield Long be guilty of the felony stated in the indictment, the jurors aforesaid now here sworn are altogether ignorant, ant! pray the advice of the Court here thereupon; and if the Court shall he of opinion, upon the facts above stated, that the said Brmnjield Long is guilty of the said felony, then the said jurors do find him guilty in the manner and form as slated in the indictment ; but if upon the aforesaid facts above stated, the Court here shall be of opinion that lie is not guilty, then the. jury say that he is not guilty.”</p> <p>This special verdict afterwards in this term was argued by Mr. Jones. f>r the State, and Mr. Potter, for the prisoner. Mr Jones cited the. same cases as before.— He observed,-that one of the Court 3n giving the charge, had stated to the jury, that the authorities which went to implicate the prisoner in tin* guilt of felony, were modern cases ; that the eldest of them was in 1775, and that many of them were since the revolution in this country j that all the cases previous to these cited from Leach, were the other way ; and that in these, cases the Court had gradually departed from the ancient law, and the law itself had thereby gradually become more and more severe, and this was owing to the circumstances of the country in which they were adjudged, the lower classes of the people there having none, or hut little property, and being numerous; the higher orders on the other hand being rich, having preponderating influence in the government, and regardless of the other orders, hadKpre-vailed in extending the security of the law.for the protection of property ; that perhaps also, property in that country being of more difficult protection, in proportion to the poverty and the number of the poor, was one reason that had its influence in effecting these, changes ; and that as the same circumstances do not exist here, there Is no necessity for the same rigour ; ami that the old law, as laid down in Hale and the other books cited for the prisoner, ought to be adhered to — as to which re~ marks, he said lie would observe, that these new cases are not introductivo of any new law, or any alteration of the old, they only ascertain with more precision what the old law really was, and that one of the cases adduced to establish the doctrine he contended for on the part of the Suite, was cited from TCdyrig, in the time of Charles the second, 81, and was founded on a decision in the time of Edward the third; and as to the conclusions drawn from the comparative circumstances of England and this country, if there wore fewer temptations to commit frauds here than there were there, there was more turpi» túde in committing them here than there, and of course the crime should be. treated with more severity here, — > He concluded with praying judgment of death against the prisoner.</p> <p>The Court thought, as there was a division in the opinion of the Judges now present, it was proper that this special verdict should undergo the consideration of all the Judges: they therefore ordered the prisoner to be recommitted, and that the Clerk of this Court transmit a copy of the special verdict to each of the Judges' of this ÉjState j and that they be requested to return their opinions to this Court at the next, term.</p> <p>At the next term, October, 1795, the opinion of all the Judges was had on this special verdict; the Judges Ashe and Mac ay were of opinion it was felony ; Win-XHAMs and Haywood that it was not; and the prisoner was recommended to mercy, and obtained his pardon.</p>

<p>This was an action brought for the recovery of a negro boy. It appeared tipon evidence, that old William Stone was the owner of the boy, and that his son Juhn Stone being about to move to South-Carolina, had gotten the hoy into his possession; and that lie sold him as his property to the Defendant $ and that the Defendant had retained the possession of him as his own ever since j that after the sate, at d whilst Stuart had him in possession, the old man demanded him, and then sold him by a bill of sale executed to Robertson ; that then Robertson demanded the boy of the Defendant, and soon after brought ,this suit in his own name. The exception taken at the trial, and afterwards in arrest of judgment, was that this negro when sold by the old man to the Plaintiff, was a chose in action, and no* transferable; and that therefore Robertson could not maintain this action in his own name. Mr, Whyte cited for the Defendant Com. Dig. Verbo. Assignment, and 1 Bac. Ab. 157, and Co. Lit. 21 i, a. 266, a. ■ General Davie, for the Plaintiff, contended that the negro in question was not a chose in action, for a chose in action means only a thing or subject of dispute, so situated that the person entitled has no other means of obtaining the possession hut by an action at law, and excludes the idea of recaption, or getting a lawful possession by the act of taking if without the immediate aid of law — as in 'he case of a bond or other instrument for the payment of money, the obligee could qot take the money without the assent of the obligor tlio’ it lay before him, and he has iio,other means of obtaining the money bur by a suit at law : this definition will not apply to cases of specific property, in which the owner is not absolutely driven to a'suit at law to gain possession, but may take the thing in dispute into his possession wherever he can find it. This circumstance constitutes the difference between a chose in action, which cannot be taken, and a subject of property that may. He cited 2 R. Ab. 45, 46, and the opinion of Justice Bnller in 4 Term Rep. 340. In whith opinion it is said, that the rule of a chose, in action not being assign- • able, is not foumled„on good sense; and that the law at this day will protect the assignment of a chose in action, so as not to suffet the assignor or his contracts, to defeat or impair it; and that only so much of the rule now remains as respects the form of action, and directs that it must be carried on in the name of the assignor, ami that is now looked .upon in Courts of Law to he carried on for the benefit of the assignee. He argued that the rule now contended for by Mr. Whyte, was adopted in England in very ancient times, when the Lords were rich and powerful, and the other orders of men poor and indigent, before the diffusion of property introduced by commerce, and ata time when it might reasonably be appichended, that the influence of a powerful Baron, being an as-' signer, might he too weighty for a poor Defendant, eves though lie might have justice on his side; but since the circumstances of the people have been ameliorated by an influx of wealth, ami a consequent equality of fortunes and hf weight in the government, the influence of the nobles hath gradually declined in England, until it is now no longer an object oflegal jealousy, and the rule against the assignment of dioses in action hath been gradually relaxed and found to be of less use, until it has come, to be thought not only useless but inconvenient. In this country, these circumstances which gave birth to the rule have never existed, much less can they be said to exist at this time, when there is a perfect equality amongst the citizens of the country in respect of their legal advantages. There is even less reason for the rule here than iri England at this day, and therefore beside the point that the negro in dispute did not. agree witli the definition of a chose in action, he said it might be very justly doubted whether the rule itself was such an one as.our law would recognize. He argued further, that the circumstances of the ancient.villains in gross ínEn.g-land, ami of our slaves, were similar in most respects; and that in the times of villainage in England, a man could not in law be disseised or dispossessed of bis villain in gross. Go. Lit. 306, 307, Lif. s. 541. In (hose books it is laid dbvvri, that a man may be dispossessed of his ward, but not of his villain in gross. And the action da nativo habendo used for the. recovery of villains, was very similar in its principles to the action of detinue that we use for the recovery of slaves. Ami if in England a man could not be said to be dispossessed of bis villain, the same ought certainly to be the case with a slave here. And the owner cannot be legally said to be dispossessed of his slave, then it will follow that although at the time of this s de to the plaiutilf, the defendant had actually the possession of the negro, yet the legal possession was in Stone, and so the negro not a chose in action, even according to the idea entertained of it by the, defendant’s counsel. This distinction is found'd in nature, and the difference between this species o! p'operty, and every other kind known to the avarice of men. A flock of sheep or a horse is a passive subject, (he arbitrary will of the possessor designates its condition absolutely, either as the property of another, or bis own. But a slave is a rational creature, possessed of a will capable of directing his actions, and the law will not leave it in his power to change the absolute property of his owner into a more right of action whenever he pleases, by running away ami putting himself under the roof, or on the plantation of a stranger.</p>

<p>Complainant’s grandfather, by deed duly executed and registered in proper time, conveyed to Complainant’s father, a tract of land of six hundred and forty acres, to him and the heirs of his body, reserving to himself, the grandfather, a life-estate therein, lie continued in possession of the land and of the deed till his death, which happened in 1786 ; and the bill stated that Mark Patterson, his executor, liad taken possession of this deed amongst the other papers found at the old man’s death, and had suppresed it. The bill was taken pro confes so? as to Mark Patterson, for want of an answer. The other Defendants answered and confessed the. deed, and disclosed strong circumstances to induce a belief that Mark Patterson had gotten the deed into his possession and suppressed it. He was the heir at law, and upon this case a doubt was conceived how Mark Patterson should be decreed to convey, whether in fee, or to him and the heirs of his body. The act of 1784 declares, that all persons who, at the time of passing this act, were seised or possessed in general or special tail, should be held and deemed to have a fee; but in this case, the donor was seised of a life-estate in the lands at the time of passing that act, and the doubt was, whether the remainder man could be said to be seised of the estate tail at that time; this remainder was vested, and had it depended upon a particular estate for years, the freehold would have passed at the time of livery and seisin, or what in tbjg country is equivalent thereto, made to the ídi'iner, and then the remainder man /would have been seised in tail; but in tliis rase, the freehold having not been passed to him, but remaining in the tenant for life, it seemed to some of the Court, that the donee was not seised in tail as the act requires, and then the estate tail was not converted into a fee by the operation of that act: but the other Judge being very clear, not withstanding this doubt, that the act, had vested a fee in the tenant in tail, in this case it was ruled hesitanter, that he should convey to Complainant in fee — and so it was decreed.</p> <p>Sed quere — For suppose it had been to the grandfather for life, remainder to the son in tail, remainder to another in tail, this would have been a vested remainder in both ; and if the remainder man in tail is to he seised in fee, merely because his remainder is vested, then the latter remainder man is equally entitled to the fee with the former, and the operation of the act would be absurd, to vest a fee in the latter remainder man, and destroy his interest at the same time, by vesting a fee in the former; but if the meaning of the act be, that an estate tail in possession only, shall be converted into a fee, there seems to be no such absurd consequence ; the estate of inheritance, it is true, would he rendered unalienable during the lifetime of the tenant for life, and the law allows of the same thing for the convenience of families in execu-tory devises; and the same convenience may justify such a construction of the act — to that degree, that if in the case supposed, the first remainderman had died without issue, in the lifetime of tenant for life, the land might have gone over according to the limitation of the donor, and the second remainderman have become seised in fee, by virtue of the act. Whether it was not the intention of the Legislature to leave such a power of disposal in the owners of fee-simple lands, is perhaps worthy of some enquiry.</p>

<p>The bill stated a will made by the deceased, containing dispositions of the testator’s property, which went to the Defendant, Mark Patterson, or at least a considerable part thereof, in case of the deceased’s intestacy, it stated that Mark Patterson and Sellars (who it did hot appear had any interest in the destruction of the will) had fraudulently, and with intent to secrete the same, gotten possession of the said will, and secreted it. Sel-lars demurred, because the charge iti the hill, if true, subjected him to a criminal prosecution, and that he was therefore not bound to answer, and there was no relief prayed in the bill as to him.</p> <p>it was argued at the bar, though it might be true, that he was not compellable to answer, that was no proof but that he might be continued in Court — for if the Com-, piainant could prove the charge, he might have a de.cree against Sellars, notwithstanding he was not obliged to. answer ; and for this was cited Mitfonl 64, 65. 2 Ves. 246. E contra, it was argued, that it was admitted he could not be compelled to answer, and that as the bili prayed no relief against him, there could be no reason lor keeping him any longer in Court.</p>

<p>Snit in the County Court, and judgment for plaintiff; appeal by Defendant to the Superior Court, with A, ■. u<l JB, securities to the appeal boud ; Oefore judgment in tin Superior Court, the bail below surrendered the Defendant, and he was committed ; aO-v judgment in the Superior Court, the Defendant being gone, sci. fa- issued to the sureties in the appe d bond, and it was hold, that tne surrender by the bail did not discharge them.</p>

This was an action instituted upon a note under seal, dated sim e the year 1786, promising to pay toe money to Plaintilf ami to him only. It was indorsed by ihe Plaintiff to an assignee, but the action was still commenced in the name of the original payee. Mr. Moore, for the Defendant, objected that the Plaintiff ought not to recover, because it appeared by this indorsement that the property or interest in flus note, ‘.vas n »t, in the.

Ejectment for fifty-four acres of land. TliePiaintiffa claimed under one Thomas, who conveyed ,to Aaron Ba-iter, who died seised, leaving the feme his only child.-»The grant to Tlimjias bore date in the month of December, in the year 1770. The mesne conveyance to Baker, his dying seised, and the — heirship of the Plaintiff, were proven. The Defendant claimed title under one M‘Natt, who conveyed to him.

Debt upon bond for fifty pounds, dischargeable part in money, and pact in specific articles. After verdict it was moved in arrest of judgment, that this bond is not assignable so as to enable the assignee, to bring debt in his own name; and it was argued that no bonds are ne-goiiable. unless for money absolutely, not where they are for money and something else beside, or for money, but to be discharged in something else.

This was an action of debt upon a bond, dated the 21st March, 1776, payable in September, 1776, for 2200 pounds, and payment pleaded. There was also another bond for seven hundred and thirteen pounds, upon which a suit had been instituted in the county court, and payment pleaded to that; and the same payments were there proven, as were now proven to this bond.

Trespass, quart clausum fregit; not guilty, and libe-rum tenenicntum pleaded. It appeared in evidence, that the land on which the trespass C alleged (o have been committed, was a frac! of two hum'red and thirty acres, which was part of a tract of fifteen hundred acres, of which Zachariah Lee, the husband of the Plaintiff, died seised ; who at the time of his death, left a son and heir at law, now of the age of thirty-one years.

<p>Per Hatwood, Judge. — Death of one partner dissolves the partnership, and a clerk or agent, who had been appointed by the company, cannot, after such dissolution, do any act to affect file interest of the company, as to receive payments &c. But the jury found otherwise.</p>

Trover for a boat; and a general vndiet for (he Plaintiff-, subject to the opinion of the court upon this special case, via : The boat sued for, was the property of the Plaintiff, and was drifted away from the landing at Campbeliton, and floated dowti the river 114 miles, to a part of the river about a miie wide, and was there taken up by a stranger ; and again got adrift and went to the New-Inief, where the river empties into the sea, ten miles wide; there il was again…

<p>A bond for payment of money without a subscribing witness, can only be declared upon as a sealed instrument ¡ and proof of the obligor’s hand-writing will be admitted as proof of the 3eal: but proof of the seal is not evidence of delivery, which is to be inferred from other circumstances.</p>

<p>Debt, and non est factum pleaded: upon the trial the bond was produced, and it was endorsed with an assignment to a Mr. McKay — whereupon it was objected by the Defendant’s counsel, that the interest of this bond being in McKay, the present action by. the original obligee could not be supported ; such assignment by 1786, c. 4, Tests the whole property of the bond in the. assignee.</p>

This was an action of debt qui tam, under the statute of usury, brought against Walker in his life time; and upon the return of a sci. fa. to revive it against his executors, they pleaded specially that the action being founded in maleficio, and unaccompanied with a duty, did not survive against them. To this plea there was a demurrer, which was overruled in Brunswick Superior Court, from whose judgment the plaintiff appealed to this Court. No argument was made on the case.

<p>Assumpsit for goods, wares and merchandize sold and delivered. General issue and s'auu.e of limitations pleaded; and (he principal question of law was, whether the act of limitations runs from the date of each article in the account, or from the date of the last article only.</p>

<p>The objection that a joint obligor is not sued, must be made by plea in abatement at the proper time : it cannot be made at the trial of the cause. Such a plea cannot be made at all since the act oi'1789, Rev. c. 314, s 4.</p>

Covenant — and covenants performed pleaded. The covenant was for the payment of four hundred-and fifty-two dollars (silver or Spanish milled) on or before the first of April, 1794. Evidence was offered of the value of these dollars, when exchanged into current money of this State. This was strongly objected to, on the other side, who insisted that the value of Spanish dollars was already settled by 1783, c. 4, s. 2.

This was an appeal from the decision of Edgecomb Superior Court, awarding a new trial to the plaintiff, upon an affidavit which stated in substance, that he had instituted this action against the defendant, for neglect of duty as a constable, whereby the plaintiff had lost the amount of a judgment recovered by him, before a magistrate, against Lawrence.

This was an action of debt to recover the penalty under the 4th section of the act of 1791, against harboring slaves. The declaration contained three counts. 1. For enticing and persuading the slave to leave the plaintiff’s service. 2. For harboring and maintaining the slave, knowing her to be runaway. 3. The same as the second count, with respect to a negro child. The Jury found a vedict for the plaintiff, subject to the opinion of the court, on the following case.

<p>The defendant died between Spring Term, 1814, and Fall Term, 1814,—at which last mentioned term his death was suggested of record.</p> <p>On the first day of this present term (say Spring, 1815,) the plaintiff served on the guardian of the heirs at law of Simpson (he having died intestate) a copy of the declaration in ejectment, with notice to appear and defend the suit.</p> <p>It is referred to the Supreme Court to decide, whether such service prevents the abatement of the suit?</p>

<p>The Plaintiff had brought an action against the. Defen-darit, as administrator of Charles Stephens, decease,d : to which the Defendant appeared and pleaded the general issue, act of limitations, a former recovery, arid set off. All which pleas were found against him, and damages assessed to ninety pounds four shillings, and costs to sixpence : and there was a judgment against him, to he levied de bonis testatoris ; aji. fa. issued, and the Sheriff returned thereupon, that (here was not any property of the intestates to be found — and upon this return, the Plaintiff took out a sci. fa. for the Defendant, to show cause why the Plaintiff should not have judgment to he levied de bonis propriis. This cause now came on to be argued : it was argued on the part, of the Defendant, that this sci. fa. is ii regular and improper, for that the first judgment should have been de bonis testatoris si, ei si non de bonis propriis, and that not being so, it was erroneous 5 and that the court would not now help the Plaintiff in this hard case, where the attempt is to subject the Defendant’s goods merely for his mispleading, or for his ignorance of the rules of pleading, when perhaps the fact may be, that he hath riot any of the goods of the intestate in his possession nor ever had.</p>

Petition, to rescind letters of administration, granted by the County Court of Cumberland to the Defendant, of the estate and effects of Jhiley McNaughton, deceased, in July Term, 1792. The next of kin beyond sea, since that time, have appointed the petitioner to apply for the administration as their agent and trustee. 'He exhibited this petition \o the county court, who refused to-repeal the former letters; and thereupon the petitioner appeal- ' ed to this court.

<p>At September Term 1811, a bill of indictment was found against defendant, and was continued from court to court until September Term, 1814, when a nol. pros. was entered in consequence of a defect in bill, and a new bill was found against defendant for same offence, upon which he was tried and convicted.</p> <p>Question for Supreme Court,—Is the defendant bound to pay the State’s witnesses from the finding of the, first bill unii the nol. pros. was entered?</p>

The only question arising in this case was,—on what principle ought interest to be charged in a guardian’s account with his orphan? To establish which, the case was referred to this Court.

This was a petition for dower out of several tracts of land owned by William Arrington, the deceased, at the time of his marriage, and several others acquired by him afterwards, of which he died seized. The defendants plead that the widow is barred of her dower by an agreement entered into between her and her husband, whereby she agreed to claim no dower in the lands of which her husband was then, or should afterwards become seized.

This was a petition antler the act of 1762, c. 5, s. 23, stating that the petitioner is the brother of Peter Lewis, deceased, who died possessed of an estate, leaving a wife, who had moved away and had not been since heard of, so as to be served with process : that he was the only-next of kin of the deceased ; that Lanier had procured letters of administration upon the personal estate of the deceased, and had possessed himself thereof, and would not account for the same, and…

There were several actions of detinue that had been appointed to be tried on this day, Friday, the 30th of April.

The plaintiff, a resident of this State, sued out an original attachment against the defendant, a resident of New-York, and levied upon monies in the hands of Sutton, who, being summoned, sets forth in his garnishment, that Bedient was discharged under an insolvent act of the State of New-York, and all his property assigned to trustees for the general benefit of his creditors; that the monies in his hands were received by him in virtue of a power of attorney given by the…

There were severa! ejectment suits brought against the inhabitants of a part of the town of Fayetteville, for recovering the respective lots of ljjrtd on which they were respectively settled ; and vise issue of the contest depended solely upon the ascertainment of an old line of a tract of land of one thousand acres which lay adjoining to the town, the Plaintiff alleging that these lots were within that line, and the Defendants that they were without. — ■ A surveyor and jury…

The plaintiff sued out an attachment against N. T. Orr, which was levied in the hands of McBryde, who, upon his garnishment, stated that he levied an execution upon N. T. Orr’s property at the suit of the plaintiff, and raised from it the sum of $374: 7½ above the amount required in the suit. This sum was condemned in the Superior Court as liable to the plaintiff’s attachment, and from that judgment M’Bryde, the garnishee, appealed to this Court.

This was an action for an escape upon mesne process. The Defendant was the Sheriff, and Linton. rite Defend* ant in a former action at the suit of Sioepson, was, sur* rendered in court by his bail, and committed, as the Plaintiff alleged, to the Sheriff, the present Defendant.— Títere was no record of this commitment, and it was objected it could be proven no other way, the surrender having been made in court.

This was a suit in Equity, to which the Defendant pleaded; and afterwards then1 was ati entry in these, words, “ Referred to A, (i & C.” Upon this th‘* re-fortes met, and returned an award — exceptions were, fif'd on the part of the Plaiuiiff: and at the last term anile to shew cause, why the award should not be confirmed was eon red on the record.

<p>In this ejectment a special verdict was found, the substance of which is, that S. T. Everitt being seized in fee of the first and second tracts of lands described in the declaration, devised to his only son, and heir at law, as follows:</p> <p>“ I give and bequeath, to my son James Everitt, my manor plantation, and all the lands thereunto belonging, &c. to him and his heirs forever. It is my will and desire, that if my son James should die without heir, lawfully begotten of his body, then all I have given him shall belong to my brother John Everitt, to him and his heirs forever.”</p> <p>That the testator died—and, afterwards, and subsequent to the year 1795, James died intestate and without issues and that John died, in the lifetime of James, without issue; that the lessors of the plaintiff are the nephews and nieces of S. T. Everitt,—the heirs at law of John Everitt,—and the heirs at law, on the paternal line, of James Everitt. That the fourth tract of land was granted, by the State, to James Everitt, who died seized of all the tracts, leaving a brother and two sisters of the half-blood, of the maternal line, under whom the defendant claims.</p> <p>cited Co. Litt. 18 b. 1 Strange 277.</p> <p>* Gaston, for defendant, cited Cro. Jac. 695.-9 East 382.-2 Ld. Raym. 830.</p>

<p>The action of account will not lie for a legatee against an executor, oi the executor of such executor.</p>

<p>This is an action on the case, brought by the plaintiff against the defendants, for negligently keeping and managing their boat, kept by them, at their licenced ferry, for the transportation of persons and property across Cape Fear river, by which negligence the plaintiff sustained an injury by loss of property; and has laid his damages at one hundred pounds and upwards. The defendants pleaded in abatement, that the plaintiff is an inhabitant of the county of Person—that they, the defendants, are inhabitants of the county of Cumberland, and that the matter in contest is not of the value of fifty pounds. The plaintiff demurred to the plea, and the defendants joined in demurrer.</p> <p>The case was submitted.</p>

In this case, (here was a devise to (he Plaintiff, amongst other things, of cash sufficient in the opinion . f the executors, not exceeding one thousand pounds, to psH vlihse a tract of land on Tar river.

