Volume 20 — North Carolina Reports

E. L. &. W. Winsuow obtained a judgment in the Superior Court of Cumberland against John Anderson, on which they issued a capias ad satisfaciendum, tested on the 6'th Monday after the 4th Monday of March 1836, and returnable to the next term of the Court to be-held on the 7th Monday after the 4th Monday of September 1836 : those being the days on which., the spring and autumn terms of that court respectively begin.

<p>This was an action.of debt upon the bond executed by the defendants upon the appointment of the defendants, Sally Peoples and Reuben Folger, administrators with the will annexed of Harbert Peoples. The breach assigned was the non-payment of a legacy to the relator. The defendants pleaded conditions 'performed and not broken.</p> <p>Upon reading the bond on the trial, which took place at Guilford on the last circuit, before his Honor Judge Pearson, the conditions were as follows:</p> <p>“ The condition of the above obligation is such that if the above bounden Sally Peoples and Reuben Folger administrators, with the will annexed of all and singular the goods and chattels, rights and credits of Harbert Peoples deceased, do make or cause to be made a true and perfect inventory of all and singular the goods and chattels, rights and credits of the said deceased, which have or shall come to the hands, possession or knowledge of the said Sally Peoples and Reuben Folger, or into the hands and possession ot any person or persons for them, and the same so made do exhibit or cause to be exhibited to the county court, where orders for administration passed within ninety days after the date of these presents ; and the same goods, chattels and credits, and all other the goods, chattels and credits of the said deceased at the time of his death, or which at any time after shall come to "the hands or possession of the said Sally Peoples and Reuben Folger, or into the hands or possession of any other person or persons for them, do well ánd truly administer according to law ; and further do make or cause to be made a true and just account of their said administration, within two years after the date of these presents ;' and all the rest and residue of the said goods, chattels and credits which shall be found remaining upon the said administrators’ account, the same being first examined and allowed by the County Court, shall deliver and pay to such person or persons respectively as the same shall be due unto, pursuant to the true intent and meaning of the acts of the General Assembly in such cases made and provided. And it appears to us that a last will and testament was made by the deceased, and the executor or executors therein named, did exhibit the same into court, making request to have it allowed and approved accordingly ; but renouncing the right of execu-torship, administration with the will annexed' is granted to Sally Peoples and Reuben Folger above named, approbation of such testament being first had and made in the said Court, then- this obligation to be void and of none effect, or else to remain in full force and virtue.”</p> <p>His Honor being of opinion that the conditions of the bond did not provide for the payment of legacies, the plaintiff submitted a judgment of non-suit and appealed.</p>

<p>A scire facias to repeal a patent under the act of 1798, is to some purposes a proceeding in rem, but when issued at the instance of a private individual it is essentially an action of inter partes and a judgment therein vacating the patent will only bind those who are parties or privies.</p> <p>A proceeding m rem which pérsons'is jj°gfi"0ed t0 ceedings of « Sercis-jurisdiction bles U to"1" Q^thTna-a.n<1 a particular matter of a public na- and m-terest, in-privafepar-</p>

Ejectment for two Iots in the town of Hamptonville in the county of Surry, tried at Surry on the last circuit before his Honor Judge Settle. The lessors of the plaintiff claimedjitle under the will of Henry Hampton, Senior, made in the year 1831, devising to them his Home plantation.

<p>As patenta or grants from the state are recorded in the office of the Secretary of State, copies of of them obtained from that office, may be given in evidence without accounting for the originals, by all persons except the patentees or grantees themselves, or those claiming under them who would be entitled to the possession of the? originals.</p>

<p>Thb defendant, at the Spring term 1838 of the Superior Court of Sampson, before his Honor Judge Dick, was convicted of an assault and battery, and thereupon was sentenced to pay a fine of twenty dollars, and it appearing to the Coui't that he was a free person of colour, and unable to pay the said fine, it was further ordered and adjudged by the said Court, that the Sheriff of the County of Sampson should hire out the defendant to any person who would pay the said fine for his services for the shortest space of time. From this judgment the defendant appealed to the Supreme Court,</p>

<p>This was an action of Assumpsit to which the defendant pleaded a set off, 1st before and at the commencement of the suit, and 2ndly in bar of the fitrther prosecution of the suit..</p> <p>On the trial at. Chowan on the last circuit, before his Honor Judge Settle, the defendant admitted that he was indebted to the plaintiffs in the sum of $>310,63 unless he was entitled to a set off upon the following facts. The plaintiffs were indebted to one William Bullock and one- Thomas Gregory by negotiable notes, before the. commencement of this suit in a .larger sum than the amount of the plaintiffs’ claim. On the 8th day of May 1837 the plaintiffs called upon an attorney to issue a writ against the defendant, returnable to the next ensuing August Term of the County Court. The attorney on that day filled up the writ and left directions for it to be given to the plaintiffs if they should call for it. — The writ however was not delivered to the sheriff until the 21st of July following, whén it was executed .and returned to August Term of the County Court of Chow-an. The notes due from the plaintiffs to Bullock and Gregory were endorsed to the defendant on the 8th day of July 1837, for valuable consideration. The plaintiffs, the attorney and the sheriff all resided in the town of Edenton.</p> <p>Upon these facts his Honor being of opinion that the' defendánt was not entitled to a set off for the notes, gave judgment for the plaintiffs: from which the defendant appealed.</p> <p>contended in support of the first plea, that the time of issuing the writ was when it was delivered to the sheriff, and referred to the 1 Rev. Stat. c. 31 sec. 43, and the cases of Atkinson v. Clarke, 3 Dev. Rep. 171 and Palmer v. Clarke, 2 lb. 354. Upon the second plea they referred to Babington on set off 82.</p> <p>insisted that the plea of set oil' must be true when the suit is commenced, and cited Evans v. Pross'er, 3 Term Rep. 186 — Rogers v. Ladbrooke, 8 Erig. Com. Law Rep. 280 — Jefferson County Bank v. Chapman, 19 John. Rep. 322 — Haston vJRishop, 3 Wendell, 13 — Brathwaitev. Coleman, 2 Sand.on P. and E. 3Ed. 790 — Boy den v. Odeneal, 1 Dev. 171.</p>

<p>This was an action of trespass vi et armis brought by the plaintiff to try the question whether the defendant had a right to hold her as a slave. Before his Honor Judge Dick, at New Hanover on the last circuit, it was admitted that the plaintiff was once the slave of the defendant, but she alleged that the defendant in November 1809 procured her mother and herself then one or two years old, to be emancipated by the county court of NewTIanover, and in support of this allegation she produced in evidence a copy of the record of that court in the following words. Upon the petition of ■ George W. B. Burgwin, Ordered that a female negro slave by the name of Marian and her child called Caroline, the property of said petitioner be emancipated and set free from slavery — the said George giving bond, &c.</p> <p>The plaintiff proved by the clerk of the county court who was in office in 1809, and had continued so ever since, except during the years 1832 and 1833, that he had no recollection of ever having seen in his office any petition in writing, upon which the above order was made, and that after the most diligent search he had been unable to find one.</p> <p>The plaintiff proved further by several witnesses that they had known her from eight to twenty years, and had always considered her as a free woman.</p> <p>The defendant then proved by the sheriff of New Hanover that in the year 1820 he saw the plaintiff, then- about twelve years old, in the possession of the defendant, that he levied an execution against the defendant, then in his hands on her, and sold her at the house of the defendant, when one John R. London became the purchaser at a fair and price ; that- he afterwards saw the plaintiff in the possession of the defendant several times, at his residence eight miles from Wilmington, and that he never heard that she was free, or pretended to be so, until about the time when this suit was brought. — This witness also proved that some time after the sale to London, as before stated, she was levied ppon by some person as the property of the defendant, when London interfered and claimed her as his property upon which she was released. This declaration of London was objected to by the plaintiff, but was admitted by the court. The defendant proved further by a witness that in the year 1833 the witness was requested by the mother of the plaintiff to become her security to the defendant for the hire of her daughter, the plaintiff, that he became surety as requested, and afterwards paid the money to the defendant. This evidence was also objected to by the plaintiff but was admitted by the court.</p> <p>His Honor, in charging the jury, told them that it was incumbent on the plaintiff to show that she had been emancipated in the manner prescribed by law; that she must show that the defendant had filed his petition in writing alleging . meritorious services on the part of the plaintiff, and expressing a wish to emancipate her; that it was further necessary for her to show that the court had adjudged that she had performed meritorious services, and had given license to the defendant to emancipate her; that the law would then presume that she Was emancipated. His Honor further told the jury that there .was no evidence that any written petition had been filed by the defendant, and consequently 710 evidence of its contents: neither was there any evidence that the County Court of New Hanover had passed any judgment that the plaintiff had performed meritorious services : that the court was not bound to presume from what appeared on the record of the County court, that a written petition was filed by the defendant expressing a wish then to emancipate the plaintiff; now that the county court had adjudged that the plaintiff had performed meritorious services, particularly as it appeared in evidence that she was not more than one or two years old when the record was made, and could not have performed such meritorious services as ^le law required. The jury found a verdict for the defendant, and the plaintiff appealed. a x 1</p>

<p>Where an execution upon a justice’s judgment is levied upon land, and returned to the County Court under the act of 1794, (l Rev. stat. c. 62 sec. 19) it is essential to the validity of the order, which the court is authorised to make, to sell the land levied on, that the land should be particularly described ; and a levy generally upon the defendants “ lands,,” without further specification or description, will not support such order, nor the sale made under it.</p> <p>When an execution upon a justices judgment is levied upon land and returned to. the county court, and it appears that the defendant has not had five days notice in writing, as required by the act of 1828, (I Rev. Stat. c. 45 sec. 19). the court'has no power to order a sale of the land levied upon, and any such order will be entirely null, unless the defendant appears and waives notice.</p> <p>When a justices execution has been levied upon land and returned to the County Court, the plaintiff may apply to court and have a judgment there rendered in his behalf for the sum recovered before the justice and costs, under the af. 1822 (1 Rev. stat. c.,45 sec. 8 and 9) and it seems that a venditioni may issue upon such! judgment to sell the land levied upon, with a special/i. fa to levy generally for any unsatisfied balance of such judgment, but the power of the court to render such judgment and issue a ft. fa. thereon, depends upon the fact whether a levy sufficiently special has been made, and also whether the defendant has had five days no'tiee in writing before court, or has waived it, and if no such judgment has been rendered a writ to the sheriff commanding him to sell the land levied on, cannot have the effect of a ji.fa,.</p>

<p>A “credible witness” to prove a nuncupative will under the 15th section of the act of 1784 (1 Rev. stat. c. 122 sec. 2,) means one who is competent according to the rules of the common law ; and if he be incompetent from interest, such incompelency may be removed by a release.</p> <p>A party cannot, by refusing his assent to a release or surrender tendered by a witness on the other side, exclude his testimony. The depositing the release in the clerk’s office will be sufficient to enable the witness to testify.</p> <p>. The ease of . Allison Aiúsmi proved,</p> <p>The ease of p™y ZCarLavr Repos. 458, approved.</p>

<p>It is a general rule that a tenant shall never be permitted to controvert or raise objections to his landlord’s title; and this rule extends to all parties claiming under the lessor or lessee, so that the lessee’s assignee or under-tenant cannot object to the title of the lessor or his assignee any more than the lessee himself could.</p> <p>The ais-betwee^i an assign-of^unde*-peeans|sde" soieIy up-quantity of passes,and not upon premises red. when thffessee of a house years de-another*for of his term it is not ’ lease!' but mentólo-tanto.</p> <p>Where a his deed, 3ÜST tinder or through-him are equally hound by' the estop-pel.</p>

Detinue for a negro slave by the name of Enoch, tried at Carteret on the last circuit before his Honor, Judge ■Saunders, when the jury returned a verdict for the plaintiff, subject to the opinion of the Court, upon the following facts.

The defendant was indicted together with three other persons at Guilford, on the last circuit before his Honor Judge Pearson, for that they with force and arms-in the County of Guilford unlawfully, riotously and routously, did assemble and gather together to disturb the peace of the State; and being then and there assembled and gathered together, the dwelling house of one Benjamin Curry, a free man of colour, there situated, and then and there in the actual possession of the…

This was an action of Trespass on the Case brought to recover of the defendant damages for the seduction of the plaintiff’s daughter. — Plea—not guilty.

This was a Petition filed in the county court of’Martin at its October Term 1835, by the next of kin of John Pearce against the administrator with his will annexed, and his legatees praying for a reprobate of that will.

This was an action of ejectment brought by the lessors, of the plaintiff to recover one hundred acres of land. On the trial at Montgomery, on the last circuit before his Honor Judge Dick, the lessors of the plaintiff produced, in support of their title, a grant from the State to one Barnabas Dunn, dated the 11th day of May, 1795, for ten thousand two hundred and forty acres of land, lying in Montgomery county, and then deduced title regularly from Dunn to themselves.

<p>This was an action of ejectment, tried at Perquimons on the last circuit before his Honor Judge Bailey.</p> <p>The lessor of the plaintiff deduced title as follows: In the year 1772, one Joseph Sutton devised the land in controversy to his son Benjamin Sutton, who died intestate, leaving Granberry Sutton his heir at law. Granberry Sutton died in year I'?9''** after making his will, in which he devised the land to the lessor of the plaintiff who was his daughter. The Suttons had possessed and cultivated the land for many years. The defendant objected to the lessor of the plaintiff’s recovery on this evidence, as no grant from the State for the land had been exhibited. Whereupon she produced in evidence a deed for the said land from her deceased husband, Jesse Ives, and herself to one James Leigh, under whom the defendant claimed, in which deed there was the following recital, “ it being a part of the land formerly Granberry Sutton’s deed, and fell to the said Martha H. Ives, by heir-ship from her father, the said Granberry Sutton.” This deed, the lessor of the plaintiff contended was void as to her, for want of her private examination thereto, though as she alleged it conveyed the interest of her husband in the land, and the recital therein estopped the defendant from denying her title under her father Granberry Sutton. The only evidence of the acknowledgment and probate of the said deed as to the lessor of the plaintiff was-the foil owing certificates, endorsed upon the deed — to writ:</p> <p>“ Peru. Co. Court, 1 This deed of sale, Jesse Ives and Feb. Term, 1820. ( wife to James Leigh, was duly acknowledged in open Court and ordered to be registered; at the same time Thomas Long and James Sumner, Esq’rs, were appointed to take the private examination of Martha Ives, wife of said Jesse, separate and apart from her said husband, touching her signature to the said deed, and report accordingly. ' Test. John Wood, Cl’k.”</p> <p>“ Pursuant to the commission to us directed, we the undersigned have proceeded to examine Martha H. Ives, as touching her signature to the within deed, and on examination she says she signed the within deed of sale freely and voluntarily, and without any fear or constraint of her said husband or any other person.</p> <p>Given under our hands and seals this 15th day of February, 1820. . Tho. Long, (Seal.)</p> <p>James Sumner. (Seal.)</p> <p>It was proved on the part of the defendant that the 15th day of February, 1820, was during the session of the County Court of Perquimons, at the February Term of that year.</p> <p>Under the instructions of his Honor, the jury returned a verdict for the lessor of the plaintiff, and the defendant appealed.</p>

This was an action of Debt brought in the County Court of Halifax upon a bond executed by the defendant's testator. — Pleas—payment, fully administered and no assets.

<p>Where two persona "purchase jointly from the same vendor, and enter into possession of a tract of land as tenants in common, and itfter a common possession of several years, execute an agreement under their hands and seals, in which they acknowledge that they hold the land as tenants in common, it cannot be permitted to either of them, or to any other person claiming under either of them, until the rights thereby acknowledged shall be divested or changed, to set that possession up as hostile to the title of his co-tenant. And in such case if one of the tenants in common convey by deed the whole land to another person, and recite in the deed that he, the vendor, had title to the whole, and the purchaser is ignorant of the tenancy in common, it will not prevent the rule of law from attaching. The estoppel applies to the purchaser by reason of his privity with and under his vendor, not because of personal ill faith.</p> <p>A deed for the whole land made by one tenant in common to a third person, is color of title, under which a possession by the purchaser for a sufficient leij^th of time would divest the title of his co-tenant.</p> <p>An agreement made by two persons in possession of a tract of land under a joint purchase in which they acknowledged under their hands and seals that they were tenants in common of all the lands which they had purchased from their said vendor, estops both of them from denying that their vendor had title to the land, and also estops each from averring any antecedent , matter to show that the other had no title.</p> <p>Execution includes_ ancT when o/Vdéed as a fact execution was. jj>rov-that such was^offer-tablfshed its delivery cíe!”*ifi?" Sepro duction of tlietleeai) one of the with testimony of long Sñder £it°£ cir_ cumstanee the°prima</p> <p>Where an ^-Tmade Pur-pose of set-tiing all controversies between them, and in which they ac-knowledg-ed among other things that íhnLTf L tenants m common of allthelands th^had purchased from C, a memorandum endorsed on the agreement by the parties that it was not to extend to the suit of D’s heirs and'cf E’ “ and A, attofney01 heirs)”1 understood to except operation grcement' the ac-^ common111 in the said land between A, though the heirs°fo?'S whom A, wasfof the game land.</p>

<p>A bond which imposes upon an officer nothing but wthat the law requires, cannot be objected to, because it docs not contain all that the law prescribes. Hence a bond executed by a constable which stipulated that he should1’ well and faithfully execute the office of constable during his continuance in said office, agreeably to an act of Assembly &c.” was held to be good as an official bond under the act of 1818, (1 Rev. stat. c. 24, sec. 7.) Prescribing the duties of constables.</p> <p>In an action upon a constable’s bond for failing to pay over money collected by him, it is necessary to prove a demand upon him, or to shew such misapplication of the money received, or such misconduct on his part as established unfaithfulness in accounting with, and paying over to the relator what he is entitled to receive.</p> <p>The cases of Rhodes v. Vaughn, 2 Hawks. 162. Williams v. Yarborough, 2 Dev. 14, and Poller v. Slurges, 1 Dev. 7 , approved.</p> <p>When sheriff re-execution “ Fieri fa-cí 35 and retains the money he' is immediately liable to the plaintiff’s action as for money had and received, or for a breach of his official bond*.</p>

Debt commenced by a warrant upon a bond purporting to be for 12 50-100 dollars — Plea—non est factum — Replication taking issue. The defence was thatn.he bond had been originally given for 7 50-100 dollars, and had afterwards been altered by a stranger, to the sum of 12 50-100 dollars. This was denied by the plaintiff, and he also contended that if the bond had been so altered, he had a right to recover the sum for which it was originally given.

