Volume 24 — North Carolina Reports

<p>Where an indictment charges a rescue, and also an assault and battery, and the defendant is convicted generally; if the averments as to the rescue are uncertain or bad, these may he rejected as superfluous and' immaterial, and the Court may proceed to pass judgment upon the verdict as for an assault and battery.</p>

This was an action of assumpsit for goods sold and delivered, tried at Fall Term, 1841, of Macon Superior Court of Law, before Ms Honor Judge Manuv. The principal question was, as to a waggon alleged to have been sold and delivered at the price of one hundred and twenty-five dollars. It appeared from the evidence, that this article was in the yard of the plaintiff, and the parties were negociating about the sale of it for some time without any person being present.

This was an appeal from the judgment of his Honor Judge Manly, at the Fall Term, 1841, of Buncombe Superior Court. The plaintiff, in support of his title to the land in controversy, in the court below, produced a judgment rendered in Buncombe County Court, an execution issued in pursuance of said judgment, and several indorsements on the execution, and also the deed of the Sheriff of Buncombe, dated in August, 1821, conveying the said land.

This was an appeal from the judgment of the Superior Court of Law of Rbtvan county, at the Fall Term, 1841, his Honor Judge Bailey presiding. The plaintiff had obtained a judgment against the defendant before a Justice óf the Peace, and caused a capias ad satisfaciendum to issue thereupon. The defendant gave bond for his appearance at May Term, 1841, of Rowan County Court, to take the benefit of the act for the relief of insolvent debtors.

This was an appeal from the judgment of the Superior Court of Law of Cherokee County, at Fall Term, 1841, his Honor Judge Manly presiding. The plaintiff declared upon a promissory note, not under seal.

This was an appeal from the judgment of the Superior Court of Law of Surry County, at October Term, 1841, his Honor Judge Bailey presiding. The following is the case reported by the Judge. — This was an action of ejectment.

This was an appeal from the judgment of the Superior Court of Law of Rutherford County, at Spring Term, 1841, his Honor Judge Battle presiding. The following case was reported by the Judge below : This was an action on the case brought-by the plaintiff to recover of the defendants the amount, which he paid as the bail of one Samuel Magness, under a promise of the defendant’s testator, that, it the plaintiff would become such bail, he would save him harmless.

This was an appeal from the judgment of the Superior Court of Law of Cabarrus County, at Fall Term, 1841, his Honor Judge Bailey presiding. It was an action on the case for deceit in the sale of land.

This was an action of Trespass, tried at the Fall Term, 1841, of New Hanover ¡Superior Court of Law, before his Honor Judge Pearson, in which the plaintiff declared that the defendant had taken possession of and carried away a certain raft of timber belonging to the plaintiff.

<p>^^ere 4 carried on a suit in the name of B without or against the consent ^16 latter> whereby B was compelled to pay costs, B may maintain an action on the case against A, to recover damages far the injury he has thus sustained.</p>

This was au indictment tried at Fall Term, 1841, of Buncombe Superior Court of Law,-before his Honor Judge MaNly.

<p>This was an action of Trespass m et armis quare clausum fregit, tried at the Fall Term, 1841, of Stokes Superior Court, before his Honor Judge Nash. The plaintiff and the defendant were owners of contiguous tracts of land. In clearing near the dividing line, a tree cut on the defendant’s land fell with part of the top on the land of the plaintiff. There was no evidence to show that the tree was felled by design or carelessness on the plaintiff’s land : nor was there any evidence to show that when the tree fell there was any grass or vegetable growth of any kind, or that any actual injury was sustained by the land. The counsel for the plaintiff requested the Court to- charge the Jury, that when a man, in clearing his land, fells a tree so- that any part of it falls on his neighbor’s land, it is a trespass for which an action of trespass quare clausum fregit can be sustained. The Court declined giving the instructions as prayed for, but charged the- Jury that every voluntary entry on the land of another, without his consent, and not sanctioned by the law, was a trespass for which an action could be brought — that in this case the plaintiff could not sustain his action, unless they were-satisfied from the evidence that the tree was designedly or carelessly felled by the defendant so as to fall on the plaintiff’s land, or that, by falling on the plaintiff’s land, it had fallen on his grass or vegetable growth of some kind. There was a verdict and judgment for the defendant, and the plaintiff appealed.</p> <p>cited Rev. Stat. c. 31. s 83; Dougherty v Stepp, 1 Dev. and Bat. 371; Gregory Piper, 17 Eng. C. L. R. 454; Baker v Berkeley, 14 Eng. C. L. R. 197.</p>