<p>The declarations in both these actions were the same. The substance of them was, that the plaintiff was possessed of a tract of land on the River Neuse, and a fishery adjoining it, from which he made great profits—that the defendant, intending to injure him, erected a mill dam across the river, below the fishery, whereby fish are prevented from passing up the river, and the profits and advantages of his fishery are thus destroyed.</p> <p>The defendant, by protestation, denies that the River Neuse, at the place where &c. is a navigable river, or that he has any knowledge of the plaintiff, his land or fishery, except that he is informed that Powell lives 15 miles above the dam, and Dunn miles above it; and, for plea, saith that he built the dam on his own land, for the purpose of giving him a head of water to turn mills and other machinery, and not with an intent to injure the plaintiff. Demurrer and joinder.</p> <p>The cause was argued at a former term, by</p> <p>For the plaintiff, were cited, Sir John Davis's Rep. case of the fishery of the Banne, 155.-F. N. B. 430.-4 Bar. 1364.</p> <p>For the defendant, 5 Co. 72.-Co. Litt. 56. a.-Cro. Eliz. 118.-1 Wils. 174.-2 Bl. Com. 35.-Act of Assembly, 1787, C. XV.</p>

The defendant gave the plaintiff an instrument of writing, signed by the defendant, but without seal; whereby he acknowledged that he had sold to the plaintiff a certain note of hand, for which he had received part payment, and the balance was to be paid when the money was collected.

This petition was filed by Williams and Patsey his wife, and Jane Lane, against Alfred Lane, in order to obtain the opinion of the Court, as to the manner and proportion, in which a division should be made between the parties, of a tract of land devised to them, by the will of T. Hunter, dec. The case was spoken to at a former term by when the Court not having formed an unanimous opinion, it was continued under advisement till this term.

<p>Where the law can give complete redress Equity will not interfere.— Equity cannot change established rules of law, nor act as a court of. errors, to correct erroneous decisions of law. When slaves are given to one for life, remainder over, the increase born during the life interest, will go with the principal to the remainder man.</p>

<p>This case came before the Court on a motion to quash the indictment, which charged the defendant with petty larceny, in stealing one half ten shilling bill of the currency of the State, &c.</p> <p>No argument was made in the case.</p>

The defendant is a negro slave, the property of William Pope. He was convicted of stealing a horse, the property of Zeno Worth—and it is referred to the Supreme Court to determine what judgment should be rendered against him.

The complainant, Micajah Bullock, exhibited his bill against Nancy Bullock, (who afterwards intermarried with the defendant Carns Tinnen,) as administratrix of her former husband, Philip Bullock, charging that said Philip died intestate and without any children—that the complainant was entitled, as the representative and next of kin, to two thirds of the estate of said intestate, in the hands of the said defendant—and charged, that negro woman Betty and her children Jenny,…

<p>The last line of a boundary was from a white oak, (which stood half a mile from the river) thence along the river to the beginning : held, that the river is the boundary.</p>

Debt upon a bond for five hundred and twenty-sis pounds. The Defendant pleaded a set off, and produced two old bonds, one dated in 1760, the other in 1768, both attested ; but the witness who attested one of them, was a lady who had lived some time ago in Edenton, and was now dead; and her handwriting could not be proved by any one that the Defendant could procure.

Trespass, qnare clausum fregit. Not guilty, liberum tenementum, &c. pleaded. The Plaintiff claimed under Srkill, who patented a tract of land in the year ¡740, extending, as he alleged, to a line distinguished in the plat, by the name of the doited line. The courses and distances mentioned in the patent extended not. so far; but only to a line distinguished in the piar by the wtme of the black line.

R. Squires made a conveyance, in consideration of blood only, to his child, the lessor of the plaintiff, by deed.

Case. For wages due to the Plaintiff as Master of a -vessel, which he had navigated for the Defendant to.St. Euxfatia; and upon au account settled, and a special case made, stating in substance, that these services were performed in 1788, or beginning of 1789, and that the Defendant wrote to the Plaintiff within three years, saying, “ he would rather come to a settlement, although he should allow (he account as insisted on by the Plaint iff, than wait the event of a law…

Bill in Equity, stating a partnership entered into by the Complainant and Defendants in the year 1784, for the purpose of entering, securing and improving the lands in Lake Phelps, and the lands adjoining thereto, and for the purpose of draining and preparing them for cultivation.

This was an action of slander, to which the defendant pleaded “ general issue, justification and statute of limitation.” Upon the trial the plaintiff proved, satisfactorily, and clearly to the Court, the speaking of the words, and within six months before the commencement of the action. The defendant attempted to prove justification, in which, in the opinion of the Court, he wholly failed—and the plaintiff, in the opinion of the Court, was entitled to exemplary damages.

<p>He had been indicted for murder, and put on his trial the last, day of last term, and the jury, after the court had gone from the bench, but without adjourning, separated without giving any verdict; and now ii vas moved by the Attorney-General that he might be again put upon bis trial, and In* cited ICetyng 42, 52. Foster 27, 29, 76. H. H. P. C. 294, 295. E contra were riled II P. C. Yerbo verdict, c. 47, s. 1. p. 439. where it is said to have been held for law ever since 1he Revolution, that a jury cannot be discharged in a capital case without giving a verdict.</p>

One of the questions in this case was, whether the Plaintiff was barred by the act of limitations. The note oí’hand was given in the year 1783, in the month October or .November.

This was a bill in equity praying to be let in to the redemption of certain premises conveyed by a deed, absolute on its face, but which charged to have been procured so to be made by fraud and stratagem.

<p>A burglary may be committed in a store house standing twenty-tour yards from the dwelling house, and separated therefrom by a fence, if the owner or his servants sometimes sleep therein.</p>

This was a petition for dower, drawn according to the directions of .he act of 1784, c. 22, s. 9, and the counsel have agreed to this special case.

<p>This was an appeal from the decision of the Superior Court of Craven, overruling a motion for a new trial made by the plaintiff, on the following grounds, viz. a verdict against evidence, without evidence, and an erroneous charge of the Court.</p> <p>This action was brought against the defendants as sureties of William Henry, Sheriff of Craven County, for breach of his official bond. On the plea of performance, the issue to be decided, turned wholly on the fact,—Whether a judgment recovered by John Lenox against Benjamin Williams, and which had been collected by Henry, under execution, had been paid to Lenox or not? The judgment of Lenox against Williams was for one hundred pounds in an action of assault and battery.</p> <p>The execution issued from Salisbury Superior Court, tested the 2d October, 1793, and was returnable to the 19th March, 1794. On this execution the sheriff made two returns, which were in the following words, viz.</p> <p>“ Satisfied in full.—Wm. Henry, Sheriff.” Also—“ Judgment paid plaintiff.—Wm. Henry, Sheriff.”</p> <p>The defendant produced a receipt, in the following words :</p> <p>" Received of William Henry, Esq. Sheriff of Craven County, 511. 11s. 2d. by the hands of William Slade, in full, for the costs of a suit recovered in Salisbury Superior Court, at the instance of John Lenox against Benjamin Williams, Esq. together with the execution issued on said suit.</p> <p>“ MONTFORT STOKES, Clk. Sup. Court Law.</p> <p>“ Newbern, 20th July, 1794.”</p> <p>William Henry died in the fall of 1799. No demand was shewn to have been made by Lenox until the fall of 1809, when a claim was preferred against the securities, and in the June following the present suit was brought. John Lenox has been, since 1794, and yet is, a resident of Rockingham County. The defendants are residents of Craven County. Montfort Stokes was at Newbern, in Craven County, at the date of the receipt, as a Clerk of the State Legislature, then sitting at Newbern.</p> <p>The Court instructed the jury that they were at liberty to, presume, from the lapse of time, and the circumstances herein stated, that the judgment was paid—And the jury found a verdict accordingly.</p> <p>The cause was argued by</p>

Case. For nuisance in erecting a.mill. Per curiam, Haywood only present — This action will be for every fresh continuance after a former action brought. It is not usual to give heavy damages in the first verdict, that is chiefly to ascertain the fact whether nuisance or riot. If the party afterwards remains obstinate and a second action becomes necessary, there the damages are usually high.

Nathaniel Holly being seised in fee of the premises in question, devised them in the following words: “I give and bequeath to my daughter Ann Britt, one hundred and twenty five acres, whereon she and her husband now live, to she and her husband during each of their lifetime, and no longer, if dying without any lawful heirs begotten of their bodies; and if any lawful heir, to that and its heirs forever, otherwise, to return to my heirs at law and their heirs forever.” The…

<p>Ejectment. For 360 acres of land on the North side of Trent river, beginning at the mouth of a creek, then down the river, thence by a line at nearly right angles from the river, and so round to the creek, and down the creek to the beginning. The Plaintiff’s title was deduced thus, the Lords Proprietors on the 12th November, 1713, granted to James Castage; he died under age and w ithout issue, leaving an only sister Jane, married to Finyaw ; whom she survived, and in the year 1764, she conveyed to her son James Finyaw. He on the 24th March, 1791, conveyed to the lessor of the Plaintiff, the whole three hundred and sixty acres, describing it by the boundaries mentioned in the. original grant. This action was commenced in the mouth of April, in the year 1791. On the part of the Defendants it was proven by an old deed, dated the 10th of January, 1714. and by the records of the court, of orphans of the same year, that one Brice, .guardian of the grantee Caslage.. had by permission of the court of orphans, sold one hundred and sixty acres of this land, beginning at the lower corner tree on the river, running up the river, and then into the woods for complement. A deed of 1744, and another of 1764, were produced ; in the latter of which Mr. Cornell was a party. These proved that the second line of this tract, and (he third corner, were, deemed at those periods to be the line , an<l corner of Vassimore, the bargainee, who purchased of the guardian ; whereby the location of the 160 acres was confined to the lower part of the tract. On the part of the Defendant it was further proven, that on the 23d of July, 1774, Mr. Cornell obtained a grant for a large part of this tract of land, adjoining the river and creek, and that in the spring of the year 1775, in the month of April, he took possession; which hath been continued ever since ; first by Edwards, his son-in-law, and by his widow and her children since.</p> <p>argued that as there was no evidence of possession in the Finyaws, for a great length of time preceding the entry of Cornell, that therefore Cornell’s entry had taken away Finyaw’s right of possession. For when a grantee has not had possession for .seven years before, and another claimant enters, as Cornell did in this case, the act of limitations will toll the entiy of such person. Seven years passing without an entry on the part of the first grantee^ and another person then found in possession, tolls the grantee’s right to turn the other out of possession — his right of possession is lost — there is no necessity under the act that the possession of tiie enterer should be continued seven years.</p>

An indictment was found against the defendant, in the Superior Court of Rutherford County, for the murder of Larkin Dycus, and was transmitted for trial, to Lincoln Superior Court, upon an affidavit filed by the Solicitor. The defendant was found guilty, and upon being brought up to receive judgment, the following reasons, in arrest, were offered by his counsel. 1.

The defendant was indicted under the act of 1779, Cap. , “ to prevent the stealing of slaves, &c.” The indictment charged the negro stolen to be the property of John Murrell, dec. Upon the trial in Northampton Superior Court, the jury found a special verdict, the material statements in which were, that on or about the 15th December, 1814, the negro Luke, the property of John Murrell, was in his possession in the County of Northampton; soon after which the negro ran away from…

Ejectment. The patent under which the Plaintiff claimed, was the oldest. It called for trees standing in a swamp at one place, in a branch at another, in a po-cosiu at another, for a pine standing in a marsh near a hill, thence to a pine in an Indian old field near the river Neuse, thence a coarse and distance across the river to the North-west side of the river, thence a course and distance to a particular corner.

<p>Trover, for one half of a schooner. This schooner formerly belonged solely to Smith ; he sold the one half to Lowthorp, who superintended the affairs of the vessel for two or three voyages'; hut on her returning from the third voyage, which was to London, Smith forcibly took possession of her. The next voyage was in February, to Charleston — this voyage Lowthorp forbad. The next voyage was intended to Cape Francois — it was neither fo hidden or consented to by Lowthorp ; Smith sent her out without consulting him. The vessel was lost on her outward bound voyage. The counsel for the Plaintiff cited Butler’s Nisi Prius 34. Salk. 290. On the part of the Defendant ir. was admitted, that where one of two joint owners takes the whole to himself, and destroys the thing owned, trover will lie ; but if the thing be forcibly taken at first, and afterwards used as the common pro-peny of both, and for the benefit of both, and whilst so employed shall be lost, that such loss is a common one : here the vessel at first was forcibly taken by the Defendant, and the first voyage, to Charleston forbidden ; but it does not appear they afterwards disagreed about the vessel. The last voyage was not forbid by the Plaintiff, and it may be reasonably presumed, as there is no evidence to the contrary, that it was by consent.</p>

<p>The interest to exclude a witness to a will, must be either an express legacy directly to him, a legacy with an express use for him, or á secret trust and agreement on the part of the legatee for his use ; and a declaration by witness that the legatee holds for his use, will not exclude, unless it be proved, that the legatee had made an engagement to hold for his benefit. Though a fact' he positively sworn to, by one or two witnesses, and they agree pretty well in their testimony, yet the jury, either from their character or .he circumstances of tlie case, may'disbelieve them, and find against their evidence.</p>

The patent called for a beginning at a tree, which stood (though not so expressed in the patent) near the swamp, thence in a rectangular course from the swamp, thence South degrees West, thence North to apiñe (which also stood near the swamp, but not said to be so in the patent) thence to the beginning, not taking any notice or making any mention of the swamp.

<p>This was a bill stating errors in an account settled between the Plaiuflff and Defendant some four or five years ago, particularizing the errors, and praying to have them rectified. The Defendant pleaded specially and particularly to each error assigned, that there was no such error as was assigned, and denied the fraud aud imposition charged in the bill, both in his plea and answer.</p>