This was an action of trover for a negro slave, named joe tried at Davie on the last circuit before his Honor Judge . SETTLE.

This was a Scire Facias reciting a recovery by the plaintiff in an action of detinue brought by him against one James W. Jeffries for a slave, and the possession of the same slave by the defendant under a purchase made pending the f°raier suk, and praying execution against the defendant. The case was submitted to Nash, Judge, at Burke, on the last circuit upon the following facts.

This was an action of ejectment brought by the lessor of the plaintiff to recover a parcel of land lying between the dotted line B, C, D, E, and the river as represented on the annexed diagram: North. South.

<p>To prove the execution of a bond, the testimony of an attesting witness, or if there be none, of the hand writing of the obligee is the ordinary mode; but this is not exclusive of other modes; as where one whose name purported to be signed to a bond procures tne custody of it and erases his name, the execution of it by him, may be inferred from this spoliation.</p>

This was an action of assumpsit brought by the plaintiff to recover from the defendant the price of a negro slave alleged to have been sold and * delivered. Plea — non assum,psit.

r .upon a bond executed by the defendant as the surety of William B. Green, on his taking out letters of administration upon the estate of Benjamin Caswell.’ After Oyer and plea, the usual order of reference to take the administration accounts of Green was made, and upon .the report, of the commissioner the following facts ap'peared.

This was an action of trespass qua re clausum fregit, brought originally by William Dobbs, but during the pen-.dency of the suit he died, and the present plaintiff, “the widow and devisee-under the last will and testament of William Dobbs, came into Court, and became party plaintiff.” On the trial at Anson before his Honor Judge Nash, on the last circuit, the plaintiff exhibited a clear title to the tract of land on which the trespass was committed, but she had no other…

Trespass yx et armis for taking from the plaintiff sundry articles of personal property. The pleas of not guilty, and a special justification under process, were entered upon the appearance docket in the usual manner, by a mere memorandum.

This was an action of Assumpsit upon a promissory nóte made jiy Bathsheba Farmer, the intestate of the defendant, payable to John Farmer the intestate of the plaintiff. The only question upon the trial was whether the plaintiff had a right to recover interest according to the face of the note, or whether it was to be computed from the death of the maker — and upon that the following facts were stated in the form of a case agreed.

This was a scire vacias to revive a judgment, to which the defendant pleaded “ payment.” It appeared upon the trial at Moore on the last circuit, before his Honor Judge Nash, that the judgment, to revive which this scire facias was brought, was confessed by the defendant at the August Term, 1819, of Moore County Court, to the feme plaintiff, who4hen was, and still continued the wife of the other plaintiff.

Debt upon a single bond. Pleas — Payment and a set-off. On the trial before Pearson, Judge, at Nash, on the last circuit, the defendant to support his pleas, proved that the bond was given for a balance due by him as former guardian, to one Sarah G. Atkinson, which was composed, in-part, of sundry evidences of debt left in the hands of the defendant, under an agreement in writing, whereby the plaintiff bouud himself to credit the amount of these debts upon the bond, in case…

Detinue for a negro slave named Eli — plea non-detinet, upon which issue wa joined, and the cause tried at Beaufort on the last circuit before his Honor Judge Toomer.

Debt upon a bond executed by the defendants as the surities of Boyd Fonville, for the faithful discharge of his duties as sheriff of Onslow. The breach assigned was that Fonville had not paid over to the wardens of the poor the parish taxes for the year 1831.

Debt against the endorser of a promissory note under seal. The declaration stated merely the making, of the note, the endorsement thereof by the defendant, and that by reason oft he said endorsement, and by force of the statutes in such cases made and provided, the defendant became liable to , , pay the money specified m said note.

This was an action of detinue for ten slaves, tried at Caswell on the last circuit before his Honor Judge Pearson. On the trial much testimony was introduced and many questions were raised, which it is unnecessary to state.

This was an action of Assumpsit brought to recover of thejdefendant as endprser, the amount of two notes. Pleas.— The general issue and payment. Upon the trial at Davie on the • last circuit, before his Honor Judge Bailey, the defendant objected that he had not received notice of nonpayment before the 'suit was brought, but the objection was overruled.

At the last Term of the Seperior Court for the county of New Hanover, before his Honor Judge Dick, the plaintiffs by their attorney, without any notice to the defendant moved for a judgment against him which was granted, and an entry thereof made in the following words, viz:— “ On motion of W. A. W, attorney for the plaintiffs, and it appearing to the satisfaction of the Court, that the defendant is a stockholder in the Wilmington and Raleigh Rail Road Company, and that…

This was an action of Assumpsit, for work and labor -done by the plaintiff for the defendants’ intestate, commenced by warrant, and carried by successive appeals to the Superior Court, where it was tried at Montgomery on the last circuit, before his Honor, Judge Dick — Plea—a set-off.

This was an action of Assumpsit brought by the plaintiff against the defendant to charge him as executor de son tort of one David Davis. The defendant pleaded ne unques executor, and the cause was tried on this issue at Pasquotank, on the last circuit before his Honor, Judge Settle. The plaintiff proved his debt against Davis, and his insolvency.

This was an action of Debt brought by the administrator of the assignee of a negotiable bond against the makers and endorser.

r> The plaintiffs filed their Petition against the defendant as the -administrator of Thomas Kaywood senior, alleging that they were the next of kin of his intestate, and praying for distribution. They stated that they^Psre the legitimate children of Stephen Kaywood, who was a brother of the intestate Thomas, and who died before the said Thomas.

<p>Afdeed of bargain and sale for land, made in trust to secure the payment of money borrowed upon an usurious agreement, is an “ assurance for the payment of money ” denounced by the statute against usury, and is absolutely void; and a sale by the trustee to one purchasing even without notice of the usury, will convey no title to the purchaser.</p> <p>A requisition by the lender of the borrower, as a condition of a loan, that the borrower shall take up notes held by the lender on an insolvent man would per se be usury in law: and if the securing the doubtful debt formed any part of the lender’s inducement, it raises a suspicion of an agreement for more than lawful interest upon the money lent, which calls for an explanation on the part of the lender. But if the doubtful notes would be good in the hands of the borrower, or if the maker of them had requested the borrower to take them up and he had agreed to do so, or if the lender bona fide believed the facts to be as here supposed, then in truth he did not intend to take a higher profit upon the sum loaned than-lawful interest, and the agreement would not be usurious.</p> <p>. monre-Courtsíf1 noúce° not trusts. they do not pose ofPadminister-for* tiiiserYs the peculiar function of Courts of Equity. But ail Courts must notice the le' gislative expressed, and therefore de.ny validity to vvIlT/br'iat deniesaJe-gal eids-tence.</p> <p>terfalTow the illegal manifest-er’by-way covenant0' or collatorment ftife' thaUUegal purpose is ascertain-penalty of taches'to*" the de' nouneed transaction.</p> <p>instrument whatever, claiming to operate the^assent p^there-" which-bTL-fawCfor’at feoffments, feases? al-formgtexí cutecl c°u-tracts, may be averred been^exe-as or securi-usuriouifa-,avermeat being establish-micha-aS ag bonds, noles"^’ °the.r oon" cñtory in aré the pleabof usury,</p> <p>a contract nj^_ cause the pleading [[¡at'the matcer.by whereof jenfecPto3 should be brought legitimo the'court,</p> <p>The inabil-borrower to recover from the lender, tually paid ¡Jsuíijus result from Jact being voidable • void, if it able6only, mem, he^ the con-^oauc¿ a” ^ recover the usurious excess, cenamiy may- Th.e contract is absolutely apparent*16 ^ed„“r right to a bmhe^-™aiea'vlth con-keep what ^,anss™ence due to him ? anc* if the bor-l°Juntarl ¿|¿ait^en volenti non m^una-</p> <p>chaserPUr" from the . , , , required rower to join with m the then lie' have made title direct-thebor-a°new'aiuf contract with him, contract ü-oiifiíle0 gality, his it would validl,eSn</p> <p>be fide, the™0 siding by 'and.en-couragmg the sale, or l^pce prac-uponStheUd purchaser, com* of* compelled6 t¡ tie passed, °f thecon-yeyance to being to usurious1 equity is to remedy chiet'8" •</p>

<p>This was a Scire Facias, to subject the defendant’s own goods to the payment of a judgment obtained against him for a debt of his intestate. No pleas were put in by the •defendant; but certain facts agreed were submitted to his Honor Judge Settle, at Macon, on the last Fall circuit. The facts were as follows : —An execution issued upon the judgment obtained as above stated, directed to the Sheriff of Buncombe County, commanding him to make the sum luen-tioned in said judgment, of the goods and chattels of Daniel Blake deceased, in the hands of his administrator Arthur Blake. There were no goods and chattels of the intestate in the hands of the administrator on which the execution could be levied, but the proceeds of the goods and chattels of the intestate sold by the administrator were then in his hands. A few days previous to the return day of the execution, and while the fieri facias was in the hands of the sheriff, the administrator paid to the plaintiff the amount of the debt, the administrator agreeing to pay all costs. This payment was unknown to the sheriff at the time he returned the execution. The return was, that there was no property to be found subject to the execution. Upon these facts it was submitted to the court whether the sheriff of Buncombe was entitled to commissions upon the money paid by the defendant to the plaintiff. His Honor decided that the sheriff was not entitled to commissions; whereupon, the transcript stated there was a judgment for the defendant, from which an appeal was prayed and granted.</p>

<p>' This was an action of Assumpsit in which the plaintiff declared upon a special agreement for the exchange of slaves. On the trial at Sampson, on the last circuit, before his Honor Judge Dick,, the proof was as follows: — The defendant being the owner of a slave by the name of Squire, wrote a letter to the plaintiff proposing to exchange Squire with him for either one of two slaves belonging to the plaintiff, by the names of Sam and Balaanc, if the plaintiff would carry one of said slaves to the defendant at Hillsborough. The plaintiff immediately agreed to the proposition, and sent an agent with the slave Sam, and also a bill of sale for him to the defendant, and a letter informing the defendant that he, (the plaintiff) accepted the offer made. The agent on his way met with the defendant in Raleigh, and -handed him the plaintiff’s letter, and at the same time tendered to him; the slave Sam, with the bill of sale, and offered to liver Sam either at Raleigh or Hillsborough, and receive in exchange the slave Squire, according to the agreement. The defendant then refused to take Sam, and.declared that he would not receive him at any place, nor would he deliver Squire. Upon this evidence the Judge directed a nonsuit, on the ground that the plaintiff had misconceived his action- — that he ought to have brought either trover or detinue: whereupon the plaintiff appealed.</p>

<p>The prisoner was arraigned on the following indictment , in the Superior Court of Craven.</p> <p>“ The jurors for the State upon their oath present, that Jesse,' a slave, being a person of colour, late of the county of Craven, the property of Sarah Green, of the said county, on &c., with force and arms at &c., in and upon B. W. in the peace of God and the State, then and there being, did violently and feloniously make ari assault, and her the said B. W. then and there did beat, wound and illtreat, with intent unlawfully, forcibly and feloniously to commit a rape upon the body of her the said B. W. being a white female, and with intent, her the said B. W. violently, forcibly and against her will then and there feloniously to ravish and carnally know; and other wrongs to the said B. W. then and there did, to tile great damage of the said B. W., contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”</p> <p>To this indictment the prisoner pleaded “ autre fois acquit,” and also pleaded over to the felony, “not guilty,” and issue was joined upon both pleas.</p> <p>The first plea set out the record of a former indictment against the prisoner in the same court, containing two counts; the first charged the prisoner with a felonious assault on B. W. and feloniously committing a rape. It described him as a slave the property of Sarah Green, but it did not otherwise describe him as a “ person of colour,” nor did it describe B. W. as a white female. The second count was for an assault with intent to commit a rape on B. W., and in all respects like the present indictment except that it omitted the term feloniously as applied to the assault therein charged. On that indictment the prisoner was tided, and by the jury found not guilty of the felony and rape charged on the first count of the indictment, and guilty of the felony and assault, with intent to commit a rape, charged second count. Whereupon there was judgment of the court, that the prisoner should be discharged and go acquitted of the premises in the said first count specified ; and the judgment upon the verdict upon the said second count was arrested. (See ante, 2 vol. page 297.)</p> <p>Upon the trial of the issues joined on the second indictment, at Beaufort, on the last circuit before his Honor Judge Saunders, the evidence raised a doubt whether a rape had not in fact, been committed; and the counsel for prisoner insisted thereupon, that he was entitled to a verdict and prayed the court so to instruct the jury. The court refused to give such instruction, but charged them, that if the prisoner, had in fact committed a rape, yet he was not on that ground, entitled to a verdict; to all which the prisoner excepted. The jury found the prisoner guilty, and that- he had not been before acquitted of the premises in this indictment specified and charged on him. Sentence of death being pronounced on the verdict, the prisoner appealed to the Supreme Court.</p>

This was an indiciment tried before his Honor Judge Pearson at Caswell on the last circuit. The indictment was as follows: “ The Jurors for the State upon their oath present that JohnF.

The defendants were tried at Burke on the last circuit before his Honor Judge Dick, upon an indictment for forcibly and with a strong hand taking from the possession of the prosecutor a slain deer. The evidence offered showed that the defendants were hunters, and were, with their dogs, in chase of the deer, and that the prosecutor, not being one of the hunting party, shot and killed the deer.

The defendants were indicted, for that they “ being persons of lewd and vicious habits, on &c. and for a long time, to wit, for &c. unlawfully did bed and cohabit together as man and wife, without being joined together in the holy bands of matrimony, contrary to the form of the statute in such- case made and provided, and against the peace and dignity of the state.” Upon the trial at Martin, on the last circuit, before his Hon- or Judge Pearson, one Henry C. Whitley ivas…

This was an action of trespass vi et armis for killing a dog — Pleas—General issue and Justification. On the trial at Lenoir on the last circuit before his Hon- or Judge Toomer, the ownership and possession of the dog by the plaintiff', and the killing by the defendant were not denied.

This was an action of debt upon a bond for #116, tried at Guilford on the last circuit before his Honor Judge Pearson.

<p>On the trial of a misdemeanor, the Court has a discretionary power to discharge the jury before they have rendered a verdict, and to require the defendant to be again put upon his trial for the same offence.</p>

This was an action of trover for a stud horse, tried at Surry on the last circuit before his Honor Judge Settle. .