<p>This was an appeal from the judgment of the Superior Court oí Law of Haywood County, at Fall Term, 1841, his Honor Judge Manly presiding, dismissing an appeal which had been taken to that Court from the County Court of Haywood. The facts are sufficiently stafed in the opinion delivered in this Court.</p>

This was an appeal from the judgment of the Superior Court of Law of Bladen County, at Fall Term, 1841, his Honor Judge Pearson presiding. The case was a proceeding under an Act of Assembly relating to Bastardy. An issue having been made up in the County Court, whether the person charged was the father of the bastard, was there tried, and an appeal taken to the Superior Court.

This was an appeal from the judgment of the Superior Court of Law of Macon County, at Spring Term, 1841, his Honor J udge Battle presiding. The defendants were indicted for an assault and battery on the prosecutor.

This was an action oí Debt upon the official bond of the defendant, as Sheriff of the County of Moore, tried at the Spring-Term, 1841, of Chatham Superior Court of Law, before his Honor Judge PearsoN. The breach assigned was that one Hedgepeth, the deputy-sheriff, had, in January and February, 1838, received certain papers to collect, and had failed to do so. The bond of the Sheriff, bearing date in August, 1837, was duly proved.

<p>This cause was tried at Fall Term, 1841, of Macon Superior Court of Law, before his Honor Judge Manly. It was a. petition, filed on the 25th of March, 1838, by the plaintiff against his wife, for a divorce from the bonds of matrimony, for the cause of the wife’s adultery. It states that the circumstances of the parties were humble, and that their marriage took place in December, 1835; they “ lived happily together for some time, and until the wife had a child under circumstances, which forced upon the petitioner’s mind the conclusion, beyond a doubt, that the child was not his, but spurious ; that upon that unexpected change of his fortunes the petitioner determined to divulge the fact at once, and he then made known to his wife that he well knew, as she did, that her said child was not his issue, and that from thenceforth he would not receive her as his wife : upon which in-fot'mation the defendant, as soon as she had recovered from her indisposition, (at lying in,) left the pelitidner’s house, and hath not since returned.” The petition farther states that, in the beginning of the year 1837, the petitioner left this State and was absent about one year; and then charges specifically, that the defendant went to live with one W. G., and has continued to live with him in adultery ever since, and has there had another child, which is the issue of W. G., and not of the petitioner, who was absent and in a distant State at the period of conception.</p> <p>The answer states, that about two years before the marriage the defendant had a child, of which the petitioner was the father, and so acknowledged himself to be; and that the adulterous intercourse between the parties afterwards continued up to the marriage, at which time she was again pregnant, and in about six months thereafter the second child was born. The answer then states that the defendant is unable to give a specific reply to the circumstances, which, as the petitioner alleges, induced him to believe that the child was not his, for the reason, that in the petition none of those circumstances are set forth. And it further states, that about one month after' the birth of that child the petitioner drove the defendant from his house in the manner stated in the petition ; and it avers, that from her marriage up to that time she had no criminal conversation with any man, but lived chastely^ Upon the trial it was admitted by the parties, that before their marriage the defendant was the kept mistress of the petitioner, and that they had one child; and also that when they intermarried she was pregnant of a second child, and that, upon the birth of it, a dispute arose between them upon the paternity of that child, whereupon the wife left her husband’s house. Upon issues to a Jury they found, that the defendant separated herself from her husband and lived in adultery with W. G.; that the petitioner did not allow of his wife’s prostitution, nor expose her to lewd company, whereby she was ensnared to the said crime, nor admit her into conjugal society after he knew of the criminal fact.</p> <p>The cause then coming on to be heard upon the pleadings,’ admissions of the parties- and finding of the Jury, the petitioner moved thereupon for a divorce from the bonds of matrimony. But the presiding Judge declared his opinion that it was not fit to grant that motion, and, no other being made, the petition was dismissed with costs. From this decree the petitioner appealed to the Supreme Court.-</p>

<p>This was an action of detinue to recover a negro named John, tried at the Fall Term, 1841, of Montgomery Superior Court of Law, before his Honor Judge Pearson. The plaintiff, in submission to the opinion of the presiding Judge, having suffered a nonsuit, appealed to the Supreme Court. The case, as sent up, contained all the evidence offered on the trial, but it is unnecessary to insert it here, as the opinion delivered in this court contains all the material part.</p>

These were appeals from the judgments of the Superior Court of Hyde County at Fall Term, 1341, his Honor Judge Settle presiding. The facts were these: The defendant _was indebted to the plaintiff in the sum of $148 42 due by, bond, and on the 26th of May, 1840, in satisfaction of that ^on^> §a'e’e to ^ plaintiff two other bonds in the sum of $74 21 each, payable immediately.