<p>Ejectment. And special verdict, stating in substance, that John Sasser, sem being seised in fee of the premises in question, in April. 1774, executed a deed to iiis son ; in v hioh it is staled that for the better preferment of his son, &c. he conveyed to him several tracts of land described in the deed. And amongst others, the premises in question, to him and bis heirs forever.* In which deed is contained a clause to the effect following, to-witz Provided that this deed shall not take effect during the lives of the grantor and his wife, but the premises therein mentioned should remain, first to him for his natural life.then to bis wife for her.natural life. John, the grantee, died seised in fee, intestate, leaving a brother who died intestate, leaving James, bis only son, an infant. John, the elder, also on the fifth of June, 1778, executed a deed for the premises in question, in consideration of naniral affection, to his daughter Mary Myth, and her heirs, after his decease, on condition that she and her husband should live with him, and take care of him, and also by another deed, dated the 24th January, 1782, he. granted the premises to his said daughter in fee, absolutely and without any proviso. John, the elder, died seised in 1782. John Sasser,Jun. lived wi‘h John, the elder, till his death, in 1776. Mary Myth, and her husband, lived with him in like manner, and continued in possession after the old man’s death.</p> <p>The deed to Sasser, the son, may operate as a feoffment, or deed of gift, or conveyance under the act of 1715, c. 38, s. 6, which after directing the registration of deeds, says, and ail deeds so done, and executed, shall be valid, and [mss estates in lands, or right to other estate, without livery of seisin, attornment or oilier ceremony in the law whatsoever.-*Under this act, all deeds in whatsoever form they may be drawn., where they evince an intent to convey, shall have the effect, if registered, that, the parties intended them to have. If intended to opérate as a feoffment, they shall operate as such, without the ceremony of live;y of seisin. If drawn in the form of a deed of gift, so that in strictness it is neither a feoffment nor deed under the statute of uses, yet if there appeals to. he a clear intent to pass the lands, and the deed be registered, it shall be effectual. If it can be called neither a feoffment nor deed of gift, if registered, it shall he sufficient — the intent of the parties being apparent. This act meant to establish all deeds without regard to their form, whether they were deeds at the common law, or under the statute of uses, or neither the one nor the other, where there was an intent of the party to convey. We may well consider this as a deed of feoffment, the art takes away the necessity of livery and seisin ; and if we consider it as a deed of feoffment, then the proviso is void, as being repugnant to the body of the deed, and (he grantee had a present state. New invented clauses against the nature of the estate granted, have always been held invalid, as being repugnant to the grant. Co. Lift. 282, b. in the notes. Co. Lift. 377, b. in the notes. 6 Rep 41. Litt. s. S50, Such as a feoffment with a clause of non-alienation. 2 Hep. 23. Or a deed to a man and his heirs, habendum from 99 years to 99 years, for 300 years. The thii d resolution in this case was, that . i habmdum repug' .mt to tiie premises is void. Cro. Elia. 254, 255. jSaben-dum after the death of the grantor, and no estate limited in the premises, is void. 2 Ba. M. 498. Grant of the reversion dependant upon an estate for three liv< s, ha-bendum to A. tor life, which estate to begin after the three lives were expired, is a good grant of the reyersion, and vest a present reversionary interest, the habendum being void. 6 Rep. 41, Mildmay’s case. No condition shall make an estate to cease as to one and revive as to the other. Here was a condition, that he. should not. suffer a common recovery, and if he attempted it, that then the estate, to one should cease, and revive and commence in another. All these cases prove that a subsequent part of a deed, derogatory to a former part, and tending to lessen the powers over the estate granted in the preceding part, are void. This proviso is of that nature — it lrssens the estate granted in the premises, which was an estate to commence in presentí, by making it to commence not till after two lives in being. It is a proviso totally incompatible with the premises and derogatory to them, as it attempts to take from the grantee, part of the estate already granted in fee in the (¡remises: or viewing it in the most favourable point we can, it is in the nature of an habendum, that attempts to make an estate of free» hold to commence in futuro, after an estate in fee already granted in the premises. Such a proviso is void in law ; of consequence a present estate in fee passed to the ancestor of the lessor of the Plaintiff, Much hath come by regular descent to him, and he is therefore entitled the judgment of the court in his favour upon this special verdict.</p> <p>But let it be granted that the proviso is valid, or at least equally valid with the other parts of the deed, and to be considered in making a construction upon it. It will then appear to have been the intent of the parties to defer the possession till after the death of the grantee— will it follow, that this is necessarily a freehold to commence in futuro ? I say it will not: it may be a remainder expectant upou an estate for the life of the grantor, to take effect in possession after the determination of this particular estate — such a construction is made by arranging the clauses in the deed in the same older as they are arranged by the sense and meaning of the deed, and by the intent of the parties; by transposing the clauses, and making the latter part to precede the first, in w hich order if they had been at first placed, there would have been now no objection to this latter pait for repugnancy. such transposition will bring us to the true ami evident meaning of the parties, what rule of law hinders the making it? What principle of reason forbids it?— Tln re is none, hi truth, such construction is warranted by law ; for when land is conveyed under the statute of uses to A. after the life of the grantor, the law deems so much of the use as is not conveyed away, to remain in the grantor; and that being an use commensurate with bis life, there still remains in him a freehold use, which will continue, until the estate granted commences in possession, and so not a freehold to commence in fu-turoi but a fee dependant upon a freehold, is conveyed. Covenants to stand seised, are supported upon this principle — if a ¡nhn covenants to stand seise.d ¡o the use of another in fee, to commence after his death, it is good to pass the reversion to the grantee. The law implies an use for life in the grantor, sufficient to support the estate in futuro when it cometh in esse. The principle universally applied in all such cases is, that the. law will con-Sfrue the deed to be such an one, by being which, it will be in law competent to pass die estate as the'parties intended, nt res migis valent quam pereat. It is the business of Judges so to construe, deeds, as that they shall operate in such manner as will effectuate the intent of parties- 5 Bac. M. 365. A covenant, to stand seised to the use of one’s seif, remainder over, is good in the .respect of the remainder; as to what a remainder or to stand seised is, the consideration of blood is a sufficient consideration for if. 5 Bac.'M. ñ66, A covenant to staml seised, operates without any transmutation of possession. This is the substantial and sole definition of that con veyance, and agrees perfectly with the deed now before 'he court, and first mentioned in the special verdict; which if not good as a feoffment, grant of the reversion, deed of gift, or conveyance under the act of 1715, for want of some essential circumstance peculiar to each of these species of conveyances, then it mav be construed a covenant to stand seised, ut res magis valent, as it agrees substantially with the definition of that instrument — whereby the es’ate will pass according to the intent of parties. Any words used in a grant, however unlike those that are most proper for such a conveyance, may cause the conveyance to be taken as a covenant, to stand seised, if they purport the same in substance as is expressed by the most proper words. 2 Wils. 22, 75. Shep. Touch. Free. 82;. 83‘ ■ 3 ®3r. 1 Mod. 175. if the deed now under consideration, can be legally construed to be a covenant to stand seised, as these authorities prove it may, then this deed is no more than a covenant to stand seised to the use of the grantee after the life of the grantor and his wife; and is the. same in substance, as if he had covenanted to stand seised, in the first place to the use of himself and his wife, during their lives, and the life of the survivor, with remainder in fee to the son; and is no more in fact than the usual and common conveyance of a present interest, to . ommence in posession in futuro, expectants upon a freehold in being, and is not opposed to any rule of law respecting real estates. But notwithstanding these arguments, let us suppose, as will be contended for on tl>e other side, that this is a void deed, because it attempts to pass a freehold in futuro. The consequence will he, that by the same ride their deed is void also, for the estate thereby granted to the daughter, is, from and after the decease, of the grantor ; and if both deeds are void, then the lessor of the. Plaintiff is entitled to recover as being heir at law to the grantor.</p> <p>Mr. Baker has begun with two di- . visions and hath cited cases for the support of each' — I will examine his authorities in the first place, and see how far they really go towards the support of his position. He says this proviso is a new invented clause, repugnant to the premises of the deed, and that by law new invented and repugnant clauses qre void ; and lie cites Co. Litt. 282, b. A man granted a rent, with a new invented clause of distress, m* .* that the grantee should hold the distress against gages and pledges, and yet says Bie book, by the whole court, he,shall gage deliverance. This case proves nothing as to the point it was intended for. A man by his agreement cannot alter the rules of law — the rule of law is, that a distress shall be replevia-ble; here they agreed that it should not be repleviable, and. the question simply was, whether the agreement of the parties should prevail; and because dispositio legis fortior est quam hominis, the court held this new invented agreement void : otherwise says the book, by this new invention all replevies shall be taken away. What is proved by this authority is, that an agreement, condition, proviso, or new invented clause (no matter what it be called) of the parties, repugnant to a known rule of law, shall be void. But I apprehend, although it maybe a new invention, if it be not repugnant to any rule of law, it will not be void merely because it is a new invented clause. He next cited Co Lilt. 377, b. That also is a case of a new invention, planned, as the book says, by an irishman, and the invention is condemned; because by law a tenant in tail has a power as incident to bis estate, to suffer a recovery, and make a warranty capable of barring it | and the invention was in direct opposition to these powers annexed by law to an estate tail and the persou of its owner; and since either the law must have been altered, or this invention declared void, the Judges were determined by the same i.tasons they were governed by in the former case — but if it had not aimed at the abolition of a rule of law, there would have been no just reason for setting aside the agreement of the parties. These cases, arid many others like them that may be found in the books, go upon the principle of a repugnance to some established rule of law. The next set of cases he cites, go upon the principle of repugnance in the latter parts of a deed to those in the former parts ; and it must be admitted, that in some cases such a repugnance will make void tiie latter clause, but in what cases is best explained by the authority cited on the other side, and which is next in order to be commented on. 2 Re. 23, admits an habendum may be void for repugnance ; and says, where the estate in the premises, and that in fhe habendum, both pass by the delivery of the deed, there if the estate in the habendum, be less than the estate in the premises, the habendum is repugnant and void : or where the estate in the premises, requires a ceremony to its perfection, and that in theAa-beiutum none — there tiie estate in the habendum takes effect b) the delivery of the deed only, and is not void for repugnancy. The provisional clause in this deed is not an habendum, and the bare saying this, is sufficient to shew the inapplicability of the case cited to that now under consideration. But say it is an habendum, it gives no less an estate than that contained in the premises — > they are both estates in fee. The only difference is, that the one is to commence in futuro. the other presently ; the proviso and the preceding parts of the deed aré both parts of the same deed, and.both to be taken into con sideration, in order to ascertain the true meaning of the parties. The former is not to cause a rejection of the latter part for repugnancy, unless they be totally irre-concileable in meaning with each other. What that meaning was iu the present case, is evident. — it was to create a fee and freehold in the grantee, to commence in fxituro, upon the death of (he grantor and his wife. This being once established, the only question remaining is, whether this intent be compatible with the rules of law. In other words, whether a freehold can be created to commence in futuro ; and that it cannot, no one will deny. As to the other authorities cited, they all proceed upon tiie same principle with these already adverted to, except in one instance, where the habendum was deemed void, because it attempted to create a freehold to commence, in futuro. The next attempt is to support this deed as a covenant to stand seised. If it he a conveyance under the statute of uses, such a proviso is not repugnant, hut must be taken as a part of the deed, and must have a proper agency in forming a construction Upon the deed. Co. Litt,'337. 1 Rep. 173. 9 Rep. 104. All these authorities prove that a proviso contained in a deed under the statute of uses, is good ; and if the proviso in the deed of John Sasser, the elder, be not, void, then John Sasser, the younger, had no estate, in possession, nor had he any remainder, there being no preceding particular estate to support it.; or if he had any other estate, it could be no other than a freehold estate to commence in futuro, and that is void. 5 Rep. 94. it cannot be maintained that this proviso is a nullify; for wherever a proviso contained iu a deed, is of such a nature that a Court of Equity would enforce it, it, is good. In the case before us, had John Sasser, the younger, attempted to turn the, old man out of possession, the Court of.Equity would have prevented him from doing so iniquitous a thing. They would have compelled nhn to abide by the terms upon which he liad accepted the deed. Again, it is a rule,'that every deed take.fi effect from the time of its delivery, or not at. all. It cannot for some time after delivery be dormant, and afterwards upon the arrival of a particular period, reviverr-in the present case the. parties have attempted to make the deed remain inert and neat] during tin; life of the grantor and his wife. The pro* iso is, that the deed shall not have the effect until, &c. yet by the rule of law it must have effect from the time of its delivery, or not at all. If it had effect in the present case from the time of delivery, the estate of John, the younger, whatever it was, passed to him from that time $ and that must necessarily have been an estate of freehold to commence in futuro : or if the deed had no effect at that time, the estate did not then pass ; and as the deed can never hereafter have any effect, no estate at all passed from the grantor — and so either way the estate intended, that is to say, an estate of freehold in futuro, is void. But to view this case in its proper light, the proviso in this deed is a condition. The word proviso is peculiarly appropriated by law, to create a condition. Lztt. sec. 328. 329. 2 Rep. 70 b, et seq. Dyer 311. Cro. Car. 128. And as it is a condition to take place prior to the estate intended to be conveyed to the grantee, it is a condition precedent, tantamount to the. same thing as if ¡he party had granted the estate in fee, upon condition that it should not take effect until after the death of the grantor and bis wife. And with respect to conditions, the la,w is, that if the condition be subsequent, to defeat an estate already created, and repugnant to law, it is void, and the estate shall be absolute. But if it be a condition precedent, to be performed before the estate can vest, and be repugnant to law, it can never be performed ; and for want of a performance, the estate by the very terms of its creations can never arise — Such condition cannot be dispensed With as a nullity — it is a part of (he contract, a sine qua non, and its illegality wili have the effect of preventing *he estate from arising. Shep. Touch. Pre. 129 Co Lift. 206, Cro. Elia. 864. 2 Bl. Com. 156. í L. Ray. 662. If this be a condition precedent, it is also a condition repugnant to law, as the scope and view of it is to make a freehold estate pass immediately, and commence in possession in futuro, and must therefore have the effect of defeating the estate of the grantee forever. The deed in question, is not a feoffment, conveying a present estate with a repugnant proviso or habendum ; for it is expressly found he died seised, which proves the immediate freehold was not conveyed, nor delivered over to the grantee, without which, or the circumstance of livery of seisin, as it is called, there can be no feoffment.</p> <p>His not giving up (he possession to the grantee when the (b ed was executed, together with the proviso, is a full proof that it never was intended to operate as a feoff-mcnt. It cannot be made to operate as such without open violence to the intent of the parties. It is a conveyance under the statute of uses — in which case the'proviso is good so far, as that it must be considered in forming a construction upon the deed; and in that view it will appear to be a condition, to have effect prior to the commencement of the estate of John Sasser, the younger.— He had not therefore a present estate, hut an estate to commence in futuro — and the condition upon which it depended being repugnant to law, as it attempts to make an estate of freehold to commence in futuro, arid being therefore legally unperformable, the estate dependant upon it, namely the estate in John Sasser, the younger, can never arise nor take effect. The consequence of this is, that John, the elder, notwithstanding this deed, had the estate in fee in him as before the execution of it, ,and a right to make a conveyance to his daughter of that estate ; which he has done as stated in the special verdict, by the one or the other of the deeds there mentioned.— The former deed they say is defective — it is not necessary for us to enquire, whether it be so or not — the other deed to her is clear of that and of all other objections— and will pass the estate to the daughter though the other deed he defective.</p> <p>Gen. Davie — The words of the proviso are, “Provided that this deed shall not take effect during the lives of the grantor and his wife, but the premises shall remain to the use of the grantor- for his life, and then to his wife for her life.” This deed is either a deed of feoffment at the common law, or it is a covenant to stand seised ; and. if it be a feoffment, the proviso is void. First, it may he a feoffment at the common law — the words here used are well adapted to that instrument. There is no proof, it is true, of any livery of seisin, but immediately after this transaction the grantee, or the feoffee, as I would call him, was in possession, and continued in possession to the day,of his death ; which is tantamount to a proof of livery and seisin-r-and beside, our act of 1715 dispenses with livery and seisin in case of deeds of feoffment, provided the deeds be registered in due time — and considering it in that light, the proviso is clearly void, because repugnant to the preceding part of-the deed, which conveys a'fee unresti-ictively. It is argued by Mr. Taylor, that the provisional clause in this deed, is a condition precedent and against law — it is ¡vat a condition but, a limitation. Co. Litt. 201. A condition is a quality annexed to an estate, whereby it may either be defeated or enlarged, or created upon an uncertain event, no part of which definition agrees with the provisional clause in this deed. It is not to defeat, enlarge or create the estate upon an uncertain event which may or mav not happen — the estate in all events is to remain a fee, nor is if upon any event to be defeated ; neither is the life estate in the grantor and his wife, to be defeated upon any event whatsoever. Nothing is liere left to chance or future occurrences, every thing is unalterably fixed — then if this be a common law conveyance, the proviso is a limitation repugnant to the estate granted in the former part of the deed. Shep. Touch. 129. Mr. Taylor seems to suppose that the word proviso, ex vi termini, makes a condition, that is not so — it may be a limitation, covenant, corn!¡ti-fian, reservation, &c. Co. Litt. 203, a and b, 204. 2 Re. 72. A proviso to restrain the generality of the former clauses, is not a condition — whether it be a condition or Hot, depends upon the true construction of the deed, and the consequences that would result were it held to be a condition — if these were such as would defeat the true meaning of the contract, or not promote the ends it had in view, it shall be construed to be something else, rather than a condition — as a covenant, limitation, or the like, that will effectuate these purposes. As to its repugnan-cy — if it be a proviso repugnant to law, it is void, Fearns 178, 179 et seq. Or if it be contrariant in itself; or allowing it to be a condition, it is void and against law if it attempts to defeat only part of the estate to which it is annexed. 1 Re. 85 6, 86 b. For if a condition at the common law could make an estate cease as to one, and revive as to another, for a particular time, the breaches of such conditions, which in their nature, are secret and not notorious acts, might privately transfer the freehold from him who had taken it by a notorious act as livery of seisin, or the like, to some other person ; and again, by a like secret breach, from him to another — so that he who wished to bring a praecipe, would never know against whom to institute his suit, nor the lord whom to call upon for his services. If it could be made to cease for a time, and revive again afterwards, then if might be made to cease during the minority of heirs, and by this means fjlf, wardship be lost to the lord. Such secret modes of estates, from one to another, are against the w hole policy and fundamental principles of the common law, which ordained all transfers of real estates to be by open and notorious ceremony. Furthermore, if ¡i be a proviso or condition calculated to deprive the holder of the estate of the exercise of some power which the law annexes as art incident or quality ro the estate from motives of policy, as a proviso or condition not to bar an estate tail, it is void. 8hep. Touch. 130, 131,132. Litt. sec. 723, and the comment upon Litt. sec. 360, 361, 362. An habendum is a material part of the deed, as if performs the office of describing the estate, or quantity of interest the grantee is to have, and where it is repugnant to the premises, it is void. — much more shall a proviso coming both after the premises and the habendum, be void, when repugnant to both : and that it is void in such case, is abundantly proven by Cro. Jac. 282. Cro. Eli». 255. 1 lie. 47. 5 Re. 12. 9 Re. Sunday’s case. 1 Re. 86. But grant that the proviso in the present case is not void — still if it can be so construed, as legally to carry into effect the intent of the parties, without violating any rule of law, it must be so construed — and here, the manifest meaning ofthe parties may be effectuated consistently with the rules of law, by construing this deed to be a covenant to stand seised. 2 Bac. Jib. 498. 3 Dyer 272. Cro. Car. 366. 1 B. Jib. 410. 5 Bac. M. 362. 7 Re. 13 b. 1 Bac. Jib. 176. 5 Bac. Jib. 351. Cow. 600. Hob. 287. A covenant to stand seised of an estate to commence infuturo, is good ; for so much of the ancient use that was in the covenantor, and whi< h is not conveyed out of him, remains still in him — and in the present case, if the'proviso had not been inserted, but the deed bad conveyed to the grantee an estate after the lives of the grantor and his wife, there Would have remained in them a life estate sufficient to support the future interest of the grantee — and surely if the law would have implied this without the help of the proviso, a proviso express to the same purpose, will not prevent the deed from receiving the same construction, utile per inutile ñon vitiatur — expressum non f adit taciturn cessare. As to the piare.occupied by this proviso, being the latter part of the deed, that is totally immaterial— no matter where it is placed, the construction must be made upon all that appears on the face of the deed — and the law in making the proper construction, will assign to each member of the deed, the .station and precedence it ought to possess, though it may have been misplaced by the inattention or unskilfulness of the drawer . The true meaning of the instrument is,to be collected from tire whole contents, without regard to the order in which the several clauses are actually placed. According to this arrangement, the true meaning of this deed will he, to stand seised, fir st to tire use of the grantor for life, and the life of his wife, and afterwards to the use of the gr an-tee its fee. Every part of this meaning is clearly expressed in some one or other of the parts of this deed, and when you refer them to the several periods wlem they are to take effect, they necessarily assume this order.'— There can no reason be given, v\ hy tire deed should not be so construed, and if it be so construed, every objection to its validity and legality immediately vanishes — so that whether it be a feoffment at the common law, or whether it be taken as a conveyance to uses, in either case the Plaintiff is entitled to recover.</p> <p>Judge Stone — I am satisfied judgment ought to be, given for the Plaintiff — -this is a covenant to stand seised.</p> <p>Jttdge Haywood — 1 am also satisfied in my own mind, that judgment ought to he given for, the Plaintiff; but É have, reasons for declining to give my opinion judicially, unless it shall become absolutely necessary. I was formerly applied to, while at the bar, for my opinion on this very deed; and after consideration gave the same I now entertain : — Let it lie over till next term, Judge Macay will then be here : — if he should be of the same opinion with the Judges now present, judgment will of course be entered for the Plaintiff.</p>

The case was, ode man drew an order on another, in favour of a third, and soon after moved away to another State — the drawee paid part, and refused to pay the residue, and it was protested as to that par*. Three or four years afterwards, the drawer returned, and was sued for the balance, the money being first demanded of him by the payee.

Case. iA o?i assumpsit, &c. pleaded. The case upon the evidence was this: Hagan had shipped on two vessels of the Defendant, destined to Surinam, seventeen hogsheads of tobacco and forty barrels of pork, consigning them to Paine, for him to exchange them for goods of the production of Surinam, to be brought in return to this State.

<p>A negotiable instrument in the hands of an assignee is not subject to any payments that do no! appear endorsed, if it was assigned before, or at the time it became due : but if it was assigned after it became due, then all such payments, as it can be presumed, the assignee bad notice of, shall be good against it An assignor and assignee are both members of the same firm ; a bill is made payable to the assignor, expressed to be for a debt due the firm : a payment to the company will be a good payment against either the assignor or assignee members of that company.</p>

Detinue. The mother made a gift of the negro in question to Sarah, the daughier, to take effect in possession after the death of the mother. Sarah married and died, and then the mother died. The husband surviving, and last of all the husband died, without taking administration to his wife. The administrator of Sarah now sues for the negro.

<p>BiU b> Equity and answer. Bedding had recovered judgment against Murfree for a negro — Murfree com-plajfjp,]^ aJK] staled in ins bil], that Redding hut) put one Scranton on hoanl his brig. as master, and sent him viith a load from New hern to Murfreesborough, and that he had put the negro on board with him. and authorized Scranton to sell the negro. This the answer denied_ The bill further stated, that Scranton, whilst at Mur-freesborough, took in for freight a load of tar for him, and a Mr. Figures; and had never accounted for it; and that Redding, as owner, ought to be liable. The answer denied that Scranton ivas appointed master for any other or further purpose, than that of navigating the vessel from Newborn to Murfreesborough, and back, and if ho had taken in a load upon freight at Murfreesborough, he did it without, any authority or permission from him.</p>

<p>Old Lewis devised negroes to his wife for life, and after her death, to his children equally. One of thedaughters married Lewis, who died in the lifetime of his wife, and of her mother, the widow of the first Lewis; then the mother died, and the widow of the latter Lewis married Hynes. The question was, who was entitled to these negroes, the executors of the latter Lewis or Hynes, the second husband.</p>

Old Minge held this'land in tail •, in 1778, he sold to Gilmour — then died, leaving lands, of eight or ten thousand pounds value, to his son, lite present Plaintiff, who is tiie heir in tail.

Stated to the court to be a certiorari to remove a cause from an inferior jurisdiction, and that a rale had been made on the Plai. iff in the cause below, to give security in ibis cout for costs ; otherwise this cause t» be dismissed, it was also stated, that this notice had been seurdon him, and that he had not given the security required: whereupon the counsel for Davis, the Defendant below and Plaintiff here in the certiorari, moved that <lie case should be dismissed.

<p>This case, which had been reserved for the consideration of the court for three or four years last past, now came on to be decided. The court said it. was no longer necessary to keep this cause waiting for the opinion -of the court, as it. liad already been considered by the Judges and they had proceeded in consequence of that consideration, to direct in several cases which occurred within the present circuit, how interest should be calculated — that on the Western circuit last spring, Judge. Macay had concurred in giving such directions, or had given them himself. [ Gen Davie, at the bar, said Judge Macay had told him his pinion was as the directions had been given this circuit.] '</p>

Indictment fop assaulting one Joseph Wright Nicholson ; ami for that the said Evans, on purpose, unlawfully did bite off the right or forefinger of the right hand of him, the said Joseph Wright Nicholson, with intent in so doing the said Joseph Wright Nicholson to maim and disfigure, against the act, The evidence was, that Nicholson applied to him at Nash Court-House, about the middle of the afternoon, to borrow some money ; which displeased Evans, who said, as he was poor,…

<p>If in an action against two Defendants foi’a joint contract, one of their con"' t no taken ; after the pluries writ, the other may he proceed* ed a.ga...si a’nne.</p>

<p>If a Plaintiff procures a copy of his bill and a subpana, and delivers tlifni fo i h>- Slienff, in time to be served on tlie Defendant ten days before the term, and the Sheriff neglects to make the service until ten days before the next term after that, the Plaintiff’s hill shall not be dismissed by a plea in abatement under the act of 1782, liev. c. 177, sec. 3.</p>

This was an action brought to recover money due upon a not'- of hand.

<p>One bidder at a Sheriff’s sale is sufficient, but the bidder must be one who is iblc to advance the money, wliicli he offers as hi. bid. A return in the name of tne Hi luS..enff by ins U-nnity, if false, will render the Sheriff liaole eriminaliter. Win. u a Defendant h, court, is ordered into custody for a fine, it will be improper to discharge him and order a ji. fa to issue for the fine. The c iurt will no: permit independent facts, for which the party would be iiaole to another prosecution, to be given in evidence, in order to enhance a fine.</p>

This was an action against an executor, who pleaded that he had fully administered all the assess of the testator, except so much which w=s liable to for mer judgments and suits.

This was an action against an executor who pleaded plene administravii, and upon evidence it appeared the executor bad really administered all the testator’s assets in payment of his debts; but that a great number of these payments had been made, some upon judgment and others voluntarily, a long time after the plea pleaded, but previous »o this time.

Itt this action the administrator had failed to pleadpZrae administruvit, or any othorplea shewing a wans of assets —ili.* PiattiusFhud pt-oeeed.d to judgment in the UMiai font! to he lev .ed de bonis ientatoris. He hat! taken a ft. Ja upon this judgment, to which the Sheriff had returned nulla bona.

Mr. McLain had been Counsel for the Defendant, and after hr- d»-a<h, no other rounscl had been employed, and the Defendant had removed to some pan of rhe world, the. Plaintiff knew not where' — the Plaintiff wished to take the deposition of a man * ho lived in New England, and prayed the court to direct to whom, and in what manner notice, of taking it should be given, there’ being neither party nor counsel upon whom it could be served.

<p>Since the act of 1762, llev c 69, -he courts may exercise a discretionary power in the appointment of guardians.</p>

This was an action of trover, originally brought the party who converted; but he. (tying, his executors were m .dr p.n tie-- under the act of 1786, c. 14, and the Plaintiff proceeded to take a verdict against them. The Defendants moved to arrest judgment, foe that they as executors, were not liable to a teco very of damages by the Plaintiff foe a conversion iri the lifetime of their testator, and of which he alone was guilty.

