Volume 23 — North Carolina Reports

<p>An award which was to be a rule of Court, under a reference of the the cause to arbitration, may, in this State, be enforced, by entering a judgment upon it for the debt and damages awarded, instead of proceeding on it by attachment.</p> <p>A reference of a cause to arbitration, under which the award is to be a rule of court, will not, in this State, discharge the bail; though it seems that in England, when a cause is referred to arbitrators, the bail is dischaged, unless a verdict be taken for the plaintiff, to stand as a security for what may he awarded.</p> <p>The^ nature íhe infoi™fajudg.‘nes considered, “ddlehof a. yo!fJins oi> them, point-0111,</p>

<p>Under the 69th section of the Revised Statute “concerning crimes and ■ punishments” (1 Rev. Stat. ch. 34, see. 69,) an indictment will not lie against one for playing at a game of cards in a tavern, if he do not bet on the gamo, though the other persons with whom he may play, may bet. The Statute embraces two cases, the playing and betting at cards in a tavern, and the merely betting upon a game played by others, but does not reach the case of playing only without betting.</p>

<p>Testimony as to handwriting, founded on what is properly termed a comparison of hands, seems now to be generally exploded: And the only admissible testimony of handwriting is, that of a witness who has acquired a knowledge of the party’s handwriting from having seen him write, or from having had a correspondence with him upon matters of business, or from transactions between the witness and party, such as the former having paid bills of exchange for the latter, for which he has afterwards accounted.</p>

Upon the petition and affidavit of John Clayton, a mandamus was awarded by the Superior Court of Buncombe, commanding the defendants to lay off and expose to sale the lots of the town of Hendersonville, in obedience to an act of the General Assembly and the order of the County Court made pursuant thereto, appointing them commissioners for that purpose, or to show cause to the contrary.

<p>Upon the confirmation, by the County Com t, of the report of the commissioners appointed by said court to assess the damages sustained by the owner of land for its condemnation to the use of the Raleigh and Gaston Rail Road Company, no appeal to the Superior Court is given to the company by their charter of incorporation, nor docs the case come within the provisions of the general law in relation to appeals from the County to the Superior Coun.</p>

The defendant was charged at Lincoln,, on the last circuit, before his honor Judge Settle, upon the following bill of indictment: “ The jurors for the State, upon their oath present, that David McC.

This was an indictment containing two counts, against the defendants, William Stalcup and three others. The first count, charged them with a riot, in unlawfully assembling and beating one Morrison, the prosecutor; and the second, with a common assault and battery upon the said Morrison.

The defendants, seven in number, were indicted at Yancy, on the last circuit, before his honor Judge Hall, for a riot and. forcible tresspass. The indictment contained three counts. The first charged that' the defendants unlawfully assembled to disturb the peace; and jdid unlawfully and riotously pull down and destroy a mill dam of one George Byrd.

Upon a judgment obtained in the Superior Court of Robeson county, against one John McFarland, a writ of fieri facias was issued, directed to the Sheriff of Richmond county, and was by him levied on the land in question, as the property of the said John McFarland. The fieri facias was returned, and a writ of venditioni exponas issued, under which the land was sold, when John Purcell became the purchaser, and received a deed from the sheriff for it.

<p>If one of two or more obligors in a bond, administer upon the estate of the obligee, he cannot maintain an action on the bond against the other obligors; and though the action is only suspended during the life of the administrator, and may be brought by the administrator de bonis non of the intestate, yet the defence is properly upon a plea in bar, instead of a plea in abatement.</p> <p>The.clis", tinolion bctween the fng1 the ex-°n anchis tor stated, 'onT" explained,</p> <p>The opera (i Rev. s,t.’ 6,j which ’ S!e reviva?1' of a suit }jy trator™ex-" plained,</p> <p>an obligor ■who is ad“"exéeutor of his obiigee, is assets in his the creditateesldores" 5-ofMn gee.</p> <p>What relief a surety who administers ujjon his may have against his principal _ cussldidlS"</p>

At the March Term, 1839, of Rowan Superior Court, an information in the nature of a quo warranto was filed by James R. Dodge, Esq., the Solicitor for the State, in that circuit, giving the court to understand and be informed that John H. Hardie had used and exercised, and was then using and exercising the office of sheriff of said county without any warrant, and had usurped, and.„was then usurping the said office; and alleging especially that at the time of the election of…

In April, 1839, William White and John C. Pettijohn filed their bill of complaint against Asia White, wherein they claimed to have an interest in remainder in certain slaves that were in the possession of -the said Asia White, and of which they alleged that she was tenant during her life; and by the said bill they prayed that she should answer the allegations thereof on oath; that a writ of injunction or ne exeat might issue to restrain the said Asia from selling, removing,…

<p>The entering upón, ditching and making roads in a cypress swamp for the purpose of getting shingles therein, and cutting down the timber trees and making shingles out of them, is, in law, a possession of the swamp.</p> <p>The constructive possession of land arising from title, cannot be extended to that part of it, whereof there is an actual adverse possession, whether with or without a paper title.</p> <p>The action cannot beSS al" possession,</p>

<p>The defendants were charged in an indictment containing two counts. - In the first count, they were alleged' to have feloniously taken and carried away a bar of iron, of the value of fifty cents; and in the second, to have feloniously and unlawfully received of a person, to the jurors unknown, a bar of iron of the value of fifty cents, well knowing the said bar of iron to have been feloniously stolen, contrary to the Statute &c. After pleading not guilty, the defendants, at Cabarrus, on the last Fall circuit, before his honor Judge Dick, moved to quash the indictment. Before the motion was decided on by the court, the Solicitor for the State entered a nolle prosequi as to the second count in the indictment; but the court, notwithstanding, quashed the indictment, and the Solicitor thereupon appealed.</p>

The plaintiff brought an action on the case, in the County Court oí Nash, against the defendant, Reubin B. Batchel- or, and three others, for aiding and assisting in the removal of a debtor of the plaintiff from the county.

This was a proceeding by the plaintiff under the act of 1834, ch. 22, (1 Rev. Stat. ch. 104, sec. 7,) to turn a public road on his own land.

<p>This was an action of debt, upon a penal bond, to which the defendant pleaded non est factum — payment—fully administered generally and specially, and the acts of 1715 and 1789, for the protection oí executors and administrators: and upon the trial at Granville, on the last circuit, the defendant filed the following bill of exceptions:</p> <p>Be it remembered, that on the trial of the issues joined between the parties in this cause, before the Honorable John M. Dick, presiding Judge of the said Court, the plaintiff produced a paper writing, dated the 19th of August, 1811, purporting to be an obligation, and purporting to have been sealed and delivered by the defendant’s intestate, and one John Vaughn, for the penal sum of $3,120:60 cts. to McKinder and White, with a condition underwritten to be void on the payment to the said McKinder and White, of $1,560:-30 cts. on or before the 21st of the same month of August; and it being admitted, by the defendant, that the mercantile firm of McKinder and White consisted of the plaintiff and one John White, who, since the 19th of August, 1811, and before the bringing of this action, had departed this life; whereby the right of action on all demands which had been due to the said McKinder and White had enured to the plaintiffs, the said plaintiff produced as a witness one Thomas Vaughn, who deposed that he was well acquainted with Henry J. Burgess, whose name purported to be'attached as that of an attesting witness to the said paper writing; that he resided in Halifax county, in this State, at and before the year 1811, and was clerk of the county court there for several years, about that period; that he resigned-the said office soon after, and died in the year 1815; that he, (the witness,) had no knowledge of the handwriting of the said H. J. Burgess, except from having examined, within three months before this trial, the records of the county court of Halifax during the time he was clerk thereof, and which records the .witness supposed to have been kept in his handwriting; that the said H. J. Burgess had one brother now surviving him in Halifax, who was not more than fifteen years of age at the death of the said H. J. Burgess; and that witness did not know that his said brother had any acquaintance with the handwriting of the said H. J. Burgess; nor did witness know any one who had such acquaintance with his handwriting; and thereupon the plaintiff’s counsel, insisting that by this evidence he had sufficiently accounted for not offering proof touching the handwriting of the said supposed subscribing witness, proposed to examine the said Vaughn, the witness, as to the handwriting of the said supposed obligors; which was opposed by the defendant’s counsel, but allowed by the Judge; and thereupon the defendant excepted. The said witness ^ien deposed that he was well acquainted with the handwriting ofthe defendant’s intestate, and of the said John Vaughn, were fog brothers, having often seen them write; and that he fully believed, from his said knowledge, that the signatures attached to the said paper writing were in the true and genuine hadwriting of the defendant’s intestate, and the said John Vaughn respectively; and thereupon the plaintiff’s counsel prayed the said Judge to admit and allow the said evidence as good and sufficient evidence for the plaintiff on the said issue joined on the first plea of the defendant, and to instruct the jury that the said evidence, if believed by them, was full and sufficient proof in law that the said paper writing was the deed of the defendant’s intestate; and the Judge admitted the said evidence, and gave the said instructions as prayed; and thereupon the defendant excepted. The plaintiff’s counsel thereupon, in order to repel the presumption of payment arising from the length of time, offered to prove, by the said Thomas Vaughn, that at the date of the said obligation, both the defendant’s intestate and the said John Vaughn were entirely insolvent; that the said John was now living in Georgia insolvent, having been so ever since the date of the said obligation; that the intestate, being so insolvent, removed to Tennessee in 1811, and there commenced the practice of medicine; and after remaining there two or three years, removed thence to the State of Mississippi, and continued there until the time of his death, which was admitted by both parties to have been in the year 1819; that he married in Mississippi, andlefha daughter at his death: and that, from time to time, after his removal, until his death, the witness, who was his brother, received letters from him complaining that he continued in low circumstances; that for some years, being affected with a disease which at length caused his death, he was thereby hindered in his practice; and that, in a letter shortly before his death, he commended his daughter to the kind offices of this witness, as he was not in a situation himself to provide for her; to which the defendant’s counsel objected; but the objection was overruled by the Judge, and the evidence offered was received, and the defendant’s counsel excepted. And thereupon the said witness, having been amined, and having given evidence in manner and to the effeet aforesaid, although it was admitted by the plaintiff’s counsel, that in 1816,' an uncle of the said intestate had died, and by his will had bequeathed to the said intestate several negro slaves in remainder, after the death of the widow of the said testator, who departed this life in 1833, and the slaves came to the hands of the defendant, as his administrator, in 1835, being then of the value of the plaintiff’s demand, yet the plaintiff’s counsel insisted that, upon this evidence, it should be left to the jury whether they were satisfied, upon the consideration thereof, that both the obligors were unable to satisfy the plaintiff’s demand, from the execution of the bond, and continually afterwards, and if they were so satisfied, to find the presumption of payment repelled; and the Judge accordingly left the evidence to the jury, and instructed them, that if they were satisfied thereby of the contimted inability to pay of both the obligors, from and after the execution of the said obligation, they should find against the defendant on his plea of payment; and to this decision and instruction the defendant excepted. And thereupon the defendant’s counsel, in support of the defendant’s plea of fully administered, admitting that he administered in 1835, and then received nine negro slaves, assets of his intestate, value sufficient to satisfy the plaintiff’s demand, proved that immediately thereafter he advertised for creditors to exhibit their demands as required by law; that at the expiration of one year from his administration, he, having no notice of the plaintiff’s demand, delivered over all the said assets to the next of kin of his said intestate; and although'he had taken no refunding bond from the said next of kin, yet he insisted that, under the circumstances of the case, the plaintiff, as well as his deceased partner, having been always residents and citizens of Virginia, (as was admitted by both parties,) yet if, in paying over the assets to the next of kin, he had acted in perfect good faith, supposing, after the great length of time, that no creditors had any demands, having no notice of the plaintiff’s demand then, nor until more than two years alter his administration — the jury were at liberty to find that the defendant had fully administered, and prayed the Judge so to instract die jury; which instruction the Judge refused to give; but, on the contrary, instructed the jury that, inasmuch as ^ defendant had paid over the assets, without the two years delay after his administration required by the statute, and without taking a refunding bond, he had not shewn a full administration; and that therefore the jury ought to find on the said plea for the plaintiff. And the defendant’s counsel, admitting that no administration of the estate of the intestate had ever been granted before November, 1835, within three years of the commencement of this suit, prayed the Judge to instruct the jury to find for the defendant on his fourth plea of the seven years’ bar by the act of 1715, under the facts above stated; which instruction the Judge declining to give, the defendant excepted.</p> <p>The jury returned a verdict for the plaintiff on all the issues; upon which he had judgment, and the defendant appealed.</p> <p>in support of the first exception, referred to Jones v. Blount, 1 Hay. Rep. 238 — Barnes v. Trompoivsky, 7 Term. Rep. 261. Upon the 2nd, he cited 2 Stark, on Ev. 310— Willaume v. Gorges, 1 Camp. N. P. Rep. 217. Upon the 3rd, he commented upon the act concerning executors and administrators, 1 Rev. Stat. ch. 46, and referred to the case of Chelsea Water Works v. Cowper, 1 Esp. N. P. Rep. 437. And, in support of the 4th exception, the counsel relied upon McClellan v. Hill, Conf. Rep. 479 — Jones v. Brodie, 3 Murph. Rep. 594 — Hallowell v. Pope, 2 Murph. Rep. 108 — McIntyre v. Carson, 2 Hawks Rep. 544.</p> <p>cited and relied upon the following authorities, in support of the Judge’s charge: On the 1st point, note to Clements 6p Co. v. Eason Sp Wright, 1 Hay. 18, (2nd Ed.) — 1 Phil, on Ev. 420, 421, (3 Am. Ed.) Note to Call v. Dunning, 4 East. Rep. 53, (Day’s Ed.) Fitzgerald v. Elsee, 2 Camp. N. P. Rep. 635, and note to that case — Ley v. Ballard, 3 Esp. N. P. Rep. 173 — Jones v. Blount, 1 Hay. Rep. 238. On the 2nd point, Jayne v. Price, 5 Taun. Rep. 326, (1 Eng. C.L. Rep, 121,) — >Oswald v. Leigh, 1 Term Rep. 270 — Fladong v. Winter, 19 Ves. Jun. 196 — Matthews v. Smith, 2 Dev. & Bat. 287.</p> <p>3rd. 1 Rev. Stat. ch. 46, sec." 18 & 19, and ch. 65, .sec. 12, ' Haywood's note to Butts v. Price, Conf. Rep. 68 — Leake v. Gilchrist, 2 Dev. Rep. 73 — Norman v. Baldry, 9 Eng. Con. ch. Rep. 437 — Pearson v. Archdeaken, 1 All. & Napier’s Irish Rep. 23, cited 2 Harrison’s Dig. 1144 — Godley v. Taylor, 3 Dev. Rep. 183— Goodman v. Smith, 4 Dev. Rep. 450.</p> <p>4th Question. Swann’s Rev. ch. 48, sec. 9; New Rev. ch. 205, sec. 1, 2 &3; ch. 763, sec. 1; ch. 536, sec. 1; Jones v. Brodie, 3 Murph. Rep. 594 — McClellan v. Hill, Conf. Rep. 479 — Godley v. Taylor, 3 Dev. Rep. 183. — Rayner v. Watford, 2 Dev. Rep. 338 — Murray v. East India Company, 7 Eng. Com. Law Rep. 66; 15 Eng. Com. Law Rep. 113 — Webster v. Webster, lOVes. Jun. 93.</p>