<p>This was an indictment for Murder, tried at Rockingham on the last circuit before his Honor, Judge Toomer.</p> <p>The prisoner was charged with having killed one Samuel Callam. On the trial, a witness was introduced on the part of the State, who swore, that on the 11th day of February last, which was Sunday, he was sent by the déceased to the house of the prisoner to get a bottle of whiskey, the deceased and prisoner being neighbors. The witness was to procure' the whiskey from a son of the prisoner, but the son not being at home, the witness was detained, awaiting his return, longer than he had expected, and longer than had been foreseen by the deceased. While the witness was sitting in the house by the fire, with the prisoner and one Osborne, he saw the prisoner waive his hand, and heard him say at the same time, “ clear yourself.” The witness from his position., could not see who was in the yard to whom the prisoner spoke. The prisoner instantly rose from his seat, took a shot gun, and went into the piazza, where the witness fob lowed him, and saw the deceased standing in the yard with his face towards the house. The, prisoner raised the gun, presented it at the deceased, and snapped it; he then prepared the lock, raised and presented the gun again at the deceased, and snapped it a second time. The prisoner then laid the gun on a bench, went into the house, got a rifle, returned into the piazza and fired at the deceased. The ball from the rifle took effect,and the deceased instantly exclaimed, “ Lord ! uncle Billy, you have killed me,” and died in about an hour after receiving the wound. The deceased was not approaching the house when he was shot, and had not advanced a step towards it, after the witness first saw him. He had in his hand a small and very light walking stick which he held in the ordinary position with one end on the ground, and he made no attempt to raise it. He did not speak a, word to the prisoner until after he was shot, when he made the exclamation above stated. The deceased had no weapon with him except the stick above spoken of.— When the prisoner was about to shoot the deceased, the witness attempted to interfere to prevent it, but the prisoner threatened him, and he was compelled to desist. Not more than two or three minutes elapsed from the time the prisoner went into the piazza with the shot gun, before he fired the rifle.</p> <p>The prisoner offered to give in evidence, testimony to shew that the deceased had attempted to use a dirk in two or three different quarrels, but the evidence was objected to by the prosecuting officer, and rejected by the Court. The prisoner then offered to give in evidence, declarations of the deceased, made several months before the killing, when the Court was about to reject the testimony upon the ground that those declarations formed no part of that transaction, and that if they had, words were not legal provocation, and could not extenuate the offence, but being assured by the prisoner’s counsel that those declarations would not be urged as legal provocation in themsélves, but be submitted to the jury, as circumstances giving a character to the transaction, and from which the jury could infer the intent with which the deceased visited the prisoner’s house, and therefrom deduce inferences explaining the conduct of the deceased t here, and having a direct tendency to shew that he was ■ assaulting the prisonor, or attempting forcibly to dispossess him of his domicil, the evidence was admitted. Several witnesses were thereupon introduced, who stated that several months before the fatal occurrence, they heard the deceased on. public occasions, and at different places, boast that he had debauched the prisoner’s wife, and declare that he could have illicit intercourse with her whenever he pleased. The prisoner then introduced his daughter, who swore that in August last, the prisoner and her mother separated, and had not since that time lived together; that about a week after the separation, the prisoner told her to inform the deceased that he would not go in pursuit of him, but that the deceased must not come to his house ; that if the deceased came there, he would kill him; that he had parted the prisoner and his wife, and he must not come on the prisoner’s premises to “pester” him. This message was delivered to the deceased within a few days thereafter, when he replied that he was a free man, and would go where he pleased.</p> <p>The testimony being closed, the prisoner’s counsel urged that the homicide was justifiable; if not justifiable that it was' excusable ; and then insisted that if the homicide was felonious, it was only manslaughter and not murder. And the Court was requested to instruct the jury : “1st That if the deceased was expressly forbidden to enter thfe yard of the prisoner, it was only manslaughter: Sndly, That if the prisoner had forbidden the deceased to come to his house, and the deceased did come, and the prisoner had a well grounded belief that the object of the deceased was unlaw-fill, then it was only manslaughter: 3dly, That if the deceased had been forbidden to come to the house of the prisoner, and he did come and menace the prisoner with violence, either by words or gestures, and refused to go away when ordered, then it was only manslaughter.”</p> <p>His Honor, after stating the different kinds of homicide and explaining what was justifiable, and what excusable homicide, proceeded to instruct the jury as follows: “ Felonious homicide includes murder and manslaughter. Murder is the felonious and unlawful killing of one reasonable creature by another, with malice aforethought either express or implied. Malice is implied, when the circumstances attending the transaction shew, that the slayer is a man of wicked an^ depraved disposition, of violent temper, of ungovernable passions, and vindictive feelings, and has a heart regardless of social duty, and fatally bent on mischief. — If there be no legal provocation, and the weapon used be fitted and likely to produce death, the law infers malice. Words are not legal provocation. Was the weapon fitted and likely to produce death ? If the prisoner had taken the deceased in adultery with his wife, and killed him on the spot, or before his passions had time to cool and subside, it would be manslaughter and not murder. This the law considers the greatest provocation that can be given. But declarations by the deceaed, that such an act had been committed, are mere words, and are not legal provocation ; and especially, if the killing occurred long after the declarations had been made. The State also insists, that the law not only implies malice from the circumstances of this transaction, if they be believed by you, but that there is evidence of express malice. If you be satisfied from the evidence, that the prisoner killed the deceased with sedate and deliberate mind, and with a formed design, there is express malice. Former grudges and antecedent menaces are evidence of this formed design. Do the witnesses introduced by the prisoner satisfy you, that he entertained grudges, and uttered menaces against the deceased 1 If so, there is evidence of express malice; and you are to determine, if you be satisfied of its existence. If you believe from the evidence, that the homicide was committed under the influence, and by the promptings of former grudges, and in pursuance of antecedent menaces, and was not in consequence of the conduct of the deceased at the time of the fatal occurrence, there was malice, and the act was murder.”</p> <p>“ But the prisoner insists that it is merely manslaughter. To extenuate the offence from murder to manslaughter, it must have been perpetrated in a gust of passion, and that passion must have been excited by legal provocation. Do the circumstances satisfy you, that the prisoner acted deliberately and with formed design, and not under the influence of passion ? If so it is not manslaughter. — But if the deed were perpetrated under the influence of passion, was there legal provocation. — Words are not legal provocation. If the killing be with a deadly weapon — one well fitted, and likely to produce death, and the provocation be slight, it will not extenuate the crime to manslaughter. The mode of resentment must bear a reasonable proportion to the provocation given, to reduce the offence to manslaughter. If the deceased were a mere trespasser on the land of the prisoner, by coming there against his will; and if the deceased came there after having been told not to come, aS stated by the prisoner’s daughter ; and if the deceased did not go away instantly when he was ordered, under the "circumstances ’Stated by the witness, it would not be such a provocation, as would reduce the killing to manslaughter, if the deed were perpetrated under all the circumstances stated by the witness.”</p> <p>The prisoner was convicted of murder, and judgment of death being pronounced he appealed.</p>

Assumpsit brought by the plaintiffs as endorsees against the defendant as endorser of the following bond of one James Allen: “ On the third day of November next I promise to pay William Suttle the sum of one hundred and thirty five dollars for the hire of two negroes Gabriel and Alfred, w’hich slaves I am to feed and clothe well, pay their taxes, and return them well clothed at the expiration of said time.

name of Benjamin Sharp and his wife Anna, and upon the death of the wife, coptinued by the said Benjamin as her This was an action of assumpsit commenced in the administrator.

The defendant was indicted for Petit Larceny, in stealing two pigs at Chowan, on the last circuit, before his Honor Judge Settle.

Ejectment tried at Iredell on the last circuit before his Honor Judge Settee. The action was commenced in the County Court, and a judgment being there obtained by the lessors of the plaintiff, it was removed into the Superior Court by certiorari.

The defendant was tried on the last circuit at Edgecombe, before Pearson, Judge, for “secretly, clandestinely and fraudulently harbouring and maintaining a runaway plave, the property of one E. C.” Much testimony was offered to the jury, and certified to this Court, consisting of facts similar to the following:— That the negro had one or more places of concealment on the land of the defendant, and of declarations of the defendant, that he could have taken the negro if he…

Ejectment for a tract of land containing seven hundred and forty-five acres, tried at Buncombe on the last circuit before his Honor Judge Dick. The lessors of the plaintiff in support of their title, produced a deed from the Sheriff of Buncombe county to themselves for the land in question. . They then produced the execution under which the said land was sold.

The defendant was indicted at Perquimans on the last circuit, as follows: “ The jurors for the State, &c. present, that James Leigh, late of &c. on &c. was and yet is one of the acting justices of the peace, in and for the said county of Perquimans, and as such bound by the duties of his said office, and by the laws of the State, to issue his warrant for the apprehension of all persons guilty of felony: and the Jurors aforesaid do further present, that afterwards &c. in &c.…

This was an action of assumpsit brought by the plaintiffs to recover of the defendant the amount of an account for goods; wares and merchandise, sold and delivered in the year The suit was commenced on the 24th of April, 1837, and the defendant pleaded the general issue and the statute .of limitations.

The defendants were indicted for malicious mischief, in removing a- wagon, the property of one I. H. from its place, “ and wilfully, wickedly, wantonly, mischievously and maliciously ” breaking it.

This was an action of ejectment, brought to recover the strip of land represented on the annexed diagram by. the lines D P, P S, S C, and C D. The lessors of the plaintiff, on the trial at Moore, on the last circuit before his Honor Judge Nash, exhibited the following chain of title, to wit — a grant to Thomas Knight in the year 1760, a deed of bargain and sale for the same land fr°m Knight to Jacob McLindon in 1762, and a deed from McLindon to Isaac Sowell for the same in…

This was an action of tkover, brought to recover the value of a mare. Plea the general issue, upon which issue was joined, and the cause tried at Guilford on the last circuit before his Honor Judge Pearson.. The facts were agreed on, and it was.also agreed that if his Honor should think that upon the facts the plaintiff was entitled to recover, the jury should return a verdict in his favor for the value of the mare; otherwise the verdict was to be rendered for the defendant.

<p>Detinue for five slaves, tried at Stokes on the last circuit before his Honor Judge Pearson.</p> <p>It appeared in evidence on the trial that one Clackson, who resided in the State of Virginia, upon the marriage of his daughter with one Abraham Taylor in the year 1814, put a negro woman named Amelia and her children into the possession of his son-in-law Taylor, who remained in possession of them, treating them as his own until his death: That Clackson died in 1817, leaving a will, of which Abraham Taylor, after the renunciation of the executors therein named, was appointed administrator:. That by sáid will, the testator gave the negro woman Amelia and her children to Abraham Taylor and his wife for life, with remainder to his, the testator’s, heirs : That Abraham Taylor died in 1819 intestate, and in 1823 Skelton Taylor was appointed his administrator: That in 1831 Skelton Taylor died, and the plaintiffs qualified as his executors: That in 1836 Elizabeth Taylor, the widow of Abraham Taylor, sold five ne-groes, being part of those descended from the woman Amelia, to the defendants, who were negro traders, and who immediately after their purchase, and in the night time, run the negroes out of the State of Virginia-*' where all the above ■ transactions took, place. It was also in evidence that from the death of Abraham Taylor, his widow remained in possession of Amelia and her children until the sale of a part of them to the defendants : That Abraham. Taylor and his wife had no children, and that Skelton Taylor, the testator of the plaintiffs, was the father of Abraham, and according to the laws of Virginia, was the person entitled to his, Abraham’s, negroes, as next of kin, his widow being entitled to one half of them during her life. It also appeared that the ^efer)dants had notice before their purchase, that the repre- • sentatives of Clackson claimed the negroes under his will, subject to the life estate of Mrs. Taylor, and that they were also claimed by the executors of Skelton Taylor. A demand and refusal before suit was also shown.</p> <p>The counsel for the plaintiffs read to the Court the law of Virginia, as to distribution of intestates’ estates; and also the law of that State imposing a forfeiture of an estate for life In negroes when the tenant for life attempted to sell or otherwise run them out of the State.</p> <p>His Honor charged the jury, “ that to enable the plaintiffs to recover, they must prove that the negroes belonged to them ; that if the evidence satisfied the jury, that old Clack-son had made an absolute gift of the negroes to Abraham Taylor, and that after his death, the negroes were allotted to his widow for life as her share under the Virginia statute of distribution, and that while she thus held them for life, she made the sale to the defendants with a view, or having reason to believe, that the defendants would run them out of the State, then under the law of Virginia the life estate was forfeited, and the plaintiffs were entitled to recover. That whether there was an absolute gift to Abraham Taylor, or merely a loan as the defendants contended, was a question for their decision : That a parol gift in Virginia was valid, and that by the law of Virginia, negroes being put into the possession of a son-in-law was prima facie a gift and not a loan, but that the presumption might be rebutted, and if the evidence satisfied them that it was a loan, the plaintiffs were not entitled to recover; that whether the negroes were allotted to the widow as her dower right, as it was termed, after the death of Abraham Taylor, was also a question for them to decide ; that if there were not such an allotment, then there was no forfeiture, and the plaintiffs were not entitled to recover, although there had been an absolute gift to Abraham Taylor.”</p> <p>The plaintiffs’ counsel then moved the Court to instruct the jury, that iff there were an absolute gift to Abraham Taylor, but no allotment to his widow as her dower right after his death, and in point of fact the negroes were suffered by the administrator of Abraham to remain in the possession of the widow, subject to an. allotment and division whenever he thought proper to make one; then a sale while she thus held them, would be a forfeiture of her right to a life estate in one half, and as the other half belonged to the representatives of Skelton Taylor as distributee of his son, the plaintiffs would be entitled to recover. The Court refused so to charge, because,, in the first place, the evidence did not in the opinion of the Court, raise the point. 2dly, Because if there were a forfeiture by a sale under such circumstances, the effect of such forfeiture in, the first instance, was not to displace the legal title which remained in the administrator of Abraham until distribution, and the action ought to have been in his name, and not in the name of the present plaintiffs. 3dly, Because the act did not create a forfeiture under such circumstances.</p> <p>The defendant’s counsel moved the Court for instructions which were either refused or reserved, and which it is unnecessary to state, as the jury found a verdict for the defendants. A motion for a new trial was .made on the part of the plaintiffs, because of misdirection in . the charge, and the refusal of the Court to charge as requested by them. This motion was overruled, and the plaintiffs appealed.</p>

<p>Where a purchaser of property, in payment therefor transferred to the vendor notes upon third persons, and upon being requested to endorse the notes for the purpose of enabling the vendor to sue in his own name, refused 'to do so, but said “ they were good,” it was held, that the words, “ they were good,” used in the manner they were, did not furnish any evidence of a promise to-make the notes good. ,</p> <p>Whether such words, if they amount to a promise to make the notes good, do not come within the act of 1826, Rev. Stat. ch. 50, sec. 10,) declaring that “no action shall be brought, whereby to charge the defendant upon any special promise to answer the debt, default or miscarriage of another person, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party charged therewith, or some other person thereto by him lawfully authorized.” Q.U.1?</p> <p>Aguaranty'is a P™™esre the pay-some pe°r-fo™anca qj some duty, in MureVf18 yho is the first in-ble^oWch anee.</p> <p>if a vendor from^tho purchaser the note of a third per-tfm/onha ®®*®¿ ^®11 being.forg-there being [e°ltfrna,“ad.a' represen-, tationon the part of the purchaser as the ®°1' vency of the maker) eVto'have the vendor tfonVnlesa *ebce0"“a Pres|1(|r pr°ve "</p>

<p>This was an action of trespass vi et armis for killing the plaintiff’s dog, tried at Stokes on the last circuit before his Honor Judge Pearson.</p> <p>It was in evidence on the trial that a few days before the dog died, the defendant applied to one Doctor Keigh for poison to kill a dog, and procured from him a quantity of nux vomica, with directions to administer it in corn meal, that Mrs. Terry, at whose house the dog was in the habit of staying, went on a visit to the house at which the defendant boarded, and the dog followed her; that soon after she got there, the defendant came in, went up stairs-and came down with a cup in his hand, apparently having corn meal in it: that about one hqur afterwards Mrs. Terry, upon returning home, found the dog in convulsions, and he soon died exhibiting all the appearances of having been poisoned: that the defendant, a day or two afterwards being informed by Doctor Keigh that the plaintiff had inquired of him. whether he had sold poison to any one to kill dogs, stating that his dog had been poisoned, said that he would not have cared if the Doctor had told the plaintiff' all about it; and said also that he had folded one dose of the poison in a paper, and wrote upon it “ dog poison,” and put it in the crack of a fence. It was also in evidence that the defendant, on one occasion, when the dog barked and jumped at him, at Mrs. Terry’s house where he was in the habit of visiting, flew into passion and swore that if the dog ever bit him he would kill him, and finally said “he would kill him any how.” It was proved further that the dog was the property of the plaintiff", and was valuable as a guard and a yard dog on account of his watchfulness and propensity to bark.</p> <p>For the defendant it was proved that this dog on one occasion entered the lot of one Aldy, in Waughtown, and took therefrom one hen egg in Aldy’s presence, who hotly pursued him; that afterwards when Aldy was passing by Mrs. Terry’s the dog barked at him and made a grab at his heel, but fled upon Aldy’s turning upon him; that upon another occasion he jumped at the horse of Doctor Keigh. That on another o.ccasion a dog, which the witness believed to be this dog, was found upon a sheep about a mile from Waughtown ; that Snider, the owner of the sheep, being informed of it went to the plaintiff-, and told him of it, whereupon the plaintiff called up his dog, and he had no signs of having been engaged in killing sheep. Plaintiff then said that he supposed it must be a younger dog which he owned that was seen upon the sheep, as the young d'og was of the same color with the old dog, and was at the time missing ; and plaintiff said further, that although the old dog when young was guilty of running sheep, yet he had not done so for several years.</p> <p>The defendant’s counsel insisted, 1st, “ that the action should- have been case and not trespass m el armis; 2dly, that as the dog was guilty of sucking eggs, killing sheep, and barking and jumping at the' good people of Waughtown, any person was justified in killing him.” The plaintiff’s counsel contended “ that the action was well brought, and that although Aldy or Snider might well have justified killing the dog if taken in the act of sucking the egg of the one, or killing the sheep of the other, yet the defendant was not the avenger of every hen’s nest and sheep fold in Stokes county.”</p> <p>His Honor charged the jury “ that if they were satisfied from the evidence that the defendant had killed the plaintiff’s dog by throwing poison to him, or putting it down where he knew the dog would pass along and get it, the plaintiff was entitled to recover so far as the form of the action was concerned, but if defendant had put the poison in the crack of a fence and the dog had casually passed by and got it, the defendant was entitled to a verdict, as the action should then have been case.”</p> <p>As to the second point his Honor charged, “ that although the dog had stolen the egg, and caught the sheep, and had the other bad habits stated by the witnesses, the defendant was not justified in killing him ; that the bad habits of the dog however should be taken into consideration in arriving at the amount of damage if they found for the plaintiff, and they might also take into consideration the circumstances of the. trespass, as the use of poison.”</p> <p>The defendant’s counsel then moved the court to charge, that as the dog was not proved to be of any certain value, if the jury should think from the evidence that the dog was of no value, they should find for the defendant. His Honor refused so to charge, but told the jury that when a man committed a trespass by killing the dog of another, and was not justified in so doing, the law implied that some damage was sustained by this violation of his rights, however small, and the jury should so find. The plaintiff had a verdiet and judgment, and the defendant appealed.</p>