<p>Ejectment. Andrews had lately purchased a tract of land of the heirs of Mr. Waddle., the patentee. Mu'ford deri'ed his title under Spikes, the patentee of an adjoining traer. He proved the beginning of Spike’s tract, and every line and corner mentioned in the patent, and located that tract beyond doubt. Jlndrews proved that a line called Waddles line, was seen when recently made, many years ago. by one of the witnesses on the other side; which line included a part of the land comprised in Spike’s patent; and this lire had been acknowledged in conver-, sation since, by Spikes, it. was also proven, that Wad-informed Spikes mas.y y or. rs ago, that that was his ]1))e> Both Spikes’ and li addle’s patents were datad on the S'tne day — Waddle’s was numbered with the number 4, and Spikes’ with the number 73 ; but Spikes’ ¡survey was made severa! months before Waddle’s. Spikes used this disputed part of the land, with the other part included wiihi'i ¡lie lines of his patent, very soon after it was issu. d, by keeping his cattle upon it; and continued to use it as a range until the year 1770, when he took actual possession in person. About the beginning of the la'e war, Mr. Waddle moved to Europe, carrying with him his two sons, infants of .very tender years, who returned and Came of age within three years previous to the bringing of this suit, which was commenced sometime in the year 1794. Spikes purchased his location of t!ir- land from a man who had built an hut, and lived upon it s veral years, intending to enter it in the land-office prior to the time of Spikes’ entry.</p> <p>The whole of the present controversy may he reduced to this — whether Spikes’ or Waddle’s is the preferable title. The evidence proves that tba land in dispute is included within the description of both patents — according to the common phrase, one. patent laps over upon the other — the line as laid down in the plat be-f°,e ^,e cou,,t* ve,,y probably may not be a true representation of the line actually run; but it is inconte-tibie, that there, was a line run ami marked as a boundary of Waddle’s patent, of the same course with the line there described. It is equally incontestible, that this line intersected the boundaries of the other patent. It was seen within these boundaries by one of the witnesses, who carried the (bain in surveying of Spikes’ tract. If was mentioned to Spikes by Waddle afterwards, and described to bt within these boundaries ; and Spikes gave as a reason wl-y he would not place his house near his boundary line towards Waddle’s tract, that Waddle’s line would take it in, it running some distance within the lines of his. Spikes’ paten*. The beginning part of Waddle's line that intersects the lands contained in Spikes’ patent, is a córner pine called for in the patent — but it is said, and pirhi.ps proven to be a corner of another tram — that, is no proof of I is not being also a corner of Waddle’s tract. It probably is so from this circumstance, that the other line terminating at this corner, is a marked line of the saíne course with that of Waddle’s. This line is said to be continued much further than the length of Waddles line will reach. It is useless however to labor this point» for if it be true that the line of Waddle’s -patent,-described as running from the pine to the swamp, be the line seen bv the witness ami acknowledged by Spikes, it intersects Spikes’ boundaries, atid rets off from his tract almost all the land we have sued for ; and that it is the line of Waddle’s patent, is sufficiently established by the evidence.</p> <p>The next thing proper to he considered of, is, the date of these two patents, ami such other circumstances as may <serve to gite the one of them a preference to the other. The point of preference must be settled before it can be decided, which of the two litigants is entitled to the land in dispute. These patents are both dated on the same day- — ours was first numbered, though theirs was first surveyed. Heretofore priority of date in patents hath always been held in our courts to give preference of title. He who made the latter entry and latter payment of money, may have procured the first survey. A man entitled to preference in every view of justice, and who has paid his money, and made his entry, and hath been for some time perhaps settled upon the laud, and improved it, may have his survey postponed tosui* the convenience of the surveyor, and the survey he first made upon the other’s claim, inferior in every respect. The «urvey or any other proceeding prior to the grant, is no part of the grantee’s title — tuese are only preparatory steps towards obtaining that which will give a title — the grant is the only evidence of title that the law recognizes — should the first survey he made the criterion of preference, it would beget the utmost confusion — many olo grants have no plats annexed to them, and- none were ever annexed —there is no record preserved of the tune when the surveys were made — what decision shall be given in cases thus circumstanced ? Or what merit is there in a claimant getting his land first surveyed, more than there is in getting his grant, the complete evidence of title, first perfected ? There might indeed be some justice in saying, that iie who first made his entry and paid his money, should be entitled to preference j but i» this there would be very great uncertainty. The first entry and payment of money, might be aimed directly against the claim of a man who bad settled and improved, and who under the existing laws was entitled to a grant preferably to any other. Add to this, that there never has been preserved any record of these entries. Without investigating the reasons of the rule orginally, it will be sufficient to say, that the priority of date in the grant, is the true criterion of judging which of two patentees has the best title, without regard to the, time of any other transaction. This rule has been so long and so firmly established, that it is known to every one to be the rule which hath always prevailed in our courts. If then the grant first issued be entitled to preference, when there are two grants for the same land both dated oil the same day, we must necessarily lay hold of some circumstance, the strongest tha' presents itself to turn the s^ale. Our grant is numbered with the number 4, theirs with the number 73, from whence the presumption is, that they were issued and registered by the Secretary in the same order in which they are numbered, and consequently that our grant was first perfected. ' The numbering them at all can he intended for no other purpose than that of shewing which w as first issued.</p> <p>It will be argued, that we were never in actual possession of the land in question, nor of any part of fire tract of which the land in question is a part — this must be admitted. It will also be insisted, that the possession of the person who made an ax-entry, as it is called, added to the possession which Spikes had by his cattle, previous to the time when he took actual possession in person, is sufficient under the act of limitations to perfect their title and destroy ours. As to the possession of the ax-enierer, that was without any deed or colour of title. It was a possession of vacant land, and all the, right it could confer was a right of preemption perhaps. It receives no strength from the act of limitations, which was never designed to operate upon a possession of vacant lauds; and siich right of preemption was subject to be lost, if not exerted within a reasonable time, defined by tlie existing law. No length of possession could ever give a title to vacant lands, either before or since the Revolution ; because the maxim with respect to the lands of the King was, nullum tempus occ.umt; and therefore so far as regards the act of limitations, the possession of the ax-en-„terer, is tobe laid out of the consideration of tins case, as being of no avail whatsoever. As to thopossession which Spikes had by his cattle, that commenced in the latter part of the year 1763, or the beginning of 1764, wore not full seven years even of 'ii.it possession, previous to Mr. Waddle's departure to Europe; and besides during that time, Waddle passed through the land, and informed Spikes of his claim, so that it was not a quiet and peaceable, but a disputed possession. But what is a more complete answer, is, that the keeping of cattle upon lands, is not such a possession as tno act meant to ripen into title. Co. LilL 48 6. 2 Rep. 51 b. Such possession cannot be computed under the am of limitations, and if neither the possession of the ax-enterer, nor of the cattle, will serve them, neither will any such po«s< ssiort as they have proven subsequent to these, avail rhetn_ Spikes, and those claiming moler him, had actual possession only three years before she discontinuance of mtr Superior Courts in the year 1773; and soon after that period, Mr. Waddle went to Europe and died there. His sons did not return until several years after the war, nor came «f age till just before the commencement of this action. The act of iimitaTions expressly provides, mat time shall not he computed under that art, in favour of a man in possession, and against him that is out of it ano beyond seas, till after eight years; nor against an infant till after three years from his arrival to the age of twenty one years. Besides that, toe time elapsed between M srch 1773, and the fn-st day of June 1784, is struck om * f the computation of tune under the act ol limitations. Then all the time that can be computed in the present case, is, the time elapsed between the actual possession, and the time of Waddle's going to Erigían 1 — a space of about three years only. Possession therefore, in any way in which tiny have proved it, will avail them nothing; and this case must be decided, as it would have been'before any possession commenced, immediately af’er the issuing of the two grants. Om- patent, for the sea-o.is before given, is entitled to preference and die Plaintiff to recover.</p> <p>it w.is argued by General Davie for the Defendants — No doubt can be entertained but that the land described in our patent, is the same land we now claim. The. beginning and each line is proven by the chain carriers present at ihe original survey, and also at the survey lately made by order ot this court; but it is extremely doubtful where the Plaintiff’s land ready lies— they have proven no beginning, nor any Une which they g}ly jg the boundary of their land. They have indeed proven the existence of a pine, marked as a corner tree, but the coui-^e of toe line from thvnce to the swamp, though it will intersect our land, includes much more land ¡han the line they have attempted to prove. The lim which the witness speaks of, was a plain marked line. The line ¡aid down in the plat is not a marked line. There is not a single marked free in it or near it. It is very probable that this pine is not a corner ni‘Wad-dle’s land. The evidence says it was a corner of an adjoining tract. If the course, leading to that pine he reversed, it will indeed be the course mentioned in Waddle’s patent, hut tin* evidence says it is the line of an adjoining tract. The surveyor say*- it was marked when this adjoining tract was suneye-,. Sí ill if may have been Waddle’s line, but it does not terminate at any such corner as < ,,!!(■<! for in Waddle’s patent.; and is continued much beyond the distance mentioned in Waddle’s patent, as being the di dance of the line of that course in the patent. These circumstances render it very improbable, that the lines described in the piat, and now claimed by Andrews, are r< ally the boundaries of Waddle’s land. It is probable enough, that Waddle’s land is somewhere near to, or adjoining this land of Spikes ; but it is incumbent upon them to show a bet.ier title than ours to the land in dis-put**. We have clear evidence that.this land is included within the boundaries expressed in our grant, and unless they can as clearly prove tliat it is included within theirs also, we shall be entitled to retain possession — our evi-de .re of title being not only equal but superior to theirs. In short, they must prove the location of their land, and tha’ it runs over ours, or they can never be entitled to recover. Tic* b'*ing able to raise a conjecture, that, their boundaries do int'wsect ours, can never be deemed evidence soffit lent to prevail against the positive proof of our tide. But let it be granted that their boundaries do reallv intersect ours, if will not then follow that; uiey are entitled to recover. Our grant is dated on the same day with theirs. Even admit the rule to he in general,' that the first gr-ut gives the best title, that rule is easily applied win-'.' tin* grants are of different dates, hut it cannot be ap;¡ *,.'d ■ * tin* case now before’ us.' It is impossible’.. t when of them was first issued. Any rule which pretends to ascertain this, will be, merely fanciful. We should depart from ihe genera! rule when it nolonger enables us to decide with certaintv, and we should adopt some other that is most likely to attain justice. 1 kn«w of none hitherto established for a decision of a case like the present, but none seems so likely to effectuate the purposes of justice, as to say where the priority of the grant cannot be ascertained, that the gran'ee shall be entitled to preference, who first purchased and paid f«r the land ; and that this shall be ascertained where the entry is not to be had, and the priority of payment cannot be actually proven, by the priority of survey. The first survey itself forms Some reason of preference independent of any other consideration in favor of the claimant tinder it ■ — he first makes the appropriation of that particular spot to himself — he makes that appropriation notorious, by going upon the land and surveying it, and separating it from the circumjacent lands by visible boundaries. — - These act® make known to the rest of mankind that be hath taken that spot for himself, it is unjust for any other to invade that right afterwards, and deprive him of it either by force or conttivanee. These considerations have considerable weight in a' case circumstanced as the-present is. Where the ordinary rule of decision is found to be incompetent, the rule proposed,' of giving prefer-once to the grant first numb* red, is too vagim. it is impossible to say whether the grant first issued was that which was first numbered or registered, or whether the numbering takes place upon the execution of the grant, or after the execution when the Secretary registers it in his office. If for these reasons, or any other, our grant, is to be preferred, the Plaintiffs'have no title — but if this point be against us, our possession has made us a title ; the ax-enterer was in possession five or six years, then Spikes purchased the location from him, and put in his cattle, and continued that possession till he began to clear and cultivate the land. This possession was previous to what they call the actual possession of Spikes, upwards of seven years, from 1757 or 1756 to 1770, nearly fourteen years ; aed by the act of limitations, seven years possession will give title to the possessor.</p> <p>Per curiam — Haywood only present — Will it not be proper to consider, w he'her if (he act of limitation1-, began to run from the time actual possession was taken, (which is stated to have been in the lifetime o Mr. Wail-dls, the patentee, and about three years before he went f:o Europe) its operation can. be suspended by bis going j)eyond Hea> or by his death, leaving infant heirs.</p> <p>General Davie and myself have formerly considered of that question. It is a rule adopted only in (lie case of fines in England — it does not apply to the act of limitations.</p>

Ejectment, brought several years ago, and hath de pended so long that the demise laid in the declaration wtU expire before the next term, there being a continuance at this.

The. jury returned to give their verdict, and said the..» found for the Defendant — Mr. Hay for the Plaintiff, prayed before the verdict was entered, that the Plaintiff might be called and nonsuited. Mr. Moore, for the D >- fendant, said it could not be done after the jury had delivered their verdicts though before it was recoided. I am very clear it may be done at any tinto before the verdict is recorded.

This was an action of ejectment. Upon the trial of. which the Plaintiff produced hi* deeds, and proved a clear, title in himself. On the side of the Defendant were produced articles for a sale of the land, signed by the Plaintiff: in which it was agreed, that the Defendant on payment of so much, money, should receive a title from the Plaintiff — and Defendant’s counsel said lie could prove payment of the money.

This suit was brought against the executors of a deceased joint undertaker to pay, and the survivor. There we,‘e several other suits on the docket of this court tlius circumstanced, being suspended by motions in arrest of judgment, and special cases, until a decision could be had upon some one of them.

Debt upon bond, and the statute of usury pleaded, — * Upon evidence it appeared, that disputes existed between ihe Plaintiff anil Defendant, relative to a tract of land ; that they agreed to submit these disputes to arbitration $ that the arbitrators awarded 'Glisson to give possession of the laud to Newton at a prefixed day; and that on the same day, New Ion should pay ninety pounds to Glisson.

The plea in substance stated, that the Plaintiff in the-year remoyed himself from this State to avoid giving his assistance in the then war, carried on against the King of Great-Britain, and attached himself to the enemy, &c. and the plea concluded with, praying judgment, whether he should be answered, &c. To this there was a demurrer and joinder.

THE lessors of the plaintiff are heirs at law of Mary Turnbull Butcher, and claim title to the premises described in the declaration, under the following clause in the last will of James Turnbull. -ag Item.

This was an action brought to recover back money which the defendant had won by gaming at cards, and which the plaintiff had paid at the time of playing. The cause was tried before Taylor, C. J. at Cumberland Superior Court, when the jury, under charge of the court, that the law was in favor of the defendant, found a verdict for him.

<p>The plaintiff claims title to the land on which the supposed trespass was committed under the will of his father, Lewis Barge. The clause in question begins: “ Item. I devise and bequeath to my beloved wife Christiana Barge, the store adjoining the tavern lately occupied by James Baker, together with the store lately occupied by Samuel Goodwin, during the term of her natural life, and after her death to my son John Barge, and his heirs for ever.” The defendant claims title to the same under the same will. The clause in question begins, “ I devise and bequeath to my son-in-law John Wilson, and ray daughter Polly Wilson, during their, or either of their lives, and after their deaths, to the heirs of the body of the said Polly Wilson, my large tavern in Fayetteville, lately occupied by James Baker, excepting however the room over the store, which is to belong to the store.” The store, house and tavern adjoin each other. The cellar wall under the store-house is the dividing-line between the two buildings. In the rear of the buildings, and between them and the creek, there is a small piece of ground, being part of the lot on which they are erected. The plaintiff claiming the ground immediately in the rear of the store, and from the store to the creek, erected a fence, running immediately from the cellar wall under the store house to the creek. The defendant pulled down the fence, which constitutes the trespass for which the action is brought.— Both parties respectively occupy the buildings devised to them.</p>

Declaration in Ejectment...Appeal. In this case the plaintiff produced, a grant from Earl Granville to Joseph Davenport, for the land in question, bearing date the day of November, A. D. 1756.

A bill for Alimony was filed by the wife, and no security had been required of the husband.

This cause had been referred to the Master to report upon, and state the amount: he had given notice to Ms-tes of the time of taking the report, but bad not actually given any notice to Smith. A tune had been talked of by the Master, which Smith said did not suit him, he being then obliged to attend the General Assembly on public business. However, in his absence, the Master pro epeded ex parte, and made a report.

<p>One. question in this case was, whether the proceeding upon which an injunction had been issued, was to be considered as a bill of review or not. The. I’lain tiffs at. law had obtained ^judgment upon the bond of the Defendants, for a large sum of money, conditioned to indemnify them against the creditors of the Company, of which, the tes-tato! had been a partner. The D fendauts had obtained an injunction against that judgment, and there had been a dissolution of the injunction as to part of the judgment, upon coming in of the answer, and a report made by the Master. In this report it was stated, that two debts, one in Virginia,the other in this State, not yet recovered by the creditors, were debts to which that Company were liable. As to them the injunction 'tas continued. At. a following term,the Plaintiffs at law producedt.be records ofrecove-ries iu these two suits, and moved for a further dissolution to the amount of those judgments, being about £1104. Upon the. motion, the court took time to advise, and after-wards dissolved the injunction as to the amount of these judgments. This dissolution took place in the vacation, to be entered as of the preceding term ; and afterwards in the samo vacation, upon coming out of the execution, ■the Defendants at law exhibited the bill in question, stating their non-liability to indemnify the Plaintiffs at law a- ■ gainst these debts by the terms of the contract — these being debts not contracted by that Company, but by the deceased as partner of a Company under another firm, of which Company, Williamson was also a partner — praying a reconsideration of the latter sentence of dissolution, and an injunction in the mean time, against the execution at Jaw. This injunction was granted as prayed for, by a Judge in vacation, and the bill filed and an answer put in. The counsel for the Plaintiffs at law now moved for a dissolution of the latter injunction, and that the hill «pon which it was granted might be now taken into consideration and disposed of. As.a bill'of review, he said, it was certainly improper and without precedent — a bill of review could not be granted without the leave of the court, and when granted, it did not operate as a suspension of the former decree. All parts of the former decree must be performed, except such as if performed would extinguish the right of the Plaintiff in the bill of review $ and it is a good plea in bar of the bill of review, that the former decree is not executed. 2 Eq. Ca. Mr. 175, sec. 8 & 10. And this point had been so decided upon consideration in a case at Fayetteville, April, 1795. There the wife of Mr. Spillar liad obtained a decreo for alimony J he obtained a bill of re,view, and moved to suspend any further execution of the decree, until the bill of review could be heard ; and the court refused to make any such order, though he strongly insisted, that a hill of review ought to operate' like a writ of error, which is a su-persedeas to the execution till the writ be determined.— Me insisted further, that a bill of review is not allowable in any case, where the original cause is not completely determined, and the decree signed and enrolled — for before that time, the party supposing himself injured by any interlocutory decree, or even after a final decree pronounced, may petition for a rehearing, and have the mistake, if any, rectified that way ; and upon a rehearing allowed, the court may order a suspension of proceedings upon the interlocutory order or decree complained, of, but {[iey af.e iH)fc stopped without sue)) special order. This, bill is every way improper, and being so, will be dismis sed, and the injunction upon it will of course fall with it.</p> <p>it was argued, that no objection could lie to this bill, as a bill of review', except that of the former cause being not yet decided — as to which, the practice here, had not been precisely settled, and he wished the •opinion of (lie court upon it. It seemed upon principles to be extremely proper, where an interlocutory -decree had been hastily or improvidently made, injurious to either party, especially in a case where it was to be attended with a seizure aud sale of property, as in the present cusp, where the execution is to issue immediately for so large a sum, there should be some way of setting it right. He could not. see why an injunction to stop proceedings till a re-examination of the mistake complained of, took place, should not he as proper as any other mode. The practice under our present system cannot in all instances be regulated by the'same rules as adopted in the courts. There may be a petition of rehearing before the Chancellor at any time. He alone possesses all the power of the Chancery Judge — but here in vacation, each Judge separately does not possess the same power. One Judge cannot make the same order, upon a petition for rehearing, relative to the suspension of proceedings upon a decree or sentence, that the court may ; as one Judge cannoi make a decree, he cannot suspend it perhaps when made, simply by an order for that purpose: and it may be well doubted, whether one Judge, out of court, can grant a rehearing. it is very probable therefore, that the granting-an injunction in the present case, was the only measure •that could have been adopted in the vacation, to obviate the injury complained of, till the court were again assembled, and could examine into the mistake complained of, and either allow or disallow of the petition for the rehearing, and make the order for the suspension of proceedings on the former sentence. How otherwise can the execution at law be suspended in time of vacation ? It is a mistake to say, that bills of review cannot be granted before a complete compliance with the decree. The boobs will shew many instances where bills of review have been sustained before execution of the decree, and in some instances, without security given for the performance of it. Neither is it in all cases necessary to apply to the court for leave to file a bill of review. But it is immaterial by wliat name this instrument may be called — let it some other name than that of a bill of review — we know the object of it — it is to be relieved against the injustice resulting to the Defendants at law by the last dissolution. In whatever way we can arrive at a reconsideration of the sentence, we shall be satisfied.</p>

<p>This cause was tried before Seawell J. at Warren Superior Court, where, on its being called in due course on the second day of the term, and the plaintiff failing to appear, he was nonsuited. In the course of the same day, he came into court and moved for a new trial, upon an affidavit which stated in substance, that he had attended the preceding day, and went home at night for the purpose of procuring the attendance of a very material witness, who had been subpœnaed for him; that on Tuesday morning he called upon this witness, whom he found unable to attend, from the effects of a severe illness, and the deponent then hastened to court, where he arrived too late, but as soon as he well could, considering the distance of his abode and the delay occasioned by his calling on the witness.</p> <p>The Judge granted a new trial, upon the plaintiff’s paying all the costs, from which order, as to the costs, he appealed, to this Court.</p> <p>The case was submitted.</p>

The complainants, next of kin and the only children of Miles Blanchard, dec. state in the bill, that their father died seised and possessed of a considerable real and personal estate, leaving a widow, Sarah, who was appointed administratrix, and afterwards intermarried with M'Laughan; that M'Laughan had the exclusive management of the whole during the marriage, received monies for the sale of property and its hire, and for the rent of lands, and afterwards died without…

<p>This was a single bill, for the payment ofso many dollars. Plea, non est factum, &c.</p>

These were ejectments tried at Currituck Superior Court, at September Term, 1812, when the jury found special verdicts in the three cases, which, by consent, were referred to this Court.

<p>It was said in this caso, by Mr, Moore, and not denied by any of the bar, tiiat it had bmi decided in this court a few terms .ago, that letters of administration granted in another State, couid not cutíti the administrator to maintain a suit here. Though he said this question was reserved; and j et depended in Salisbury, in the case of Hillary Suits’s Administrators v. Miac Pries.</p>

This was an Injunction Bill filed in the Court of Equity for Hyde County, where a motion was made to dismiss the bill for want of equity. That question was referred to this Court, upon the allegations contained in the bill. The cause was submitted without argument.

The counsel for the Defendant offered to read a deposition, and proved the notice, which was that the deposition would be taken at a certain day and place, in a certain county in South Carolina. The deposition was certified to have .been taken in thecounty, and on the day mentioned in the notice, but said nothing of the place where.

<p>in an Ejectment, the first grant is the only thing to be enquired into, without any regard to the entry or survey.</p>

This was an original bill in equity, praying for the appointment of commissioners to sell a tract of land, and to distribute the proceeds thereof, according to the will of John Phillips, amongst the complainants, who are minors, and the heirs at law of Henry Phillips, deceased, the devisee in the said will.

The Plaintiff offered to produce a registered copy of the deed, which he said disposed of the negroes in question.and limited them to ihe Plaintiff. The copy was certified by the Clerk of a County Court in Virginia, and the Governor had certified that he was the Clerk of (hat court.

In this case a scire facias had issued against the defendant, to show cause why judgment should not be rendered against her on a bond given by her testator, jointly with Thomas C. Williams, on an appeal obtained by said T. C. Williams from the County Court of Montgomery. A judgment was obtained by the plaintiff against T. C. Williams, at September Term, 1809, after the death of the defendant’s testator.

The Defendant offered Mrs Greenwood to prove that Hagar, the wench in question, was a sound and sensible negro. The point in controversy was, whether she was so or not, when McClure sold her to Porter and warranted her to be so. The husband of this witness had purchased the same negro of Porter and since sold her.

This was a petition filed in the County Court of Nash to set aside the probate of the will of Joshua Vincent, on the ground of the will having been made by fraud and circumvention; and that the petitioners were not made parties to the probate, although they would have been entitled to a distributive share of the estate. To this petition there was a demurrer for want of an affidavit.

Tender and refusal pleaded. The note when produced was for one hundred pounds, payable, or to be discharged ■ by delivery of a likely negro, of the age of eleven years, by a day certain. The evidence was, tiiat on that day, an agent of Witherspoon, by bis direction, attended at his, Witherspoon’s, house, with a likely negro of the- age of 12 or IS.

<p>Enoch Sawyer was the subscribing witness to the bond, and lie was the Collector of imposts for the district of Camden, and his deposition had been taken,and was now offered to be read.</p>

This was an action of trover, and upon not guilty pleaded, a special verdict had hern found, which now came on !0 fee argued.

<p>The question reserved in this case was, whether an agreement not to prosecute for malicious mischief, forming part of the consideration of a bond, will vitiate it, as being against law?</p>

Plea, and demurrer, which stated tiiat Mull, as Sheriff, arrested a man upon a capias ad respondendum, and took no bail.

<p>The testator died in November, 1814, having made and duly published his last will in writing; whereof he appointed the defendants his executors, who caused the same to be proven at February Term, 1815, of Edgecomb County Court.</p> <p>The petitioner, his widow, being dissatisfied with the provision made for her by the will, entered her dissent to the same at the same Term, and exhibited this petition to the County Court, claiming the benefits of 29th chap. Acts of 1796,—alleging that by her dissent to the provision made for her by the will, her husband died intestate as to her.</p>

Attachment, and plea in abatement, that the attachment bond was unattested, and no suit could be brought upon it. 2nd, that the Defendant was not about to remove, nor bad shewn any symptom of such disposition, but was at home at the time, when the attachment was levied.

<p>Certiorari. This cause stood on the docket of causes for trial, and was said by the counsel for rtie Plaintiff in the certiorari, to have been obtained in open court; and he insisted that where a certiorari is so obtained, the cause may be set down for trial without any further argument.</p>

The bill stated that Perkins, in the. year 1784. purchased a tract of land of one Griffham. and had it regularly conveyed to him and paid the purchase money; and seven or eight years afterwards, Ballinger having discovered that one Michael D'elamJ had a judgment against, Griffham, purchased the same of him; that Griffham ■ died, and that Builinger, in the- name of Delaney, without any sd.fa. against the heirs or executors, took out a fi. fa. and levied it on the lands…

Tin- bill staled that Watkins pretended to be possessed of lands on the Cumberland river, of good quality, and enticed the Complainant to purchase 1000 acres, for which the Complainant gaye a note to deliver a good wagon and team by such a day, Watkins at the same time giving bis bond to make a title.