<p>The prisoner, a slave, was indicted at Person, on the last circuit, before his honor Judge Dick, for the murder of one Thomas Chatham, a white man. The Solicitor for the State called, as a witness, one John T. Brooks, a white boy, about fourteen years of age, who stated that he went with the deceased, who was eighteen or nineteen years old, to a fish-trap, in the neighborhood, where several slaves were collected, on Saturday night; that the witness and the deceased were the only white persons present; and that they remained there until about two or three hours before day, when Chatham was killed; that the prisoner and one Jack Hughes, a free negro, played cards, and differed about the game, when they called on the deceased to keep the game for them, which he did for some time, until a second difference took place between the parties, and Hughes refused to play longer; that the prisoner had a twelve and a half cent piece of coin, upon a handkerchief, on which they had been playing. — .which fell off among the leaves, when he jerked up the handkerchief; that the prisoner, shortly after, went and looked for the piece of money, where it had dropped; and, not finding it, said that he saw his nine pence walk into a white man’s pocket, and that any white man who would steal a negro’s money, was not too good to unbutton a sheep’s collar; that the prisoner further said that the deceased was raised and had lived on stolen sheep; that the prisoner then changed the deceased with stealing his money, and told him if he did not give it up, he would kill him — and brandished, a stick over the head of the deceased; that the prisoner further told the deceased that he had his nine pence in his left jacket pocket; upon which the deceased requested the prisoner to search him; which the latter refuseq t0 ¿0- that the deceased then turned out his pockets, and the prisoner then cursed him, and told him that he had the money in his shoes; upon which the deceased took off his shoes and stockings; that shortly afterwards, some of the company got a light, and, in searching, found the piece of money in the leaves, near where the deceased stood when he turned out his pockets and pulled off his shoes, and six or seven steps from the spot where the prisoner jerked up his handkerchief, as before stated; that the deceased then took a seat near the fire, and the prisoner continued to abuse him, using very indecent and insolent language towards him; that the deceased then asked the witness for his knife, saying that he wished to cut his nails; that the witness handed his knife to the deceased, who then told the prisoner that if he did not hush, he, the deceased, would stick his knife in him; upon which the prisoner drew his stick, and told the deceased to do it if he dared; that the prisoner continued to use insulting language to the deceased, who took up a piece of a fence rail about as long as the witness’s arm, and, having the knife still in his hand, made at the prisoner, and ran him twice around the fire, and then ran him off, and returned, himself, to the fire; that the prisoner soon after returned within ten or eleven steps of the fire, and said something, which the witness did not understand; upon which the deceased took up the piece of rail, and, having the knife still open in his hand,, went towards the prisoner; that the witness then heard two-blows, and, upon going to the place, found the deceased on the ground. The witness described the stick of the prisoner to be about three feet long, made of curled hickory, about the size of a common walking cane, larger at the butt end, and with a string attached to the small end, to fasten around the prisoner’s wrist. The knife was exhibited in court; and was a common-sized pocket knife, — the blade about three inches long, and sharp at the point.</p> <p>A negro slave, by the name of Isaac, was then called' as a witness for the State; and concurred, in most points, with the witness Brooks. He stated that the deceased and the er gave each other the damned lie, when talking about the nine pence; and also, that the prisoner had his stick in his hand during the quarrel; but, he did not see him shake it over the deceased’s head. He stated, also, that after the money was found, the quarrel ceased for a short time — perhaps fifteen minutes — when the deceased renewed the quarrel, and swore he wpuld-kill the prisoner, and made at him, as described by the witness Brooks. Isaac also stated that, as the deceased approached the prisoner, he heard the latter tell him not to hit or strike him. The witness heard a blow, and, upon looking towards the parties, saw the deceased falling, and saw the prisoner, strike him four or five blows with the stick above spoken of. In all his other statements, this witness fully sustained Brooks.</p> <p>Nathan Jones, a free negro, was next examined by the State. He fully sustained Brooks, except that he concurred with Isaac in stating that there was a cessation in the quarrel, and that the deceased renewed it. This witness also stated that the prisoner did not shake his stick over the head of the deceased; but had it drawn back in a striking position. He also stated that he heard a blow, and looked at the parties, when he saw the deceased on the ground, and the prisoner strike him three or four blows, with the stick before described. Two witnesses, who were examined on that subject, stated that the deceased had two wounds on the back part of the head, each about two inches in length; and one of the witnesses said that he inserted his finger about one fourth of an inch into one of the wounds, and found no resistance to its entrance. The deceased was described, by one witness,' as small and slender for a boy of his age; and by another, as not tall, but stoutly built. The prisoner was about six feet high, and of the ordinary size of negroes of that height; and was about twenty-three years of age.</p> <p>The prisoner examined Jack Hughes, a free negro, who fully sustained Brooks and the other witnesses in the general history of the transaction. He deposed further, that when the deceased approached the prisoner, he struck at the prisoner but missed him, and the witness thought he was not near enough to reach him when he struck; and that the prisoner immediately struck the deceased with his stick and knocked him down, and gave him several blows after he was on t[-,e groun¿.</p> <p>The witness, Nathan Jones, stated also, that when the deceased renewed the qurrel, as before mentioned, he swore he would kill the prisoner that night ; that if he did not, he would go to his master on Monday morning, and have him whipped to his satisfaction; and he would then waylay him and shoot him with a rifle.</p> <p>■ Alexander Jones was then called, and deposed, that he was in company with the deceased, when on his way to the fish trap, that night; that deceased said, he wished that he had borrowed Mr. Long’s knife, for he might get into a scrape, and if so, he would need it.</p> <p>■ The witness, Brooks, deposed before the coroner, that the prisoner told the deceased not to come to him, or he would knock him down. Upon his examination in court, he did not recollect that the prisoner had made such a remark to the deceased; nor did the witness remember that he had made such a statement before the coroner.</p> <p>The prisoner’s counsel asked the court to instruct the jury, “that, in trials affecting life, a negro slave should not be convicted of murder, unless a white man would be.convicted on the same evidence.</p> <p>2ndly, That it the jury should be satisfied that the deceased did steal the nine pence from the prisoner, the deceased had no right to strike the prisoner, for insulting language, in consequence of it; and in that aspect of the case, the prisoner was entitled to be regarded as a white man on this trial.</p> <p>3rdly, That if the deceased was advancing on the prisoner, with the knife and piece of rail, and struck at him with the latter immediately, before the prisoner struck him with his stick, then it was a case of mutual combat; and although the prisoner might have courted the conflict, the killing would be only manslaughter.</p> <p>4thly, That the deceased had no right to correct the prisoner, with the piece of rail or the knife, for insolent language; but ought to have applied to his master, or to a justice ot the peace, for redress.”</p> <p>The court refused to give the instructions prayed for, but charged the jury “that, if the prisoner used the insolent language, to the deceased, deposed to by the witnesses, the deceased had a right to correct him, although such language was used by the prisoner, upon the supposition that the deceased had stolen his money. That if they were satisfied that the prisoner used the provoking language, to the deceased, as stated by the witnesses, the deceased had a right to whip him; and if, in the exercise of this right, the prisoner-killed him, it would be murder, unless the prisoner had good reason to believe that the deceased would kill him, or do him some great bodily harm. And, for the purpose of ascertaining whether the prisoner had good reason to apprehend death, or great bodily harm, at the hands of the deceased, it was proper for them to take into consideration the comparative size and bodily powers of the parties, and then-weapons. That if the prisoner had good reason to apprehend either death or great bodily harm, it would extenuate the killing to manslaughter; but if not, it would be murder.”</p> <p>The jury found the prisoner guilty of murder. A motion for a new trial was then made, which, being overruled, and sentence of death pronounced, the prisoner appealed.</p> <p>cited and commented on the State vs. Tackett, 1 Hawks, 217. — State vs. Hale, 2 Hawks, 582 — Slate vs. Reed, 2 Hawks, 454 — 1 Rev. Stat. ch. Ill, see. 41 — 1 East’s Cr. Law, 241. — 1 Russ. 702, 715, 717 — Foster 295-2 Chit. Cr.Law, 482 — 2 Stark. onEv.524.</p> <p>argued contra, and contended that the authorities cited for the prisoner supported the propriety of the Judge’s instructions.</p>