<p>This was an action of detinue for certain slaves. Plea — the general issue. Upon the trial at Caswell, on the last circuit before his Honor Judge Pearson, it was in evidence that the mother of the slaves in question had been the property of the plaintiff’s intestate, and the only question in the cause depended upon the construction and legal operation of a deed of gift, executed by the plaintiff’s intestate to the defendant’s testator who was her son; and an endorsement on the said deed of gift executed by the donee therein on the same day, and attested by the same witnesses who attested the deed of gift. The deed of gift conveyed the absolute interest in the mother of the said slaves to the defendant’s testator, and his endorsement was in the following words : “ The within named negroes, Claricy and Milley, I hereby certify may be at the disposal of my mother Susanna Hooper, for and during her naturaHife. Given under my hand and seal the day and date within written.</p> <p>Henry Hooper.” (Seal.)</p> <p>Test, Griffin Gdnn.</p> <p>The plaintiff’s counsel insisted that the proper construction and legal effect of the deed of gift and endorsement was to convey the slaves to the son with a reservation of a life estate to the mother, the donor, and that this reservation of a life estate gave her the entire interest. On the contrary it was contended by the defendant’s counsel, that the deed of gift passed the slaves to the son, and the writing on the back of it did not amount to a reconveyance of a life estate, by which the operation of the deed would be entirely defeated; but was merely a covenant, or declaration of an use, or p'ower of disposition, without passing, any legal interest or estate. His Honor, in charging the jury, sustained the view taken by the defendant’s counsel, and a verdict being rendered in favor of the defendant, the plaintiff appealed.</p>

<p>An indictment upon our statute (1 Rev. Stat. ch. 34, sec. 5) for abusing and carnally knowing a female child under the age of ten years, which charges the rape to be “ in and upon one M. C., an infant under ten years of age, &c.,” “ and her, the said M. C., feloniously did unlawfully and carnally know and abuse, &c.,” is sufficient without describing the infant as a “female, childnor is the addition of “ spinster” to the name of the infant, requisite in such an indictment.</p> <p>ments'for persons or fndmdu-° ditíon°to^" dividuals is requisite,</p>

This was an action of assumpsit brought in the County Court of Franklin, against one Joseph J. Ward and',the defendant William D. Jones, as the administrator of John L. Ward.

This was an action of trover brought to recover the value of a negro woman named Peggy and her child. Plea the general issue. Upon the trial at Chowan, on the last circuit before his Honor Judge Bailey, the plaintiff made out a prima facie case by showing that the slaves in question were in his possession, and thatthey were taken therefrom by the order of the defendant.

This was an action of assumpsit, brought to recover the price of a quantity of corn sold and delivered, to which the defendant pleaded the general issue.

This was an action of trespass qjjare clausum eregit tried at Stokes, on the Fall circuit of 1837, before his Honor Judge Saunders. The case as stated by his Honor was as follows: — Two questions were made in this cause ; the first as to boundary and tlje other upon the statute of limitations. The plaintiff offered in evidence a grant to John Waggoner dated in 1784, the calls of which were admitted to be A, B, C, as represented on the annexed diagram.

This was an action of trover, brought by the plaintiff as trustee against the defendant as Sheriff of Caswell County for selling certain property, and was submitted to his Honor Judge P.earson, at Caswell, on the last circuit, upon a case agreed. If his Honor should think that the plaintiff was entitled to recover, judgment was to be .entered - for him for $132, if not then the judgment was to be for the defendant.

<p>It is a maxim that in law there is no fraction of a day ; yet that doctrine no longer prevails when it becomes essential for the purposes of justice to ascertain the exact hour or minute when particular acts were done. ' Therefore where a deed in trust was proved and delivered at a certain hour of the‘day to the register, who immediately commenced the registration thereof, but without endorsing on the deed the time .when jit was delivered to him, arid two hours afterwards on the same day, a Justice’s execution was levied upon the property conveyed in the trust; it was held that the hour at which the deed was delivered to the register for registration, might, be proved by parol evidence, and that it had priority over the levy under the execution.</p> <p>The act of 1829 (l Rev. Stat. ch. 37, s.ec. 26,) directs the register to endorse on each deed of trust the day when it is delivered to him for registration, and that such endorsement shall be entered on the register’s bo.oks and form a part of the registration ¡ but an omission by the officer to perform that duty, although he is liable to an, action and an indictment for such neglect, will not render the registration invalid ; but it is questionable whether in such case the registration can refer back to an antecedent day by means of parol evidence of the time when the deed in trust was delivered to the register for registration.</p> <p>deed in deemed to píete "from the time when the register ce™!™611"</p>

<p>In an action for a malicious prosecution, a verdict and judgment of conviction in a Court of competent jurisdiction, although the party convicted was after-wards acquitted upon an appeal to a superior tribunal, is conclusive evidence ' of probable cause, and precludes the plaintiff in the action for the malicious prosecution from showing the contrary.</p>

This was-an action of trespass on the case, in the nature of an action of waste, brought by the plaintiffs against the defendant for waste alleged to have been committed by her upon the land assigned to her as dower.

Trover for a mule, tried at Chowan on the last circuit before his Honor Judge Bailey. On behalf of the plaintiff, it was proved that the mule was borrowed from the plaintiff’s overseer by the wife of the defendant; that the mule was the property of the plaintiff, and was so injured while in the service of the defendant as to be rendéred of no value, and shortly afterwards died.

This was an action of trespass on the case for malicious prosecution. Plea — the general issue.

The defendants were tried at Wilkes, on the spring cuit of 1838, before his honor Judge Bailey, upon an dictment for gaming in a house wherein spirituous liquors were retailed, contrary to the act of 1831, ch. 26, [see 1 Rev. Stat. ch. 34, sec. 69,] when the Jury returned a special verdict in the words following, to wit: “ That the defendants, Joel Vannoy, Armsted Terry and Thomas F. Lowery did play at cards, for ahorse, in a room belonging to the said Joel Van-noy, which…

This was an indictment for an assault upon an officer while in the execution of process, tried at Bladen, on the last circuit, before his Honor Judge Pearson. It was in evidence that the sheriff had a capias ad satis-faciendum against the defendant, and informed him of it; whereupon bn refused to be taken, and attempted to strike the sheriff with a hammer.

After the new trial granted in this case, at June Term, 1838, [see 3 Dev. & Bat.

The defendants were indicted at Bladen, on the last circuit,, before his honor Judge Pearson, in the following words: “ The jurors for the State, upon their oath,.present that Wiley Fort and Samuel Gause, Iqte of Bladen, on, &c. with force and arms and with strong hand, in said county, the window of the dwelling house of one Griffith J. Streety there situate, did break open against the peace and dignity of the State.” A motion was made to quash the indictment, because it did…

This was an action of debt upon a guardian bond, tried at Moore on the last circuit before his honor Judge Pearson. The statement of the pleadings in the transcript is so imperfect as not to shew the issues submitted to the jury, but they may be ascertained from the case made out by his Honor. It appears from the transcript that the plaintiffs declared on a bond for the payment to them of the sum of thirty thousand dollars.

This was an issue of devisavit vel kon joined between the devisee and heirs at law of Benjamin Overton deceased, tried at Camden on the last Fall Circuit, before his Honor Judge Bailey. The points raised upon the trial are so distinctly noticed in the opinion of the Supreme Court, that it is unnecessary fo insert them here by way of statement.— There was a verdict in favor of the will below, and the defendants appeaLed.

This was an action of trespass ojiare clausum fregit, tried at Bladen on the last circuit before his Honor Judge Pearson, upon the pleas of the general issue and liberum tenementum.

After the new trial granted in this case at June Term, 1836, (See 1 Dev. & Bat. Rep. 569) it was removed to Rutherford, where it was again tried on the last circuit before his honor Judge Toomer.

This was an action of trover for a horse. Plea — not guilty. Upon the trial at Rowan, on the last circuit, before his honor Judge Nash, the plaintiff set up title to the horse on the grounds: First, that his father was owner of the dam, and agreed with him, that if he would pay the price of putting the mare to the horse, he should have the foal, and that he had done so: Secondly, that after the mare had foaled, his father made a parol gift of the colt to him.

After the new trial granted in this canse, at June Term, 1838, (see 3 Dev. & Bat. Rep. 78,) it came on to be tried again at Davie, on the last circuit before his Honor Judge Nash, when the facts appeared to be as follows: One John Belt made his single bill to the defendant for $430, who endorsed it to the plaintiff; and this action was brought to recover the amount from the endorser. Plea — payment.

This was an action of assumRsit, in which the plaintiff declared in two counts, one on a quantum valebat for, the use and occupation by the defendant of the plaintiff’s tenant, the other, on a promise of the defendant to pay the plaintiff fifty dollars for such use and occupation.

This was an action of debt, brought by the endorsee of a single bill against his immediate endorser. Plea — usury.— Upon the trial at Lincoln, on the last circuit, before his Honor Judge Nash, the only evidence offered to support the plea, was a declaration made by the plaintiff, that he had purchased the bill for less than it was worth.

This was an action of assumpsit, commenced by warrant and carried by successive appeals to the Superior Court, in which it was tried at -Guilford, on the last fall circuit, before his honor Judge Pearson. The defence relied upon was under the plea of a release, and upon the trial the facts appeared to be as follows: The plaintiff sold to the defendant a parcel of slaves for the sum of $850.

This was an action of assumpsit in which the plaintiff declared in a special count, and also in the common count for work and labor done.

The defendants were indicted at Wake, on the last circuit, before his Honor Judge Bailet, in the words and figures following, to wit: “ The jurors for the State, upon tbeir oath present that Moses A. Curtis, William B. Otis and James G. Rowe all &c. bn &c. with force and arms in the county aforesaid, unlawfully, riotously and routously did assemble and gather together to disturb the peace of the State; and being so then and there assembled and gathered together with force…

<p>This was an action of trespass ouare clausum pre-git, tried at Anson, on the last circuit, before his Honor Judge Pearson. The plaintiff alleged trespasses at two different places. As to the first, the evidence necessary to be stated was a grant to Hezekiah Hough, dated in 1790, and a regular deduction of title from the said Hough to the plaintiff.— The second call in the grant was from a pine corner N. 10° W. one hundred and fifty chains to a pine corner. Both these corner trees were identified and admitted. The defendants’ intestate claimed a tract of land adjoining the plaintiff’s on the East, for which he produced a grant to one Kirby, dated in 1792, and deduced a regular chain of title to himself. The third call in the grant to Kirby, was from a black jack in Hough’s line, then with his line S. 10° E. a certain number of chains to a pine, Hough’s corner, &c.— The plaintiff proved by one Hezekiah Hough, Junior, who was present when the survey was made upon which the grant to Hezekiah Hough, Senior, issued, that the surveyor marked line trees from the one pine comer to the other pine corner, and that the trees so marked were still standing. It was also proved that some of these line trees were blocked, and corresponded in age with the grant. . It was also in proof that the course called for in the grant would lead directly from the one pine comer to the other, leaving the line of ' marked trees a little to the East; that for one hundred and fifty or two hundred yards, the direct line pursuing the course, corresponded very nearly with the marked trees, after which the direct line left the marked line of trees, leaving the trees standing at different and varying distances from it; that the marked line thus formed a zigzag course for the greater part of the distance, until it approached the other corner, when it got back so as again to correspond with the direct line indicated by the course called for, and thus lead to the corner. The trespass, which consisted in cutting trees &c., was between these two lines. The plaintiff insisted that he had a right up to the line of marked trees, while the defendant contended that he had a right to go up to the direct line indicated by a straight course from corner to corner.</p> <p>As to the second trespass, the plaintiff offered in evidence a grant to himself dated in 180U, which lapped over and covered a part of the defendant’s tract of land on the north. To present the question arising on this part of the case it is only necessary to give one call of the grant to Kirby, dated in 1792, under which the defendant claimed, to wit: the course from a black jack corner, on the side of the public road; then with the public road N. 80°, W. one hundred chains to a black jack corner on the side of said road in Hezekiah Hough’s line, then with his line &c. These two black jack corners were identified. The defendant proved that there was, at the date of his grant, and had been for some years before, a public road leading from one black jack corner to the other, that this road was kept up many years afterwards, and that although it had, for some years past, been discontinued, and a nearer road opened, yet the traces of the old road were still left, and could be easily followed; that in one place in going down a hill, the road divided and formed two tracks for some distance, when the two came together again. It was doubtful from the evidence, which of these tracks was the public road in 1792. A direct line from corner to corner left the road including both branches of it a small distance to the north. The line indicated by the course mentioned in the grant, starting at the first corner would also leave the road to the north, but would not strike he second corner, missing it by some thirty or forty yards, The trespass which consisted in cutting trees and the like was b^ween the direct line from corner to corner and the road, and also between the two branches of the road: The plaintiff insisted that the defendant’s title reached only to the direct line from corner to corner; while, on the other hand, the defendant insisted that he had aright to go with the road.</p> <p>Upon the first .question, his Honor charged “ that where both corners were known and identified, and the grant did not call for a line of marked trees, the grant run in a straight line from corner to corner — the course mentioned in the ■grant, and the marked line trees being regarded only as means to find the corner; that this case was entirely differ■ent from the cases relied on by the plaintiff’s counsel, for in those cases, one corner being known, the object was to find the other which was unknown, and the line of marked trees being the most certain means of ascertaining the unknown corner, controlled the course when they happened to differ; but that when both corners were known, the.grant pursued a straight line from corner to corner, and did not turn about from tree to tree as they happened to be marked; that line ■trees, particularly ‘side line trees,’ as surveyors call them, were intended to indicate near where the line was; in‘the ■same way that a pointer indicates near where the corner stands. That where a grant called for a corner, and’ then along a line of marked trees to another corner, the grant would then pursue the line of marked trees, because1 they were then not simply a means to find the comer, but an essential part .of the boundary.”</p> <p>Upon the second question, the jury were charged; “ that as the defendant’s title called from the first corner with the public road to the other corner, his grant pursued the road, and not a direct line from corner to corner, as the road was an essential part of the boundary. And that if the jury were satisfied that the road spoken of by the witnesses was the •public road called for in the defendant’s grant, he would be entitled to their verdict so far as the trespass between the direct line and the road was concerned: That as to the trespass between the two branches of the road, if the jury were satisfied from the evidence that the northern branch was the public road in 1792, and was the road called for in the defendant’s grant, they-would find for him; but if they not satisfied that the north branch was the public road at that time, then the defendant would be liable for the trespass between the two branches of the road.” A verdict was returned for the defendant, upon which he bad judgment, and the plaintiff appealed. •</p>

This was an action of detinue for several slaves in the possession of the defendant. Plea- — mor detinet — upon which issue was joined, and the case tried at Pitt, on the last circuit, before his Honor Judge Bailey.

This was an action of beet, upon a bond, in these words: “ Three years after date, I promise to pay unto William W. Wellborn, his heirs or assigns, one thousand dollars, in current bank notes of the State of North Carolina, for value received, a.s witness my hand and seal, this 15th of September,. 1831: Provided I maintain the right and possession of the tract of land for which this note is in part given; and in the event of my being subjected to costs of any suit or suits…

Ejectment. At September Term, 1838, of the Superior Court of Law for Pitt county, the attorney for the lessors of the plaintiff moved the court for. leave to amend the declaration, by adding a new count on a demise of some other person. The cause had been pending in the County and Superior Courts from February Term, 1835, of the County Court.

This was an action of trespass vi et armis, brought to recover damages from the defendants for killing a slave of the plaintiff named Elias.. Upon the trial, at Hertford, on the last circuit, before his honor Judge Saunders, the evidence was, that some of the defendants shot arnnaway slave found in the swamps of Gates county, and that the other defendants were present and encouraged the act to be done.

' This was an action of detinue for three slaves, tried before his honor Judge Saunders, at Tyrrel, on the last circuit. The plaintiff claimed the slaves in question, under the following instrument, which he contended was a deed of gift: “ State op North Carolina, ) Tyrrel County.