<p>The defendant was endorsed as prosecutor on an indictment against Gassett, for malicious mischief, which was quashed by the Court, and the prosecutor ordered to pay the costs. An execution accordingly issued against him, comprehending the charges for the witnesses summoned for the State, as well as those summoned for the defendant. To set aside the execution, so far as it related to the witnesses, was the object of this motion, which was referred to this Court, from the Superior Court of Randolph.</p>

<p>A and I!, settled accounts, and a balance of £ 47 was found due lo li, and A signed a writing to that effect, which B assigned ló a third person, who sued A, and recovered judgment. A, filed a bill for an injunction, setting forth errors in calculation, and stating that by the agreement of tiie parties, the paper which he iiad signed was not to he deemed a promissory, note. The answer denied all the parts of the bill but the errors. Haywood, Judge, consented with Wiiiiams, Judge, that the injunction should'be dissolved asto all but the errors.’ .But Haywood said, that it should be dissolved in toia, for the law would have admitted every defence which could he made on the instrument, as that it either was unnegotiah'le in its nature, or the assignee had notice of the defence previous to the ■ assignment. And if the assignee had not such notice, there could • be no defence either at law or Equity, where the instrument was negotiable.</p>

This is an action on the case (for a nuisance) to recover damages done to the plaintiffs in consequence of the defendant’s having erected a mill dam across the same stream on which the plaintiff’s mill stands, and below it.

Assumpsit for hoard and lodging of the intestate. It was proved, that be had boarded with Hughes from August 1785, to May 1788 ; at which time Hughes became insane and incapable of managing bis affairs. The keeping of tin* tavern and tavern books was however continued by Mrs. Hughes and in her name, and Stokes continued to board there till after May, 1788.

This was a motion to set aside an execution issued against Berry, who had executed a bond under the suspension act, as security for M'Glinn for the stay of an execution against him, at the suit of Haines. The bond was given to the sheriff, who had the execution in his hands.

Case. Upon a note assigned to the testator in his lifetime, for one hundred and fifty pounds, to be paid in tobacco inspected at the C'heraws, in Sonth-Carolina, at the market price.

<p>Ejectment. The counsel for the. University produced the registered copy of a grant from Lord Granville, ñateé sometime in the year 1 - 63. to our Mucldehenny. and proved that he left this country within a year or two after the dale of the grant, intending to go to Ireland ; and that he has not since been heard of, nor any heir of his. He also produced the act of 1789, c. 21, s. 2, “ That all the property that lias heretofore, or shall hereafter escheat to the State, shall be, and is hereby vested in the said trustees for the use and benefit of the said University.” On the other side was produced, a grant from the State for the same binds, dated in the year 1780. it «as argued for the University, that it would probably be objected oh the part of ihe Defendant, that there were no escheat lands in North-Carolina. Escheat being a consequence of feudal tenure, one of the conditions of which wa*, that when the heritable blood of the, tenant, failed through want of relations, or by corruption of blood, that the feud should fall back to the lord. It must he admitted that was the correct idea of escheat — yet it is, Jo be observed, that this word hating been used by the Legislature so late as the year 1789, where they speak , too of lands thereafter to escheat, must have been understood by them to represent some other idea than that of escheat according to its strict technical meaning. They intended the act .should have some effect — and one sense in which this word is sometimes used even in the old books, is this, the accidental atid unexpected falling of lands to the lord for want of heirs. Another sense is, when those who held of the King (or public) die leaving no heir, arid the lands relapse infisemn. Co. Litt, 13, a. In this sense it is used in the act, and signifies that the University shall be entitled to all such lands as have heed once appropriated, hut by some accident; have been left without any legal proprietor — no matter by \v,hat means they came into this situation, whether by a dy ing will out heirs, or by becoming an alien to the govern-inet;>, as was the case wish many upon the adoption of a new torn;. If this interpre'aiion be correct, it will lead ns to et'Otheu question, whether Ji/ncJdehevny be dead without heirs, or became an alien upon the delaration of independence. There is m> poMtiie evidence with resp- n to the first o.‘ these points, but she presumptive evidence is stroi g enough to warrant the jury in drawing such a conclusion. Where a teen is absent a long time from the country, after going from it with an intention of n turning, as if ' e go to sea and is not heard of in Hie course of six <>; seven years — i< is usual in such cases to take probate of his wiil. grant letters of administration upon his p'tan. &c. lie may he (bad. and yet in such cases it may he utterly' impossible to adduce any direct proof of bis death, as suppose the who'e crew' to be sKp-Wt -eked and drowned in die ocean, in (he present case, the owner has been absent upwards of thirty yews, ami no person claiming to be heir has appeared in all that lime — this also is presumptive evidence sufficiently strong upon which to infer the fact that there are no heirs. It is proper here to remark, lhat he was absent nine years or thereabout, from this country, before the commence-m> lit of the war ; and if a space of six or seven years will raise these presumptions, then prior to the year 1776, when tli> declaration of independence took place, he win (lead without heirs, and the land bad escheated to lend Granville, all whose proprietory rights came to this State by the State Constitution, in this view of the case it is opparént, that the State was entitle'! to the laud in question immediately upon the formation of the State Constitution, not as vacant lands, but as lands once appropriated, and of course never since subject to the. laws and regulations respecting unappropriated land; and though the State may have granted these lands in the year 1780, to the Defendants, yet that was a grant in which die State was deceived or more properly .speaking, a grant issued by the officers of government, w inch the;, were not empowered, by any lew to issue. The *.ffi-ccr* a¡e but the servants of the public, appointed for special ends, whose acts are only binding when within the limits nrespribed to them by raw — the grant is therefore void, it will be contended that die Defe-daut has b‘-en in possession ever since the year 1780, a space of more than seven years, and Ihis "mast be admitted — but does it not follow from tlienee that <he Jus possessions which the State liad, was barred?. Nullum tempus occur-rit populo, has been a good general rule, without exception tiil the act of 1791. c. 15. "From 1780 then, to the time of grant to the University in 1789, this act had not run ; and since 1789, when the title of the University accrued, until the commencement of this action, seven years have not elapsed. So that there is no bar, and as the. State grant of 1780, is void, there is nothing to binder the Plaintiff's recovery.</p> <p>it was argued, e contra, that the State grant of 1780,. was good, and had been so decided in a great number of cases, though granted for lands not strictly vacant within the. meaning of the entry laws ; for the State having once granted, shall not he permitted in ejectment, to say, nor shall any one claiming under the State he permitted to say, the grant issued erroneously, or fraudulently or surreptitiously, arid is therefore void.</p>

<p>Detinue for a slave. The plaintiff claimed title under a parol gift from Wall, whose daughter he had married. The proof of the gift was, that the slave had been sent to the plaintiff’s house by Wall.</p> <p>The defendant claimed title under a mortgage made by Wall to him prior to the gift; but the mortgage-deed was unattested. And the case was reserved upon the two questions: 1. Whether a subscribing witness was essential to the mortgage? 2 Whether a written conveyance was necessary from Wall to the plaintiff, under the circumstances above stated.</p> <p>The case was submitted.</p>

This was an action of trover brought to recover the value of two fifty dollar bank notes, one on the Bank of the United States, the other on the Farmers and Mechanics’ Bank of New-York, which the plaintiff alleged he had lost in October, 1812.

This action was brought (o ascertain the boundary of the Plaintiff’s land. The question depended upon the true termination of the last line but one in the patent, that being the point from width the last line was drawn to the beginning. The last line but one from the maple, south 60, east pole, to-a hickory standing on the point of of the island. The last line ran a certain course to the beginning.

The plaintiffs obtained a decree in the County Court of Wake, against the defendants as executors, for distributive, shares. The defendants prayed an appeal; which was allowed. The appeal bond sent up to the Superior Court, was executed by the plaintiffs. In the Superior Court, the plaintiffs moved for leave to withdraw the bond filed with the transcript; and that the appeal should be dismissed.

<p>To this bill answers were filed, to which a replication was entered. A reference to the master had been made at a former term, and a report made by him was submitted, on the cause being called. The defendants moved to dismiss the bill for want of prosecution; on which question the cause was referred to this Court.</p>

Detinue for a slave under the following circumstances: The plaintiffs, John Nichols and Jonathan Jacocks, obtained a joint judgment, by confession, against John Drew, the, former proprietor of the slave, at Bertie County Court, which, begun and was held on the Second Monday of November, 1810. The second Monday in the month was the 12th day of the month.

<p>When a person receives evidences of debt from his debtor for the purpose of collecting the money, and applying it to the credit of his deb'or, he is bound to the same degree of diligence, m attempting to procure payment, and in giving notice of non-payment, though such evidences of debt be not negotiable, as if they were n gotia-ble, and had tveen endorsed. Per Wii-mams, Judge. But per Hat-wood, Judge. The creditor would not be liable lor any loss in such case, unless the debtor could show that the loss hi.ppened by his, the creditor’s negligence.</p>

<p>Detinue for three negroes. Verdict for defendant, and motion for a new trial: Upon which a rule to shew cause was granted, and the case is ordered to be sent to the Supreme Court, to determine whether there shall be a new trial granted, or not, upon the following statement.</p> <p>The negroes in question were the children of negro Edna, who many years ago belonged to the plaintiff’s testator; but the defendant proved a verbal gift of her to himself by the testator about sixteen or seventeen years ago. It was proven by one witness that she continued, however, in the possession of the testator, and was employed by him as his own property until his death, which happened about the month of in the year , and during that time, she had the children now in controversy. Immediately after the testator’s death, the executors having taken an inventory of the estate, left the said negroes, with the other property of the deceased, in the care of the defendant, until a sale shouts take place, which soon afterwards happened, when the defendant refused to deliver up the said negroes, and claimed them as his own property, upon which this suit was brought to this Court at April term, 1813. It was proven also the trial, that on the day of the gift, the son, the donee, carried the slave home with him, and that she was afterwards backward and forward with the father and son, and that it was their practice for the one to assist the other in the crop, by the one who first finished, working with the other. And it was also proven, that all the children were born at the house of the father, and that he said, in allusion to the mother, “ that let the possession be where it would, the property was still in the son, and that the mother would have a fine brood for the son, provided the son took care of them.” The objection set up to the claim of the defendant, is a provision in the act of 1806, respecting parol gifts. In addition to the foregoing testimony, it was proven by another witness, that at different times, he saw the negroes in possession of old Drew, and never saw them in possession of any other person, and he never heard of any other title but the plaintiff’s testator’s.</p>

The declaration stated a count for money had and received to the use of the Plaintiff; another for money laid out and expended fop ttie use of the Defendant; another for goods, wares and merchandize sold and delivered ; and another special count as follows, to wit: And whereas also, the said Edmund f T-.-yior) was indebied to one John Henderson, in the sum of sixteen hundred and fifty I)0,in!*i5’ i'ie said Edmund, the «lay ami yeas' aforesaid, m the comity and district…

This was an action to recover the penalty given by act of Assembly for turning public roads; and on the trial, the plaintiff proved by the records of the County Court, that an order issued in 1799, for a jury to lay off a road from the Fishdam ford on the South fork of the Catawba, to the road leading from Lincolnton to the Island ford: That they returned, “ they had laid off a road from the South fork, crossing Clerk’s creek at the old bridge place, to the road leading from…

<p>The defendant was served with a sci. fa. to show cause why a fine nisi imposed on him for not obeying a subpœna, whereby he was summoned a witness for the plaintiff in a suit between him and Smith, should not be made absolute. No sum was stated in the sci. fa. Plea: Nul tiel record, and absent by consent of the plaintiff. The last plea, was negatived by the verdict of the jury; and in support of the issue to the Court the plaintiff produced a subpœna, on which was endorsed this return,—“ Executed. Edmond Prince, D. S."</p>

This case came up from the County Court of Wilkes, by Certiorari, to the last March term. No bond had been given to the Clerk of the County Court at the time of obtaining the certiorari. At the March term, when the writ and record were returned into this court, a motion was made in behalf of the plaintiff to dismiss the certiorari, for the want of a bond to prosecute it having been given by the defendant, at whose application it was obtained.

<p>This was an action on the case for words; in which the plaintiff charged in his declaration, that the defendant had spoken of him these words, to wit, “ He (meaning the plaintiff) one of our little Chowan justices of the peace, was taken up a few nights ago playing cards with negro Quomana, in a rookery box, and committed to jail, and remained there until next day nine or ten o'clock, and then was turned out, and split for the country." After a verdict for the plaintiff, it was moved, in arrest of judgment, that the words stated in the plaintiff's declaration are not actionable.</p>

The plaintiffs brought an action of ejectment against the defendants to March Term, 1815, of Beaufort County Court. At the same term the defendants employed counsel, who appeared and entered into the common rule, &c. but the defendants did not give bond for costs, as required by act of Assembly, before making defence.

The defendant was indicted for malicious mischief, in stabbing with a butcher’s knife, a mare the property of Young; but from the circumstances disclosed in the evidence, Henderson, J. before whom the cause was tried, was inclined to doubt whether the facts proved constituted the crime.

The bill states that the complainants are the children of John D. White, who died intestate. That administration on his estate was granted to the defendant and Jonathan Jacocks now dead. That the administrator sold all the personal estate of their intestate, and, among other things the negroes, which form the subject of this suit.

This was a writ of error to reverse a judgment of the County Court of Martin. The error assigned was, that judgment had been entered up against one defendant, in a joint action of assumpsit against two; that the jury found that one did assume, and the other did not. The case was submitted.

<p>On the 5th of June, 1717, Governor Eden, by and with the advice of the Lords Proprietors’ deputies, made a grant of a tract of land, lying on the south side of Morrahock (now Roanoake) River, to King Blount, for himself and the Tuscarora tribe of Indians.</p> <p>On the 13th Dec. 1775, Whitmill Tuff Dick, King of the said tribe of Indians, for himself and his nation, made a lease in writing under seal, of a part of the aforesaid tract, to Wm. King, for 99 years—the lease contains a covenant on the part of said Wm. King, his heirs, &c. to pay to the lessors, their heirs and successors, the yearly sum of during the continuance of the lease.</p> <p>King took possession of the land described in the lease, immediately after its execution—and he, and those who claim under him, have had the undisturbed possession of said land, from that time continually up to the bringing of this suit.</p> <p>In April, 1726, obtained a grant from the Lords Proprietors’ deputies for the same land mentioned in the lease from the Tuscaroras to Wm. King—and on the 21st of October, 1777, the said Wm. King obtained a conveyance in fee-simple for the same land, derived from the grant of 1726.</p> <p>Some of the Indians of the aforesaid tribe remained in actual possession of part of the land comprehended in the grant of 5th June, 1717, until June, 1803, when they finally removed from the said land to the state of New-York, leaving one of their tribe in the county of Martin (not on the lands granted to them) to attend to their concerns, receive their rents, &c.</p> <p>After their removal from the lands so granted on the 5th of June, 1717, in June, 1803 the defendants refused to pay the rent reserved by the lease. This action was brought on the covenant contained in the lease, to recover the rents in arrear. The defendants opposed the plaintiff’s claim for the rents, on the following grounds: 1. That by the act of 1748, c. 3, § 3, it is enacted, “ that it shall and may be lawful for any person or persons, that have formerly obtained any grant or grants, under the late Lords Proprietors, for any tracts or parcels of land within the aforesaid boundaries (meaning the boundaries of the land described in the grant to the Indians of the 5th June, 1717) upon the said Indians deserting or leaving said lands, to enter, occupy and enjoy the same, according to the tenor of their several grants, any thing herein to the contrary notwithstanding.” 2. That the Indians having removed themselves from the said land, the defendants claim the possession of that which they occupy, under the title derived from the grant of April, 1726, and not under the lease made to their ancestor by the Indians in Dec. 1775.</p> <p>The jury, under the charge of the Court, found for the plaintiffs, the amount due for the arrears of rent. A motion for a new trial was made for misdirection of the Court, which being overruled, the defendants appealed to this Court.</p>

This was an action on a promissory note brought in New-Hanover Superior Court, where a verdict was entered up for the plaintiffs subject to the opinion of this Court, on the following case agreed. The defendant pleaded, “fully administered, former, judgment, and no assets ultra, at August Sessions, 1811, of New-Hanover County Court, being the sessions at which the writ was returnable.

<p>Case, fot* an escape. The declaration stated that Las-siter was indebted to the Plaintiff i» a sum under twenty pounds — that he took out a warrant against Lassiter, the tenor whereof was inserted in the declaration, and w as expressed to be for a sum under twenty pounds — that Powell, the constable, received the warrant, arrested Lassiter, and suffered him to escape. The warrant, when produced, commanded tiie officer to summon Lassiter, to answer Luiterloh for a debt under twenty pounds.</p>

<p>Detinue for negroes, Tom, Jane and Jlnaky. The Plaintiff produced a bill of sale from his father, John Arnold, dated the 27th February, 1795, for Tom : and another bill of sale, dated tin* 25th December, 1794, for the two other negroes. The Defendant proved a purchase of these negroes at the, sale, of a'Sheriff, who sold them to satisfy an execution, issued for the State from Hillsboro’ Superior Court, April term, '794, for ;6900. He also produced a judgment rendered at October term, 1794, and an execution thereupon, returnable to April term, 1795, which was satisfied. The Plaintiff then proved an actual payment for Tom, of 100) on the day of the date of the bill of sale, and that this money was acquired by a sale of his cfwn property, and that it was applied by the father in payments to his creditors — part of it towards the discharge of the execution of Ü1100. As (o the other ne-groes, he proved that before the date of the bill of sale for them, be had advanced monies to (he father to pay his creditors, and that money was due from the father to him, for articles purchased for the old man, and delivered to him in the beginning of the year 1792, to the amount of ^80. The father bad not property enough to satisfy the execution for ¿6900.</p>

This suit is brought on a note of the defendant payable to Geo. M. Leach, M. J. Spaight, and Frances Leach (now the wife of R. B. Jones) of whom the said Frances is survivor. Hugh Jones, attorney in fact for R. B. Jones and wife, moves for leave to dismiss the suit.

This was a writ of a false judgment, for reversing/the judgment of a Justice of Peace given on a Warrant. The Plaintiff in this writ had issued a sci.fa.*U> the Defendant, to appear and oppose the reversal if he thought proper ; and now Mr. Potter moved, .that as the Defendant had not come in, and so remained undefended, that he might be permilted to enter judgment of reversal.

Detinue for negroes, brought against the intestate in his life time ; upon whose death, the Defendants, his representatives, were called in and made parties; and there was a verdict against them, subject to the opinion of the court upon this question, whether an action of detinue will lie against executors, for the detainer of their intestate, and now Gen. Davie for the Defendant, moved for leave to enter upon the argument, saying he had prepared himself for it.

<p>Debt on bond to which non est factum was pleaded. The subscribing witness to the bond, had soon after its execution purchased the right, but without endorsement; but in order to restore his competency as a witness, signed and sealed a release of all his right to Perry, the plaintiff, who, not being at Court, the release was deposited in the clerk’s office for, his use; and the witness was allowed to prove the execution of the bond. The defendant offered evidence of fraud in procuring the bond, practised on him by the plaintiff and the witness, which the Judge who tried the cause would not receive; on which a verdict was entered up for the plaintiff. On a motion for a new trial, the case was referred to this Court, on the points above stated.</p> <p>No argument was made in the case.</p>

<p>A verdict had been obtained at this term against the Defendant, and now, Mr. Potter fir tiie Plaintiff, moved that be might have execution «gainst tiie Defendant, he being about to remove himself immediately, out of the State. ■</p>

<p>Action upon a bond, for ninety-two pounds Virginia money, conditioned for the payment of forty-six pounds. Upon the back of the-bond there was an indorsement purporting that the forty six pounds should be dischargeable in tobacco, delivered at a certain placo. The Defendant objected to tiie Plaintiff’s recovery, upon tiie ground that this bond was not assignable by the act of 1786, c, 4, and he cited a decision at Fayetteville, in the case of Jamie-son, an assignee, v. Farr.</p>

Debt on bond entered into by Meilan, as administrator of Nathaniel W. Ruggles, otherwise called, Nathaniel Ruggles, and N. W. Ruggles. The breaches assigned were, not making and exhibiting an inventory within ninety days;—not truly administering and making a just account of his administration within two years. Pleas— condition performed, and plene administravit.

This suit had been brought hither from the County Court of Person, by way of appeal; the general issue had been pleaded, and after depending in that court for SOi,K, time, tie parties agreed to refer it to arbitrators : and it was' referred by a rule of court — the arbitrators met in the presence of the parties, and took the case into consideration, and made up their award.

This was an action upon a bond, with condition for the delivery of a specific article. The clerk bad issued the writ in covenant instead of debt, and now Mr. JYbrwood moved 'o be at liberty to amend the writ.

<p>„ The appellant applied in time to the clerk for the papers, but could not procure them. The papers were, however, brought up after the 151 h day before the Urm, and a motion was made to have them filed Upon the motion’s being opposed by the appellee, it was refused upon the ground that the party had his remedy against the clerk. It seems if there had been no remedy against the clerk, the papers might have been filed.</p>

In this case, it was moved by General Davie, that, the appeal should not be. received, títere nol being fifteen days between the filing of die appeal papers a;;:.’ the first day of ?■ e, next term, and lie cited 2 lil.

This was a bill in equity, the object of which was to exonerate the complainants from the payment of certain costs, and charge them upon the estate of Henry Norman, dec. which costs had been incurred from contesting the probate of the will of the said Henry, under the following circumstances. Henry Norman made a will, in which he appointed his wife Sarah, one of the complainants, together with two other persons, his executrix and executors.

The indictment stated, that Gatling sued Herndon, a constable, and others, for selling his cattle, upon an execution, ata different place from that advertised ; and that upon the trial of this action in the County Court, it was a materia! question, whether Gatling interrupted the constable, in driving the cattle to Gatling’s house to be sold and that the Defendant Bradley was introduced as a witness, and was sworn, and upon his oath deposed, that Gatling lid not interrupt…

This was a bill in equity for the specific conveyance of a tract of land, for which the bill charged that R. Irwin had, in his life-time, procured a grant to issue in his own name. The executors pleaded to the jurisdiction of the Court, that the lands lay in Tennessee, the Courts of which State could alone take cognizance of such a claim.

<p>Per Wit,mams, Jn.ig’o. A notice to fake a deposition ought to be served upon ihe person ot'ihe other party. IÍavwoud, Judge. Leaving the notice at the residence of the adverse party, is a sufficient service.</p>

A certiorari had been obtained for the removal of the records of a cause from a County Court into this court, returnable the term before last, and no notice of this cer-tiorari having been served on the adverse party, the court at the last term, ordered such notice to issue, and at this term no notice having been served, the Defendant in the certiorari, by Mr. Duffy his attorney, entered an appearance m the usual form, namely, by writing the initials of the attorney’s name…

<p>Indictment for extortion, on taking eight shillings for a guardian bond; and not guilty pleaded. On the trial the Defendant’s counsel insisted, that according to the •rate of fees, in the fee bill published by the Secretary, the •cleik is entitled for every order foreign to a cause in court, to two shillings ; and for every guardian bond six shillings : although in the. act from whence the extract is taken, he is entitled for every guardian bond including all services thereon, to six shillings only. The latter word ■ were omitted by the Secretary out of the rate of fees published by him, and as the clerk might have been misled by the rales published by public authority, it cannot be said he took the excess corruptly. Also, it was proven in this case, he, was advised by an old practitioner that he might demand eight shillings, before which advice he only took six. This proves him to have been mistaken in the fee allowed by law, and it shews the innocence of the mistake ; and if (he jury cannot say from the evidence they hear, that he did it extorsively, or with a corrupt or oppressive motive, they cannot pronounce him guilty.</p>

Detinue for five negroes. A special verdict was found, stating the proofs and circumstances at great length; but the following extract is all that is necessary to a thorough comprehension of the points in the cause.