This was an action of trover for a grey horse, formerly the property of one Absalom W. Scales — -Plea the general issue. Held: in GilJcey vs. Dickerson, 3 Hawks, 293, that it was not necessary, to constitute a levy, that the sheriff should remove the property out of the defendant’s possession. Were the law otherwise, it would, in many cases, be untrue to itself.

The question, in this case, arose upon a petition for the settlement of the estate of Thomas Blackmail, senior, deceased, and was as follows: By the fourth and fifth clauses of the said Thomas Blacknall’s will, he bequeathed as follows, viz: “ Fourthly.

Upon a treaty of marriage, between Hector C. Homer and Eliza Savills, they entered into written articles, bearing date the 19th of June, 1837, whereby it was agreed, that' all the estates, real and personal, of the intended wife, should be settled to her sole and separate use, during her life, with remainder after her death to the intended husband in absolute property. The marriage took effect shortly thereafter.

The defendant was arrested under a capias ad satisfaciendum, and gave a bond with security, to make his appearance at the ensuing term of the County Court of Buncombe, to take the benefit of the act of 1822, (1 Rev. Stat. ch. 58, sec. 7,) for the relief of insolvent debtors.

<p>This was an action of trespass vi et armis for false imprisonment — Pleas—the general issue — and specially that the plaintiff was the defendant's §laye. Upon the trial at Person, on the Fall circuit of 1837, before his honor Judge Saunders, the plaintiff produced the will oí John Campbell, late of Nansemond county, Yiginia; in which the testator bequeathed as follows: “ My will and desire is, that my negro woman Pender should have her freedom immediately, and her emancipation recorded. My will and desire is, that all the rest of my black people should serve until my youngest child should be of the age of twenty-one, for the use of raising my children and young negroes. After my youngest child be of age, nqy will is that all my negrpes should have their freedom and liberty.” The plaintiff tbeii shewed that among the slaves mentioned in said will, was her mother, by name Bina, and that she, the plaintiff, was born after the testator’s death, but before his youngest child, John Campbell, attained the age of twenty-one years, which last event was in the year 1815 or 1816; that from that time until 1833, she had passed as a free womaq. in Virginia; that she was then taken by the said John. Campbell, Junior, and sold to James L. Overby, a co-partner in negro trading with the defendant. She then shewed that the defendant had held and controlled her as a slave ever since she was brought to Person county by the said Overby. The plaintiff also pro-a statute of the State of Virginia, enacted in the year 1782, allowing masters to liberate their slaves by deed or will, The counsel for the defendant insisted, that as the plain-wag ^orri after testator’s death, and before his youngest child became of age, she was a slave. The case xvas submitted to the jury to find the facts, the construction of the will being reserved by the court. A verdict -was returned for the plaintiff, and the court being of opinion with the plaintiff, rendered judgment upon, the verdict, from which the defendant appealed.</p>

This was an action of assumpsit, brought on a warranty of the soundness of a negro slave named Ephraim, contained in a bill of sale purporting lo have been executed by the defendant to James Williamson & Co. Upon the trial, at Granville, on the last circuit, before his honor Judge Dick, the plaintiffs, for the purpose of proving the handwriting of the subscribing witness, who lived out of the State, called as a witness one Edmund Towns, who was examined as to his interest in…

The defendant was convicted in the Superior Court of Anson, on the last circuit, before his honor Judge Bailey, on an indictment, charging that he unlawfully sold spirituous liquors to a slave named George, the properly of Martha Bogan, contrary to the form of the statute, in such case made and provided; and it appearing to his Honor, upon the testimony of a witness examined as to that fact, that the defendant was then a licensed retailer of spirituous liquors, it was…

<p>This was ail action of trespass on the case, brought to recover of the defendant damages for the seduction of the plaintiff’s daughter.</p> <p>Upon the trial, at Cabarrus, on the last circuit, before his honor Judge Settle, the plaintiff introduced as a witness his daughter, Regina, who testified that she was seduced by the defendant;, and that, at the time of her seduction, she was living with her father, performing the usual and customary duties of a child in his family. The defendant then introduced several witnesses, with a view to shew that the plaintiff consented to, or connived at, the prostitution of his daughter; or that he was guilty of such gross negligence, in the care of her person, and her moral instruction, as amounted to such connivance; to rebut which testimony the plaintiff also introduced several witnesses. ' The defendant then offered to prove that he was a man of good character, and of a modest and retiring disposition; which was objected to by the plaintiff, and rejected by the court.</p> <p>His Honor instructed the jury that if they believed the testimony of his daughter, Regina, the plaintiff was entitled to recover; but if they could collect from the whole of the evideuce, that the plaintiff consented to, or connived at, the prostitution of his daughter, he could not recover; or if he were guilty of gross negligence in the care of her person, or her moral instruction, that might be considered by them as connivance, and would destroy his right of action. His Hon- or recited the testimony, and asked the jury “ if they found any, or could lay their fingers on any, portion of it, which satisfied them that the plaintiff consented to, or connived at, the prostitution of his daughter, or was guilty of such gross negligence as amounted to a connivance.” The jury returned a verdict for the plaintiff, and assessed his damages to $ 1,600. The defendant moved for a new trial:</p> <p>1st. On the ground of excessive damages.</p> <p>2nd. For the reason that the court expressed an opinion on the facts of the case.</p> <p>3rd. Because the court rejected the testimony offered by the defendant, to shew his good character, and that he was a modest and retiring man.</p> <p>His Honor overruled the motion for a new trial, and gave judgment for the plaintiff, from which the defendant appealed.</p>

<p>In an indictment under the 48th section of the 34th chapter of the Revised Statutes, an intent to disfigure is prima facie to he inferred from an act which does in fact disfigure, unless that presumption be repelled by evidence on the part of the accused of a different intent, or at least of the absence of the intent mentioned in the statute.</p> <p>It is not necessary, in an indictment under this statute, to prove malice aforethought, or a preconceived intention to commit the maim.</p> <p>To constitute a maim, under this statute, by biting off an ear, it is not necessary that the whole ear should be bitten off — it is sufficient if a part only is taken off, provided enough is taken off to alter and impair the natural personal appearance, and, to ordinary observation, to render the person less comely.</p>

On the trial of this action, which was brought in the County Court of Buncombe, the plaintiff introduced five witnesses, all of whom were sworn, but only two of them were examined.

The defendant was indicted at Yancy, on the last Fall Circuit, before his Honor Judge Pearson, for an assault and battery upon one William Roberts.

The dispute respecting the seat of justice of the county of Henderson, which was before the Supreme Court at the last term, (See Slate vs. King et al. 4 Dev. &■ Bat. 521,) was in case aga*n presented for consideration.

This was an action of debt, upon a bond given by the present defendants, upon obtaining an injunction in Equity..

This was an action of assumpsit for money had and received for amount overpaid in the purchase of a lot of cotton.

<p>Before an action can be sustained for a malicious prosecution or arrest, it must appear that the prosecution was legally determined; and if there he no evidence of the fact, it is not error in the Court to refuse to leave it to the jury to find whether or not the prosecution was determined.</p>

<p>Where a testator bequeathed certain slaves to one for life, and then over to another person, and the legatee for life, -without any renunciation of record by the executors named in the will, obtained letters of administration with the will annexed, upon the estate, and took possession of the slaves, and retained them for more than thirty years, until his death, it was held, that the jury might infer an assent of the executors,' or make any other reasonable presumption of fact, to uphold the right of the legatee in remainder.</p> <p>The interest in an executory devise or bequest is transmissible to the" heirs or executor of one dying before the happening of the contingency upon which it depends.</p>

This was an action on the 'case in which the plaintiff declared in torty and upon the trial at Lincoln, on.thc last circuit, before his honor Judge Settle, the only question was, whether the plantiff’s claim was barred by the statute oí limitations.