This was an action of ejectment, tried at Mecklenburg, on the last circuit, before his honor Judge Nash. Held: claimed up to them; they were at liberty to presume a grant for the land to have issued up to those boundaries — although the actual possession or enclosure of the occupants might not have extended to the lines — the possession, in that case, of a part, being the possession of the whole — and that, in that case, they would find for…

<p>This was an action of Detinue for two slaves, and the following statement of facts agreed was submitted to his Honor Judge Suanders on the last circuit at Chowan.</p> <p>The slaves in controversy, in the year 1823, belonged to e*§bt Persons by the name of Wilson as tenants in common. Pour of the tenants were infants, and Willis Wilson, senior, was their guardian. All the tenants in common, petitioned the County Court of Camden, under the act of Assembly, 1 Rev. Stat, ch. 85, sec. 19, for a sale of the slaves for the purpose of division. The court granted an order that the petitioners might sell the slaves at six months credit; and in pursuance thereof, the sale was made, when one William Bartlett became the purchaser of them, at the price of $227. The petitioners executed to Bartlett, in due form, a bill of sale for the slaves; and a short time thereafter, he conveyed them"to Willis Wilson, senior, the guardian ol the infant petitioners. Bartlet bought the slaves, at the sale, for the benefit of Willis Wilson, senior, who paid the purchase money. Wilson held possession of them during his life, arid all that time continued to be the guardian of the infant petitioners. By his will, Wilson bequeathed the slaves to the plaintiff, whose guardian took them and hired them out. -The defendant, who was one of the petitioners and joined in the execution of the bill of sale to Bartlett, become administrator to one of the infant petitioners who died, and guardian to one of them. He got possession of the slaves, and on demand, refused to deliver them to the plaintiff. On this statement of facts, his Honor charged the jury that the plaintiff was entitled to recover. There was a verdict and judgment for the plaintiff, and the defendant appealed.</p> <p>A sale requires two parties, to wit: one parting with the title', and the other receiving it. Hence, one cannot purchase at his own sale, either by himself, or through an agent; and this rule applies as well at law as in equity. Gordon vs. Finlay, 3 Hawks 239.</p> <p>submitted the case without argument.</p>

This was an action of covenant brought upon the following instrument: “ We the undersigned guarantee that Watson W. Wood-burn will pay to Anthony Bencini any and all amounts of money that may come to his hands as agent, for Peck, Well-ford & Co. Given under our hands and seals this 15th day of October, 1836. JOHN A. GILMER, seal. (Signed) H. HUMPHREYS, seal. JOS.

This was an action of Debt, brought by the plaintiff, to recover of the defendant the penalty prescribed by law, (see 1 Rev. Stat. ch. 52, sec. 20) for having voted at an election for members of the… Held: that if public taxes have at any time been paid any where in the State, it is sufficient.

After the. new trial granted in this cause, at December Term, 1837, (See 2 Dev. & Bat. Rep. 476,) it was again tried at Rutherford, on the last circuit, before his honor Judge Too-mer, when a verdict was rendered m favour of the plaintiff upon the issue joined, and his damages assessed to $84:50 cts.

<p>This was an action of Debt upon a bond, which was made payable to “William H. Horah, Cashier or order,” and “negotiable and payable at the Branch of the State Bank at Salisbury.” The action was commenced in the County Court of Mecklenburg, and at November Term, 1834, of said Court, the parties, by their attorneys, appeared in open court, when the following entry was made, viz: “Judgment.” At May Term, 1835, the cause was, by order of Court, reinstated on the trial docket, and the defendants entered their pleas; and at a subsequent term, it was tried, and a verdict and judgment rendered -in favor of the plaintiff; upon which the defendants appealed to the Superior Court, where, on the last circuit, it was tried before his Honor Judge Nash, when the plaintiff having obtained a verdict, the defendants moved in arrest of judgment, and assigned the following reasons: First, because the charter of the State Bank had expired. Secondly, because it appeared on the face of record, certified from the County to the Superior Court of Mecklenburg, that there had been a discontinuance of said suit. The reasons in arrest were overruled by the Court, and judgment being rendered for the plaintiff, the defendants appealed.</p>

<p>A motion was made for a certiorari, to bring- up the re.cord in this case. It appeared that the action had been brought, by order of Court, for the purpose of deciding certain questions of title and possession, material in a petition for partition, pending between the parties; that the jury found a verdict for the lessors ofthe plaintiff, subject to the opinion of (he Court on a case agreed; and the Court, pro forma, gave judgment for the lessors of the plaintiff; That the defendant appealed, and it was agreed by the lessors of the plaintiff, that-he should not give security for the appeal.’— The deputy Clerk of Hyde Superior Court stated in, his affidavit, that the case for.the Supreme Court was not made up by the Judge during the term ; and that the papers in the cause were taken to Beaufort County by the attorneys in the cause, and he did not get them back to Hyde in time to make out a transcript before Friday in the second week in June, when he mailed the transcript for the Supreme Court. The transcript did not, and could not, arrive in time. The defendant deposed that he never intended to relinquish his ap peal; that his attorney promised that he would see that the case should be sent to the Supreme Court.</p>

This was an action of ejectment for a tract of land, upon which was a valuable gold mine, tried at Lincoln, on the last circuit, before his honor Judge Nash. Upon the trial, many points were raised, and the facts connected with them are fully stated in the record. But as the opinion of this Court turns upon one or two of those questions only,, it will be useless to advert to any facts but those relative to the points on which the case is here decided.

Ejectment, tried before his Honor Judge Saunders, at Hyde, on the Spring circuit of 1838. Peter Sermon died seized in fee of a tract of land, situate on Mattamuskeet Lake, in Hyde county, and the same descended to his heirs at law, of whom Reuben Berry, John Berry, Rachel Berry and Levisa Berry were part; to whom, as representing a deceased parent, one undivided fourth part of the Sermon tract of land belonged.

This was an action of Assumpsit, submitted to his Hon- or Judge Saunders, at Northampton, on the last Fall circuit, upon the following statement of facts as a case agreed: The plaintiff sought to recover of the defendant, on his endorsement, the principal and interest of the said note, as a surety of the maker — and it was agreed, that if the defendant was, in the opinion of the court; liable, then judgment should be entered for the plaintiff for the sum of $3,168 with…

This was an action of ejectment for two tracts of land, adjoining each other, and containing, the one 416 acres, and the other 100 acres, tried at Randolph, on the last circuit, before his honor Judge Settle. The material facts of the case were, that G. Mullenex was seized oí the tract of 416 acres in fee, and in 1810 contracted to sell it to Jesse Nixon, who entered and paid the purchase money, except the sum of $40, but never took a conveyance.

This was an action of trespass oi>i the case, tried at Yancy, on the Fall circuit of 1837, before his honor Judge Settle. The declaration contained two counts.

The transcript of the record in this cause not having been filed within the time prescribed by law, (1 Rev. Stat. ch. 4, sec- an aPPlicati°n was made by the appellant’s counsel for a certiorari to bring up the record.

This was an action of assumpsit, brought by the plaintiff, as a- remote endorsee, against the defendant, as endorser of two promissory notes, executed by one Peter R. Wykoff, in the city of New York — the one dated Noveniber 12th, 1836, for $2,250, payable five months after date, and the other dated December 10th, 1836, for $3,000, also payable five months after date.

This proceeding was commenced by warrant, in the form following: « STATE OF NORTH CAROLINA, Moore County: To any lawful Officer. “ Whereas, John Philips personally appeared' before me, Cornelius Dowd, sen., one of the justices of'the peace in and for said county, on this 2d day of September, 1837, and made oath, that Daniel Muse, on the 27th day of August last past, did bring to Friendship meeting house, in said county, cider and ginger-cakes, and did, within one hundred and…

This was an- action of Trover, brought to recover damages for the conversion of a negro woman, slave, named Ruth,, and tried at Bladen, on the:, last circuit, before his Honor Judge Pearson. It was in evidence on the trial, that Joseph Kemp died in 1805, leaving a will which was duly admitted to probate, and William Kemp qualified as administrator with the will annexed, at the November Term of that year.

This was an action of Detinue for a negro woman slave, named Dorcas, and her two grand-children, Jim and Maria. Plea — non detinet.

EjectmeNT, tried before his Honor Judge Pearson, at Richmond, on the last-circuit. The defendant admitted that he was in possession of the house and field along the line A, B, as represented on the annexed diagram. The lessor of the plaintiff read in evidence a grant to himself, dated in the year 1812, and proved that A was the beginning corner of his grant, and was a known and estalish-ed comer of the Gad tract.

<p>The construction of a deed, upon the question of boundary, is as much a legal question, as upon any other point, although it is the province of the jury to say which, or where situate, may be the particular tree, stone or stiearn called for; and it is a principle of construction-clearly settled, that a natural and permanent object shall be deemed the boundary in preference to the line designated by course and distance. It is true that the call foranaturalboundary may be, itself, vague or imperfect, or even contradictory; as for a stream, where there are two of the same name, or it be uncertain which of the two bears the name, or for two natural objects, e. g. a branch and a pocosin, which, upon evidence, appear not to beidentieal, but to be at different places; then, necessarily, the case is open for evidence to the jury, as to which was the object meant, and by which the survey was actually made.</p> <p>If the call of a grant be “ upa pocosin and branch N. 71°, W. 45 poles; thence still along said branch and joining Keith’s land, N. 15°, W. 98 poles; thence N. 66°, W. 87 poles to a gum near the branch;” and there is nothing to show a discrepancy in the objects called for, to wit, the pocosin and branch, the only question is, whether the branch, as a distinct natural object, in itself defined and appropriate for the line of a patent, is to be followed in preference to the mathematical description by course and distance, and it is clearly settled that it is.</p> <p>The cases of Brooks v, Britt, 4 Dev. Rep. 481, and Hurley v. Morgan, 1 Dev. & Bat. Rep. 425, approved.</p> <p>Where a grant describes a tract of land as lying on a river, and begin* ning below the mouth of a branch, and the last line hut one calls for a tree on the river, and thence up the river to the beginning, these termini, independent of the other calls of the grant for the branch, clearly fix the beginning of the survey on the river.</p>

This was an action on the case against the defendant, a justice of the peace, for misfeasance in the performance of the duties of his office, whereby the plaintiff alleged that he had sustained damage.

This was an action of detinue commenced by the plaintiff’s testator against the defendant, for a negro girl, named Rebecca. Plea — the general issue.

<p>An indictment will lie in this State for disturbing a congregation of people assembled for the purpose of divine service, and engaged in the worship of Almighty God, although it be not in a church, chapel, or meeting-house permanently set apart by a religious society for divine worship.</p> <p>The case of the Slate vs. Jasper, 4 Dev. Rep. 323, approved.</p>

This was an action of covenant, on an instrument executed by the defendant, under seal, in the following terms: “ I, Archibald Mclntire, have sold to Jesse Thrower one tract of land, joining, &c., and containing, &c,, which I bind ma^e a deedt0 Jesse Thrower for, when called for.” The plaintiff was the administrator of Jesse Thrower, and the breach alleged was, that after the death of his intestate, the plaintiff requested the defendant to execute a deed for the laud in fee…

This was an action of debt, on a negotiable single bill, in which the plaintiffs declared as assignees of Richard Crist. Plea — the general issue. On the trial at Craven, on the last circuit, before his honor Judge Settle, the plaintiffs proved and read in evidence the bill upon which they declared, in the following words and figures, to wit: “ $233.

Ejectment, tried at Buncombe, on the last circuit, before his honor Judge PeausoN. On the trial, the lessor of the plaintiff produced and read in evidence a grant to one Z. Candler, for the land in dispute, dated, in the year 1829, and then shewed a regular judgment and execution against Candler, and a sheriff’s deed to himself, dated in the year 1831.

The prisoner was put upon his trial, at Iredell, on the last circuit, before his honor Judge Dick, for the murder of his °wn ^enaa'e siave) a woman, named Mira.

<p>A payment to a mother, made by the reputed father of her bastard child, in full satisfaction for the maintenance of the child, may, if made before any order for that purpose, very properly influence the court in saying what further sum he shall pay, if it shall happen that the child is supported by her; but certainly cannot operate as a bar to the power of the court, to'make whatever order in the premises, the maintenance of the child, or a just compensation to the person who may have maintained the child, may require.</p>

At Haywood, on the'last circuit, before his honor Judge PearsoN, the defendants were tried upon the follorving bill of indictment: “ The Jurors for the State upon their oath present, that Benjamin M. Enloe, Alexander Crisp and George Souther-land, all late of &c., on &c., being evil disposed persons, and wickedly devising and intending, not only to obstruct the due administration of the criminal law oí the State, but also to prevent the laws from being duly enforced, and…

The defendant acknowledged a recognizance before a Justice of the Peace for Buncombe county, in the sum of $ 100, to be void on condition that a certain negro slave, called George, should make his personal appearance at the next term of the Court of Pleas and Quarter Sessions, to be held for the county of Buncombe, at &c., on &c., then and there to answer to a charge of the State, and not depart thence without leave of the said Court.

Ejectment tried at Rutherford, on the last circuit, before his honor Judge Peabson. The defendant Beatty, admitted that he was in possession of the premises, as the tenant of the other defendant Hogue, who was admitted to defend as landlord.

<p>This was an indictment containing two counts — the first for an assault on Joshua Cranor, as deputy sheriff, in the due execution of his office; and the second for a simple assault and battery, tried before his honor Judge Bailet, on the last circuit, at Guilford. 'On the trial it was proved that one Alfred Short, a constable, had in his hands an attachment a* gainst the property of ohe Thomas Poor, a brother of the defendant, issued on the 20th of August, 1838, by a justice of the peace, for $>29, made returnable to Guilford County Court, on the 3rd Monday of November thereafter; upon which attachment he endorsed “ levied on a field of growing corn of Thomas Poor.” This endorsement was made about 12 o’clock of the day on which the attachment issued, by the officer, without going upon or near the premises where the corn was growing; and on the same day he returned the proceedings before a justice of the peace, who entered up a conditional judgment; and at the expiration of thirty days, the officer obtained a final judgment and an order of sale, and advertised the sale to take place on the 15th of October thereafter. It was proved further that another attachment for $150, issued on the 20th of August, returnable to November County Court of Guilford county, which was on that day placed in (he hands of Joshua Cranor, who went to the same corn-field, as deputy sheriff, and levied on the corn about night, or a little after dark of the same day. It was also proved that early iu October the defendant applied to Short, the constable, for leave to gather the corn for him, and that the constable authorized him and one Samuel Irvin to gather it: that on the 10th of October, when Joshua Cranor, the deputy sheriff, was in the act of entering the field with a wagon, for the purpose of gathering the corn., he was resisted and assaulted by the defendant.</p> <p>His Honor charged the jury that the levy made by Short, the constable, by virtue of the attachment in his hands, was insufficient to attach the property, and that the defendant derived no authority from the said officer to resist Cranor, the deputy sheriff. The defendant was convicted and sentenced to pay a fine, and appealed.</p>

Ejectment, tried at Haywood, on the last circuit, before his Honor Judge Peabson. The lessor of the plaintiff, shewed that the land in controversy had been patented; and then gave in evidence a sheriff’s deed to himself, setting forth that he, the sheriff, sold the land for the tax due for the year 1833, amounting to 31. 1-4' cents, and for charges. He also proved the defendant to be in possession.