General Davie presented a petition to this court, stating the imprisonment of Fairman at the suit of the Plaintiff for the space of twenty days, and prayed that he might be admitted to the oath of an insolvent debtor and discharged, and the court appointed a day for him to be brought up ; aud now on this day, being the last of the term, he was brought into court accordingly, and prayed by his counsel to be sworn and discharged.

This is an action on the case in the nature of deceit: and it is moved by the defendant’s counsel that he be permitted to plead the act of 1789 barring claims against the estates of deceased persons. He does not state that he was directed by his client to make this defence, but he does state that the defendant believing the defenece open to him, has attended with the evidence necessary to support it.

The question reserved in this case, was upon the sufficiency of a notice to take a deposition. The notice was to take the deposition on one of three days which were specified, viz. as days of the week and of the month, at a certain house in Putnam County, in the State of Georgia.

The defendant appealed from the County to the Superior Court, and executed an appeal bond, the condition of which was, “now if the said W. C. M‘Cormick do prosecute this said appeal with effect, then the above obligation to be void, otherwise to pay such costs and charges, as by law in such case is required.

<p>An account against the Plaintiff cannot bs given in evidence under tiie pie,i of payment. A retainer m-ty either he pleaded, or given in evidence, under the plea of plena administramt. An administrator is bound to pay debts already due, before those not yet pay-aide. An administrator cannot retain against debts of superior dignity. Vo-lu,Italy payments after the teste of the writ are not allowable ; they are certainty not if made after plea.</p>

Covenant, for certificates which Defendant borrowed, and agreed to return or pay for in money at the rate of 4 shillings in the. pound. Amongst other [ileus, the Defendant pleaded, that lie had been discharged of the action under the insolvent debtor’s act He- produced a petition selling forth his imprisonmonr al the suit of anoi'tw creditor, and praying the benefit of tbrt act, 1773, e„ 4.

<p>Property sold remaining in the possession of the vendor where there is an absolute bill of sale, is evidence of fraud: so is the not registering the bill of sale till long after it is made, coupled with an offer on the part of the' vendor to antedate.</p>

Mr. Hay produced several executions which had been delivered to ihe late Sheriff of Anson, who liad returned levied, and not sold for want of bidders. Also, several writs of venditioni exponas issued upon these returns, and stated that these latter writs were put into the hands of the late. Sheriff before his going out of office, and to the present Sheriff he had not pointed out any property which lie could sell according to the exigence of the writs.

This was a special verdict, in which the question was. stated to be, whether a. feme sole, against whom the act of limitations had begun to run, could by marrying, suspend the operation thereof, or whether it would rim on, notwithstanding the coverture.

Case upon assumpsit, for goods, wares and merchandize. sold and delivered; and the Plaintiffs proved their case sufficiently, and established a demand Jo (lie amount of £ S94. The Defendants lmd pleaded plene adminislra-oiL They proved effects came to his hands to the amount if £ 1,072.

This was an action upon the case, and the declaration. contained .a count upon a note of hand, a count for money lent, for vvork.and labor done, and the other usual counts..

The Plaintiff in this case liad obtained judgment against the Sheriff in an action in Ejectment in I in-. County of Cumbe'huid, and there was no coroner in the County to whom process could be- directed. Mr.

The Plaintiff was a person of colour, who claimed his freedom, and was detained in slavery by the Defendant. The Plaintiff and Defendant had agreed that an action should be instituted without process, and an issue made lip :n try the fact; ami some doubt now arising in regard to (he proper form of action, and of the issue to be made up. iney referred it to the court to direct the proper form of action and issue.

<p>The Plaintiff produced a notice of taking a deposition, purporting I hat the. deposition would be taken on a certain day iu Housertown, before Justices, naming them.. The caption of the deposition expressed that it was taken on that day at Housertown.</p>

<p>A person who has a chati cl in possession belonging to another, and exchanges it tor another article, acquires no property in the article taken m exchange, if the real owner thinks proper to approve of the transaction. Wlu-re the possession of a chattel does not follow the conveyance, it is ■ strong circumstance to show fraud, though it may be explained or rebutted.</p>

Indictment for (he murder of Nathaniel Danes, and not guilt} pleaded. The prisoner was brought 1o the bar to take his trial. Mr. Hay read a paragraph from ;« paper printed its this place, and circulated on Monday last, stating tilt' homicide committed by the pri-oner in terms of aggravation — and muted on that account for a post pon-, ntt sit of his trial, apprehending that the public mind was too much irritated at present, for die prisoner to have a fair trial.

<p>The act of 1779, Rev. ch. 1 St, sec. 2, respecting the appointment of Jurors, is only directory, and does not apply to Grand-Jurors.</p>

<p>In this case the question was, how the two terms .should be computed, within which, a complainant or an injunction bill, must proceed after the dissolution of his injunction, whether the present term not being yet ended, should be reckoned as one, this being the second, exclusive of that wherein the dissolution took place.</p>

This,.was a sd. fa. to revive a judgment, and payment pleaded : arid on trial of the Mue it appeared, that on the day when Hie judgment was obtained, it was assigned by Smith to Barkesdale — -that afterwards, execution issued and was put into the hands of the Sheriff, who returned, satisfied as to costs.

This was an appeal from the County Court, and upon a trial here this term, there was a verdict for the Plaintiff for as great a sum as there was in the County Court; and the Plaintiff'now moved by his counsel to enter up judgment against the sureties in tiie appeal bond, according to the act of 1785, c. 2, s. 2.

<p>Plea in abatement, that tiie Plaintiff’s demand is not of the value of fity pounds.</p> <p>.The act of 1-777, c. 2 s. 10, directs, that no suit shall be commenced in the Superior Court, of less value tbao fifty pounds, where the parties live in different districts; and if any person siiaii de-maud a greater sum than is due, on purpose to ev ade this act : or if anv suit shall be commenced contrary to the true meaning of this act, the Plaintiff in either case shall be nonsuit"d and pay costs. Provided that if the Plaintiff, or any person for him, will make an affidavit that the sum for which his suit shall be brought, is really due, but that for want of proof, or that the time limited for the recovery of my article bars a recovery, then, and in that case, fhe Plaintiff shall have a verdict and judgment for what appears to he legally proved, &e. The same clause is repeated and re-enacted in a subsequent act. passed lately. 'Pile pleader of the plea lias supposed, the court has no jurisdiction where the sum really dm* is of less value than fifty pounds, and has accordingly pleaded in abatement ; hut this is a mistake, as becomes evident if we only consider the consequences of a ¡ilea iff abatement, and how different the course of proceedings must be upon that from what the law intended. Suppose part of the. demand is barred by the act of limitations, how is the Defendant to take advantage of that circumstance, upon a plea in abatement, or how is the Plaintiff to know óf his intention to take advantage of it before the trial ? Is the Defendant to he permitted to plead a plea in abatesnestt, and to give the statute in evidence? Suppose he has a set. off reducing the sum below fifty pounds, is that to he a set off upon this plea in abatement without notice given ? If not, how is rhe sum really due to the. Plaintiff to be ascertained, if the verdict upon such a plea should find the sum really due to be less than fifty pounds, & the Plaintiff then makes the affidavit required by the act, will the court give judgment in chief upon such a finding? They cannot, for the jury upon issue joined on a plea in abatement, are not to assess damages but only when they find against the plea : in the case 1 have supposed, they would find for it. If is argued, a plea in abatement is most proper, because the. Plaintiff cannot be nonsuited after the finding of tiie jury. It is true, lie cannot voluntarily suffer a nonsuit in common cases, nor indeed can he in common cases, be nonsuited against bis consent; but if an act empowers the court to nonsuit him, whether he will or not, they may in that, particular case give judgment as in case of a nonsuit. This is only a critical objection — it does not meet the act. We are to form our judgment upon that, and its true meaning. It is plain from the cases I have before stated, the objects of the act cannot be attained by a plea in abatement.</p> <p>The court, gave judgment oí' respondáis ouster, and all costs up to the time of overruling the plea.</p>

Indictment for horse-stealing, upon which the evidence was — that the horse was missing, and about three days afterwards, two men came with the horse, and Long tied, to the house of the owner. Long confessed to the owner he had taken the horse, and begged forgiveness. The two men Who brought him were not present at the trial, and there was no other circumstance proved in the case.

This was a caveat. Upon the trial, the jury found for the party opposed to Mr. Cupples, which verdict was confirmed by the County Court $ before which time, Mr. Cupples, for his ward, had obtained a .grant from the Secretary's office$ and the verdict and proceedings of the County Court were moved into this court.

There was a ferry established by order of the County Court, on the ri\er near the court-house; and sometime afterwards, upon some complaint to the County Court, that the people of the county were often delayed on public days, for want of crafts and ferrymen, they made an order, permitting another person on the other side of the river, to keep a ferry at or near the same place ; and from this order, the former ferryman appealed.

Assumpsit, for goods, wares and merchandize, sold and delivered, &r. and upon the general issue phaded, the cause now came on to he tried. The PC it: tiff ottered a deposition taken in Maryland, which proved tin* entries in the Plaintiff*s hocks, to be in the hand-writing of a person who was a clerk of the Plaintiff’s at the time when the entries were made, and who at the time of the dcoosition taken was on a voyage to the West-Indies. — .

<p>This was a special case for the opinion of the court, in which the question proposed was, whether the act of limitations would run tgainst the Plaintiff when the Defendant was beyond se-.s. And Mr. Duffy brought, on another question, which was not on the record, but which as to its subject matter he said he could make out by proof 5 namely, whether a person called into court as garnishee, could plead tiie act of limitations for the principal Defendant, whos1' property was attached. For the latter point Mr. Daffy citvd 2 81. Rep. 762, to 764, and as to the first, he argued that by the Equity of the act, it ought not to run when a Defendant was beyond sea. Tiie reason why length of time is a bar at ail, is because of the presumption from thence, that the debt is satisfied, though the evidence of a discharge is lost — where such presumption cannot fairly arise, the act will not attach. It cannot fairly arise here, for the Defendant hath been absent ever since Hie accruing of tiie debt. We may even suppose from this record, the debt was not contracted in this country but beyond sea, where the Defendant resides; if so, perhaps the debt is not subject to our act of limitations at ali — certainly the act did not begin to run in this country, and if if did not, tiie being beyond sea is within the saving'of the act. Davie argued e contra.</p>

This was a sci.fa. to have, execution out of assets come to the It-uids of fhe Defendant since (his jndgme.it obtained og.inst him of assets in futuro. To thi< sci fa. (he Defendant pleaded anion ;st other things, :t former judgment.

This appeal was lodged with the clerk of the Superi- or Court on the 28th September — the term commenced on the 6th of October. After argument by Davie and Wil- ■ Hams.

<p>This wás a suit in Equity, and all matters in dispute had been referred to arbitrators, who made an award in favor of Complainant — who now moved for a decree according-to the terms of the submission. Williams, e contra — A decree cannot now be entered on the award, fot? it was only returned to this term. The Defendant is absent, has not been served with the award, and has had no opportunity to except. Davie was stopped by the court.</p>

This cause was now brought before the court, and they took time to consider of it, and to look into authorities,, and after a few days gave judgment...

Indictment for horse-stealing, and not guilty pleaded ; and upon trial, the evidence was — that the horse was lost ' in Wake county, on (he 10th, and was in Adams’ possession. sixt^. fiiiles from the place, on the l6*hof thernou h. There he sold him to one of the w ifnesses, and said he had purchased him a few days in-fore, near Edenton, distant from .henee about two hundred miles.

<p>Ejectment. The Plaintiff’s patent described the last line as running a course and distance, which led not to the beginning, but through the body of the land. And the Plaintiff’s attorney in drawing the declaration, foN lowing that description instead of saying, thence to the beginning ; so as to have included the land in dispute, which lay between the beginning point; and that which terminated the last line as described in the patent. Davie moved for a nonsuit, saying it was needless to go into the examination of testimony, since it was impossible for the Plaintiff to give any evidence respecting the land really in dispute, as it was not demanded in this declaration.</p>

<p>The caveator was settled'upon « tract of appropriated land for many years, and supposed the in-.a ,n disput" to be included within his boundaries, when in fact, it vis not. The possession is stood to have been upwards of tvv ily-one ytars. It was decid- d, ú if the caveator was not en i'C-.l by (he entry 1 -ws ■:'1777 and 1779, as not having claimed within tin timo ¡united by di - act — nor by the statute of limitations of 1715. winch applies only to claimants under patents — noryé' by til-■ ret oi'179., l miiing'die. claims of the State, as that act is hnttomed upon lie presumption of a former grant, and is not applicable to vacant lauds.</p>

<p>Mr. Norwood moved upon an affidavit filed, stating the „ evidence before the Justice of the Peace, and shewing his judgment to have been illegal, for a writ of reeordari, to bring Ihe proceedings into this court.</p>

<p>Debt upon bond. Pleas, general issue, notice of set off, payment at and after the day : and now upon the (rial it appeared on (he part of the Plaintiffs, that prior to the year 1778, Robert Hogg, now deceased, and Campbell, were partners in trade — that Hogg died, and in 1778, the Defendant being indebted to the firm of that company, gave the bond in question to Campbell, the survivor — that jn 1780, Campbell for valuable consideration, by deed assigned all bis share and interest in the partnership effects and debts, to James Hogg, the principal legatee in the will of Robert, and some time after joined the enemy, and was thereby rendered incapable of carrying on suits at law : and in 1786, tiie Legislature passed an act, taking notice. of the assignment, and of Campbell’s disability, and that it was injurious to the creditors, and vested ihe right <>f suing for the partnership debts in the executors of Robert Hogg, making them also liable to actions, on account of debts due from the partnership — in 1789, the Defendant recovered against Campbell ¿£500 for negroes of the Defendant, carried away by Campbell when he joined the enemy. The Plaintiff produced flic bond, the deed of assignment, and the act of Assembly, and there rested his case. The Defendant then offered the judgment recovered by him against, Campbell. as a set off; winch was objected to, by Williams, for the Plaintiff. He argued, that all uncertain damages, ail unliquidated demands which are sound ttt damages only, are in their nature incapable of being set off — only such demands for which debt, or indebitatus assumpsit, will lie, can be set off. One principal requisite to a debt in order to its being set off, is, that it should bo mutual. Cow. 56.— Iredell 172, and these debts are not mutual ; the judgment offered to be setoff, is obtained against Campbell, in jure propria, for a transad ¡on no ways relative to the partnership concerns, and which arose after the death of the other partner, and the consequent dissolution of the part-nersiiip ; whereas the debt sued for, is a debt contracted with toe partners as joint merchants. Mutuality of debts is so absolutely essential to a set off, that no instance can be produced, of a set off having been allowed, where the debt demanded is not due to tine same persons precisely as the. debt to be set off is due from. Even a debt due to a man in right of his wife, cannot be set off in an action against him for his own debt, Bull. 179, because not precisely mutual 5 the debt sued for being due from himself alone, and that offered to be set off to him and another— the reason of the rule is, lest the interests of third persons might be affemed. If the husband in i he case cited, is compelled to sue for the debt due in right of his wife, that debt would survive to her in case of his death before the recovery ; that reason extends to the case before us. Were this judgment allowed to beset off, the interest, of the representatives of the deceased partner who remained here, would he subjected to pay a judgtnc.nl recovered against Campbell, for a tort of his own. If one man receive rents for another after his death, by appointment in his lifetime, and then he sued by the executors, he cannot set off a debt due from the deceased, because the deceased never had any cause of action against him. Bull. 180. So here, the Defendant never had any cause of action against the Plaintiffs, and ought not to be allowed to set off the judgment against them. It is true indeed, that by tito deaiii of Robert Hogg, the remedy to recover the partnership debts survived to Campbell; but it was the remedy only that did so — (he interest of the deceased did not. It is a rule in lite law merchant, that jus accrescendi inter mercal ores locum non habet. 4 Term 123. 5 Bac. Ab. 580, 589. Thai interest which Robert Hogg had survived upon his death to his executors, though the right to recover them, and get them in from the partnersiiip debtors, survived to Campbell, who could not, by any 'transactions of his, onerate the share of his deceased partner with any other incumbrances than it was subject to at the time of his death. As to the share of Campbell, though that might have been liable had no assignment been made, yet seeing his share was assigned, and diat assignment confirmed by act of Assembly before the judgment against him, it passed to the assignee (being for valuable consideration) not subject in tiis hands, tu this demand ; and this set off is not proper to be allowed.,</p> <p>r-1, shall not deny the law as laid Dy Mr. Williams, that unliquidated damages cannot he set off; hut my answer to that part of his argument is, that the debt we off-r to set off, is not unliquida-ted, but reduced to a certainty by the judgment. It is needless to consider particularly, the cases adduced by Mr. Williams in support of this position, they are all of them cases of uncertain demands, and do not apply to the present case. If if be said, that before the judgment .the demand was for damages uncertain ; the answer is, whatever may have been the origin of a judgment, whether trespasser any other injury to be compensated in damages,' when .the damages are once ascertained by the verdict of a jury, and a judgment given for them, they become from thenceforward a debt, as much as if a bond .bad been given for them ; and may be sued for and recovered in an action of debt. Espin. Montel v. Strickland. And wherever the sum offered to he set off, is properly recoverable in an action of debt, it may be set off: every set off being in lieu of an anion. As to the mutuality of debts in order to a set off, that also is necessary -: but then as we are in a court nflaw, the legal interest is only to be conshh'red. The assignment at most, only vests an equitable interest in the assignee and that is such an one as diis court will not take notice of. The interest assigned in the hands of the assignee, is legally subject to all the. incumbranc'-s, it was -subject«to, or would have been subject to in the hands of the assignor, had the assignment not been made. The share of debts assigned, .is still legally considered as debts due to the assignor. — r TUd Campbell after the assignment, committed high trea-.soti, the debts assigned were subject to forfeiture. In phqrtp the assignment as to third persons, operates nothing — the ¡aw wiii not recognize it. Notwithstanding .the assignment, suits must still he brought in the name of Campbell; the law deeming it a mere nullity. The assignment therefore, so far as regards the legal interest of the parties, leaves them exactly in the same situation they were in before the assignment: and then a,judgment vecovctvd against Campbell, may be set off agaiost a debt to be recovered by himself; and laying aside the act ol Assembly, that is the present case. That act for the furtherance of justice, has vested the right of suing in the executors of the deceased partner; but still the debts when received, do in contemplation oflaw belong to Camp-hell. The executors are the representatives of the partnership by Legislative creation, and in the. place of the surviving partner acting for the partnership, and are subject to all such actions as the person in whose place they stood was; and of course to an action for this debt, and consequently to the set off offered ; which is no more than a cross action by the Defendant against the Plaintiff.— In this view' of the case, both the interest of Campbell, and Campbell himself, by his. representatives the executors, are now before the court. This is substantially and properly to be considered as the action of Campbell, to recover a debt the law deems due and payable to himself, both now and when recovered -, and therefore, the debt sued for, and that offered to be set off, are reciprocal and mutual debts within the meaning of our act of Assembly, and are perfectly clear of the objection endeavored to be raised by Mr. Williams for want of mutuality, it is not so universally true as is stated by Mr. Williams, that the debt to be set off, mast be a debt recoverable by the Defendant against the Plaintiff. Esp. 240. 1 Term 112* 115. I much doubt whether (he case cited from Duller 179, would be so adjudged at this day. It certainly could not llave been so adjudged to save the right of survivor-ship to the wife. 5 Term-493, proves that a debt due from a surviving partner, may be set off in an action brought by him for a'deb1 due to the partnership — there was not such precise mutuality as Mr. If'illiams contends for — that, was the very same case a-, this now before the court. In the present case,, the whole partnership interest is yet in Campbell the survivor, and the suit for his benefit ; at the, same time that the- debt sought to be set off, is reduced to certainty by a judgment against that very surviving partner. The assignment operates nothing, the act of Assembly appoints a substitute for Campbell, with respect to the remedy. It these two latter circumstances create no difference, as l think they do not, the present case is precisely similar to that, last cited, and ought to be governed by it; for as, to the origin of debt, that, is of no consequence whatever. ,3 Term Rep. 507. The law only requires mutuality of action', and certainty as to the amount of the debt to be set off. If this set off is not allowable, a general inconvenience will follow, for then a partner may coutract debts, commit trespass> and before a recovery can be bad against him, assign bis share to tiie legatees or executors of his deceased partner, and pul it out of the power of his creditors to obtain a farthing.</p> <p>3 Bac. Jib. 589, proves that the right of survivorship does not take, place amongst merchants ; and from thence it follows, that the share of Robert Mogg could not be affected by this judgment. And then surely it follows, that it cannot be affected by setting off this judgment against its debts. If the set off con-tendí d lor be allowed, it will defeat his interest or share of this d- bl ; and by the same reasoning, a surviving partner by bis misconduct, may destroy the. whole share of his deceased partners. This is incompatible with the rule, and cannot be law : a partner by contracting private debts, cannot affect the whole partnership. When there is a judgment against him, and execution issues, the Sheriff can only sell his share, so as to make the ven-dee a tenant in common with.the other partner. Salk. 392. If the whole cannot be affected by an action, neither can it by a ser off; and consequently a private debt as this is, cannot be set off against a partnership debt, when you cannot take from any part of it by a set off without affecting the interest of the other partner. He cited 4 Term 12.3. As to Campbell’s share,-admitting it to have been liable to this set off had no assignment been made, yet as it actually was made and confirmed before the recovery of this judgment, it is in the same situation as if it had been the transfer of an interest legally assignable ; such as a note of hand or the like, which clearly would be exempt from any after debt due from the assignor; and consequently no part of these effects and debts, neither the share of Campbell, nor of the deceased, can be a~ ny ways liable to this demand of the Defendants.</p> <p>Judge Haywood — In 1778, the bond was executed upon which Ibis action is founded ; in 1780, the surviving • partner assigned ail his interest in the, partnership effects; in Í786, th<‘ act of Assembly passed, and in 1789, the Defendant recovered this judgment which he now offers to set off. The best way of ascertaining whether a demand may be set off, is to consider in the first place whether it is such a demand in itself, and of its own nature, as may be set off — secondly, against whom it may be set off. A demand for unliquidated damages, cannot be set off: the Legislature never could iniend to introduce so much fusion, as that of trying actions of trover, trespass or the like, by way of set off in an action of debt. Had the Defendant’s demand been for damages, or any unliquidated sum, I should have been very clearly of opinion it could not he set off; but it is not for unliquidated damages — it is for a sum certain, reduced in trem judicatam, by the judgment. It is therefore in itself andtof its ow n nature, capable of being set off, whatever may have been-its origin ; and although before the judgment it might have sounded only in damages. The true question is, cart debt or indebitatus assumpsit, he brought upon the demand offered to he set off. If it mayr, then the sum is such au one as ma.y be. set off. Here, debt would lie upon the judgment, and therefore it is capable in itself of being set off. With regard to the party against whom it may be setoff, I take tiic distinction to he this — where the debt offered to be set off, is recoverable and payable out of the same fund, that the debt to be recovered in the action goes to increase, it may be set off. Where two Plaintiffs sue, and the sum offered to be set off can be recovered of one of them only, it cannot be set off; or where one sues, and the sum off-red to be set off is due from that one and another, it cannot be set off; because in either case, the two actions cannot be reduced- to one by a set off, without doing an injury to a third person, by subjecting him to the effects of an action, to which before the act of set offs, he would not have been subject.. The act did not. mean to-extend the action of tiie Defendant to a person not liable to it without the act; butonly to give him the effect of an action against the Plaintiff, to which the Plaintiff was liable without the act, but not subject to by way of set off. 'The law is so with respect to a partnership dealing ;Jhe Defendant cannot, by execution upon a judgment against one. partner in his private capacity, seize and sell the whole partnership effects : he can only sell the share of the partner against whom he has judgment, and the vendee becomes tenant in common with the other. If he cannot affect the other’s share by judgment and execution, surely he cannot do it by set off which is in lieu of an action, The'law is so stated Salk, and several other hooks, and this is the meaning of the casé cited by Mr, Williams, from Term Be. but all this goes upon the supposition, that the two partners.are alive, and both sue. The case is widely different where one dies, for then the survivor has all the partnership effects in jure proprio. He may release the debts, give away the effects, sell and dispose of them to whom he pleases.; he alone can take possession of all the effects. The executors of the deceased cannot object to ain disposition he may think proper to make ; they cannot lay claim to any particular article.; they cannot sue as \ miff ee or donee, and recover the effects. When an action is brought for the partnership debts and effects, he sues in jure proprio, naming himself by his proper name without the addition of surviving partner, and states his right in the declaration. The maxim cited by Mr. Williams, is a true one; but it is not tobe understood as he understands it; it means, that the interest and property of the deceased does not .cease as to him, and become vested in the survivor, as in the case of other joint tenants ; but that there survives to the representatives oi> the deceased, a right to demand'the deceased’s share of the clear balance that shall remain, after the debts due to and from the partnership shall be collected and paid by the survivor. Their claim is to an account, and for the balance in money ; not to any specific articles or debts of the partnership. The survivor is their debtor, and they, his creditors to the amount of the balance ; therefore when he sues a partnership debtor, he sues in jure proprio ; and that debtor, if he has a demand against him in his private rigid, may set it off: and that is the reason of the case in 5 Term 493. If Campbell were the Plaintiff here, and the assignment had not been made, this debt might be setoff. Then what effect has the assignment ? In this court, by the rules of the old common law, it has no effect. A chose in action cannot be assigned, it vests no legal interest in the assignee; but then (heart of Assembly comes in and legalizes the assignment, and gives it the effect of legally vesting the whole interest the assign- or had in the assignee ; and ttiat assignment having been prior to the Defendant’s recovery, exempts the effects in the' assignee’s hands from the after incumbrances of the assignor. From the time of this act, Campbell had neither an interest in, nor a remedy for this debt — he could not now sue for it were lie in the country, and if his interest has so completely departed from him, that he has no control over the debt, nor can institute nor release any suit for it, then he and his property is liable to the Defendant’s action, upon the judgment, and the Defendant is liable for the bond to the artion of other persons, whose recovery will go to increase the fund of the assignee, 'which is not liable to pa\ the debt due to (lie Defendant ; and consequently, the Plaintiff’s are not such persons against whom the Defendant’s demand can be set off.</p> <p>StoNE, Justice — i am of ihe same opinion with Judge . Haywood as to the principal point, that this set off ought not to be allowed.</p> <p>The opinion of the court proceeds entirely tapón the offeri of ¡he act of Assembly. I did not foresee this, and hope, i shall be indulged with another argument.1 1 can shew very clearly that tlie act has not the meaning given t.o it by the court.</p> <p>Per curiam — Let the case be specially stated — We will hear another argument. It was so stated, and afterwards at another day in the term, the cause was again argued.</p> <p>It was argued the. other day by the Plaintiff’s counsel, that where partners sue, a debt due from one of them only, cannot be set off. That is not denied, but it will not from thence follow that where the surviving partner sues, a debt due from him may not he set off. The law is, that il may. The court knows no right but his — lie is an.swerulre to the executors of the deceased for the debts due to the partnership — it is perfectly immaterial to them ¡u>\v lie. disposes of these debts— whether by discharging his own private debts or otherwise. In case, of a debt due from him in his private capacity, if he is sued for it, and execution issues, it will take hold of all the partnership effects, and they may be all sold to satisfy it. There is no moiety of his, distinct from that of the dead partners ; there is no longer any partnership existing. 3 Term493, is in point. The surviving partner may join a partnership action, and one in his own right, in the same writ J which proves both ac-i tions to he in jure prop rio, and therefore the law will allow a debt due from him to be, set off in such action_ The liability of the survivor to the executors of the deceased, is no argument against it; neither is if any hard- . ship (hat the partnership effects should be liable to the debts of private creditors, to the prejudice of partnership creditors, who it is said trust upon tin* credit of no particular fund, but from his personal credit generally. According to Mr. Williams’ own argument, a private creditor may sell a share of one partner, to satisfy his private dpbt j then why not the whole partnership effects, when concentered in the hands of the survivor. I* i« no hardship, for a debt due to tin partnership may be set off by the survivor, against a debt due from himself. I think it cannot be doubted, but that the surviving partner holds in jure proprio, and that ari execution for a debt slue from himself, may be levied on the whole partnership effects to satisfy it. As to the act of Assembly, it is in derogation of the common law, made'for a special purpose, to answer-the convenience of particular individuals, and ought to be construed strictly according to its literal meaning. — 5 Bacon’s Abridgement 650. 10 Modern 182. [Here he read the art of 1786, ch. 56 ] By (his act those persons who were the executors of Robert Hogg, are empowered to sue, naming themselves executors <-f Hogg but they do not sue as executors — they are put in the place of the .surviving partner, they represent him, they are-elt-abled to recover for the purpose of paying thf partnership debts, not for the purpose of paying over to the as-signee. They are, for ought that is contained to the cotv trary in this act. to pay the balance to such persons as by law are entitled to receive it, and that is the surviving partner — they can only recover in cases where he might, were he not disabled — and are subject as he would be, were the suit in his name.</p> <p>The reason of allowing a set off in the case of an action against the surviving partner is, because he may recover the partnership debt, and pay his own private debt with it; but if he sues, the court will not compel him to admit the set off of a debt due from himself in his private capacity. It is at his election when Defendant, to set off’ or not. He may dispose of the partnership debts in discharge of his own private debts if he thinks proper, but the law will not force him to do so. It will not compel him todo injustice by breaking the trust reposed in him by his partner at the time of commencing tiie partnership. He then cited 2 Vern, 293, 706. P. Wil. 182. 4 Term 123, !o shew that in cases of bankruptcy, ilie partnership debts shall be paid out of the partnership effects before the private debts of the partners. Partnership effects in the hands of a surviving partner, cannot be taken to satisfy a private debt by execution. A Court (if Equity would protect the share of the deceased partner, upon pi oper circumstances laid before it. The Defendant in the present case, had notice of the assignment by Campbell, and a payment made by him !<> Campbell afterwards, would not' have been allowed. The act of Assembly recognizes the assignment, and imparts to it a legal effect and operation. With respect to assignments in general, they arc protectable in a Court of Equity, and no payment made after notice of an assignment for valuable' consideration, shall defeat the interest of the assignee, 1 Salk. 79. 1 Atk. 294. 2 Bl. Re 269, 1137. 1 Term Re. 26. 4 Term 340.</p>