<p>Ejectment for a tract of land, tried at Buncombe, on the last circuit, before his honor Judge Hall.</p> <p>The land in controversy, belonged originally to James Latta. He, in the year 1818, conveyed it to his son John Latta, though there was a dispute on the trial whether this deed had ever been delivered. In the 3rear 1823, John Latta voluntarily, and without any consideration, conveyed the land to several persons by the name of Case, who were the other lessors of the plaintiff. In the year 1834, some of the heirs at law of James Latta filed a bill in Equity, under the act Assembly of 1812,1 Rev. Stat. ch. 85, sec. 7, for the sale of all the lands which had discended to them from their ancestor, and that the purchase money might be divided among the heirs. To this bill John Latta was made a party defendant. There was an interlocutory decree, that the Master should sell the lands, and report to the court. The Master sold several tracts of land, and amongst others, the land in controversy, as land which had descended from James Latta to his heirs; and he made his report accordingly to the court, which was confirmed. John Latta was present at the Master’s sale of the land, and did not dissent; but had an agent bidding for himself. The Cases were present at the Master’s sale, and gave notice of their deed from John Latta, and claimed the.land as belonging to them under the said deed. The defendant being the best bidder, purchased the land for a valuable consideration; and the court ordered a deed to be made to him for the land, which the Master executed, and he took possession. The court charged the jury, that under this state of facts, the law was .with the defendant, and that the plaintiff was not entitled to recover. There was a verdict and judgment for the defendant, and the plaintiff appealed.</p>

<p>A party, who has been let into possession of land, under a contract of sale, or for a letting which has not been completed, is only a tenant at will of the vendor; and his interest is determinable insianter by a demand of the possession. In such case, a three week’s notice to quit is a determination of the tenancy; or, if the tenant do any act which amounts to a disclaimer of the vendor’s or lessor’s title, it operates as a forfeiture, and no notice to quit is necessary.</p> <p>The rule that a vendee cannot dispute his landlord’s title, extends to the cáse of one who takes possession under a contract of purchase — he cannot controvert the title of the person who let him. into possession.</p>

This was an action of Debt, brought upon the official bond of Brice Fonville, as Sheriff of Onslow county, The bond was executed by Fonville, and the defendants as his sureties, at November Term 1831, of Onslow County Court; and was in the following words; “'Know all men by these presents, that we &c. are held and firmly bound unto his excellency Montfort Stokes, Captain General and Commander in Chief, in and over the State of North Carolina, in the sum of ten thousand…

This was an action of Debt, upon a single bill, in the following words, to wit: One day after date we promise to pay Hugh Moffit the sum of eight hundred and fifty dollars, for value received of him. Witness our hands and seals. April 2nd, 1832. WM. M. GAINES, seal. JAS. GAINES, seal.” Test.

This was an action of Trover, for the conversion of a negro boy, named Isaac; and upon the trial; at Burke, on the last circuit, before his honor Judge Haul, the case was as follows: Benjamin Burgin, the younger, by a deed duly executed, on the 4th of December; 1837,'conveyed to the plaintiff sundry articles of real and personal property, among which was a negro boy slave, named Isaac, to have and to hold unto the plaintiff, his heirs and assigns forever.

This was an action of Trespass qua re clausum pregit, tried at Buncombe, on the last circuit, before his honor Judge Hall. The declaration was for an injury done by the defendants to a mill dam, which the plaintiff alleged wap in his possession. -The dam was across a creek that ran through the land on which the plaintiff resided at the time of the alleged trespass.

This was an action of Ejectment, for a tract of land, tried at Buncombe, on the last circuit, before his Honor Judge Hall; when the jury found the following special verdict: “ That the paper writing given in evidence, is the last will and testament of John Posten, deceased; that in the said will are contained, among others, the following clauses: ‘Item 2nd.

<p>■This was an action of Assumpsit, tried at Franklin, on fhe last .circuit, before his honor Judge Nash.</p> <p>On the trial,- the plaintiff proved that a judgment before a justice of the peace was granted against one Brown and the defendant, who was the surety of Brown in a joint bond or note not expressing any suretyship on its face; that the plaintiff stayed the judgment, and afterwards paid the same. It also appeared, that some months after the judgment was given, and -after the stay ;was out, the now plaintiff requested the plaintiff in that judgment to give him the paper, and as he lived near Brown,, he would collect the debt out of him; Jhat several months afterwards, the judgment being applied for by a constable, in order to collect it for the plaintiff in the judgment, the now plaintiff gave it to him, but requested him to see the plaintiff in the judgment, and get him to grant indulgence to Brown until the succeding autumn, when Brown would be able to pay, observing at the same time, the plaintiff knows I am able; that about two weeks after-wards, the constable, going to make his levy on Brown’s property, was informed by the now plaintiff, that Brown had confessed a judgment to him during the interval, and he had seized Brown’s property, under the execution; that Brown’s property was accordingly sold to satisfy the now plaintiff’s demand, and that Brown had all along before that time, property enough in possession to satisfy the judgment stayed by Terrell, the now plaintiff. On this state of-facts, the defendant contended that Terrell having himself prevented the collection of the debt from'Brown, was not entitled to recover from the defendant. The plaintiff contended that he was the surety both of Brown and the defendant — that both were principals as to him; and that he was entitled to what he had paid to satisfy the debt of the defendant.</p> <p>His Honor being of opinion that the plaintiff was the surety as well of the defendant as of Brown, instructed the jury to find for the plaintiff. The jury retired, and after some time returned into Court and asked the Judge whether fraud must be proved or might be inferred? to which his Honor replied, that the jury were at liberty to infer any thing which the facts would properly warrant; but, nevertheless, directed them that if they believed the evidence in the case, they were bound to find a verdict for the plaintiff. The jury gain retired, and after some time, returned with a verdict the defendant. A new trial was moved for, on the ground that the verdict was against law and the instructions of the court; but his Honor, holding the verdict to agree with the substantial merits of the cas.e, though apalnst^iaiariniitriictions. and the strict legal merits, declineddist^ly’t^«efect .■ The plaintiff’s counsel then objectaj| fSfetthe instrirexi®is the jury that they might infer fraud||ra|^ri^|^|^r| culated to mislead the jury, notwitf^nMingme general rection to find on the evidence for e¿yed a new trial on that ground, which Imng refused, an^’udgment given for the defendant, the plaxlTtM^t^^aíed. The case was submitted without argument by</p>

This was an action of Detinue, for two negro slaves by the names of Isaac and Esther, tried at Chowan, on the Fall circuit of 1839, before his honor Judge Nash.

The plaintiff, Newsom, sued out an attachment against the defendant, Roles, and had it levied upon several slaves, as the property of Roles, but which were then in the possession of one Samuel Harris; whereupon Harris filed an interplea, in which he claimed the slaves as his own.

<p>This was an action of Detinue, for three negro slaves,' named Beck, Eli and Enos, tried before his honor Judge Bailey, at Montgomery, on the last circuit.</p> <p>It was admitted that the defendant was in possession of the slaves in question, as the administrator of Howell Harris, Junior. The plaintiff claimed the said slaves under the following instrument, which was offered in evidence:</p> <p>“ Know all men by these presents, that I, Howell Harris, jr.; 0f the county of Montgomery and State of North Carolina, for and in consideration of the natural love and affection which I have for my niece, Celestia Ann Tillman, daughter 0f j0hn and Eliza Tillman, do give, grant and convey to the said Celestia Ann Tillman, the following negroes, to wit: one negro woman by the name of Beck, and her child Eli; and one negro boy named Enos. The condition of this deed of gift is such, that the aforesaid negroes are to remain in the possession of him, the said Howell Harris, Jr., during his life time; and the monies arising from the hire of the said negroes, are to be collected for his use and benefit; and, after his death, in the event of his having no heirs, then, in that case, the aforesaid Celestia Ann Tillman to have and to hold the said negroes, Beck, Eli and Enos, against the claim or claims of all persons whatsoever. In witness whereof, the said Howell Harris, Jr. hath hereunto set his hand and seal, the I6th of November, 1836.</p> <p>HOWELL HARRIS, seal.</p> <p>Witness, Far. Martin,</p> <p>Mart Harris.”</p> <p>There Was a dispute, on the trial, whether this instrument had ever been delivered — as to which several witnesses were éxamined — but it is unnecessary to state their testimony, as all the points made on the trial were abandoned in the Supreme Court, except that relating to the construction of the instrument; as to which the defendant insisted that the limitation contained in the deed was too remote, and did not vest a title in the plaintiff. But his Honor, being of a different opinion, charged the jury that the instrument did vest a title to the slaves in the plaintiff. The jury returned a verdict for the plaintiff; upon which she had judgment, and the defendant appealed.</p>

This was a Rule, to shew cause why an execution should not be set aside, and satisfaction enter'ed of the judgment on which the same was issued, submitted to his honor Judge Dick, at Granville, on the last circuit, upon the following statement of facts: An issue was made up in the County Court of Granville, between Bennett Hester and Hamilton Hester, to try whether a paper writing, offered for probate, was the last will of Benjamin Hester, deceased.

This wets an, action of Ejectment, fpr a tract of.land, tried at Beaufort, on the last circuit, before his honor Judge Toomer.

This was an action of Assumpsit, for work and labour done, commenced by a warrant before a single justice,' and carried by successive appeals to the Superior Court of Guilford; where it was tried, on the last circuit, before his honor Ju%e Dick- The plaintiffs proved that they were the proprietors of a blacksmith shop, in which they had two slaves engaged; and that about theolst of January, 1836, they employed a blacksmith by the name of John Willis, to work in the shop with…

This was an appeal from the judgment of the Court upon the verdict of a jury, on the trial of an issue, “ vel non,” tried before Nash, Judge, at the Fall Term, 1840, of Guilford Superior Court of Law. The case was thus stated by the Judge: Issue of11 Devisavit vel non,” to try the validity of George Christman’s will. It was admitted that the deceased had full capacity to make a will, and that the paper in evidence was duly executed under all the forms required by law.

This was an action to recover damages for the breach of a parol contract, tried before Nash, Judge, at Fall Term, 1838, of Nevv-Hanover Superior Court of Law, where there was a verdict for the defendant. The plaintiff’s counsel moved for a new trial, on the ground of misdirection by the Judge, Much motion was overruled, and judgment entered ^01’ ^113 defendant. The plaintiff appealed.

This suit was commenced by a‘ warrant to recover the balance of a former judgment before a justice, obtained by the plaintiff against Elisha B. Norfleet and the present defendant as his security. An appeal was taken from the judgment of the justice on the warrant to the County .Court of Hertford, and thence to the Superior Court, where the case was tried before Pearson, Judge,- at March Term, 1839.

This was an action on the case, tried at Spring Term, 1840, of Chowan Superior Court of Law, before Pearson, Judge. The jury rendered a verdict for the plaintiff, subject to the agreement of the parties that if, upon the law of the case, the Judge should be of opinion for the defendant, the verdict should be set aside and a nonsuit entered. Upon argument the Judge set aside the verdict and ordered a non-suit, from which judgment the plaintiff appealed.

This was an. action of ejectment, brought to the Fall Term, 1839, of Perquimons Superior Court of Law, and tried at Fall Term, 1840, before-Battle, Judge.

This was an action of debt on a bond, payable to the plaintiff, and executed by the defendant, for the sum of two hundred and fifty-ffve dollars fifty cents, bearing date the 8th day of January, 1823, and payable the 1st day of January following. The suit was instituted in Anson Superior Court of Law, on the 16th day of August, 1838. The defendant relied upon the plea of payment, supported by the presumption, arising under the act of 1826, from lapse of time.

This was a petition, filed* at May Term, 1834, of Robeson County Court, by the plaintiff, to recover damages for injuries, which he alleged he had sustained by the erection of a water mill by the defendants,. the proceeding being under the acts of Assembly giving a remedy by petition to those, who had been injured by the erection of a mill.

This was an action pf assumpsit brought to Spring Term, 1838, of Hyde Superior Court of Law, and tried at Fall Term, 1840, before his honor Judge Dick. There was a verdict and judgment in favor of the plaintiff, and the defendant appealed to fire Supreme Court. The facts of the pase are fully set forth in the opinion delivered by the court.