<p>The Act of Assembly (Rev. Stat. c. 89, s. 24,) authorizing'the Wardens of the Poor to seize any horses, cattle, hogs, or sbeep,-belonging to a slave is not unconstitutional.</p> <p>The Wardens may exercise this power either in person or by a-precept or authority directed to another.</p> <p>Such a precept or authority directed to “ any constable of a County,” without specifying his name, will justify the constable who executes it, if his act be afterwards ratified by the Wardens.</p> <p>It is not necessary that to such an authorrty or precept the Wardens should sign their names as Wardens, it in fact they were so.</p> <p>By the phrase “ cattle, hogs, &e. belonging to slaves,” the Statute means such cattle, hogs, &c. as the master permits the slave to raise for his own use, and to exercise acts of dominion and ownership over, as if they were his own.</p> <p>Although defendants in an action of trespass sever in their pleas, ye^ where there is but one judgment in their favor, as “ that they go without day,” they shall recover but one set of costs.</p> <p>The case of Slockslile v Shufford, Conf. Rep. 556, cited.</p>

<p>On petitions for distributive shares, which are in the nature of proceedings in Equity, an appeal for costs only will not' be entertained, except under very peculiar circumstances.</p> <p>Where the Guardian of an infant distributee sued the administrator of the estate the very day he was appointed guardian, and without any demand upon the administrator, and the administrator was guilty of no default, but promptly rendered an account, which was found to be correct, held that the Guardian should pay the costs of the suit.</p> <p>The case of Ryder1 v Jones, 3 Hawks. 24, cited and approved.</p>

This was an appeal from the judgment of the Superior Court of Law of Ashe County, at the Spring Term, 1841, his Honor Judge Manly presiding. The following is the case transmitted to the Supreme Court. This was an action of ejectment, wherein both parties claimed title under William Edwards and admitted the title to be out of the State.

This was an action of Detinue to.recover several negroes, tried before his Honor Judge Bailey, at the Fall Term, 1841, of Rowan Superior Court of Law, when judgment was rendered for the defendant. On the trial the plaintiffs proved that the slaves in controversy did belong to their intestate, Mary Clary, and that the defendant was in possession and detained them.

This case was brought up by appeal from the judgment of the Superior Court of Law of Moore County, at Fall Term, 1841, his Honor Judge Peauson presiding. It was an action of debt upon two notes under seal, purporting to be executed by Alexander and Neil Buie, the one for $128, the other $68, bearing date 17th March, 1818, and written on the same piece of paper, one payable one day after date, and one twelve months after date-.

This was an appeal from the judgment of the Superior Court of Law of Caswell County, at Fall Term, 1841, his Honor Judge Nash presiding. It was an action on the case for deceit in the sale of horses to the plaintiffs, who were stage contractors.

This was an appeal from the judgment of his Honor Judge Settle, upon a case agreed at Hyde Superior Court of Law, Fall Term, 1841. The case was as follows, as reported by the presiding Judge: It is an action on the case, brought by the plaintiff to recover damages from the defendant for his flowing the water that fell Upon his land, which is situated above the plaintiff’s, down into, through and along a ditch situated on the plaintiff’s land.

This was an appeal from the judgment of the Superior Court of Law of Tyrrell county, at Spring Term, 1841, his Honor Judge Battle presiding. It was an action of Trover for a canoe, in which it was proved for the plaintiff, that the defendant borrowed the canoe from him, and some time afterwards came to him and apologised for not having' returned it, as he ought to have done, when the plaintiff said it made no difference as he had not needed it.

This was an Indictment for the wilful murder of William W. May, tried at Fall Term, 1841, of Richmond Superior Court of Law, before his honor Judge Pearson., The indictment, which was against the defendant and two others, had been found a true bill at the Fall Term, 1841, of Anson Superior Court of Law.