This was a hill filed by Mrs. Spiller, for alimony; and her counsel now moved, that so much of his property might be taken, as would probably equal the decree of the court, saying Mr. Spiller was wasting his property.

This was a bill to foreclose a mortgage. Cochran was mortgagor — he sold one. moiety of the premises to Huitt, and his partner, in fee — their title came by a Sheriff’s sale to Spiller. The mortgagee had a decree of foreclosure, unless before a certain day the money was paid.— That day was past, but no absolute decree of foreclosure yet entered.

Indictment for murder, and not guilty pleaded. Upon trial, if appeared the body was found near Wadcsborough; and as 'lie. deceased and Moore were seen together a tew days before, fh suspicions of the neighborhood fell upon ititn.

<p>John Craven, by his last will and testament, gave and bequeathed to James Turner, Nathaniel Macon, and John Hall, to the survivors of them and the executors of the survivor, immediately after his death, three of his slaves, viz. Prince, Hannah, and Grizzy, and their increase, in trust, to have them emancipated and set free by the laws of the State, in such manner and at such time, as they shall think fit. He also devised to his, said executors the half of Lot No. 223 in trust for the use of Hannah and Grizzy, and a quarter of an acre of land in trust for the use of Prince. To his sister Margeret Craven he left his town house, during her life-time, and the residue of the lot not before disposed of, together with a plantation and thirty slaves, and whatever else was not given away by the will. After sundry bequests, he gives and bequeaths, after the death of his sister, to his executors, the survivor of them and the executor of the survivor, twenty nine slaves and their increase, in trust, to have them set free by the laws of the State, in such time and in such manner as they may think proper—He gave also to his executors after the death of his sister, his plantation tools, and implements of agriculture, in trust for the use of such of the male slaves as were, at the date of the will, of the age of sixteen years or upwards, and for the females of all ages, to hold the same as naked trustees, for the use and benefit of the said negroes and their heirs for ever. The executors are empowered to bind out all the male negroes at sixteen years of age to different trades, until they attain the age of twenty-one, when they are to be emancipated: he directs his executors to sell his house and lot in town after the death of his sister, on a credit of five years, and the interest to be collected annually and applied to the use of Prince, Hannah, and Grizzy. He also gives to his executors eight acres of land in trust for Grizzy, and directs them to sell his furniture, or if necessary, his stock for the payment of his debts; and in the event of his sister dying before him, requires his will to be carried into immediate execution; his slaves to be lawfully liberated as soon as his executors can find it convenient to do so.</p> <p>The testator died and his sister Margaret was put into possession of the property, and by her last will and testament devised and bequeathed all her property to the complainants Stephen and Dallas Haywood; the former of whom, after the death of the testatrix, had the will proved, and was duly appointed administrator with the will annexed.—Prince and Hannah were emancipated by the County Court during the life time of Margaret Craven.—Grizzy died a slave.</p> <p>The Bill prays that the defendants may be decreed trustees for the benefit of the complainants, and compelled to deliver unto them the land and slaves, and account for the profits.</p> <p>To this Bill the executors demurred,</p> <p>No trust can result for the benefit of the heir at law or next of kin of John Craven, for if the devise is to an improper use, the Court will direct it to be applied to a proper one.—1 Salk 162—1 Coke, Porte's case, 25.</p> <p>The testator has signified most expressly his will that no benefit should devolve upon his heirs, beyond the provision he has made for them. The Court will substantially carry the will into execution, if it cannot be done literally, or in the form and manner directed by the testator. Where the substance of the will may be effectuated, the rule of this Court is to perform it cy pres.—2 Vern. 266</p> <p>It is a well settled rule in the British Court of Chancery that when a devise is to a superstitious use and made void by statute; or to a charity and made void by the statute of mortmain, then it shall belong to the heir at law or next of kin; but where it is in itself a charity, but the mode in which it is to be disposed of is such, that by law it cannot take effect, the officer of the crown is directed to specify the charitable manner in which it may be disposed of Ambler 228. So where the charitable object is uncertain.— Ibid. 712. A sum of money was devised for such charity as testator had by writing appointed, and no such writing being to be found, the King appointed the charity.—1 Vern 224. When the testator has empowered other persons to dispose of his estate, the heir at law is disinherited, as much as if he had disposed of it himself, and there can then be no resulting trust.—2 Atkyns 562.</p> <p>The Court will not decree in favour of the complainants unless such a course is clearly directed by law, for the trust being of the most humane and benevolent kind, is entitled to a construction of correspondent liberality. As the testator has sought for nothing to be done except in pursuance of the law, it is possible that the slaves may yet be empancipated by the Legislature; or the executors may procure their liberation by sending them to some other State. They ought to be allowed full time to make every proper effort to obey the will of their testator, and the discretion of the Court cannot be more wisely exercised than in holding up the bill till this is done.</p> <p>A Court of Equity puts the same construction upon trusts that a Court of Law does upon legal estates.—2 Burr. 1108. 9; It must follow the law and cannot adopt different rules for the transmission of estates.—2 Vesey, jr. 426. Where a case is sent to a Court of law for their opinion, it must be stripped of all appearance of trust, otherwise that court will not answer.—4 Vesey, jr. 788.</p> <p>Were this case so sent, it must be stated as a devise to Margaret Craven for life, and after her death, these slaves to themselves, and all the rest of the testator’s property to them too. But in every gift there must be a donor, a donee, and a thing given.—Plow. 63. The donee must have capacity to take or hold.—C. Lit. 2, 6. Where he has neither, the conveyance, of whatever sort it may be, is absolutely void. An alien may purchase lands but he cannot hold; by the civil law he can do neither, and a conveyance to him is void.—1 Bl. 371. It makes no difference whether the incapacity is created by the common law or by statute. The property must remain in the donor or devolve upon his heir at law of next of kin, whether the attempt to tranfer it is made at law, or by way of trust or will.—3 Atkyns 806. 2 Vesey, jr. 482. If then there is no person, who by the will, can take, the heir at law does; and trustees who are to have no profit cannot even present to a living.—2 Vesey, jr. 282.</p> <p>A slave is considered in law as a chattel and not as a person. He cannot maintain an action; he passes under a bequest of personal estate, and is levied upon and sold under a fieri facias to take the goods and chattels. To kill him wilfully and maliciously was only a trespass.—Act 1741, c. 24. It was declared to be murder by 1791, c. 4, and ousted, of clergy 1801, c.21 Even if the master sets him free, he shall be treated as a slave—1741, c. 21. The holding of property for him, whether by trust or otherwise, is illegal.—Conf. Rep. 353.</p> <p>By the common law, a monk professed can neither take nor hold—C. Lift. 36. He is considered as having once existed, but not as now existing except for special purposes. The case of property given or limited to a monk professed is exactly in point, only not so strong. An immediate estate given to a monk is void—Plow. 35. So of a devise—1 Str. 337. 2 Roll. 415.</p> <p>If a devisee is incapable of taking when the estate ought to vest, the devise is void.—Plow. 345. Cro. Eliz. 422. 9 Mod. 167, 181. 1 Str. 369. 1 Salk. 227. In the case of a descent, a person not in esse may take when he comes, in esse; but in the case of A purchase it is forever gone—1. Str. 378. The legislatures has not said that a devisee may take without being in esse, at the time the estate ought, to vest; but it has been said, and the Courts have held, that a child in ventre sa mere, shall be considered as in esse, and therefore may take as a purchaser. This decides the question as to all the negroes who had not been set free and enabled to take at the death of Margaret Craven, when the property ought to have vested in possession. But it may be said in reply, that this depends upon the rule of law that the freehold shall not be in abeyance, but that the inheritance may; and that although an immediate devise to a person incapable of taking shall be void, yet a remainder shall be good, if the person was capable of taking when the particular estate is determined, as Prince, and the others who were emancipated, were in the present case. This i true to a certain extent; but the remainder man must be in esse of in potentia propinqua.—Noy 123. Plow. 27. 2 Co. 51.—Here the devise of the negroes and lands are plain perpetuities; to the trustees it is in fee without the power of alienation. The trust is of the negroes and their increase until they are set free, which may not happen in 57 years, is equally so. The executors themselves are the persons who may set these negroes free—the county court only grants a license to do so, But while the executors hold this property, no one can call them to account; so that as they are bare trustees and cannot sell, it will remain in their hands as long as they please, unalienable. If such a trust is valid, it must be equally so when created by deed, and no doubt, it would become a common way of forming perpetuities. It cannot be imagined that the County Court would grant a license to set those negroes free; for it can only, be done for meritorious services. But some of them are very young, and many in contemplation, not yet born. It is equally improbable that the Legislature would do so contrary to the rule they have laid down for the Courts. To carry this trust into effect then, what is it but setting all these slaves free contrary to law? It is evident that the executors were not intended to he benefited by the labour of the slaves or the cultivation of the land; but the slaves themselves were have the whole. Now the devise of the whole profits of a thing, is both in law and equity a devise of the thing itself.</p> <p>The cases on charitable uses bear no analogy to the case before the Court. The objects to which such devises may be applied are enumerated in the statute 43 Eliz. and are all consistent with the policy and welfare of the country. But the object of this devise, so far from being compatible with the national policy, is absolutely forbidden by a variety of statutes.—Acts 1741, 1777, 1779, 1788.</p> <p>The rule applicable to this case is that wherever a conveyance is made on particular trusts, which by accident or otherwise cannot fake effect, a trust will result.—3 P. Wms. 20, 252—1 Bro. Ch. Rep. 508.</p> <p>The cases relied upon to show that there must be a donee capable of taking, relate to an immediate gift by deed. But the principle is different where trustees are appointed by will, who take for the benefit of the donee, and hold till his capacity arises. Thus in Porter's case 1 Co. The trustees held the land for the benefit of a corporation not then created. And if the contingency of emancipation is too remote, why was not the devise in the same case held void? for there two acts were to be done,—an act of incorporation to be procured, and a license to hold land obtained. Yet it was considered not to be too remote. There are cases where a charity was never created, yet the Court would not take the estate from the trustees against the intention of the testator.</p> <p>In 1 Bro. Ch. C. there was a devise for a Bishoprick in America, which it was contended there was no probability of being established, yet the Chancellor held the money in Court, and would not allow the executors to have it, and the money was held in Court for 60 years. In 2 Bro. Ch. C. 498, a demise was held up until a license to hold in mortmain could be obtained. The case in Ambler 571 is a devise in trust for a charity not in esses and before the trust could be executed it was necessary to obtain a license to purchase ground in mortmain, and also a charter of incorporation; yet the devise was supported. The contingency in this case must happen within the period established for executing devises, viz. a life or lives in being and 21 years afterwards, for the slaves to be benefited by it are all named in the will. When the question is as to the remoteness of an event, it is proper to consider the nature of the property bequeathed— 2 Fearnc 369. All the doctrine relative to this part of the case is fully discussed in 2 Call 319.</p> <p>The cases cited to prove that a trust results to the heir where the devise cannot take effect from accident, confine the rule to those instances in which the accident is such as renders it impossible to execute the will of the testator, as the death of the devisee or legatee, &c.; or to those where lands are devised for a particular purpose, that which remains after the purpose is satisfied results.</p> <p>It is not denied that trusts have the same construction with legal estates in Courts of Equity, but this position is too broadly laid down on the other side, and to be rightly understood, it must be received with some qualification. The intervention of trustees will not convert an estate for life into an estate of inheritance, it will not enable the testator to create a perpetuity, nor will it change the properties and incidents of an estate. The rule in its general bearing is confined, however, to trusts executed and not executory. In the latter sort a difference of construction is allowed in order to effectuate the intent of the testator. Cases Temp. Tal. 19.</p>

This suit had come from the County Court by appeal; which was taken for this cause, that after the suit had depended foe some time upon the general issue, the Defendant’s counsel moved to putin the plea of plene admin-istravit; which was opposed there, and now at the bar of this court, because if the plea could be now put in, the consequence would be, that a Defendant might, adminis- ' ter his assets after being served with process, and then come in and defeat the Plaintiff…

Trespass, quare clausum fregit; and a plea in abatement that she is an alien, and demurrer thereupon. After argument by Williams for the Defendant, and Hay for Plaintiff.

<p>If the Sheriff returns an escape'to a capias ad respondendum, he may be sued for the escape, and not be proceeded ai^ainst as bail.</p>

This was a special case, in which it was referred to the court to decide, whether or not an action on the case upon assumpsit, would lie for the use and occupation of , a house. The declaration stated the use and occupation, and a promise t.o pay. Mr. Hay cited 2 Cro. 596, 668, 684. Cro. El. 118, 859. Cro. C.414.

A writ issued against two upon their joint and several bond,and was returned,executed upon both. One pleaded in abatement, that the process was not served upon him in due time, and the writ was abated as to him ; and then SpiLler moved to have judgment against, the other.

The declaration stated an undertaking by two with a third) to. run a race with him, and to pay him if he won The evidence was, of a race made between one of the two and the third ; for performance whereof, the other of two became his. surety on I lie day of the race.

This ejectment was tried before Daniel, J. at Sampson Superior Court, where the following case was diclosed by the testimony. The plaintiff produced a grant to James Spiller from the State, dated in the month of October, in the year 1787, and deduced title regularly from the grantee. Neither the grantee, nor any person under him, has ever had any actual possession of the premises in dispute.

Action on fisc case, for money had and received to the Plaintiff’s use ; and the general issue pleaded; and upon the trial the evidence was: that Oram obtained a judg-meat against Bright, the father of the Plaintiff, v\here upon execution issued, and. the Defendant, as Sheriff, sold a tr act of land to the Plaintiff to satisfy it — that the Plaintiff afterwards instituted an ejectment to recover possession, and «there was a verdict and judgment against him ; the Defendant…

The premises in the plaintiff’s declaration mentioned, are parcel of a tract of 150 acres of land, granted by the State of North Carolina to one Patrick Boggan, on the 19th of October 1783. The same 150 acres were conveyed by said Boggan to one Thomas Wade, sen. on the 23d October 1784. The premises in the plaintiff’s declaration mentioned, were by said Thomas Wade, sen. conveyed to his son George Wade, by deed of gift, on the 26th August 1786.

Ejectment. And not guilty pleaded. On the trial, Toreman produced in evidence a State grant, dated the 51 st of October, 1782, to one James Lanair; and then deduced the title regularly to himself.

This is an action of debt upon an obligation given by the testator in his lifetime. The defendant pleaded ‘payment and set off, prior judgments, judgments confessed, no assets, no assets ultra, retainer, plene administravit in all its forms; on which pleas issue was joined. The jury now find a verdict for the plaintiff, on all the issues, subject to the opinion of the Court on the following case.

This was an action on the case for a nuisance, and overflowing the lands of the Plaintiff, by erecting a mill-dam ; and evider.ee was given of overflowing about thirty or forty acres of low land, which before the erection was usually overflowed at high water.

Ejectment, and not guilty pleaded — and the jury being sworn, the Defendant’s counsel disclosed, that the demise laid in the declaration was expired, and moved for a nonsuit; insisting that though the demise might be amended, if prayed before the jury are sworn, it could not be done afterwards.

<p>The Defendant pleaded in abatement, that there were other executors not named in the. writ.</p>

The Defendant had agreed to run his mare against a horse of the Plaintiff’s and to pay one thousand dollars if lie lost the race, or to pay four hundred dollars if he failed io run at the day and place appointed. His nv.ire became by accident lame before, and continued to^be so on the day of the race, and died in two days after.