This was an action on the case, tried before his honor Judge Pearson, at Aitgust Term, 1840, of Cabarrus Superior Court of Law, for carrying a slave out of the State. It was admitted that the defendant and others were owners, as co-partners, of the Piedmont line of stages from Yorkville, South Carolina, through this State, to Prince Edward Court House, in Virginia; from which latter place there was another line of stages to Baltimore.

<p>This was an action of Ejectment brought to January Term 1839 of Lincoln County Cfijirt, and after a trial in the County Court, carried by appeal to the Superior Court of Law of Lincoln, where at the Fall Tprm 1840, his honor Judge Pearson presiding, a verdict was rendered for the plaintiff, pnd judgment being given for him, the defendant appealed to the Supreme Court; The following is the case submitted to the Supreme Court:</p> <p>This was an action of Ejectment. The defendant admitted himself to be in possession, and the only question made was on the proper construction of the will of one Sebastian Bolick, as to which the facts were presented as a case agreed, and a verdict was rendered for the plaintiff, subject to be sat aside and a nonsuit entered, should the Court be of opinion for the defendant upon the case agreed, which was as follows: Sebastian Bolick owned a tract of land in the county of Lincoln, upon which he resided many years, and upon which he was living at the time of his death. About the year 1811, upon the defendant’s marriage, Sebastian, defendant’s father, permitted him to take possession of a small house, situated at some distance from the house and cleared land of Sebastian, and to cultivate a field around the house, twenty acres, with an understanding that the defendant was to remove from the premises as soon as he built a house upon his own land. The defendant has lived in the house and cultivated the field ever since. About 1813 Sebastian insisted that defendant should leave the premises. The defendant refused to move off then as requested by his father to do, but promised that he would, as soon as he completed the house on his own land, which would be about 1814. Sebastian died, having duly made and published his last will, which was duly admitted to probate; the will among other clauses contains the following: “ I give all that I am in possession of at my death to my wife her life.” After the death of Sebastian, his wife, who is the lessor of the plaintiff, continued to live in the house and cultivate the part of the land owned by Sebastian in his lifetime, and the defendapt lived in the house and cultivated the field, which was in hjs occupation at the death of Sebastian, without- objection on the part of the lessor of the plaintiff, who was his' mother, until about one year before the commencement of the present action., when the lessor of the plaintiff ordered him to leave the premises, and he refused to do so, and denied her right to the land. Sebastian gave in for taxation and paid the tax for the whole tract during his lifetime. The defendant did not give in nor pay the tax for any part of the tract. The Court was of opinion, upon this statement of the facts, that the land in controversy, being the house and field, occupied by the defendant, passed to the lessor of the plaintiff, as well as the other part of the tract, under the description mentioned in the will, as being in possession of the testator- at the time of his death.</p> <p>Copy of the last %oill and testament of Sebastian Bolick, referred to in this case.</p> <p>In the name of God, amen: I Sebastian Bolick, of Lincoln County, in the State of North Carolina, being advanced in "years and of sound mind and memory, (thanks be unto God for the same,) and knowing that it is appointed for all men once t0 die¡ i (j0 make and ordain this my last will and testament in the manner and form following: That is first and principally, I do give and bequeath my soul into the hands of Almighty God, who gave it unto me, and my body I commit unto the earth from which it was taken, to be buried with decent Christian burial, at the discretion of my executors hereafter named; and as to that wordly property it has pleased God to bless me with in this life, I do give and dispose of the same as follows, which is, that it is my will and desire that my loving wife Margaret shall retain and keep in her possession all that I may be possessed of at my death, (my debts and funeral expenses being first paid,) during her natural life, my youngest daughter, Susannah, excepted, unto whom I give and bequeath one good feather-bed and bedding, &c., (going on to describe several small articles of persona! property,) to be paid and delivered to her when she comes of age or marries, which first happens. I give and bequeath to my two sons, Michael Bolick and John Bolick, the land I am possessed of at my decease, the rights for which are deposited in their mother’s hands, and are to be delivered to them after their mother’s death, or before, if she sees it proper and safe so to do. I give and bequeath unto my daughter Christina Barger, Margaret Bowman and Elizabeth Bowman, over and above what they have already received in my life time, their shares as shall be hereafter mentioned. And it’s my earnest will and desire that after my wife’s decease, that all (except the land and what is above bequeathed to my daughter Susannah,) the property by her left shall be sold and an equal divide thereof made amongst all my children, Michael Bolick, Christian Barger, Margaret Bowman, John Bolick, Elizabeth Bowman and Susannah Bolick; and I do hereby nominate, constitute and appoint my dearly and well beloved wife, Margaret Bolick, to be the sole executor of this my last will and testament, hereby revoking, disannuliing and making void all former wills, legacies or bequests by me made or done, ratifying and confirming this to be my last will and testament.</p> <p>[This will was dated 13th February, 1815, signed by the testator, and duly executed in the presence of two subscrib■ing witnesses.]</p>

And an order by A. on the officer for this balance infavor of B,, and pre senled by B., does not alter the case, for these acts do not transfer io… Held: leaving a balance in his hands of one hundred and seventy-three dok lars forty-three cents. The plaintiff then proved that he had given an order on the defendant for the said balance in favor of one Bogue, who thereupon demanded the money of the defendant, in the name of the plaintiff, when the defendant refused to pay it.

This was an action of Ejectment, tried at Fall Term, 1840, of Richmond Superior Court of Law, before his honor-judge Settle, in which there was a nonsuit, and the plaintiff appealed to the Supreme Court.

This was a petition for dower, originally filed in the Court of Pleas and Quarter Sessions of Gates county, and taken thence by appeal to the Superior Court of Gates, where it was heard at Spring Term, 1840, before his honor Judge Pbarson. The petitioner claimed to be endowed of a tract of land, of which she alleged her late husband John died seized and possessed, and which he had held as a tenant in common with the defendant, Esther Mitchell.

<p>The County Court, in proceeding under the act of 1789, (Rev. Stat. c. 63, s. 11,) authorizing an order to issue to a guardian empowering him to seil the property of his ward for payment of the debts of the ward, must first ascertain that there are debts due by the ward which render the sale of the property expedient; and the court must also select the part or parts of his property, which can be disposed of with least injury to the ward.</p> <p>Therefore an order of the'County Court in the following words; “ Ordered that A. W. (the guardian) have leave to sell as much of the lands belonging to the orphans of Stephen Mullen, decM, as will satisfy the debts against said deceased’s estate” is unauthorized by law, and void; and a purchaser under a sale, made by the guardian in pursuance of such order, acquires no title.</p>

Thi-s was an action of Assumpsit, tried at September Term, 1840, of Pitt superior Court before his honor Judge Hall, •when the plaintiffs, under an intimation - from the Court, submitted to a nonsuit and appealed tq this Court'. The facts of the case are stated in the opinion of this Court, delivered by his 'honor Judge Daniel.

This was an appeal from a decision made by his honor Judge Baxley, at the Fall Term, 1840, of Haywood Superior Court of Law, overruling a motion made,by the defendant to set aside a judgment entered against him at the preceding Term of that Court. The facts are stated in the opinion delivered in this Court by Daniel, Judge.

<p>A purchaser of a growing crop of corn, at an execution sale, must declare in trespass on his personal chattels, against one, who tortiouslv severs the corn from the stalks and throws it on'the ground.</p> <p>A grant of the vesture or herbage of land passes a particular right in ike land itself, and for that purpose also “ a particular possessiou and occupation” of the land itself. Such a grantee may therefore maintain: trespass quare clausum fregit for any interruption of his possession.</p> <p>But there is a distinction between those profits, which are the spontaneous products of the earth, and the corn, &c.’ Which are produced annually by labor and1 industry, and thence are called fructus industríales The latter are, for most purposes, regarded as personal chattels, and a sale of them, while growing, is only a sale of goods.</p> <p>The pase.of Trim Y? and approv?</p> <p>He, who arts or en-a°otUerS¡o the com-trespass, is trespasser,</p>

This was an action of detinue, brought to recover a negro man named Toby, and tried at the Fall Term, 1840, of Beaufort Superior Court of Law, before his Honor Judge Dick.

This action of Ejectment was tried at Fall Term, 1839, .of Anson Superior Court, before his honor Judge Toomer, When a verdict was rendered for the plaintiff. A motion on the part of the defendant for a new trial was overruled, and Judgment pronounced by the court for the plaintiff, from* -¡which the defendant appealed. The case is stated by the court in delivering their opinion.

This was a case brought from Halifax Superior Court of Law on an appeal by the defendant from the decision of his honor Judge Hall, made at Fall Term, 1840. The plaintiff sued out an original attachment against the defendant and declared- against him (in the usual form) for an assault and battery, alleged to have been committed by the defendant upon the person of the plaintiff.

This was an action of Trover for the conversion of a negro woman named Anesley, tried at the Fall Term, 1840, of Martin Superior Court, before his honor Judge Hall. Upon a case agreed, the court decided that the plaintiff’s action could not be sustained; whereupon he submitted to a nonsuit and appealed to the Supreme Court. The facts of the case are stated in the opinion of the court.

This was an action of Trespass quare clausum fregit, tried at Fall Term, 1840, of Beaufort ¡Superior Court of Law, before his honor Judge Dick, when the plaintiff was non-suited and appealed to the Supreme Court. The facts are stated in the opinion of the Court.

This was an action of assumpsit, brought by the plain tiff to recover contribution of the defendant as his co-surety. The case was tried at Fall Term, 1840, of Rutherford Superior Court of Law, before his honor Judge Bailey. Several points were raised on the trial, by the defendant’s counsel, which it is unnecessary to state, as only one was decided by this court, that being fatal to the plaintiff’s action.

This was an action of Assumpsit for goods sold and delivered, tried at Fall Term, 1839, of Burke Superior Court of Law, before his honor Judge Pearson. The pleas were the general issue and statute of limitations. The’plainiiff proved the delivery of the goods, and that the price agreed on was $655 10-100 to be paid in April, 1832. The writ was issued 24th April, 1837.

This was an action of Ejectment, tried at Spring Term, 1839, before Nash, Judge, when there was a verdict for the P^11^ under the charge of the Court, a new trial moved for and refused, judgment for the plaintiff and an appeal to the Supreme Court. The facts, so far as they regard the point submitted to this Court, are .stated in the opinion delivered.

This was an action of debt, tried at Spring Term, 1840, of Rutherford Superior Court of Law, before Bailey, Judge, in which the plaintiff, submitting to the opinion of the Court, was nonsuited, and appealed to the Supreme-Court. The facts are stated by the Judge who delivered the opinion of the Court.