<p>The levy of an attachment upon land creates such a lien upon it, that if there be a subsequent judgment of condemnation and a sale of the land under a writ of venditioni exponas, the title of the purchaser will supersede that of one claiming under a judgment and jfieri facias posterior to the date of the levy of the attachment, but prior to the judgment of condemnation and venditioni exponas.</p>

<p>This was an action of assumpsit, in which the plaintiff declared specially against the defendant for that the latter had sold to Isaac W. Hughes, a parcel or lot of ton timber, to which the plaintiff, by virtue of a contract with the defendant, had the right of property.</p> <p>On the trial at Craven, on the last circuit, before his honor Judge Settle, the plaintiff introduced a witness who stated that he was the agent of Isaac W. Hughes, and purchased of the defendant the timber in question, and that while he was settling for it, the plaintiff came with his hands for the timber, when the witness informed him that he had bought it of the defendant, and was to give him thirty-one dollars per ton for the same; and in the course of the conversation, the defendant, who was present, admitted that he had sold the timber to the plaintiff, and that the plaintiff had agreed to give him thirty dollars per ton for it, and offered to pay the ■plaintiff the difference between the sum agreed to be paid by the plaintiff, and the sum for which he sold the timber to the witness. It was proved further, that the plaintiff had not paid any thing to the defendant, and that the timber was taken by the witness for his principal, and used by him; and further, that if the plaintiff had obtained the timber and sawed it up, he might have realized between forty-five and fifty dollars. On the part of the defendant it was proved, that before he sold to Hughes, he was informed that the plaintiff was insolvent, and that.he would “ stand abad chance in getting his money;” and that he then immediately sold to Hughes. It was also proved for the defendant, that the plaintiff, at the time of the alleged contract, was in fact insol vent; that the timber had never been out of his, defendant’s possession; but was at the public wharf, and not at the plaintiff’s mills, where it was usual to deliver it by persons selling him timber; that the timber had not been measured or taken an account of by the plaintiff; and there was no evidence on the part of the plaintiff to shew an offer by him to pay, or his ability to pay, for the timber; but on the contrary it was proved that he was unable to pay.</p> <p>His Honor charged the jury that if they believed, from the evidence, that the contract, as alleged by the plaintiff, had been made by him and the defendant, the plaintiff was enti-tlod to recover damages commensurate with the injury which he had sustained; but if they should collect, from the testimony, that there was only a conversation and chaffering in relation to a contract which the parties did not complete, then the title t.o the timber did not vest in the plaintiff, and he would not be entitled to recover. The defendant had a ver-diet and judgment, and the plaintiff appealed.</p>

<p>Ejectment, tried at Rutherford, on the last circuit, before his Honor Judge Pearson.</p> <p>The lessors of the plaintiff, after proving the defendant to be in possession, for the purpose of showing title in themselves, exhibited, (as the case states,) “ a grant for the premises in dispute, to one Tench Coxe, issued in the year 1796, a copy of which grant, marked A, is referred to, and made a part of this case.” The copy of the grant marked A, and sent up with the case, appears to have been one in the ordinary form, made not to Tench Coxe, but to James Greenlee, Lewis Baird and William Ervine. Coxe (as the case further states) conveyed, as appeared by the deed exhibited, to Augustus Socket, in 1819, and Socket mortgaged the same in fee to Kintzing and Duponceau. Kintzing conveyed to Du-ponceauin 1822, and in 1824 the latter conveyed to Murray, Hoyt, A. Bronson and Thompson, who, in the year 1826 filed a bill in equity, to foreclose the mortgage; whereupon, there was a decree for the sale of the premises, and in 1827, the clerk and master, in obedience to the decree, sold and conveyed them to one Stephens, and about the same time, Murray. Hoyt, and A. Bronson conveyed their entire interest in tee simple to the said Stephens. Subsequently, Stephens executed a deed, whereby he, in consideration of the sum of *"en dollars to him in hand paid by Murray, Hoyt, and A. Bronson, “remised, released and quit claim” to them, the same premises. In 1829, Murray conveyed to Isaac Bronson, and in 1830, Arthur Bronson released to Hoyt and Isaac Bronson, the lessors of the plaintiff. The defendant insisted, in the first place, that the original grant to Coxe was utterly void on its face, and passed no title from the State.</p> <p>2ndly. That the deed of Stephens to Murray, Bronson and Hoyt, was only a release, and could not, therefore, operate as such, for want of some interest in those to whom it was made.</p> <p>3rdly. That as Thompson was the legal owner of one fourth of the premises, Bronson and Hoyt, two of the tenants in common, could not jointly demise to the plaintiff.</p> <p>His Honor was of opinion, and so charged, upon the first point, that there was no such defect in the grant as could be taken advantage of in an action of ejectment. Upon the second point, he held that from the whole deed it was obviously the intention to pass the title, and that although apt and proper words were not used for a deed of bargain and sale, yet the consideration of ten dollars raised an use, and the Statute of Uses transferred the legal estate to the use, and that therefore the deed did operate to pass the title. Upon the third point, his Honor held that two tenants in common might make a joint demise in ejectment, although there might be another tenant who did not join. There was a gen. eral verdict and judgment thereon, for the lessors of the plaintiff, and the defendant appealed:</p>

<p>This was an action of Assumpsit, in which the plaintiff sought to enforce contribution from the defendant up on the allegation that the defendant was his co-security for one Pey-ton R. Tunstall, submitted to his honor Judge Saunders, on the last circuit, at Halifax, upon the following statement of facts as a case agreed:</p> <p>“ On the 30th of May, 1825, a single bill, executed by Tunstall and the plaintiff Dawson, under their hands and seals, was made in order to be discounted at the State Rank, for the use of Tunstall, for the sum of $4,500, payable eighty-.eight days after date, negotiable at the State Bank, and payable to the defendant Petway, and by him endorsed in blank. On the 7th of June the said bill or note was discounted at the Bank, for the accommodation of Tunstall, and the proceeds passed to his credit. After the note fell due, it was renewed in full br paying the accrued interest and giving a note in the following words:</p> <p>August 30th, 1825.</p> <p>$4,500. Eighty-eight days after the first day of September next, we promise to pay to Mark H. Petway or order, four thousand five hundred dollars, for value received, negotiable and payable at the State Bank of North Carolina, at Raleigh.</p> <p>PEY. R. TUNSTALL, seal.'</p> <p>J. A. DAWSON, seal.</p> <p>For renewal.”</p> <p>This note was executed by said Tunstall and Dawson, under their hands and seals, and endorsed by said Pettway. * * * The body of the note was written by Pettway, and the words added at the foot of the note ‘ for renewal,’ in his hand-writing. This second note not being paid at maturity, a suit was brought by the Bank against all the parties, and a judgment recovered at Fall Term, 1826, of Wake Superior Court. An execution issued thereupon, returnable to the ensuing Spring Term of that Court, on which the present plaintiff paid the sum of $4,864:92 1-2 cents, being the full amount of the principal, interest and costs due the 2nd day of March, 1827, for the one moiety of which, with interest, the present action is brought. At the bringing of this action, and for several years before, the said Tunstall was dead and insolvent.</p> <p>Upon the foregoing statement, should the Court be of opinion that in law the plaintiff is entitled to call on the defendant for contribution, the judgment to be entered for the plaintiff for the sum of $2,432:46 1-2 cents, with interest from the said 2nd day of March, 1827, in which event is to be set off and deducted therefrom the sum of $2,249:91 cts., being the amount due this defendant, for principal, interest and costs upon judgments, obtained in Halifax County Court, by the said Pettway against the said Dawson, and execution be granted for the residue. Should the Court be of a contrary opinion, then judgment to be entered in this action for the defendant.” Upon this case His Honor was of opinion for the plaintiff, and gave judgment accordingly; from which the defendant appealed.</p>

<p>Acquiescence by an executor in the possession or sale by the legatee for life of the thing bequeathed, furnishes a ground for inferring an assent to the ulterior bequest. But where the person nominated executor in the will, refuses or neglects to accept the office, no acquiescence on his part, nor act of his, not amounting to an act of administration, will justify the inference; because, in order thereto, there must in fact be an executor to assent.</p> <p>Jurors are not bound to take either the whole or any part of a witnesses’s testimony as true, if in their consciences they do not so believe. But where it is incumbent on a party to establish a fact, and the only testimony in relation thereto contradicts it, a jury cannot capriciously mangle the testimony, so as to convert it into evidence of what it does not prove. If the witness be deserving of credit, the fact necessary to be shewn is disproved — and if he be not worthy of credit, there is a defect of proof.</p> <p>Where a testator, in one clause of his will, lends to his wife all his estate, real and personal, for life, and in a subsequent clause provides that after the death of his wife his son shall have a particular negro woman, but that her second born child after that time, shall be given to his grandson, it seems that the widow takes a life estate in the child.</p>

Assumpsit brought to recover of the defendant contribution as a co-surety, tried before his Honor Judge Saunders, at Onslow, on the last spring circuit. On the trial, the case was, that a note had been discounted at the Newbern Branch of the State Bank, of which the following is a true copy: Neiobern, Feb. 6th, 1833. “$889: 29-100.

<p>After the new trial granted in this case, at December term, 1838, (see ante page 18,) it came on to be tried again at Buncombe, on the last circuit, before his honor Judge Pearson, when the case appeared to be as follows:</p> <p>The lessor of the plaintiff proved the defendant to be in possession of a field on the east side of the French Broad River, and also of another on the west side of the same river, and then offered in evidence a grant to himself from the State, dated in 1829, including land on both sides of the river, and taking in both fields. As to the land on the east side, the defendant relied upon showing title out of the plaintiff’s lessor, and produced a grant to one Blount, dated in 1794, which covered all the land on that side of the river. The lessor of the plaintiff then read in evidence a grant to the defendant, dated in 1834, for the land on the east side; and in- , sisted that the defendant was estopped by this grant from denying title in the State at the date of the plaintiff’s lessor’s grant; and the question was, whether the defendant was es-topped from showing title out of the plaintiff’s lessor, by relying on Blount’s grant.</p> <p>His Honor was of opinion that the doctrine of estoppel did not apply, for that when the grant issued to Candler, in 1829, at his suggestion that the land was vacant, the State was not estopped from denying this allegation, and of course the defendant who claimed under the State by the grant of 1834, was not estopped from denying a matter which his grantor was at liberty to deny.</p> <p>As to the field on the west side of the river, the defendant offered in evidence a grant to one Roberts, dated in 1793, and regular mesne conveyances to one Warren, one Baily, and to This grant anc^ the mesne conveyances did not cover a part of the field,.containing about two acres. But as to these two acres, the defendant relied upon the presumption of a grant from long possession, and proved that for upwards of thirty-five years before the commencement of this action, the field had been fenced in, and cultivated every year by persons claiming it as theirs; that he himself had cultivated the land, claiming it as his own for fifteen years next before the commencement of the action; that Baily had cultivated it the ten years before, and that Warren had cultivated it ten years before Baily took possession; both Baily and Warren, while in possession, respectively claiming the land as their own. The counsel for the lessor of the plaintiff insisted that such possession was not' sufficient to justify the presumption of a grant, without showing that the defendant claimed under Baily, and Baily under Warren, by some kind of conveyance.</p> <p>His Honor charged that a long, uninterrupted possession, as for thirty years or more, by persons claiming the land as their own, would justify the jury in presuming a grant, although no connection by a deed or other conveyance was proven to have existed between the persons so holding possession. There was a verdict and judgment for the defendant, and the plaintiff’s lessor appealed.</p>

<p>Where the record of an indictment for murder set forth the indictment, the answer of the prisoner to the enquiry how he would acquit himself, the reply of the Attorney General, the order for a jury to come, and then proceeded, “ and afterwards in the said case, State vs. Thomas H. Christmas, indictment, Murder, the following jury being sworn and empannelled, to wit, &e.,who say that the prisoner, Thomas H. Christmas, is guilty of the felony and murder in manner and form as charged in the bill of indictment,” it was held, that the record shewed, if not in express terms, yet by necessary implication and with requisite certainty, that the jury was sworn to try the truth of the matters charged in the indictment.</p> <p>¡(al ausuafto 13 ™sa„ee onehisS°>ur of not gu¡i-s?i he issue is immaterial, ,°f an inquisition th^umh'^of aocusa-</p> <p>Wouid ror, if die record were to set forth asYlndhíg on h<Mie tween ihe theprfsoner, where the issue is joined on íhe ment, bm the regular ItathigV.</p> <p>i„ a court of supreme original ju-risiiictio», ways'pre-"’ proceeding» record1 of uom,t have been ^concern» and correctly “ '</p> <p>. «imt tbe”^ ““díc-men" mu,'der» be cei-uun to a ceiiam n si.ouid be certain ¡n- /«'•- s".™ to "x"iu¿ elusion, all' argument, íyesump-a-</p>

<p>The signature of a justice is absolutely necessary to an alias, as well as 1o an original execution on a justice’s judgment. Hence an entry of “ execution renewed” without the signature of a justice, at the foot of a dormant justice’s execution, gives no authority to the acts of an officer under it.</p> <p>The levy of a justice’s execution upon lands, under the act of 1794, 1 Rev. Stat. ch. 62, sec. 16, need not perhaps be in the very words of the act; but a description containing a fart only of that prescribed in the ad must, be taken to be insufficient in point of the certainty thereby required, until it be shewn as a fact that it identified the land levied on, as effectually as it would have been identified by a description 'conforming to that given in the act. Hence a levy upon “all the lands of the defendant, lying on Queen’s creek,” without any such evidence of identity, is not sufficiently specific to authorise the court to make an order of sale, or if such order be made, to support a sale under it.</p> <p>The levy of a justice’s execution upon “all the lands of the defendant, lying on the head waters of Ketchum’s mill pond, adjoining the lands of said Ketchum,” is substantially, if not literally, a compliance with the requisitions of the act of 1794.</p> <p>If a justice’s execution be levied upon land and rqtprned to court, and the land be sold under a venditioni exponas, issued upon an order made by the court for that purpose, the lien has relation back to the time of the levy, so as to defeats sale made afterwards by the defendant.</p> <p>The case of Lash vs. Libson, 1 Murph. S66, approved.</p> <p>Where an execution authorises the sheriff to sell all the lands of the defendant lying on the head of a particular mill pond, and adjoining the lands of a particular person, if the lands embraced in that description comprehend more tracts than one, a sale en masse will be supported in the absence of fraud on the part of the sheriff and purchaser.</p> <p>The cases of Wilsonss. Twltty, 3 Hawks, 42, and Thompson vs. Hodges, Ibid 51, approved.</p> <p>la an action of ejectment, the quantity of land mentioned in the declaration, need not correspond with that which the'lessor of the claims. He may declare for an indefinite number of tracts of land— and recover according to the quantity to which he proves title; especial-1ly when it appears that all the tracts adjoin each other and constitute in fact bat one tract in the possession of the defendant.</p> <p>If a sheriff sell land under an execution authorising him to sell, his deed is good, and passes the title, although in his deed to the purchaser he make an erroneous recital of the power under which he sells: And that he sold under a particular execution must be presumed, until the contrary be shewn, if he had that execution in his hands at the time, and sold the lands thereby directed tobe sold.</p> <p>The case of Haitim vs. Dew, 3 Murph. 260, approved.</p> <p>■ A description in a sheriff’s deed of “all the right, title and estate which the said J. W.” (the defendant) “has in the county of Onslow, on Queen’s creek, being all the land which the said .T. W. owned on said creek,” though far from being so particular as could be wished in a sheriff’s deed, is not, it seems, so indefinite as to 'make the deed void . on that account. ..</p> <p>If a party claimed under a sheriff’s sale, made by virtue of several district judgments and executions, and the judge instructed the jury that if the executions were in the hands of the sheriff at the time of the sale, he had authority to sell, and the jury thereupon found a general verdict for the plaintiff;- and it afterwards appear that only one of the executions was sufficient to authorise the sale, but whether that authority extended to all the lands described in the sheriff’s deed, and claimed by the party, or to a part of them only — or vyhether it extended to them at all, is not shewn, a new trial will be granted.</p>

<p>If two joint obligors be sued and one of them give bail, such bail cannot, upon being compelled to pay the debt by proceedings against him as such, sustain an action against the other obligor for money paid to his use, there being no privity between the bail of one obligor and his co-obligor.</p>

This was an action of Assumpsit, in which the plaintiff declared in the several money counts.

Detinue for two slaves, Lucy and Baceus, tried at Ire-dell, on the last circuit, before his honor Judge Dick. The plaintiff claimed the slaves in question under the will of his father, John White, deceased, who bequeathed the wo-1 man Lucy to his wife for life, and after her death to the plaintiff.

<p>This was an action of Assumpsit, in which the plaintiff declared that in consideration of the sum of one hundred dollars, paid by hitn to the defendant, the latter undertook and promised to put him in possession of a certain plantation with the improvements, then occupied by one Dobbs, a Cherokee Indian, who was about to emigrate to the west, and to procure for him a certificate from Benjamin F. Curry, the United States’agent for superintending the emigration of the Cherokee Indians; and alleged as a breach that the defendant had failed to procure this certificate. Plea — the general issue.</p> <p>Upon the trial at Macon, on the last circuit, before his honor Judge Pearson, after the plaintiff bad proved the cotitractj the defendant proved that when Dobbs left the country, he, the defendant, purchased from him his improvement or “ good will,” as it was called; that, some few weeks afterwards he applied to the Indian Agent for a certificate; but the agent declined giving it to him, observing that “ he. had in a manner quit giving certificates; and that as the Indian was gone, it was unnecessary;” that he notified the plaintiff of this fact, and offered to put him into possession; but the plaintiff declined taking possession without a certificate, saying that if he was disposed to run the risk, he might take possession of any other Indian improvement without paying for it; but that he would not do so; and as the certificate could not be procured, he insisted on having his money back. The defendant proved also that Dobbs’s improvement had continued vacant and unoccupied until the State of North Carolina took possession of the country. The plaintiff then introduced evidence to shew the nature and advan-of the certificates which the Tedian Agent, both before m:i^ a^ter transaction, was in the habit of giving; though it did not appear that there was any act of Congress}or regu-iation jn ai1y 0f the departments of the government of the United States in relation to them.</p> <p>His Honor charged thejury “ that if the evidence satisfied them that the defendant had undertaken to procure the certificate, and had failed to do so, the plaintiff was entitled to a verdict; that the amount of damages was a question for them; that the law implied that some damage was sustained by the breach of any contract; but unless the evidence satisfied them that the plaintiff had sustained real damage, it was their duty to find merely nominal damages; that the burthen of proof lay upon the plaintiff, and it was for him to show the amount of damage to the,satisfaction of the jury; otherwise they should, in such cases, find but a penny.” The jury found a verdict for the plaintiff, and assessed his damages to fifty dollars. The defendant thereupon moved for a new trial, because the jury had found damages to the amount of $50, when the evidence only justified.a verdict for nominal damages. This motion was overruled; and the defendant then submitted another motion for a new trial, because the. Court had not instructed the jury that there was no evidence to justify a verdict for more than nominal damages. This motion being also overruled and judgment pronounced, the defendant appealed.</p>

This was an action trespass vi et armis, tried at Buncombe, on the last circuit, before his honor Judge Pearson, when the case appeared to be as follows: The plaintiff leased a tract of land to one Ruth for term of one year, to wit, the year 1836; and the lessee, instead of a money rent, agreed to give the lessor one third of the grain made on the land, if he worked it well; if not, then five hundred bushels of corn. The lessee entered and made a crop on the land.