This was an appeal from the judgment of his Honor Judge Bailey, at the Fall Term, 1841, of Rowan Superior Court, upon a-special verdict found' by the jury on the trial of an indictment against the defendant for a forcible entry. The indictment was in the following words, to wit: North Carolina, ) Superior Court of Law, Rowan County. \ sS Fall Term, 1841.

This was an appeal fro'm the judgment of his Honor Judge' Battle, at the Fall Term, 1841, of Pasquotank Superior Court of Law, on a case agreed.

This was an appeal from the judgment of the Superior Court of Law of Randolph County at the Spring Term, 1841, his Honor Judge Pearson presiding.. The plaintiff declared in assumpsit on the following instrument in writing, to wit, “Feb’y 26th, 1837. Jonathan Chnrch Esquire, please pay to M. M. Troy or order, thirty two dollars and sixty eight cents, and charge yours, &c. John B. Troy,” which was endorsed, to the plaintiff by M. M. Troy for a valuable consideration.

This was an appeal from the judgment of the Superior Court of Law of Northampton County, at Fall Term, 1841, his Honor Judge Dick presiding. It was an action on the case to recover damages’ for burning five hundred pannels of fence, the property of the plaintiff.

This was an appeal from the judgment of the Superior Court of Law of Craven County, at Fall Term, 1841, his Honor Judge Settle presiding. The case made for the Supreme Court is as follows: Action on the Case. The declaration contained two counts: the first for a libel published in the Washington Whig, a newspaper published in the town of Washington, North Carolina, a copy of which is as follows: “ To the Public.

<p>Under the' act of 1836, Rev. St. c. 99, s. 23, an action may be supported on the official bond of the Sheriff for the neglect of his deputy to collect a claim put in his hands for collection, although the amount of the claim is within the jurisdiction of a single justice of the peace. Justices may direct their warrants as well to Sheriffs as to Constables.</p> <p>It is no defence to such an action, that after the default of the deputy, the plaintiff has endeavored, but unsuccessfully, to collect his claim himself from his debtor.</p>

<p>An amendment of an execution will not be allowed, when such amendment will prejudice the rights of third persons.</p>

<p>Where a plaintiff issued three separate writs on different days against three individuals, endorsing on each writ that it was for the same cause of action and in the same suit as the writs issued against the other two, & upon there turn, they were docketed as one suit and thedefendants appeared and put in pleas thereto; Held that whatever irregularities may have occurred in suing out the writs, these were waived by the defendants accepting a joint declaration and putting in pleas in bar thereto.</p> <p>The case of Walton v Tomlin & Co., 1 Ired. Rep, 593 cited and approved.</p>

This was an appeal from the judgment of the Superior Court of Law of Macon County, at Fall Term, 1841, before his Honor Judge Maniy. At this term, the defendant was tried upon the following indictment, to wit, “State op N. CaroliNa, ? Sept. Court of Law, Macon County: $ ss- Fall Term, 1840.

This was an appeal from an interlocutory decree of the Superior Court of Law of Perquimons County, at Fall Term, 1841, hrs Honor Judge Battle presiding. The pleadings and decree are set forth in the opinion delivered in this Court.

This is an appeal from the judgment of the' Superior Court of Cherokee County, his Honor Judge MANLY presiding. The plaintiff and others had petitioned the County Court of Cherokee to have a public road laid out. Notice was given as required by the Act of Assembly. The defendant and others appeared and opposed the prayer of the petition. The Court ordered a Jury, who made a report which was confirmed by the Court and the road directed to be laid off.

This was an appeal from the judgment of the Superior Court of Law of Cumberland County at Fall Term, 1841, his Honor Judge Pbarson presiding. The suit was an action of assumpsit for twelve dollars, and commenced by warrant before a magistrate.

This was an appeal from the judgment of his Honor Judge Maniy, at the Fall Term, 1841, of Buncombe Superior Court of Law, dismissing a Writ of prohibition which had issued against the defendants from the last term of that Court. The facts are sufficiently stated in the opinion of this Court. in support of the writ of prohibition, cited the following authorities: King v Justices of Dorset, 15 East. 594. 1 Mad. Rep. 76, Jacob HalVs case. King v Belton, 5 Mad.

This was an appeal from the Judgment of the Superior Court of Law of Jones County, at Fall Term, 1841, his Honor Judge Settle presiding. The petition was brought against the defendant as executor of William Rhem, dec’d,, for the recovery of a negro girl named Fan, and also for one dollar alleged to have been devised to the petitioner Susan, by the will of the said William.