<p>The Court of Probate may accept the renunciation of an executor at any time before he has intermeddled with the effects of his testator, even after he has proved the will. So of the excutor of an executor as to the first will.</p> <p>Where A. died leaving a will, appointing B. his executor, and B., after proving the will, died leaving C. and D. his executors, who accepted the trusts of the latter will, and qualified as executors thereof, but without at the time renouncing as to the first will, but they never intermeddled with the effects of the first testator: held that the Court of Probate had the power, years afterwards, to accept their renunciation as to the first will, and grant administration cum, testamento annexo.</p> <p>Held further, that these acts, being within the power and jurisdiction of the Court of Probate, could not be incidentally or collaterally impeached in any other Court, but could only be attacked upon an application to the Court of Probate to revoke the letters of administration and recall the executors.</p> <p>After projioiinee"at his own ■nleasure but can ieare°of°the court.</p>

This was an action of debt, tried at the Spring Term, 1810, of Burke Superior Court, before his honor Judge Hall, the writ having been issued from and returnable to the Superior Court of Burke county, directed to the sheriff of Yancy county, and executed by him. The defendant resided in Yancy county. At the return term, the defendant pleaded that, at the time of issuing the writ, the plaintiff was a resident of Yancy, and not of Burke county; to which there was a replication.

This was an action of Assumpsit for money paid &c., tried at the Fall Term, 1840, of Rutherford Superior Court, before his honor Judge Bailey. Under the instruction of the court there was a verdict for the plaintiff, a new trial moved for, and the motion overruled, a judgment for the plaintiif and an appeal therefrom by the defendant to the Supreme Court.

This was an action on the case for slander, tried at the Fall Term, 1840, of Haywood Superior Court, before his honor Judge Baxley. The declaration set forth, in substance, that the defendant had charged the plaintiff with swearing to a lie, upon the trial of an indictment against the defendant for a misdemeanor. The defendant pleaded the general issue, statute of limitations and justification.

This was an action of Ejectment; tried at the Fall Term, 1840, of Pasquotank Superior Court, before his honor Judge Battle. The defendant set up title under a deed executed to him by William W. Freshwater and Mary his wife, in the year 1824, and it was admitted that at the date of that deed the title in fee simple was in the said Mary. The only question was, whether that deed had been so proved as to pass the title of the feme covert. The deed was in the usual form.

Tin's was an action of D.ebt, tried at Surry Superior Court of Law, before his honor Judge Pearson, at the Fall Term, 1840. The plaintiff declared on the official bond of the defendant as the sheriff of Surry .county, and assigned as a breach that h,e had not sold property levied on to satisfy ant execution at the instance oí C. W. Buckley, the relator in this case, against one Dybney Walker.

This was a Scire Facias against the defendant as sheriff of Surry county, for not making due return of a fieri facias, directed to him and placed in his hands, at the instance of the plaintiff against one Dabney Walker.

This cage wag commenced in the (Superior Court of Law for the county qf Haywood by a writ of Rccordari and Certiorari, issued at the Fall Term, 1838, of that court, on the petition and affidavit of the defendants, and directed to certain justices of the peace of that county, who had had an inquisition of forcible entry and detainer at the instance of the plaintiff against the defendants.

<p>An executor or administrator may be called to account by petition or bill in Equity by tbe legatees or next of lrin, before the expiration of two years from the time of probate or of administration granted; The act of Assembly compels them to settle within that time, but does not authorise them to defer the settlement without necessity. ' The court, to whom the hill or petition is presented, can prevent any premature decision, which may do injustice to the executor or administrator.</p> <p>On an account upon a petition or bill against the administrator or executor, he should not be charged with monies which he had not collected or which he had not by reasonable diligence been able to collect.</p> <p>As to matters, where it was doubtful whether he could collect or not, these should be left to a future account, the plaintiffs, in the mean time, taking a decree inpart for what was certainly due.</p> <p>Where the answer of executors or administrators to a petition or bill to account, sets forth a joint receipt and joint administration of the assets, the commissioner is npt required to report what each received respectively.</p> <p>It is not a good exception to a commissioner’s report that th,e proper parties have not been made to a petition or bilk that is an objectiojiagainst the petition or bill itself.</p> <p>Where the surplus of an estate is left by will tobe equally divided “between tbe heirs of A. B. and the heirs of C. D.,” the children or heirs of A. B. and C. D. take per capita and not per stirpes.</p> <p>Inhere one of several joint legatees is not a party complainant in a suit for the legacy, nor any process served on him, nor any good reason assigned for this omission, the other legatees cannot sustain their bill or petition.</p> <p>But the Supreme Court,instead of dismissing the bill or petition, will remand it to the court below, and direct the plaintiffs to pay the costs in the Supreme Court.</p> <p>„ of Ward v. Dev! Eq! 509, and Bryant adm &c v. Scott 3at.eÍ55,n approved</p>

This was an action of Ejectment, tried at the Fall Term, 1840, ofYancy Superior Court, b.efore his honor Judge Bailey. The jury found a verdict for the plaintiff and judgment was rendered thereon, from which the defendant appealed to the Supreme Court. The facts of the case are stated by the court in delivering their opinion.

Daniel Smith, the plaintiff, applied to the County Court of Cumberland to revoke letters of administration which had been previously granted to the defendants on the estate of Lauchlin McKay, the plaintiff claiming the admininistration himself as next of kin. The County Court refused the motion, and the plaintiff appealed to the Superior court of Cumberland.

This was an indictment against the prisoner for the murder of Henry Beasley. The prisoner having pleaded not guilty, the issue was tried at the Fall Term, 1840, of Wake Superior Court of Law, before his honor Judge Hall, when the jury found the prisoner guilty of the felony and murder in manner and form as charged in the bill of indictment. A motion for a new trial was made by the prisoner’s counsel, on the ground that the jury were misdirected by the court.

The defendant was indicted and tried at the Spring Terxn 1841, of Rutherford Superior Court, before his honor Judge Battle, for an assault on one William Grayson. The case appeared to be this.

This was an indictment against the defendants, tried at Spring Term, 1841, of Lenoir Superior Court, before his Hon- or, Judge Bailey.

This was an appeal from an order of the Court below, directing the prosecutor to pay the costs of an indictment for Perjury, on which the Grand Jury had returned “ not a true Bill.” The appeal came from the Superior Court of Macon County, Spring Term, 1841, at which his Honor Judge Battle presided. The following case was sent to this Court by the presiding Judge. This was an indictment against Rebecca Stillwell for perjury, upon the prosecution of one Daniel Cockerham.

<p>On an indictment for retailing spirits by the small measure without a licence, where the contract appeared to be to deliver to the purchaser from time to time spirits, in parts of a quart as he should call for them, with an engagement on his part to take, in the whole, a quart in quantity, and an engagement on the part of the seller not to exact payment until that quantity should be received, it was held by the Court, that this was a violation of the act of Assembly, prohibiting the sale of spirits by the small measure without a licence.</p> <p>Where in such a case the special verdict does not find that the selling was without licence, judgment must be rendered for the defendant; for such an averment is necessary in an indictment under the Statute, and in a special verdict must be found by the Jury.</p>

This was an ejectment brought by the plaintiff, in Northampton Superior Court, and tried at Spring Term, 1841, of that Court, before his Honor Judge Settle. The following case agreed, was submitted to the Court. The land described in the declaration, belonged in fee simple, to Mrs. Cocke, the wife of Archibald Cocke, who acquired it by devise.

This was an action on the case tried before his Honor Judge Nash, at Spring Term, 1841, of Pasquotank Superi- or Court of Law, upon the following case, agreed: The plaintiff was the surety of one Knox, and suit was commenced against him alone, by the defendants, on the note given by Knox and himself. Davis, the defendant in that suit, and plaintiff in this, pleaded “ that he was the surety of Knox,” and that plea was found in his favor.

This was an action of ejectment tried at Spring Term, 1841, of Buncombe Superior Court of Law, before his Hon- or Judge Battle. The following is the case reported by the Judge: Both parties claimed under one William Keith.

This was an action of detinue to recover possession of a negro boy named Larkin, tried at April Term, 1841, of Wilkes Superior Court, before his Honor Judge Manly. The plaintiff claimed under the will of her late husbandj William Matthis, a copy of which was produced on the trial, and is hereunto annexed.

This was an action on the case for slander, tried at March Term, 1841, of Pitt Superior Court of Law, before his Honor Judge Settle.

This was an action of assumpsit, tried at the Spring Term, 1811, of Davie Superior Court, before his Honor Judge Manly. The declaration was for goods sold and delivered by the plaintiff’s intestate, to the defendant. Among other pleas, the defendant pleaded a set off, due by the intestate to her upon an account, and also for goods sold and delivered.

This was an action of covenant, tried at the Spring Term, 1841, of Rockingham Superior Court ot Law, beforebis Hon- or Judge Pearson. The covenant declared on, was as follows, to-wit, “ On or before the 15th of April, I promise to deliver .unto 'William P. Lindsay,, in Madison, Rockingham County, No. Carolina, twelve hundred and eighty lbs. of good merchantable bacon.

This was an action of ejectment, tried at the Spring Term, 1841, oí Pasquotank Superior Court, before his Honor Judge Nash, upon the following case, agreed : The land in dispute, was the property of the ancestor of the lessor of the plaintiff, and descended to him on the death of his ancestor.

<p>A certiorari will not be granted, where a writ of error will lie. •</p> <p>Where certain defendants, securities to a Sheriff’s bond, had obtained a certiorari to bring up a case from the County Court, where judgment had been rendered against them, and upon the return of the certiorari, the Superior Court directed the case to be placed on the trial docket, and that a new trial be granted, and when the case came on, upon the motion of the defendants, ordered the suit to be dismissed, because the defendants had not been duly served with notice as directed by law ; Held, that this judgment was erroneous, and that the parties must proceed to trial upon the merits of the case.</p> <p>The case of Guión v. Shepard, Conf. Rep. 36, cited and approved.</p>

The appeal in this case, which was allowed at Spring Term, 1841, of Caswell Superior Court of Law, not having been brought up within the time prescribed by law, James T. Morehead, counsel for the plaintiff, moved for a certiorari, to bring up the proceedings on the following affidavits, to-wit: John.

<p>This was an appeal from a decision of his Honor Judge Bailey, made at the Spring Term, 1841, ot Buncombe Superior Court of Law. The facts of the case are sufficiently set forth in the opinion delivered by his Honor the Chief Justice.</p>

This was an action of covenant, tried at Spring Term, 1841, of Buncombe Superior Court, before his Honor Judge Battle. The covenant declared on, was a covenaut for quiet enjoyment, contained in a deed for land, executed by the defendants and several others, to the plaintiff.

<p>The Couithas a discretionary power to permit an original writ to be amended, by adding to it the seal of the Court, where that has been omitted before the writ issued.</p> <p>The case of Den ex dem. Purcell^s. McParland, 1 Iredell’s Rep. 34, cited and approved.</p>

This was an indictment for forgery, tried at Spring Term, 1841, oí Johnston Superior Court of Law, before his Honor Judge Settle, and brought up to this Court, on appeal by the defendant, from the judgment of the Court. The indictment was in the following words, viz: State of North Carolina, \ Superior Court of Law, Johnston County. ) Fall Term, 2839.