<p>Where the whole interest in property is conveyed to one person in the premises of a deed, but in the habendum, is limited to another, the latter is repugnant to the former and void, and the property is vested in the grantee named in the premises, who may consequently maintain an action for it in his own name.</p> <p>ofígl-a™6 tee appear habendum a(tee(1 i w.n be vT,"ed There ee named m ofif p¡.„Y<¡()el<jre’ **?e ust,ate given by the habeas w:'-s I1"1 but by wa der.</p>

This was an action of Assumpsit, brought to recover damages for a breach of contract in not delivering hogs.

This was an action of Ejectment, tried at Halifax, on the last circuit, before his Honor Judge Saunders, when the jury found a vet diet for the lessor of the plaintiff by the consent of the parties, subject to the opinion of the court upon the following case reserved, to wit; “George Zollicoffer, by his will, made the 2nd of February, 1799, after devising some part of his lands to his eldest son, devises in theSfe words: ‘Thirdly, my will and desire is, that all the rest of…

The plaintiff filed her petition in the Court of Pleas and Quarter sessions for the county of Granville, alleging that her late husband, William A. Norwood, had died sieved in fee simple of a certain tract of land, situate in the said county of Granville, and praying that she might have dower assigned in the same.

Trover for a horse, .tried at Warren, on the last circuit, before his honor Judge Saunders. The plaintiff, who was the Sheriff of Warren county, claimed title to the horse by virtue of a levy, under three fi. fa’s, in his hands against one Thomas H. Christmas, whose property the horse then was.

This was an action of Debt, upon a bond executed by the defendant Lee, as constable, and by .the other defendants as his sureties, in January, 1833.

<p>A previous suit for the same cause of action in which the plaintiff has been nonsuited, is both a notice and a demand of his claim.</p> <p>It is not necessary, to enable one co-surety to have contribution from another, that the former should pay the debt under the compulsion of a suit.</p> <p>It seems that a surety who has paid the debt of his principal, upon the default of the latter, may recover of his co-surety, though the principal was solvent when the surety paid the money; provided the principal subsequently became insolvent before the surety received payment, or had a reasonable time to prosecute a suit against him to judgment.— Such surety certainly may recover where the insolvency of the principal existed from the day the money was paid to that on which the suit was brought against the co-surety.</p>

This was an action of Debt upon the bond given by the defendant, as Sheriff of the County of Buncombe. The bond was in the usual form, and the breaches thereof assigned by the plaintiff were; First, that the sheriff had collected and failed to pay over the amount of a judgment in favour of the plaintiff against one Thomas E. Justice, by the sale of property surrendered in a schedule filed by said Justice, after he had been arrested on a ca sa.

<p>At the November Term, 1837, of Wake County Court, Albert Franklin and William Mainor were called out upon a bond which they had executed, conditioned for their appearance at that term, to take the benefit of the act for the relief of insolvent debtors, and failing to appear, a judgment was entered up against them and their sureties, Abel Mainor and Green C. Franklin, for the amount of the debt and costs; and thereupon an execution issued against them which was returned to the ensuing term in February, 1838, endorsed by the sheriff with a levy upon the lands of Albert and Green C. Franklin; and upon the said return, a writ of venditioni exponas was issuéd to the sheriff, commanding him to sell the said lands. In the ensuing May, before the return of the said writ, Green C. Franklin applied to one of the Judges of the Superior Courts for writs of certiorari and supersedeas, upon the allegations stated in his petition, that William Mai-nor, one of the defendants in the ca. sa. bond, was confined in the jail of Wake County, during the whole of the term at which he was called out, and that Albert Franklin, the other-defendant in said bond, attended court during the whole of said term; that the sureties intended to surrender them in court in discharge of themselves, and would have done so, but for the reason that they were told by the constable who took the bond, that they were discharged, by the fact of one of their principals being confined in jail, and the other being in attendance on the court; that the sureties had been deceived by the constable, who was the agent of the plaintiff, and that they would be great sufferers, unless they could have an opportunity of surrendering their said principals in discharge of themselves. Upon this application, the Judge granted the writs as prayed for; and at the Fall Term, 1838, of the Superior Court for Wake county, it was, on motion, ordered that this cause should be placed on the trial docket, and stand for trial at the next term; and thereupon the defendants, Green C. Franklin and Abel Mainor, brought into court the bodies of Albert Franklin and William Mainor, and surrendered them in open court, in discharge of themselves as sureties or bail in the ca. sa. bond given in said case; and they were prayed into the custody of the sheriff by the plaintiff. At the ensuing Term, to wit, Spring Terrn^ 1839, of said court, the defendants, Green C. Frenldin and Abel Mainor. plead a surrender of their said principals, in discharge of themselves as bail, and that the surrender was made at the preceding Term; to which plea the plaintiff demurred. His Honor Judge Bailey sustained the demurrer, and gave a judgment for the plaintiff, from which the defendants appealed.</p>

<p>The gist of the action of detinue is the 'wrongful detainer at the date of the writ, and not the original taking of the chattel. It is generally, therefore, incumbent on the plaintiff in this action, to shew an actual possession or a general controlling power over the chattel by the defendant, at the date of the writ. And if the defendant had not the actual possession at the time when the writ was sued out, it cannot be said that the defendant is in law liable to the action, but only that he is liable if, upon the evidence, the jury should infer that he had agen-eral controlling power over the possession at that time.</p> <p>it one hav-chai'tds of make a íbr^viIíXe" aniTthere’ upon and wriT^sued out, the •with the thTacdo"’ ”iLd be'”6 maintained; transfer of afierre" mand, is of the plain tiff’s ae-tI0“'</p>

<p>This was an action of Ejectment, submitted to his hon-> or Judge Saunders, at Martin, on the last circuit, upon the following facts as a case agreed:</p> <p>The land in dispute was once the property of John Bennett, who, on the 25th day of December, 1816, executed a bond whereby lie bound himself to make and execute a deed for the said land to George Pollard, upon the said George paying him seven hundred and fifty dollars in cash, on the 20th day of January then next ensuing; and thereupon Bennett gave up the possession of the land to Pollard, who entered and retained possession till Bennett’s death, in September, 1819. At the December Term, 1819, of Martin County Court, Jesse Pierce took out letters of administration upon the estate of John Bennett; and on the 13th day of June, 1820, executed a deed for the said land to the said George Pollard, wherein it was recited that John Bennett, the intestate, had received the purchase money for the land in his life time. The feme lessors of the plaintiff were the children of John Bennett, and at his death were infants of tender years; and of whom the eldest intermarried with the lessor, Williams, after she became of full age, and at the time bringing the suit was twenty-five years old. The other feme lessor was under age, both at the time of her marriage and at the institution of the suit. The lessors of the plain-claimed as the heirs at law of John Bennett; and the defendant claimed under George Pollard, by a regular chain of Conveyances, and a continued possession from the 25th day December, 1816, up to the time of the trial. There was evidence of the payment of the purchase money, except reqital in the administrator’s deed. Both Pollard and Pierce, the administrator, had been dead several years.</p> <p>His Honor being of opinion with the defendant, the lessors of the plaintiff submitted to a judgment of nonsuit and appealed.</p>

<p>Upon an appeal fiom an interlocutory judgment in the Superior Court, allowed under the act of 1831, 1 Rev. Stat. Oh. 4, sec. 23, the Supreme Court cannot receive a suggestion of the diminution of the record, and thereon take steps for bringing up the proofs, or in any respect altering the form in which the case is sent up; and if the Judge of the Superior Court send up points which he has decided, without also sending up his finding of the facts on which those points arise, or sending the evidence, at least, on which he grounds his opinion, the Supreme Court will be unable to decide the matter of law raised on the record, and consequently cannot take jurisdiction of the case, but will dismiss the appeal as'having been improvidently granted.</p> <p>It is not error to refuse to dismiss a cause on motion for want of parlies, though it may be error to decree finally without them.</p> <p>After the death of all the executors of an estate, and at the end of forty years, a presumption of satisfaction or abandon-mem of a legacy, becomes cogent. unless it be repe.l-ed by the time of the payment of the aga of’ tile practice °t some particular imposition sufficient s-ances"</p>

<p>This was an action of Detinue for a slave, in which, upon the plea of non detinet, and issue thereupon, there was a verdict for the plaintiff, subject to the opinion of the court on a case agreed, presenting the following facts: Charles Thompson gave by his will, in 1821, sundry slaves to his wife for her life, and at her death to seven of his children; among whom was a daughter, who married the present plaintiff. In a subsequent clause, the testator used these words:</p> <p>“ But to my daughters such part as I have here particularly devised, and such share as shall fall to them according to the meaning and intention of my will aforesaid, I do hereby declare it as my intention, that, they have the use and benefit thereof during their natural life, and then to descend to the heirs of their bodies, if any, if not any heirs, then to their lawful heirs.”</p> <p>The widow enjoyed the slaves during her life, and after her death a division was made among the remainder-men by themselves and the executors; and the slave, the|subject of -the present action, was allotted as the share of the plaintiff’s wife, and taken into posséssion by the plaintiff. The wife' afterwards died, having had only one child, which died before her; and thereupon the other children of the testator claimed the slave, and the defendant took possession under their title-Upon this case, his honor J ndge Toomer, at Robeson, on" the last circuit, gave judgment for the plaintiff, and the defendant appealed.</p>

<p>Where in a deed of covenant to stand seized from an uncle to his nephew, T. S., the donor used these words: “ 1 give and grant, after the decease of my wife, two tracts of land lying, &e. to be possessed by him in fee simple, after the decease of my said wife, upon condition that he, the said T. S. shall then immediately, or as soon after a reasonable time as may be, settle the same and continue on the said prem- ■ ises during his natural life, so that the said premises shall not be sold or alienated during the life time of him, the said T. S. Also, 1 give and grant to my said nephetv, T. S. one negro fellow named &e. to him and his heirs and assigns forever,” it was held that the words “ to him,his heirs and assigns forever,” applied only to the limitation of the slave, and that the nephew took but a life estate in the lands, for want of the words of inheritance “to him and his heirs.”</p>

<p>This was an action of Debt upon a constable’s bond, in which the breaches assigned were a failure to pay over monies collected by the officer, and a failure to collect sundry notes and accounts placed in his hands for collection. The defendants pleaded the general issue — tender and refusal and money paid into court to the amount of $91:29 cts.</p> <p>On the trial at Pitt, on the last circuit, before his Honor Judge Saunders, the plaintiff offered in evidence a paper, prepared by the witness, which contained a list of debts amounting to the above sum of $91:29 cts., and which the witness said he had prepared by the direction of the defendant, the constable, who gave him the money, and requested him to tender the amount to the plaintiff. This he did, and the plaintiff refused to receive it, whereupon the defendant directed him to pay it into court, which he did. This was after the suit was commenced, but before the cause was put to issue. The plaintiff then offered in evidence the receipt of the constable for one or two .other cl aims which he proved to be good, to the amount of $5:57 cts. The defendant was then allowed to shew, subject to the opinion of the court, that one of the claims mentioned in the list, amounting to $16:95 cts., had been returned to [the plaintiff, and actually received by him before suit. If this evidence were admissible, and the defendant was to be credited by the amount, then it was admitted that the sum paid into court would more than cover principal, interest, and cost, at the time of paying it in, and judgment of nonsuit was to be entered; but if inadmissible, then a judgment was to be entered for the plaintiff for the sum of $5:57 cents, and cost. r</p> <p>His Honor held, that if the defendant admit the claim of the plaintiff, he must tender the amount admitted to be due, before action brought, and plead it; or he may pay into court the amount admitted to be due after action brought, with the costs, and then the plaintiff proceeds at his peril. That the party is allowed, as a matter of course, to pay money into court, if before plea pleaded, but after plea only on leave of the court. 2 Archb. Prac. ch. 9, pages 199, 200 — 13 Bast. Rep. 551. If the defendant pay money into court, and the plaintiff then proceeds, the practice is to have the amount thus paid stricken out of the plantiff’s declaration, and then, unless the plaintiff recovers something further,-he, of course, fails in his action. 13 East. 551. That according to this rule upon the defendant’s paying the $91:29 cents, and the plaintiff’s refusing to receive it, that sum must be stricken out of the declaration, which, of course, would have covered the debts enumerated in the list, as made out by the witness.— That having applied the money to particular debts, the defendant cannot be allowed to change that application, and apply a part to other debts. Having these views, his Honor gave judgment for the plaintiff, and the defendants appealed.</p>

The defendant Morris, made a motion in the Superior Court of Law, for the county of New Hanover, on the last circuit, before his Honor Judge Toomer, for a writ of error coram nobis, to reverse a judgment obtained in the said court by the plaintiff Tyler, against him, for error in fact; viz: that Tyler was dead at the time the judgment was rendered; and also for a supersedeas to the execution issued thereon.

This was a scire eacias to revive a judgment and obtain an execution thereon. Pleas — Nul tiel record — Payment and satisfaction — Accord and satisfaction.

<p>If a man assault another with malice prepense, even though he should be driven to the wall, and kill his adversary there to save his own life, he is guilty of murder.</p> <p>Where two persons have formerly fought on malice, and are apparently reconciled, and fight again on a fresh quarrel, it shall not be intended that they were moved by the old grudge, unless it so appear from the circumstances of the affair.</p> <p>When a man makes an assault, which is returned with a violence manifestly disproportionate to that of the assault, the character of the combat is essentially changed, and the assaulted becomes in his turn the assailant; and if the person who made the first assault, in the transport of passion thus excited, and without previous malice, kill his adversary, the proper enquiry as to the degree of his guilt is not whether he was possessed of deliberation or reflection, so as to be sensible of what he was then about to do, and intentionally did the act; but whether a sufficient time had elapsed after the violent assault upon him, and before he gave the mortal wound, for passion to subside and reason to re-assume her sway; for if there had not, he would be guilty of manslaughter only.</p> <p>If one began an affray, or even if he did not begin, but was assaulted in the first instance, and then a combat ensued, he could not excuse himself as for a killing in self defence, unless he quitted the combat before the mortal blow was given, if the fierceness of his adversary permitted, and retreated as far as he might with safety, and had then killed his adversary of necessity, to save his own life.</p> <p>™p™n-h' tempiuous rum, are no! a snffi-cientprovo-uniing from the guilt of n^a dead-h "“i;»», fesis an in-g°eat° ThU ruiehowev-obtain s“c,> ¡nsuffi-cádoí' tile S^ludl cI®n|y heat- and engage in "¿mbat terms.</p>

This was an action of Assumpsit, in which the plaintiff declared in two counts — 1st, for a breach of contract — 2ndly, for the value of instruction in the art and mystery of • carpenter’s trade, and for a set of bench tools, and board and clothing furnished to the defendant. Pleas non-assumpsit and infancy. Rep] ication to the latter plea, that the instruction given, and the board, clothing &c. furnished were necessaries.

<p>IF, upon an appeal by’one alone, of two or more parties to a judgment, in the County Court, the Superior Court proceed in the cause, and render a judment therein against the appellant, and he thereupon appeal to the Supreme Court, the latter Court will not dismiss the appeal for want of jurisdiction to entertain it.</p> <p>In a proceeding by petition, under the act of 1784,1 Rev. Stat. ch. 121, see. 1, for dower, the suit for dower is at an end by the judgment of the court awarding dower. This is the only judgment to be rendered in that suit; and any proceeding to set aside the inquisition taken under our act — like the scire facias — or writ of error — oi writ of admeas-urement — or bill in equity, used to set aside the sheriff’s assignment in England — is in the nature of a new suit.</p> <p>The act of 1784 has not indicated the remedy tor an illegal or excessive allotment of dower; but the usages of our Courts have defined it, to wit, that when the report of the jury is returned, exceptions may be thereunto taken by any one thereby aggrieved, and the Court will set • aside the allotment and order a new allotment,, if sufficient cause be shewn. And if a judgment be pronounced overruling such exceptions, the party may appeal, which will not disturb the judgment that the widow recover her dower — nor vacate any thing that has been done in execution of that judgment; but will only carry up the proceeding instituted to set aside the inquisition of the jury.</p> <p>Under the act of 1784, the jury cannot assign to the widow the whole of her husband’s real estate, upon the ground that the whole of it is necessary for her decent subsistence. The act gives her one third of the real estate of which her husband died seized, in which is to be comprehended the mansion house and offices — or if the whole mansion and offices cannot be so taken in, without injustice to the children, then such part or portion thereof as may be sufficient to afford her a decent subsistence. But the mansion house — ora part of the mansion house — is not to be allotted in addition to her third, but in part of her third; and if the whole be allotted to her by the jury, when her hnsband had no other real estate, the report will be set aside.</p>

<p>A responsibility incurred upon a request made by one professedly in behalf of himself and his copartner, in relation to their common business — but, in iruth, for his individual benefit, is, in law, incurred at the request of both. Hence, where a person' became surety to a bond, given to secure money borrowed by one. partner professedly for the firm, and so understood by the lender and the surety, but, in truth, for the individual use of the borrower, it was held, that though the credit- or could not recover the money from the firm, for want of authority in the partner to bind the firm by deed, yet the surety upon paying the bond even voluntarily and without suit, might recover the amount from the firm.</p> <p>. one partner Wopart-*1 p^^deed effected in the firm,6 °f press au-deed'Sr7 equity, if it shewn that *¡,’aS!<;nnbe_ h,aIf ofb°th ners, and iarityhwas* th® 00n-the*ms h mistake s ha(j been lí® tTwnd*1 one only, u seems that the creditor relief a-* gainst both,</p> <p>The con-tween surety— though it. Sed from rity given ¡tot — is not evnienced inn is a col-tract — oím a-which may there-shewnby teift sat «factory n '</p> <p>tw^parí-ners pm-ostensibiy nresWpPart" concern, ^ for himself; monitor thefim, hut misan-ply it, the bound!</p>