This was an indictment tried before his Honor Judge Bailey, at the Spring Term, 1842, of Macon Superior Court of Law, when the defendant was convicted. The indictment contained two counts; the first was for false imprisonment, the second for an, assault and battery on Barnard Long.

This was an appeal from an order of his Honor Judge Bailey, made at the Spring Term, 1842, of Hay wood Supe - rior Court of Law.

This was an action on the case, in which the plaintiff declared for the injury which shesustained, in consequence of the defendant’s taking from her actual possession three ne-groes on or abcut the middle of May. It was in e\idence that the negroes were in the actual possession of the plaintiff, and that about the middle of May, 1839, the defend.ant took them from her possession with force, by which she lost the crop which she had then planted.

This was an appeal from the judgment of his Honor Judge Bailey, at the Spring Term, 1842, of Macon Superior Court of Law. The action was brought on the official bond of the sheriff of Cherokee county against him and his sureties. At the return term the defendants pleaded in abatement that they all resided in Cherokee county, where the bond was executed; that the bond being payable to the State, though H. G-.

This was an appeal from the judgment of the Superior Court of Law of Surry county, at the Spring Term, 1842, his Honor Judge PearsoN, presiding. The case was thus reported by the Judge: It was an action of debt upon the bond of a constable. The bond was in the usual form, and the breach assigned was a want of due diligence and failing to collect a claim upon one John Perdee for g4 50 cents.

This was an appeal from the judgment of the Superior Court of Law of Chatham county, at Spring Term, 1842, his Honor Judge Dick presiding. It was an action of E. jectment, and in the trial of the case the plaintiff offered in evidence a conveyance in fee simple for the tract of land in controversy. The deed was executed by the defendant, and proved as to him.

This was an appeal from the judgment of (he Superior Court of Law oí Bertie county, at Spring Term, 1842, his Honor Judge Manly presiding.

This was an appeal from the judgment of the Superior Court of Law of Davidson county, at Spring Term, 1842. his Honor Judge Dick presiding. The case was an action of assumpsit commenced by warrant before a justice of the peace, which was brought by successive appeals to the Superior Court.

An appeal from the judgment of the Superior Court of Law of Camden county, at Spring Term, 1842, his Honor Judge Manly presiding. It was an action on the case brought to recover damages for the negligence of the defendants’ agents, in consequencs of which a canal boat belonging to the plaintiff was sunk, and his negro Aaron drowned.

An appeal from the judgment of the Superior Court of Law of 'Caswell county, at Spring Term, 1842, his Honor Judge Dick presiding.

<p>The ground on which is presumed a grant of the privilege of ponding water on another’s land for the purpose of a mill is, that it has been enjoyed by the person claiming and those with whom he connects himself for twenty years or more in the state or to the extent to which he claims.</p> <p>It is no answer to this presumption that the height of the water had been sometimes lowered by a drought, or that the water had been occasionally let off for the purpose of repairing the mill, and oaly for the period required for such purpose.</p> <p>The cases of VI ilson v Wilson, 4 Dev, 154, and Pugh v Wheeler, 3 Dev. & Bat. 50, cited and approved.</p>

This was an appeal from the judgment of the Superior Court of law of Pitt county, at Spring Term, 1842, his Honor Judge Settle presiding. The plaintifis brought a suit to recover certain property, a part of which had belonged, as was alleged, to one Buth Wilson, wjro was dead, and whose administrator was a party plaintiff. On the trial of the issue, the plaintiffs offered as a witness in their behalf Daniel Wilson, one of the distributees of the said Ruth Wilson.

An appeal from the Superior Court of Lincoln county, at Spring Term, 1842, his Honor Judge Pearson presiding. The plaintiffs brought this action of debt upon a bond of the defendants for $>3500, with a condition to indemnify the plaintiffs from all damage sustained by the defendants’ ■wrongfully suing out an injunction to stop them from working a gold mine.

This was' an appeal from the Superior Court of Law of Davie county, at Spring Term, 1842, his Honor Judge Pearson presiding. On the trial of this Ejectment in the court below,'it was admitted that the defendant was in possession, and that the land was once the property of Sarah Hoskins, who is now the wife of Joseph Rich, and they are the lessors of the plaintiff. The only question was, whether a deed, executed on the 1st of March, 1834, by John G-.