This was an appeal from the decision of his Honor Judge Bailuy, made at Spring Term, 1841, of Beaufort Superior Court oí Law. The case as transmitted to the Supreme Court was as follows : This was an action commenced by warrant, before a single magistrate, to recover several penalties for not working on the road.

This was an action of trespass quare clausum fregit, tried at the Spring Term, 1841, of Beaufort Superior Court, before his Honor Judge Bailey. On the trial, it became necessary for the plaintiff to shew title in himself, to the locus in quo.

' This was an action of deceit, tried before his Honor Judge Pearson, at the Spring Term, 1841, of Guilford Superior Court. Plea, The general issue.” The fraud complained of, was alleged to have been committed in the sale of a female slave, named Sally, who, at the time of the sale, labored under cancer or other disease of the womb, which was cealed by defendant.

This was a petition originally filed in the County Court of Washington County, from which there was an appeal to the Superior Court of that County, and, an issue havingbeen made up, the case was removed on affidavit, to the Superior Court of Chowan County. It came on to be heard at the Spring Term, 1841, of this latter Court, before his Honor Judge Nash, who ordered the petition to be dismissed.

This was an action of assumpsit, tried at Spring Term, 1841, before his Honor Judge Manly.

<p>This was an action of trover, tried at the Spring Term, 1841, of Burke Superior Court of Law, before his Honor Judge Battle, where there was a verdict and judgment for the plaintiff, from which the defendant'appealed. The facts and points raised, are stated in the opinion delivered by this Court.</p> <p>contended, that the evidence offered as to the prior deed, was improperly rejected; that it was relevant to shew that the present deed was intended to</p> <p>defraud some creditors, and if to defeat any creditors, it was void; and cited, Twyne’s case, 3 Co. 80. Cadogan v. Ken-net, Cowp. 432. 2d. That a deed good at first, may become fraudulent by matter ex post facto. Phipps v. Sands, 2 John C. R. 48. Hungerfield v. Irwin, 2 Yen. 261. 3d. That this deed was fraudulent on its face. 1 Story’s Eq. 371, 372.' 2 Kent, ith Edit. 534, 535. Kissam v. Edmonson, 1 Iredell¡ 180. Murray v. Riggs, 2 Johns, C. R. 580.— Mackey v. Cairns, 1 Hopk. 373. Grover v. Wiclcman,ll Wend. 187. 4 Page, 23. headman v. Harris, 3 Dev. 144. Gregory v. Perkins* 4 Dev. 50.</p> <p>argued against these positions, and cited Moore v. Collins, 3 Deo. 126. Wintringham v. he Foy, 7 Coweñ. As to the action of trover being the proper action, he cited Cooper v. Chitty Sp al. 1 Bur. 20 — . Tinkler v. Poole Sp al. 5 Bur. 2657.</p>

This was an action on the case tried atSpring Term, 1841, before his honor Judge Dick, when there was a verdict rendered for the defendant, and a judgment pursuant thereto, from which the plaintiff appealed to the Supreme Court.— The plaintiff declared in two counts: First, for the trover and conversion of certain slaves; Secondly, for a tortious act done by the dafendant, to the injury of the plaintiffs, during the continuance of a life estate in the said slaves, the…

This was an appeal from the judgment of the Superior Court of Law of Caswell County at the Spring Term, 1841, his Honor Judge Pearson presiding, on a scire facias charging the defendant as bail. The court having decided in favor of the defendant, the plaintiff appealed. The facts of the case are stated in the opinion delivered by the couft.

This was an appeal from the judgment of the Superior Court of Law of Burke county, at Spring Term, 1841, his Honor Judge Battle presiding, ordering an award which had been made in the case to be set aside. Three several suits were pending between these parties, of which one was an action of Trespass quare clausum fregit, another an action of trespass on the case in assumpsit, and the present action of ejectment.

This was an action for malicious prosecution, in which, at Fall Term,, 1839, of Macon Superior-Court of Law, his honor Judge Pearson presiding, the plaintiff was non-suited. From this judgment the plaintiff appealed to the Supreme Court. The facts of tire case, so far as necessary, are stated in the opinion of the Court.

This was on action of trespass vi et artnis, tried at Spring Term, 1841, of Martin Superior Court oí Law, before his honor Judge Settle. The action was brought to recover damages for seizing and selling the plaintiff’s horse.

This was an appeal from the judgment of Lincoln Superior Court of Law. at March Term, 1841, his Honor Judge Manly presiding. The following is the case transmitted, to the Supreme Court. This was a scire facias against Moses Dellinger as bail of one Lawson Henry. Pleas, nul tiel record, surrender of one of the principals, Mary Henry, no capias ad satisfaciendum.

This was an appeal from the judgment of the Superior' Court of Law of Iredell county, at Spring Term, 1841,“ his Honor Judge Manly presiding. The plaintiff declared on A bond for one hundred dollars and proved its execution by the subscribing witness thereto.

This was an appeal from the judgment of the Superior Court of Law of Robeson County, at the Spring Term, 1841, his Honor Judge Dick presiding. The facts are sufficiently státed in the opinion delivered by the court.

This was an appeal from the judgment of the Supeiior Court of Guilford county, at Spring Term, 1841, his honor Judge Pearson presiding.

This was an appeal by defendant from the judgment of the Superior Court of Law of Mecklenburg County at the Fall Term, 1840, his Honor Judge Pearson presiding. The following is the case as reported by the presiding Judge: This was an action of trover.

This was an appeal from the judgment of the Superior Court of Law of Guilford Cotinty, at Spring Term, 1841, his Honor Judge Pearson presiding. The defendants were arrested on a ca.sa. issued on a judgment obtained against them by Peter Adams. Having entered into bond, given due notice and filed their schedule, all according to the act of Assembly for the relief of insolvent debtors, they appeared at court and prayed to be admitted to take the oath prescribed by the act.

■ This was an action of ejectment, tried at Spring Term 1841, of Beaufort Superior Court of Law, before his Honor Judge Bailey.

<p>The probate of a will of lands by a married woman, cannot be had in the County Court.</p> <p>A married woman can only make an appointment in the nature of a will of real estate, under apower of appointment specially given in some deed, and that appointment the Courts of Equity have alone the jurisdiction to determine on and enforce.</p> <p>But a married woman, by her husbqnd’s consent, can make a will of her personal property.</p> <p>And where he has covenanted in a marriage settlement, that she may make such will, but withholds his consent from the particular will she snakes, this is still her will as to personal property; sufficient, at least to repel his right of administering, and to authorize the granting of administration to her appointee, with the will annexed.</p> <p>In case of appointments, authorising married women to make a will of personal property, the appointment must be proved as a will in the proper court, and then is regarded in all courts as a will.</p>

<p>The proceedings on an inquisition of lunacy are not void, because no affidavit accompanied the petition to the court, nor because the alleged lunatic was not present at the time of taking the inquest, nor because the jury, in. their inquisition, returned to the court, find that “ he is lunatic and idiotic,” they having also found that “ he is of non-sane memory”&emdash;the former words to be rejected as surplusage.</p> <p>It is generally proper that an affidavit should accompany the petition, but this is a matter for the discretion of the court, to whom the petition is addressed. ,</p> <p>The alleged lunatic has a right to be present at the inquest; and if this right is denied him, it is a good cause for setting aside the inquisition.</p> <p>But when an inquisition, taken by order of a court of competent jurisdiction, is returned to and confirmed by the court, it is to be respected, like other judgments of a court, until it be reversed or superseded!</p> <p>In an action of detinue, the defendant may be permitted to plead, as a plea since the last continuance, the death of a slave named in the declaration; and in such a case, the jury should be instructed that, if such death has happened, while the slave was in the defendant’s possession and without his fault, they should not include any part of the Value of the slave in the estimate of damages; but if it has happened because of ill-treatment or culpable neglect, or, after a disposition of the slave by the defendant, th'ey may include the válue in such estimate.</p> <p>Evidence ought not to be received of the alleged death, unless the matter be specially presented by a plea; and this plea may be received, if properly verified, at any moment before the verdict is rendered.</p> <p>Thejuiy,however, in sucha case, should give damages for the detention of the slave, while living.</p> <p>Jn trover the death of a slave converted does not affect the plaintiff’s right to recover his value, because by the Conversion the defendant made him his own.</p> <p>N.o agreement of the parties can confer on the Supreme Court a jurisdiction to render any other judgment, than what in law appears to . them ought to have been rendered in the Superior Court.</p> <p>The case of Skipper v. Hargrove, Martin 74, cited and disapproved.</p>

This wasan actionof trespassquare clausum fregit, tried at Spring Term, 1841, of Chatham Superior Court, before his hon- or Judge Pearson. The trespass alleged was, putting a fishtrap in Deep River, & joining (he dam toa small island. It was ^at Deep river was not a navigable stream.

This was an action on the case, tried before his Honor Judge Dick, at the Spring Term, 1838, of Richmond Superior Court of Law. A verdict and judgment having been rendered for the plaintiff, the defendant appealed to the Supreme Court. All the material facts of the case are stated in the opinion of this court.

This was an action, on the case tried at Spring Term, 1840, of Hertford Superior Court of Law, before his Honor Judge Pearson. The plaintiff declared, I st, on a special contract; 21y, for the use of a vessel, from the 20th of March, to the 8th of April, 1838, and for bacon and meal furnished to the defendant. As to the second count, the defendant admitted that he was bound to pay for the use of the vessel and for the bacon and meal. The controversy was as to the first count.

This was an action of ejectment, tried at Davie Superior Court of Law at Fall Term, 1840, before his Honor Judge Pearson. Both parties claimed under one Sheeks. The defendant admitted himself in possession. The plaintiff offered in evide«ce a judgment in favor of one Alexander against one Chloe Oaks and others, an execution thereon and a sheriff’s Heed to himself, conveying all the interest of the said Chloe Oaks.

This was an appeal from the judgment of the Superior Court of Law of Cumberland county at Spring Term, 1841, his Honor Judge Dick presiding.

This was an appeal from the judgment of the Superior Court of Law of Beaufort County, at the Spring Term, 1841¶ his Honor Judge Bailey presiding. The case was one of trover, brought to recover the value of three negroes, Yiolet, Matilda and Bill. These negroes were the children of negro woman Mirny, who belonged to one William Satterthwaite, deceased. The said William Satterthwaite made and published his last will and testament, dated 17th September, 18L0.

This was an action of ejectment, tried at the Spring Term, 1841, of Craven Superior Court of Law, before his Honor Judge Bailey. It was brought to recover possession of a lot in the town of Newbern.