<p>Assumpsit on the following letter written by the defendant, and addressed to the plaintiffs.</p> <p>Sir,——The bearer hereof, Mr. Henry Fleury, informs me, that he is about bargaining with you for the purchase of a new vessel and a cargo for her, also for a quantity of Indian corn. In case you and he should agree, I will guarantee any contract he may enter into with you for the same or any part thereof, and am,</p> <p>Sir, very respectfully, Your obedient servant.</p> <p>JOSIAH COLLINS</p> <p>Edenton, Nov. 2, 1803.</p> <p>The material facts in the case were, that in consequence of the above letter, the contract was made, and the vessel and cargo delivered to Fleury, who was to pay for them in three several installments; for which he executed three notes,— one payable 1st January 1805, one on the 15th June 1805, and one on the 15th June 1806. These notes being unpaid, Williams instituted suit against Fleury, on the 17th August 1807, returnable to September term of the same year. A verdict was found for the plaintiff at March term 1808, and an execution issued from that term which was returned at June term ‘nothing to be found;' an alias issued which was returned at September in the same manner.</p> <p>The writ in this suit issued the 9th October 1808, returnable to November of the same year, at Martin Superior Court.</p> <p>On the 15th January 1807, Fleury mortgaged to creditors in New-York, property which was sold on the 19th December 1809, for £1283 7.</p> <p>Fleury became entitled to property under the will of Vallett, which was found in December 1306, to the amount of £345. Fleury and Collins both lived in Edenton.</p> <p>The contract is, that the defendant will guarantee any contract which Fleury may enter into with the plaintiff. The defendant is therefore bound to the full extent that Fleury himself would have been. There is no analogy between a bill of exchange and a guaranty. In the latter, no notice is necessary. In Peil and others v. Tatlock, three years had elapsed before any notice was given; yet the plaintiff recovered—1 Bos. & Pull. 419. In Eddowes v. Neil, there was a lapse of nineteen years without notice.—4 Dallas 133. All the cases go to establish, that the guaranty, binds indefinitely; and that he who gives it is bound to take notice of the circumstances of the debtor, and to do the first act.—1 Binny 195. 8 East 243. 3 Cranch 490.</p> <p>Where a creditor has a right to look to two in succession, he is obliged to use due diligence against the first. This applies to all cases whatever, whether the liability has arisen from the endorsement of a bill of exchange, or from any other cause. With this difference, perhaps, that in the first case, the law merchant requires more vigilant diligence on account of the sudden changes of fortune to which mercantile men are liable.</p> <p>The endorser of a note is only a warranty thereof, that the drawer will pay it, and if he does not, that the indorser will.—1 Wils. 48.</p> <p>There is the same undertaking, or guaranty, on an unnegotiable instrument and due diligence, although perhaps not so strictly, is there also required.—2 Wils. 353.</p> <p>The law is precisely the same with regard to a letter of guaranty. The writer only warrants the solvency of the person in whose favour he writes; and if a loss happens owing to the want of diligence of the person written to, he must bear it.—8 East 242. If the warrantee might have Saved himself and did not, he can have no recourse on the warrantor. Justice and equity require, that the person benefited by the transaction should be first applied to, to pay for that benefit. And wherever the law makes it the duty of a man to do any thing, it requires of him due diligence in doing it.</p> <p>Fleury remained absent for two years after the first note became due; one year and seven months after the second; and seven months after the last became due; and the plaintiff took no step to recover the money from him until one year and two months after the last note had become due. Nor did he give the defendant any notice whatever, that the notes, or either of them, had not been paid. Surely, no one can pretend that the plaintiff used due diligence, or that the loss arising from Fleury’s insolvency was not owing to his neglect.</p> <p>Of the cases cited for the plaintiff, that of Peil & als. v. Tatlock, admits the doctrine contended for on behalf of the defendant. But the Court thought “there was no want of communication with the defendant.” They further thought that no loss had been sustained, which could by any means have been avoided. The case in 4 Dallas 133, also admits the doctrine. But the Court thought that, considering the war, the situation of the parties, and the other circumstances of the case, due diligence had been used.</p> <p>In the case cited from 1 Binney 195, the writer of the letter of guaranty promised to be accountable with the person in whose favour it was written. And the question now before the Court was never raised in that case. What weight will be allowed to the decisions of a Court where a cause can be discussed at great length and decided without even once glancing at the principal question arising from the facts, is not for me to say.</p> <p>entered into a particular examination and analysis of the cases before cited for the plaintiff, for the purpose of showing that the law relative to bills of exchange was in no respect applicable to letters of guaranty. As to the case cited for the defendant from 1 Wils. it was on a promissory note endorsed; and of course, subject to the rules which govern bills of exchange. The case from 2 Wils. was where the drawer of the order had effects in the hands of the drawee, and a demand and notice were consequently indispensable. The plaintiff here was under no obligation to concern himself about Fleury’s circumstances, who was not contracted with on his own credit, but on Collins’s. The latter, therefore, should have observed the transactions of Fleury, and apprised the plaintiff of any probable loss. Not having done so, he must be supposed to have approved of the moderate forbearance exercised by the plaintiff. It is a part of the case, that Collins and Fleury resided in the same town; the plaintiff lived in Martin county.</p>

This is an action of trespass quare clausum fregit, in which the jury found a verdict for the plaintiff subject to the opinion of the Court on the following point, to wit, whether a deed regularly executed, proved, and registered from Levi Blount, under whom the plaintiffs claim as heirs at law,—(which deed expresses that “ the said Levi Blount, as, well for and in consideration of the natural love and affection which he hath for and beareth unto the said Judith Whidbie, his…

<p>"Robert Hilliard departed this life intestate, some time prior to the year 1790, seised and possessed of a tract of land, lying in the county of Northampton, in fee simple. The said Robert left three daughters, his only children and heirs at law; to whom the aforesaid tract of land descended. The land was divided; and the part which fell to Martha is the land in dispute.</p> <p>“The lessors of the plaintiff are the other two children of Robert Hilliard the ancestor. Martha, one of the daughters, intermarried with Norfleet Harris, some time in the year 1790, and on the 25th December 1792, he, by deed, conveyed the land in dispute to Willam Bridgers, under whom the defendant claims. Martha, the wife of Norfleet Harris, was no party to that deed. Norfleet Harris had issue by his wife Martha, a son, Robert Hilliard Harris, the only issue of that marriage. Martha, the wife of Norfleet Harris, died some time in the year 1703. Norfleet Harris married a second wife and had issue by her Elizabeth and Richard, who are living. Then Robert H. Harris the son, died some time in the year 1799, under age, intestate, and without issue. Norfleet Harris, the father, died on the 22d October 1807.</p> <p>“The question submitted to the Supreme Court is, who are the heirs at law of the deceased son, Robert H. Harris? Are his half brother and sister on the part of his father ? Is the father? Or, are the plaintiffs, who are the aunts of the intestate son on the maternal side of the whole blood? If the latter, then Judgment to be entered for the plaintiffs for the land in the declaration. If otherwise, then Judgment for the defendant.”</p>

The jury find that Perry Fulsher, seised of the premises in fee, on the 2d of April 1796, executed the instrument of writing (a copy of which is annexed to this case); that at the time the said instrument was about to be written, the said Fulsher asked, whether it was better to make a will or deed ? and upon being told ‘ a deed,’ directed the paper referred to, to be written, and accordingly executed the same.

John Branch, being seised and possessed of a large real and personal estate, devised the same amongst his children, with the exception of his daughter Patience, as to the real estate, but to whom he bequeathed more than a full proportion of his personal property. Upon several of his children also he had made settlements in his life time of lands to a considerable value, but none upon his daughter Patience.

The special verdict in this case found that the testator, Robert Bignall, duly made his last will and testament on the 13th July 1809, and that at the time of his so doing, he was upwards of seventeen years old, but not of the age of eighteen; but was of sound discretion. The question reserved is, whether he was of sufficient age to make a will of personal property? and cited may authorities; amongst which were, Swinb. 115. Sheph. Touch. 433. Cooper's Justinian 493.

<p>Assumpsit against the defendant as indorser of a promissory note, made payable to him by Kittera and Musser, dated 25th August 1795, and payable a twelvemonth after date. The endorsement was in the following words, “pay the contents to W. Wistar, or his order, for value received, with recourse to me at any time hereafter, without further notice."</p> <p>The makers of the note were insolvent in 1797; but separate suits were brought against them in 1799, in which judgments were confessed; but nothing was made by the execution, which was returned in 1800. A demand was made on the defendant in 1815 ; after which this suit was brought. The pleas were ‘general issue’ and ‘statute of limitations.'</p> <p>For the plaintiff it was urged, that the terms of the endorsement gave the plaintiff a right to call upon the defendant, whenever thereafter he thought proper, without limitation as to time, or restriction as to the person’s performance of any act on his part. In an ordinary endorsement the plaintiff must have made a prompt demand upon the drawer, and in case of failure, have given notice to the defendant and after all this, must have brought his action within three years, if the defendant thought fit to plead the statute. But the doing of those things has been dispensed with by the defendant, who has also restrained himself from taking advantage of the statute. That in the most favourable construction for the defendant, the cause of action accrued only upon the demand; so that the suit being brought immediately after that, the statute has not attached.</p> <p>For the defendant it was insisted, that the statute must be presumed to be pleaded the right way, either non assumpsittres infra annos or actio non accrevit, as the case may require, or even both ways.</p> <p>Where the action accrues by the promise, the plea is non assumpsit infra, &c. Where it accrues by some collateral matter, e. g. “if you will board such a one, I will pay you,” it is actio non.—Esp. 156. If it be, as has been urged, that the action could be brought at any time hereafter, next moment or 100 years, the plea would be non assumpsit infra, and is certainly a bar. What is it but a promise to pay on demand ? If it was, that he might at any time hereafter have recourse, provided he could not get the money from the obligor, after using due diligence, the cause of action, if it accrued at all, accrued in 1798, as completely as when the writ was brought; and so the statute is a good bar still, but the plea is actio non accrevit. With respect to the maxim of quisquis potest &c. that signifies that the defendant is not obliged to plead them.—Gilb. L. E. 43. But if the statute is pleaded, then the law says the suit shall not be maintained, and the parties saying it may, signifies not.</p> <p>The Court will not under any circumstances assume jurisdiction, where it has none—4 Vesey jr. 790. 5 Ibid. 581. Nor can the agreement of parties oust the jurisdiction of the Court.—1 Wils. 129.</p>

The plaintiff declares, in an action of indibitatus assumpsit upon two counts, for money laid out and expended, and for work and labour done. To which the defendant pleaded ‘the general issue? The plaintiff was the owner of a sloop called the Farmer's Daughter.

This cause was tried before Daniel, J. at Cumberland Superior Court.

Detinue for a slave of which the defendant made a parol gift in 1801, to Sarah his daughter, one of the plaintiffs, who in December 1803, and when she was an infant, intermarried with Allen, the other plaintiff, who was of full age. The writ was sued out on the 12th September 1814, and the defendant pleaded the act against parol gifts of slaves.

This cause was tried before Daniel, J. at Sampson Superior Court, where the certiorari was dismissed; front which decision an appeal was taken to this Court. The affidavit made by Dyer, on which the certiorari was obtained, stated that he purchased from Rich, a certain slave for the price of $ 450; in payment of which he endorsed a note of Robeson’s to Rich, for $ 650, the latter paying the excess by a note, and some produce.

This is an action on the case in tort, to recover damages for the breach of a patent right. The defendant pleaded to the merits of the cause, and after the suit had been continued several terms, he died. A scire facias was served on David Mock, administrator of the property of the defendant, returnable to April term 1816; and he pleaded in abatement, that the defendant died on the 5th day of October 1814, and that no process was served on him until the 1st day of April 1816.

<p>The plaintiff claims title to the premises in the declaration, by virtue of a mortgage deed, dated 17th November 1797, from Samuel Purviance to Isaac Burkloe, to secure the payment of £ 170, payable 1st December 1799.</p> <p>The said Samuel was in possession of the mortgaged premises and sold the same to Lewis Johnston, the 5th July 1800, who entered into possession soon afterwards, and in two weeks after Purviance went out. Johnston sold to John Evans the devisor and husband of the defendant 18th of February 1804, who entered into possession in two or three days after Johnston went out, continued in possession, and died seised of the premises, and the defendant has continued in the actual possession ever since. There was no evidence that Johnston had notice of the mortgage before he purchased from Purviance, nor was a knowledge of the mortgage brought home to Evans before he purchased.</p> <p>But it was proved that Johnston knew of the mortgage before he sold to Evans, and complained of the injury done him by Purviance ; and it was proved that about the time Purviance was a candidate for Congress, it was universally spoken of to his disadvantage, that he sold land to Johnston which was mortgaged ; and Johnston himself spoke of it as a dishonest act in him. It was also proved, that Evans lived a near neighbour to Johnston and was intimate with him, and the opinion of the witness was, that Evans must have heard that the land was mortgaged. The whole of these purchases were for a full and valuable consideration.</p> <p>Philemon Hodges proved, that in 1803 or 1804, he was desirous to purchase the land, but had heard of the mortgage and went to Burkloe and asked him if he had a mortgage for it, who answered that he had, but that it was nearly paid up, and for him not to stop purchasing on that account, for that he should not be disturbed. He proved that Burkloe died in 1807 or 1808.</p> <p>Jackson proved, that near about the time Johnston sold, he heard Burkloe say to him he had received satisfaction for the mortgage, and that he might sell, he should never be disturbed. The same witness swore that on the trial of this cause in the County Court, David Evans, (then a witness, but now dead) swore, that about one or two months before Evans, the devisor, his father, purchased the land from Johnston, Burkloe told him he had received satisfaction for the mortgage.</p> <p>George Evans, another son of the devisor of the defendant, swore that Burkloe told him the day before his father purchased the land, that he had no mortgage for it, and he searched the Register’s office for a mortgage, but could find none. The mortgage produced, was not registered until after the commencement of the suit.</p> <p>The jury found a verdict for the defendant. And on motion for a new trial, the same is ordered to the Supreme Court, on the following questions.</p> <p>1st. In a case like the present, is there such an adverse possession as upon which the statute will attach?</p> <p>2d. The estate once forfeited and become absolute at law, is it a good defence in ejectment by the mortgage to offer parol evidence of the payment of the mortgage under the act of Assembly, or such evidence as is here offered?</p>

<p>cited Crown Circ. Comp. 307 1 Hawk. 368. Acts 1786, c. 18, § 4. 1715, c. 36, 2, 1784, c. 14. 1786, c. 18. Private Acts 205. 2 Hayw. 228. 1 Hayw. 243.</p> <p>cited Private Acts 1783, c. 25, § 7. Crown Cir. Comp. 548 Doug. 797. 2 Coke's Inst. 701.</p>

This cause was tried before Daniel, J. at Robeson Superior Court. It was an action of assumpsit. There were two counts in the declaration. One on an agreement reduced to writing by the parties; the other for goods sold and delivered. The plaintiff failed to produce the agreement declared on, and moved to give parol evidence of its contents, offering to prove by his own oath that the agreement was lost. The Court would not permit him to prove the loss by his oath.

<p>in equity.</p> <p>Joseph Deaton, being seised of a tract of land, agreed to sell it to one William Smith, who gave his bond to Deaton for the purchase money, and Deaton gave his bond to Smith to make him a deed for the land. No time was mentioned in the bond within which the deed was to be made.</p> <p>When Smith’s bond became due, Deaton brought suit on it, and Smith brought suit against Deaton upon his bond to make title. Deaton recovered a judgment against Smith, and Smith was non-suited in his suit against Deaton.</p> <p>Soon after Smith sued Deaton, Deaton tendered him a deed for the land, which he refused to accept. Deaton placed this deed in the hands of his attorney in the suit, and returned to the Mississippi, where he resided.</p> <p>An execution was sued out at the instance of Deaton on his judgment against Smith, and no personal property being found, the execution was levied upon Smith’s equitable estate in the said tract of land, which was sold by the sheriff and purchased by James Gaines, for a sum much less than the judgment and costs. Gaines at the time of the purchase had full notice of all the preceding facts, and of the further fact that Smith was insolvent, and had no property out of which the residue of Deaton’s debt could be made. Some time after the sale of the land by the sheriff, and at the Court at which Smith was nonsuited, Deaton’s attorney handed to Gaines the deed aforesaid, but not by the direction of Deaton or with his knowledge.</p> <p>It is submitted to the Court, whether Gaines is bound to pay the residue of the debt, or to surrender his purchase upon his receiving back the money he has paid with interest?</p>

This bill was filed against the defendants Malcolm Monroe, Pleasant Wicker, and John M'Lennon; all of whom, with the complainant, were co sureties for one Nathaniel Williams, to Thomas Stokes, since deceased, in a penal bond conditioned to pay £ 93 7 6, with interest. Stokes afterwards recovered judgment and execution on the said bond against the said Nathaniel, the principal, and the complainant and the defendants, the sureties.

<p>The question in this case arose upon the admissibility of the deposition of C. Marshall, under the following circumstances. Marshall was an original defendant in this bill in equity, in which it was charged that certain deeds were delivered to him a sa trustee to be re-delivered to P. Hawkins, deceased, upon his request, which he made in his lifetime, but Marshall refused to redeliver them. The bill contained a prayer for the delivery up of the deeds, which it appeared had been delivered up to P. Hawkins, jun. the defendant’s son, after the death of P. Hawkins, deceased, to whom the promise had been made. The deeds were annexed to the answer of Marshall, and they were proved and recorded, and his answer submitted it to the Court to do with them what might be just. The deposition of Marshall had been taken, subject to all just exceptions, and the object of it was to show that he was a subscribing witness to the deed, that they were delivered unconditionally, and that he kept possession of them during the lifetime of P. Hawkins, deceased, with his consent and approbation.</p> <p>Marshall afterwards died, and the suit has not been revived against his representatives.</p> <p>Upon several issues submitted to the jury, they found that Marshall was requested by P. Hawkins, deceased, of his own will, to re-deliver the deeds, which he unjustifiably refused to do.</p> <p>The grounds assumed in favour of the deposition were, that when Marshall attested these deeds, the defendant acquired an interest in his testimony, of which he could not afterwards be deprived without his own act. That any subsequent interest of Marshall’s cannot render him incompetent. That the interest must exist at the time the fact happened which the witness is to prove, or be thrown upon him by operation of law, or the act of the party calling him. If a witness were allowed to disqualify himself, or if the adverse party could deprive the party calling him, of the benefit of his testimony, the utmost injustice would ensue.—Bent v. Baker, 3 Term. Rep. 27. It was further urged that Marshall was a mere formal party, having no interest in the cause; and the suit being now in progress without being revived against his representatives, shows the light in which the plaintiff made him a party to the bill.—2 Atk. 229. 2 Vesey 220.</p> <p>Against the deposition it was urged, that persons interested are excluded from giving testimony.—Gilb. Law Ev. 121, 2. Also those who are stigmatized.—Ib. 142.</p> <p>If an instrumentary witness after subscribing becomes interested as executor or administrator of the obligee, his hand-writing may be proved as if he was dead.—1 Str. 34. 1 P. Wms. 289. So if such witness afterwards becomes infamous.—2 Str. 833.</p> <p>If an instrumentary witness is interested at the time of subscribing, and at the trial, he cannot be a witness; nor can his hand-writing be proved.—5 T. R. 371. Esp. N. P. 258.</p> <p>It is charged in the bill, and also found by the jury on the trial of the issues, that the deed for the re-delivery or setting aside of which this bill was brought against Charles Marshall and P. Hawkins, jun. was delivered to the said C. Marshall, on trust to re-deliver it to P. Hawkins, sen. if he should require him so to do; and also that the said P. Hawkins, sen. did require the said C. Marshall to re-deliver the said deed to him, P. Hawkins, sen. which he the said C. Marshall refused to do, and in breach of his trust, delivered it to P. Hawkins, jun. the other defendant. Under such circumstances, the deposition of C. Marshall, taken while the bill was pending against him, cannot be read in evidence; because he was, at least, liable to costs. 3 Atk. 401. Barrett v. Gore and Umfreville in point. Nay, if P. Hawkins, jun. should be unable to compensate the injury sustained, C. Marshall would be decreed to do so.—3 Bro. Ch. Rep. 112. 1 Vesey, jr. 206.</p> <p>The witness C. Marshall was placed in this situation with the consent of the other defendant, P. Hawkins, jun. who received the deed from him, and now wishes to use his testimony in exculpation of them both. He hath poisoned the source, and now insists that we shall drink of the stream.</p> <p>The dicta that “ if, after the event, the witness become interested by his own act, without the interference or consent of the party by whom he is called, such subsequent interest will not render him incompetent, Peake's Ev. 157, 8, and if they be law, do not apply to this case. This doctrine is mentioned in Bent v. Baker; but that case was not decided on it; and Lord Kenyon calls it a minor point. It is not easy to imagine a case to be decided upon this distinction. In Allen v. Hearn, 1 T. R. 56, a wager between two voters was held to be void, as having a tendency to induce bribery and corruption at elections. And ought not a wager, or any other contract or transaction by which a witness attempts to gain an interest concerning a suit in which he is to give testimony, to be also void, as having a tendency to induce perjury?</p> <p>If a witness is convicted of perjury, or otherwise becomes infamous, the party loses his testimony, however material it may be: and why shall he not, if the witness becomes interested? Interest disqualifies from giving testimony as completely as infamy.</p>

Defendant offered, and was permitted to read in evidence the deposition of a Mr. Hardy.

This was an indictment against the defendant as the overseer of a road, charging the said road to have been out of repair. The defendant had pleaded ‘ not guilty.’ Evidence of the defendant’s having acted as overseer, was offered on the part of the State. It was objected, that no evidence other than the record of his appointment, was admissible to charge the defendant as overseer. A juror was withdraw by order of the Court and without the consent of the defendant.

This was an indictment against the defendant, who is Register of Lenoir County, for taking a greater fee for copying a deed than the law allows. Upon ‘not guilty’ being pleaded, the jury found that the defendant took more than his legal fee, but that he did not take it corruptly. A motion was made in behalf of the defendant, that the verdict be entered up as one of acquittal; and a motion was made on the part of the State, for a venire facias de novo.

This was an action of trespass quare clausum fregit. The plea ‘liberum tenementum. 'The dispute is altogether as to the boundaries of two tracts of land. The declarations of a man by the name of Wingate, who lived on the land upwards of twenty years ago, and who was the tenant and son-in-law of the person under whom the defendant claims, were offered in evidence by the plaintiff and admitted by the Court.

This was an application, on the part of the defendant, under the following cirumstances. At the sessions of the County Court of Rowan, when the verdict was taken against the defendant, he prayed an appeal, which was granted; and his attorney prepared an appeal bond, and requested the clerk of the County Court to send it or take it up with the other papers, who promised to do so.

<p>Detinue for two mulatto children born of a negro woman slave, and reputed to be the children of Allen, who in his lifetime conveyed some property to each of them, and on the back of the deed, expressed a desire that they should be emancipated. After the death of Allen, administration with the will annexed was granted to the plaintiff, and the Legislature, without his consent, passed an act emancipating the children sued for.</p>