<p>A constable gave a receipt to A. B. as agent for C. D. fora certain note to collect or return. A. B. transferred the receipt to E. F. by an in-dorsement on the back of the receipt. Afterwards A. B. collected the money. Held that E. F. could not recover this money from’A. B. in an action for money had and received to his use, for the money was received to the use of the principal O. D., nor could he recover on a count for a bill of exchange, for it was no bill o’f exchange; nor on a guaranty, for he had used no diligence in endeavoring to collect, nor given notice to the guarantor of a default in the principal.</p>

An appeal from the Superior Court of Law of Yancy county, at Spring Term, 1842, his Honor Judge Bailey presiding. This was an action of trespass quare clausum fregit.

This was an action of assumpsit. The facts of the case were, that on the 20th of March, 1832, A. A. McDowell, the testator of two of the defendants, became a partner with the defendants Richardson and others in a store in the county of Buncombe, which was under the general management of Richardson, and the firm was known as the firm of B. Richardson & Co. Before the 20th of March, 1832, Richardson had been engaged in merchandize, either by himself or in company with one…

This was an appeal from the Superior Court of Law of Randolph county, at Spring Term, 1842, his Honor Judge Dick presiding. The action was debt opon a bond given by the defendant to the plaintiff’s intestate. On the trial of the cause the execution of the bond was admitted, and the defendant relied on his plea of payment, aud introduced witnesses to establish his plea.

This was an appeal by the Attorney General from the judgment of the Superior Court of Wake county, at the Spring Term, 1842, his Honor Judge Settle presiding. The following case was presented by the record. The prisoner was indicted for, and convicted of, grand larceny.

An appeal from the Superior Court of Law of Hertford county, at Spring Term, 1842, his Honor Judge Manly presiding. The action was brought upon the penal bond of the defendant, with condition to return in good repair at the expiration of his lease, a certain farm belonging to the estate of Titus Darden, deceased, and to pay the rent of the same, payable to the plaintiff as executor of the said Titus Darden.

An appeal from the judgment of the Superior Court of Lenoir county, at Spring Term, 1S42, bis Honor Judge Battle presiding. This was an action of ejectment on the trial, of which the following facts were agreed upon. On the 4th of November, 1835-, the premises in dispute, and of which the defendant was in possession, were mortgaged by him to William D, Mosely.

An appeal from the Superior Court of Law of Henderson county, at Spring Term, 1842, his Honor Judge Bailey-presiding. The defendant, on the 4th day of June, 1841, had entered into a recognizance before a justice of the peace to keep the peace, and to make his appearance at the next Term of Henderson County Court, which was to be held on the 19th‘day of July thereafter.

An appeal from the Superior Court of Richmond county, at Spring Term, 1842, his Honor Judge Nash presiding. This was an action of debt brought against the defendants as the sureties of S. H. Sedbury, on a paper writing purporting to be a bond, payable to the State of North Carolina, and which is in the usual form of a constable’s bond for Richmond county. The paper writing is dated April 16th, 1839.

This was an action against the defendants as securities for one S. H. Sedbury, on a paper writing, purporting to be a bond for the faithful discharge of the duties of a constable by the said Sedbury. The paper was dated the 16th of April, 1839.

<p>The power given to the County Court to appoint a constable, in case of a vacancy, is a special power, and cannot be exercised without the presence of seven justices; otherwise both the appointment and the bond given under it are void.</p>