<p>A testator devised as follows: “I leave the whole of my other estate as well negroes as goods and chattels to be equally divided between my four children A., B., C. and D., and for my executors to have it appraised and pay off each child’s part as they shall come to age, the boys to have their part at the age of 21 years, and the girls to have their part at the age of 18 years; and eerier of my children die wiihout heir lawfully begotten, then his or her pari to be equally divided between my surviving chi ¡dren and their heirs forever.” A. died first, leaving children. B. afterwards died leaving no children. Held that the limitation over in the will was not too remote; that on B’s. death without issue, his share became vested in C. and D., who survived him; and that, as A. did not survive him, no part of such share vested in the personal representative or the children of A.</p> <p>The cases of Zollicoffer v. Zollicoffer, 4 Dev. & Bat 438, and Gregory v. Beasley, 1 Ired. Eq. Rep. 25, cited and approved.</p>

This was an appeal from the judgment of the Superior Court of Law oí Jones County at Spring Term, 1841, his Honor Judge Baily presiding, upon the following case agreed: This action is brought to try whether the premises set forth in the declaration descended to the lessors of the plaintiff in common with Frances Devereux, or whether the said Frances was seized of them in severalty; and upon this question the following statement of facts is submitted as a case agreed.

This was an appeal from the judgment of the Superior Court of Law of Ashe County at Spring Term, 1841, his Honor Judge Manly presiding.

This was an action of debt, tried at the Fall Term, 1840, of Edgecomb Superior Court of Law, before his Honor Judge Hall. The action was brought upon the following bond: State op North Carolina, 1 gg Edgecomb County.

<p>This was an action of Covenant, fried at the Spring Term, 1841, of Bertie Superior Court, before his Honor Judge Nash/ A copy of the covenant declared on, so far as it is material to this case, is 'annexed. The plaintiff alleged the following breaches: 1st. That the engine was not finished and ready for shipment at the port of Baltimore on the 1st of March,’ 1837; 2dly. That the engine was not put up by the 1st of May, 1837; 3dly. That the engine was not made of good materials, nor in a workmanlike manner; 4thly. That it had but one shaft, and a single instead of a double crank; 5thly. That it had notpower sufficient to drive twenty-four saws. — ■ It was admitted that the engine was not ready for shipment at the port of Baltimore on the 1st of March, and that it was not put up by the 1st of May. It was further admitted that the plaintiff had not paid the whole of the purchase money, but that f were still due and unpaid, for which the present defendant had brought an action in Washington Superior Court on the counter part of this agreement executed by the present plaintiff, and bearing even date with it, and that the action was now pending in said court — that plaintiff was not in Baltimore on the 1st of March to receive the engine, nor did he pay the $1000 on the 1st of February, but this payment was made on the day of , in the year 1837, and the further sum of g> on the . ¿ay 0f October, 1837. The plaintiff’s witnesses proved that the building for the reception of the engine was not erected until after the 1st of May, 1837. The defendant commenced putting up the engine late in December, 1837, and completed it about the 8th of January, 1838, when the plaintiff received it. And it was proved that very soon thereafter, the fly-wheel broke, as did the gate-head and the rock shaft; and that the two former were honeycombed, and the hollow pla'ces in the gate-head were filled in with lead. On the part of the defendant it was contended and evidence introduced to prove, that the engine was manufactured out of good materials and the work executed in a workmanlike manner — that the breaking of the fly-wheel was owing to the'insufficiency of the foundation of the mill-machinery, which, it was admitted, it was the duty of the plaintiff to build, and the nature of the ground not affording a firm foundation, being-over a quicksand — that the breaking of the gate-head and of the rock-shaft was occasioned by the want of skill in the engineer, employed by the plaintiff to manage the engine.— There was contradictory evidence as to the crank. The plaintiff then gave evidence to shew that he had collected timber to the val we of $2000 ready to saw by the 1st of May, 1837, and that by the 8th of January, 1838, when the mill was set in motion, he had.collected between $7000 and $9000 worth — and claimed that he was entitled to recover from the defendant the injury, which the timber had sustained by lying in the water so long. Some of the witnesses stated that the timber, by lying in the water 12 months would be injured 20 per cent. — others, that it would not be injured at all, but would be benefitted thereby. No evidence, however, was laid before the jury to shew that the timber of the plaintiff was in the least injured. The plaintiff further claimed to recover of the defendant in damages the profit, which he would have made by his mill between the 1st of May, 1837, and the day of May, 1838, when the wdrks were repaired and she finally put in motion. This latter evidence the court rejected. He further claimed in damages the hire of his hands, while the works were repairing. To rebut-this claim, the defendant shewed that during those times, his hands were employed in getting timber, which was as profitable to him as working the mill. It was further admitted that the whole of the engine delivered by the defendant to the plaintiff, with the exception of the fly-wheel and rock-shaft, were still in his possession and used by him in working his saw-mill. The plaintiff further proved that the engine had not power to carry twenty four saws, and that to make it do so it was necessary to add another boiler, which he did. There wits contradictory evidence as to the power of the engine. When the plaintiff closed his testimony, the defendant’s counsel moved the court that he might be called, upon the ground, 1st, that he had not shewn that he had paid the whole of the purchase money before bringing his action; 2dly, because he had not shewn that he was in Balti-' more on the 1st of March, 1837, ready to receive the engine and pay the money then due. This motion the court refused; and in its charge instructed the jury that this contract contained covenants of different kinds — the first on thepartofthe defendant was an independant one, for a breach of which the plaintiff was entitled to recover damages, unless they were Satisfied by the evidence, that the time had not been enlar; ged by the parties, in which case performance by the defendant within the enlarged time would be a full answer to the claim of damages by the plaintiff for that breach — that the second covenant on the part of the defendant was dependent on a condition, to be previously performed by the plaintiff, to wit, the erection of the building to receive the engine by the first of May, which the plaintiff had shewn was not done, and he was not therefore entitled to any damages for that breach, if they were satisfied the fact was so — that, if, from the evidence, they were satisfied that the engine was made of good materials and in a workmanlike manner, and that the breaking of the parts mentioned was occasioned by no insufficiency of the work or materials, but by the insufficiency of the foundation of the mill-machinery or the unskillfulness of the engineer employed by the plaintiff, in that case the plaintiff would not be entitled to any damage on the third alleged breach; but that he would be entitled to such damages, if they were of the opinion that the materials of the engine were not good or the work not executed in a workmanlike manner — that, according to the contract, the defendant had covenanted that the engine should be of sufficient power to carry twenty four saws, and, that although it had the number of boilers specified in the contract and they were of the dimensions there called for, yet the contract on the part of the defendant was broken in this particular, if they were not sufficient to carry the twenty four saws, and if it was necessary to add a fifth boiler to give the engine that power, the plaintiff had a right to do so, as it was proved he had done in this .case, and recover of the defendant what it cost him. The court further instructed the jury that, as the plaintiffhad received and kept the engine, and was now using it, with the exception of the fly-rwheel and rock-shaft, the measure of damages, to which he was entitled for the insufficiency of the engine, as to the materials and workmanship and power, was what it would or had cost the plaintiff to make it what the defendant contracted it should be — that they would decide whether the crank was a single or double one, and so of the shaft — that as to the timber, if they were satisfied that it had been actually injured, by remaining in the water, they would give the plaintiff damages for such injury, confining their enquiry to the timber gotten up to the 1st of May, 1837, and that the plaintiff wap entitled to damages for his hands being out of employment at the mill, during the time the repairs were making, if they were satisfied they had suffered damages.</p> <p> Qopij of the Agreement referred to, so far as it is piateriaL </p> <p>Memorandum of an agreement entered into this 20th day of December, 1836, between Charles Reeder of the City of Baltimore, of the one part, and John McC. Boyle, of the town of Plymouth, North Carolina, of the other part, witnesseth as follows: The said Charles Reeder for the consideration here-? inafter mentioned hath agreed to and with the said John McC. Boyle, his executors &c. to make and furnish for him a steam engine and boilers on the high pressure principle. The cylinder to be &c. (describing it) — to haye four iron boilers, 26 inches in diameter and 24 feet long, with’furnace, bars &c. The cylinder to lie horizontal and connected to a double crank with a shaft on each side, with fly-wheel &c.— in all to be done and finished in a workmanlike manner and of sufficient strength and dimensions to drive four gangs of saws (two on each side,) each gang to hold six saws, making in all twenty four saws, to saw pine lumber; tobe made and in readiness for shipment from the port of Baltimore on or about the first day of March, 1837; then to be put ready for operation in a building provided for that purpose in Plymouth, North Carolina, by said John McC. Boyle on or before the 1st day of May next (1837.) He, the said John McC. Boyle, his ex’rs,<fcc. doth covenant and agree to pay the said Charles Reeder for the aforesaid engine &c. thirty seven hundred dollars in current money in the City of Baltimore as follows, viz. $ 1000 on the 1st day of Febuary, 1837, $800 soon as the engine is ready to ship, $1000 as soon as the work is put up ready for operation, and the balance in 90 days after the engine is first put into proper operation. The said John McC. Boyle for himself <fcc. futhermore covenants and agrees to furnish at his expense boarding and lodging' for the workmen, while putting up the said engine and boilers, and also all necessary brickwork for setting up the same and yellow pine sills for placing the engine on, as well as freight of the said engine and boilers &c. from the City Baltimore to the town of Plymouth, or the place where said engine and boilers are to be erected and put into operation; and also a sufficient number of laborers to assist in ting the engine, boilers &c. in their proper situation. (Then followed a co venant for furnishing other materials not embraced in this suit.)</p> <p>Counterparts of this covenant were signed and sealed by the- parties,</p> <p>The jury found a verdict for the plaintiff under the charge the court, for one thousand dollars. The plaintiff moved for a new trial, on the ground of misdirection of the judge ag t0 qie question of damages, and his rejection of proper evidenee; which motion was refused; and, judgment being rendered according to the verdict, the plaintiff appealed to the Supreme Court.</p> <p>appellant, contended that the plaintiff had a right to estimate his damages, in consequence of the delay occasioned by the breach of covenant on the part of the defendant, by the profits the mill would have made, from the time that covenant ought to have been performed to the time when- it was actually performed; and cited on this point 3 Peter’s Cond. Rep. 621: Richardson v. Meilish, 9th Com. Law Rep. 391; Ward v. Smith, 11th Price 19. He also insisted that as to the damages to the timber, the judge improperly restricted the jury to damages before the 1st of M!ay — that the erection of the house and the furnishing of the machine were independent covenants, and the defendant should have shewn his machine was ready by the 1st of May. 7 Petersdorf 105.</p> <p>contended that the money to be paid the 1st of February was a condition precedent. — also that the shipping of the engine on the 1st of March, and the payment of $800 as soon as the engine was ready to be shipped, were mutual and dependent covenants, and each should have been ready to perform before an action accrued. PJatt on Cov. 70 (3 Law Lib.) Portage v. Cole, 1 Saunders’ Rep. 320; Terry v. Duntz, H. Black, ("cited in Platt on Covts.); Pennington v. Monell, 11 Johns. Rep. 203. He also insisted, that, in giving damages, the expected profits should not be a rale, as the profits were- merely contingent and uncertain, and could not be estimated.</p>