<p>This was art action of Detinue, to recover a negro slave named Aggy, and other slaves, the issue of Aggy, tried at Northampton, on the last circuit, before his honor Judge Saunders.</p> <p>On the trial, the plaintiff produced and gave in evidence a deed from one Robert Johnson to his testator, for the negro Agg or ,Aggy, dated 9th of December, 1813. This deed was in the usual -form of a bill of sale for slaves, expressed to be made in consideration of the sum of $ 150 paid by the purchaser to the seller, but with the following proviso: “ Provided, nevertheless, if the said Robert Johnson should well and tru]y pay unto the said Britton the above sura herein mentioned, before his death, then the above obligation to be void, only the increase, if any, to remain the property of Britton Johnson.” The plaintiff then proved the other slaves to be the issue of Aggy, and shewed a demand before the action brought, made of the defendant, and a refusal by him to surrender the slaves. He then called as a witness one William Nelson, who deposed that the negro Aggy went into the possession of Britton Johnson upon the execution of the deed, and remained there for about eighteen months or two years, when she bad a child named Jacob, and shortly afterwards ran away, leaving the child with Britton Johnson; that she went to the house of Robert Johnson, and soon after Britton applied to the witness to go with him to see Robert on the matter; that he went, and Britton asked Robert why he did not send the girl home? to which he replied that the girl complained of Britton’s wife; that she was a good girl whom he had raised and had never struck a blow; and he disliked to force her back. Britton said he had one little child now to raise by hand; if Robert kept the woman and left him all the children to raise which she might have, it would be very hard on him, as he was to have no interest for the $150, but the use of Aggy instead; and desired him to give him a note for the money. Robert replied that he had given Jesse Johnson (who was a step-son of his) some negroes, and he wished to do as much for Britton, (who was his nephew — the said Robert being childless,) and therefore he had given him the issue which Aggy might have; that he would not give Brit-ton a note; but in order that he might not complain of having to raise the little negroes, if Britton would consent to let Aggy remain with him, he would himself raise and take care of all the children she might have, for Britton, as long as he lived, without any trouble or expense to Britton, so that Brit-ton would have them at his death. Britton said he was afraid to leave them so long, lest the right to them under the deed should not be good. To this Robert replied, that old Mr. Moyt, who drew the deed, understood it as well asa lawyer; and proposed that Britton, Jesse and the witness should go to Mr. Burges, (a gentleman of the bar,) submit the deed to hip, state what they desired to do, and obtain his opinion; if he thought the present instrument sufficient, the negroes to remain; otherwise another instrument to be drawn, in order to assure the negroes to Britton. To this Britton assented; and Mr. Burges was accordingly consulted, and gave his opinion that the deed was good, and that Britton might safely leave the negroes with Robert to bring up the young children, as had been proposed. This opinion was made known to Robert, and all the negroes sued for remained with him till his death in June, 1836, when the defendant took possession of them as his administrator. The boy Jacob, the first child of Aggy, was kept by Britton Johnson till his death, in December, 1837. The sum of $150 was the full value of such a negro as Aggy, at the time the deed was made.</p> <p>The defendant called as a witness one Mrs. Clarke, who stated that Britton Johnson said to her, some few years after the date of the deed, that Robert had paid up the money, and he had no claim to the negro Aggy. He also called one Jenkins, who said that Britton, five or six years after Aggy had run away, told him he had no claim to Aggy, as the money was paid by Robert Johnson; but that he had the writings, which he would never give up, but would stand a suit first. The defendant.also called one Benthall, who stated that in a conversation between Robert and Britton, about twenty years ago, the former demanded of the latter the papers, who said he had them not with him, but that he would give them up another time. The defendant then shewed that about the year 1827, Robert Johnson became non compos; and a guardian was appointed for him, who hired out the negroes from year to year during his life- — he continuing non compos to his death; and then called a witness named Futrill, who stated that after Robert’s becoming non compos, he went with Britton to Robert’s house, when they found him calm, as he sometimes was; and after some words had passed between them, Robert demanded of him the negroes, upon which Robert became furious, and abused and cursed Britton; and he shortly after left the house. This was all the material evidence given, except to character.</p> <p>The defendant’s counsel insisted that the deed under which the plaintiff claimed was upon its face usurious and void; that if not so upon its face, it was so upon the fact ted by William Nelson, that Britton Johnson was to have the use of negro Aggy in lieu of interest, and was also to have the increase of Aggy; that upon the true construction of the instrument, only the increase which should be born to Aggy, before the re-payment of the sum mentioned in the deed were to belong to Britton; that the evidence shewed that the money was repaid shortly alter the time mentioned by Nelson, and before the birth of either of the children of Aggy sued for; and that consequently the plaintiff could not recover. And finally, if these points were against him, that the bailment existing between Robert and Britton had been ended, 1st, by the fact oí the guardian of Robert hiring out the slaves, which the counsel contended put an end to the bailment in law, and made the possession adverse; 2ndly, by the demand of the papers, and notice to Britton that he claimed and held for himself, and not for Britton; and 3rdly, by the demand stated by Futrill; and consequently the plaintiff was barred by the statute of limitations.</p> <p>The plaintiff’s counsel contended that there was no evidence of any usury — for though an agreement to let Brit-ton keep the increase, in addition to the use of the negro Aggy, would be evidence of usury, if allowed, on account of a loan or forbearance, yet here the increase were intended as an advancement from a childless uncle to a nephew— were a gift; and therefore it was no evidence of usury; and that there was no evidence that the use of Aggy was worth more than the interest of the money — but if the jury believed there was any intention to take more than a lawful rate of interest, and there were a color to conceal it, then he admitted the transaction was usurious, and the plaintiff could not recover. Secondly, he insisted that the true construction of the deed was, that all the increase of Aggy, during the life of Robert Johnson, should be the property of Britton; but that if the construction of the defendant’s counsel were the true one, he denied that the money ever had been paid, and insisted to the jury that the evidence to shew it was not to be relied on. Thirdly, he admitted that if the possession had become adverse by a demand and refusal,’or by any act irc-consistent with the title of Britton, then the plaintiff was bar- ■ , . . 7 . , red; but he insisted to the jury, that the evidence to shew it was nof f0 be trusted. He denied that in law the hiring by the guardian put an end to the bailment, and of itself made the possession adverse; and insisted, that if what Futrill stated-actually occurred, it could not bar, because Robert was at the time a maniac; and had neither the legal nor actual control of the negroes, and because what passed did not amount to a demand and refusal. And, therefore, he contended that the possession was held as the bailee of Britton, of all the slaves; that the plaintiff had a right to recover Aggy, if the money mentioned in the deed had not been repaid; but he admitted, that if it had been repaid, the plaintiff was not entitled to recover Aggy, but that whether that was paid or not, he had a right to recover the other slaves, her issue.</p> <p>I-Iis Honor instructed the jury that if the deed was infected with usury, it was void, and the plaintiff could not recover; that a corrupt agreement or understanding for more than the legal rate of interest, would vitiate the deed, whatever the form in which it might bo put; that if. the increase of the negro Aggy were reserved to Britton Johnson in lieu of interest, besides the use of the negro, it would be evidence of a corrupt agreement for usury; but if the increase were really intended to be given by Robert as an advancement to his nephew Britton, and had no connection with the loan, then it would not be usurious. Whether allowing the use of the negro instead of interest would be usurious, would depend on the value of the use, whether it exceeded the interest on the money, of which no evidence had been given, but of which the jury would_ judge; and if they were satisfied, there was in either way a bargain or agreement for usurious interest, then they should find for the defendant.— Whether the true construction of the deed was, that all the issue of Aggy, during the life of Robert Johnson, or only such as might be born before the repayment of the money mentioned in the deed, would vest in Britton, his Honor said he would reserve for further consideration; but in the mean time, that the jury would consider the case, as if all the issue were within the operation of the deed; and he instructed the jury, that if they were satisfied that the said money had been paid, they should find their verdict for the defendant as to the negro Aggy, however they mifjht find in. regard to the other slaves.</p> <p>As to the possession, his Honor instructed the jury that supposing Britton Johnson had title under his deed, whether the plaintiff could recover or not, would depend on whether Robert held possession for himself, or for Britton. If for himself, commencing three years before the bringing of the,, action, then the plaintiff was barred: if for Britton, during the whole time, then the plaintiff was not barred: that such a possession as was mentioned by William Nelson, held under the agreement, and for the purposes stated by him, would not be adverse to Britton, but would be a possession for him, and would not bar, howeverdong continued: but if the character of that possession was changed by any act inconsistent with the purposes for which he held, or with the title of Britton — or by a refusal to deliver upon a demand made— or by notice to Britton that he no longer held for him, but for himself, then the statute would immediately apply, and in three years would bar the right. The fact of hiring by the guardian, his Honor instructed the jury, was not an act so inconsistent with the relation of the parties, as of itself merely to determine the bailment, and make the possession adverse: and as to the demand stated by Futrill, he instructed them, that although Robert Johnson had been found non compos, and had a guardian appointed, yet if, in fact, he knew what he was about, and in answer to the demand, in-’ tended to assert a title or possession in himself, or deny the right of Britton, that would change the character of the possession, and put the statute in operation. And upon the whole, his Honor directed the jury to enquire whether the holding which was first for Britton had ceased to be for him, and became a holding against him; and to regulate their decision accordingly.</p> <p>The jury found for the plaintiff for all the negroes; and a motion being made for anew trial for misdirection, and especially in the construction of the deed, his Honor said he considered it unnecessary to enquire as to the propriety of that opinion, because the jury, by finding for the plaintiff for {be negro Aggy, under the instructions given them, had de-dared that the money had not been paid, and so the instruction became immeterial: and the new trial being refused, an(j judgment given tor the plaintiff, the defendant appealed.</p>

<p>At the last session of the General Assembly, an act was passed, by which the southern portion of the county of Buncombe was erected into a separate and distinct county, by ,the name of Henderson. By a supplemental act, and in the 11th section thereof, eleven persons were appointed commissioners, in the words of the act, ‘‘ to select and determine upon a site for a permanent seat of justice in said county, who shall locate the same as near the centre of said county as practicable, taking into consideration both the extent of territory and population; and nine of the commissioners hereby appointed, shall have power to act.” It was further enacted in the 11th section as follows: “ seven of the above app0inted commissioners first named, shall have power to purchase or receive by donation, for the use of the county of Henderson, a tract of land, consisting of not less than twenty-five. acres, to be conveyed to the chairman of the County Court, and his successors in office, upon which a town shall be laid off to be called Hendersonville, where the Court House and Jail shall be erected, and where, afte'r the completion of the Court House, the courts of said county shall be held, and the Clerk and Register shall keep their offices.” And the 12th section directs “that the Comity Court oí Hen. derson, at its first session, shall appoint five commissioners to lay off the lots of said town, who, after designating such as shall be retained for public uses, shall expose, after advertisement for thirty days, the residue to sale at public auction upon a credit of 12 and 18 months, and shall take from the purchasers bonds with security, payable to the chairman of the County Court and his successors in office.” At the first term of the County Court thereafter, in February, 1839, the court appointed Elisha King, John Davis, Samuel M. Car-sou, John Woodfin and William Dea ver, commissioners to lay off the lots of the town, and to perform the other duties prescribed in the 12th section of the said act. At this time, . the commissioners appointed in the act, had not selected the site for the town, but at length, on the 27th of March, 1839, a meeting was held, at which ten of the said commissioners, including the seven first named, were present, and then the following proceedings were had, as appears from their Journal. “ On motion of Captain Miller, agreed that the following sites be named as the point; one near the road on Gen. Brittains’s and E. King’s land, called Walnut Grove, and one on Shaw’s Creek, near Hugh Johnston’s house. Sundry motions to add a third site being lost, vote called for. Yote as follows: Road, Edney, Jones, Allen, Jarrett. Johnston’s, Clayton, Hightower, Wilson, Miller, Young, Deaver. The final decision in Johnston’s lane as follows: he is to give as a donation 20 poles on each side of the lane, commencing at a straight fence west of the house, and continue to the river; if more than 25 acres, to be given — if not that much, to be added on each side so as to make that quantity of land; or if the commissioners would prefer having the site north and south, will give 25 acres in that direction, making the lane the centre. Then adjourned sine die.” Of the seven first named commissioners, four, Miller, Wilson, Hightower and Clayton, voted with the majority; and three, Edney, Jones and Allen, voted with the minority. Immediately after the final vote, and before the adjournment of the Board, Hugh Johnston, whose proposition had been accepted, was called into the room, and informed thereof. It was then proposed, that the seven first named commissioners, all of them being then present, should proceed forthwith to survey the land, and take a deed therefor; when the three who had voted against the site, suggesting that it was inconvenient for them to attend, requested the other four to do it, and declared that they would agree to what should be done by the four. In pursuance of this, these four went to the land, but before the survey began, one of them, Miller, refused to proceed, and went off. After his departure, the remaining three had the land run off in an oblong of 26 acres, forty poles wide, and having its length east and west according to the first or first part of the proposition of Johnson; and took a deed from him to the Chairman of the County Court, which covered the site selected by the Board of Commissioners, and filed the same in the office of the Clerk of the County Court. On the 21st of June, it appears that ten of the persons who had been appointed commissioners in the act of Assembly, met, in order, as the journal states, “to reconsider the vote theretofore taken as to the location of Hendersonville.” After the object of the meeting was declared, two, Hightower and Clayton, desired it to be understood that they did not then consider themselves commissioners. A third, Colonel Chunn, who had not been present at the meeting of the board on the 27th of March, desired to understand whether or not the site for the village had been located■ — for if it had, he would not act as commissioner; but if not, he would act. And thereupon, on motion of Captain Miller, a vote was taken whether or not the site had been located; and the seven, who had made no objection to continuing to act ascommis-sioners. voted that there had been no location. After this, Woodfin and Deaver, two of the five persons appointed by Qounty Court commissioners to lay oif and sell the lots, being desirous of executing this, their supposed duty, required of the other three, the present defendants, to unite with them in doing so; but they refused to comply with this request. An alternative mandamus having issued to the defendants, requiring of them to lay off and sell the said lots, or to shew cause to the contrary; and they having made their returns thereto, the parties agreed upon the facts, and thereupon submitted the case to the decision of his honor Judge Pearson, on the last circuit, at Buncombe. He awarded a peremptory mandamus, and from this judgment the defendants appealed to the Supreme Court.</p>

<p>In a bequest of slaves to a married woman for life, and then to all the children which she may have at the time of her death; and in case “ any of them should die before marriage or arrival to full age,” then the share of such to the survivors of them; “ and if all of them die before marriage or arrival to full age,” then over to other persons; the word “or” will be construed “and,” and the limitation over will not be too remote, but will take effect upon the death of the mother, and of all her children under age and unmarried;</p> <p>Wherever the statute of limitations is a bar to the recovery of one of several parties plaintiffs in an action of detinue, it will operate against all, though the others were under the disability of infancy.</p> <p>The possession by the tenant of a particular estate in chattels is not, after the expiration of the particular estate, necessarily adverse to the remainderman, hut it may be so, and that Without any act or declaration of his to that effect; and therefore it is proper to be left to the jury to infer, if they so think, from the circumstances of the case, that the possession of the particular tenant, after the expiration of his estate, was adverse to the remainderman, without any precise declaration to that effect, or any act for the special purpose of making known his claim.</p> <p>t0 land> the particu-i»r tenant verfstands raan asa wards bis Buttheldeá of such ten-anev does belong °fVn" tates in per-ofts°]nsala“ja‘ót out tract’ie-0"" hveen lhe parties.</p> <p>Adverse possession consists of session P°S tenuolioid solely for sor to ihees ofhers^and as no col-Srequisite chattels, without a good title, iti6 possession will if6théV pari idm'°iir for</p>

<p>A grantee may, under the act of 1798, 1 Rev. Stat. ch. 42, sec. 31, proceed to vacate a subsequent grant fraudulently obtained, with knowledge of his previous grant, though the subsequent grant covers apart only of the land included in his grant.</p> <p>A petition under the act of 1798, setting forth, as the matters constituting the fraud it charges, that the defendant, “ at the time of obtaining his grant well knew, or had reason to believe, or had received some information that the land had been previously granted,” may he demurred to for uncertainty; and if the defendant do not demur, but plead to the scire facias, query whether any judgment could be pronounced for the petitioner upon it?</p> <p>^hfchts sought to be vacated as having been &Sdent”r h obtained, mnst (at ail events proceeding vacated in at ail.</p> <p>^ an appiica-p™, 0”"alhe yaa"t'aato be-fraud ¡„ ob-«kei.f n grant°fiu-|a\a]STcase e'eill‘ Irani] must be made "miK-iive0"" have Put a Supon his guard completed a sulplckm that the part of ¡t be vaeant and unan-propriated: that kind which may be sufficient in equity io bar the plea serfor rahil eration — id" not enough tuteThe'" iraud eon-by the act.</p>