<p>An appeal from the Superior Court of Northampton county, at Spring Term, 1842, his Honor Judge Settle presiding. This was an action of detinue by James W. Newsom, administrator of Benjamin Pledger, Willie F. Pledger, Matilda Pledger, and Charity, KincLen, John and Jesse Pled-ger infants, by their next friend Willie T. Pledger, against the defendant, to recover a negro slave, named Cary. The defendant pleaded “non detinet and statute of limitations;” and issue was joined. The jury found a verdict for the plaintiff, subject to the opinion of. the court, upon the following case reserved.</p> <p>On the 20th of November, 1819, one John Pledger made a deed of gift, which was duly acknowledged at the December Term, 1819, of Northampton County Court, in which county both the donors and donees then resided. The said deed, which was duly proved and recorded, is in the following words, viz:</p> <p>“ To all people to whom these presents shall come, I, John Pledger, of the county of Northampton and State of North Carolina, send greeting: Know ye, that I, the said John Pled-ger, for and in consideration of the natural love and affection •which 1 have and bear unto my beloved grandsons Benj. W. Pledger and Willie Pledger, sons of my son Geo. W. Pledger; and if, also, my said son George W. Pledger’s present wife, Becky Pledger, should have another child or children, then, and in that case, to be equally benefitted in this gift with the two above mentioned; and for divers other good causes and considerations me hereunto moving, have given and , , , , . ° , granted, and by these presents do give and' grant unto the said grand-children, one negro man, named Carey, to have, hold and enjoy, the said negro Cary, unto the said grandchildren, their executors, administrators and assigns, forever. And I, the said John Pledger, all and singular the aforesaid negro Cary to the said grand-children, their executors, administrators and assigns, against all persons whatsoever, shall and will warrant and defend by these presents. In witness whereof I have hereunto set my hand and seal, this 20th day of November, 1819.</p> <p>(Signed) JOHN PLEDGER, (Seal.</p> <p>In presence of R. Whit AKER.”</p> <p>This deed was proved at December Term, 1819, and registered January 24th, 1820. At the time of the execution of this instrument, Benjamin W. Pledger and Willie Pled-ger, mentioned in the deed, were the only children of George W. Pledger and Becky his wife, and were infants living with their father George. The negro slave named in the deed, went into the possession ot the said George, and so continued until the year 1829, when the defendant’s testator took possession, and held and kept the slave as his own property, until his death in the year , when the defendant assumed the possession as executor, and hath retained, and still retains it, after notice of the plaintiffs’ claim, and refuses to surrender the slave to them. In the year 1831, Benjamin Pledger departed this life, intestate and an infant under the age of twenty-one years, and, at March Term, 1841, of the County Court of Northampton, administration on his estate was duly committed to the plaintiff, James W. Newsom; the other plaintiffs are children of the said George and Becky, born after the execution of the deed, and all of them before the year 1829, except Jesse Pledger, who was born in the year 1830. And all were infants at the institution of this suit, except Willie, who came of full age within less than three years before its commencement.</p> <p>On the trial, it was insisted on the part of the defendant that the said deed passed the whole legal title in the slave to the donees therein named, and who were living at the time of its execution; and that the grand-children subsequently born did not, upon their births, become entitled at law under the said deed; and so the defendant’s counsel insisted that the plaintiffs were not entitled to maintain this action. And the defendant’s counsel further insisted, that, if the plaintiffs were entitled to recover the slave, yet as to the hire of the slave, while in the possession of the defendant’s testator and before all the plaintiffs were in being, a recovery could not be had in this action. And it is agreed, if the court shall be of opinion, that the plaintiffs are not entitled to maintain this action, judgment of nonsuit is to be entered; otherwise judgment to be given upon the verdict. And if the court shall be of opinion with the defendant, upon the latter point as to the hire, then the damages are to be reduced by striking out therefrom the sum of seventy-two dollars and fifty cents for the hire accrued before the birth of the last bora of the plaintiffs, and judgment to be for the plaintiffs for the residue.</p> <p>Upon consideration of which, the presiding judge being of opinion with the plaintiffs, it is therefore considered by the court that the plaintiffs recover of the defendant the negro-slave Cary, of the value of seven hundred dollars, and also the sum of nine hundred and forty-two dollars and fifty cents, as damages for his detention. From which judgment the defendant appealed to the Supreme Court.</p>

This was an action of trover, brought to recover damages for some corn. The plaintiff claimed title as follows: It was shown that the corn had belonged to one Keith, and the plaintiff alleged that he had bought it at execution sale.

This was a proceeding by attachment against one Seldon Tryon, in which the defendants, Booth and Porter, were summoned as garnishees, upon the allegation that they were indebted to said Tryon. In their garnishment the defendants denied that they owed Tryon any thing, and thereupon at the instance of the plaintiffs an issue was made up to try the fact.

<p>A verdict in an action of Detinue against the plaintiff, on the plea of non --detinet, is not sufficient evidence in another suit to shew that the plaintiff had not title to the thing demanded.</p> <p>If, in such a case, parol evidence can be introduced to shew the grounds on which the verdict was given, this evidence must prove conclusively that the jury could have found their verdict upon no other ground than want of title in the plaintiff.</p> <p>The cases of Vines v Brovmrigg, 1 Dev & Bat. 239, and Bennett v Holmes, 1 Dev. & Bat. 436, cited and approved.</p>

An appeal from Guilford Superior Court of Law, at Spring Term, 1842, his Honor Judge Dick presiding.

This was an action of debt, originally commenced before a magistrate, brought to recover the rent of a tract of land. .The plaintiff proved that, on the 1st of January, 1841, he, as the guardian of… Held: and so charged the jury, that the facts proved by the defendant, constituted no defence to the action for rent. A verdict was returned for the plaintiff for sixty dollars, the entire rent for the year 1841.

This was an action of Covenant, brought upon the following instrument, to wit: “ I, John Bradley, do hereby agree to bind myself to make all the bad debts created at the store in Buncombe county, No. Carolina, at a place called Limestone, trading under the firm oí Bradley, Lewis and McKesson, to wit, John Bradley, George W. Bradley, Elias D. Lewis and William F. McKes-son, and as said Lewis and McKesson has instituted suit, we have this day settled all matters on the…

This was an action of' Debt on the following bond, to wit: “State of North Carolina, ) Chatham County. j ss‘ Know all men by these presents, that we, Henry Lightfoot, Henry A. London, James Taylor and Abraham G. Keen, all of the county aforesaid, are held and firmly bound unto the State of North Carolina, in the just and full sum of four thousand dollars to be paid to the State aforesaid, to which payment, well and truly to be made, we bind ourselves and heirs, executors and…

This was an action of Trespass quare clausum fregit, on the trial of which it became necessary to ascertain the location of a patent, granted to one Cason Brinson in 1745, as both the grants, under which the plaintiff and defendant respectively claimed, called for one of the lines and corners of that patent. The first and second corners of that patent were admitted.

, at Spring Term, 1842, his Honor Judge Dick presiding. This was an action on the case in the nature of an action of -waste, brought by the plaintiff, claiming to be tenant in fee in remainder, after the life estate of the defendant, in certain lands lying in the county of Orange.

An appeal from the Superior Court of Northampton county, at Fall Term, 1841, his Honor Judge Dick presiding. This action commenced by a warrant under the act of Assembly (Rev. Stat. c. 17, s. 7) to recover damages for killing the plaintiff’s steer, and was brought up by successive appeals to the Superior Court. The killing of the steer by the defendants’ engine, while in their employment on their rail road, was admitted.

An appeal from ihe Super!ox Court of Marlin county, at tbe Fall Term, 1841, his Honor Judge Dick presiding. This was an action on the case brought to recover damages done to a lot in the town of Williamston. The declaration contained a count in case, for removing from the said lot heaps raked up for manure and a quantity of rails, and a count in trover, for the articles alleged to have been removed.

<p>-An appeal from the Superior Court of Law of Greene county, at Spring Term, 1842, his Honor Judge Battle presiding.</p> <p>This was an action on the case for the abuse of valid legal process. In support of his case, the plaintiff introduced, as a witness, one Silas Walston, who testified that the defendant, who was a justice of the peace for the county of Greene, handed him a note in favor of one Samuel Moore against the present plaintiff, with instructions to collect it as soon as possible, saying that Moore had so ordered; that the witness, who was a constable in Greene county, went, some six or seven days after receiving ¡the claim, -to Eason’s -house on Sunday evening, and thence, the next morning between daylight and sunrise, to Jones’ house, when he found him putting on his clothes, The witness said, he went thus early, lest Jones should be gone over to Edgecombe county, where he was then- working — that he told Jones his business, and said he must go to trial that morning, and that, as Eason was the nearest magistrate, he mustgo there, to which Jones replied that he would not go to Eason’s, because he and Ea-son were at variance; that Jones then got his gun and commenced rubbing it up, but upon the witness insisting that he must go, Jones finally agreed that he would go to Eason’s gate; that they then went to Eason’s gate, and Eason came out to them, and at the witness’ request there tried the warrant; that, upon the trial, Eason read over the note, and read tbe amount nine dollars and some cents, when Jones said i£ was only seven dollars and some .cents; that Eason then asked Jones if he denied the note, to which Jones replied that he must prove it; when Eason said he need not deny it, for he knew his hand-writing, and, therefore,, gave judgment against him. The testimony, as to what passed at the trial, was objected to by .the defendant, upon the ground that he was not responsible in a civil action for what he did in his judicial capacity; but, upon the plaintiff’s saying that it was only offered for the purpose of shewing the animus or intent, by which the defendant was actuated throughout the whole transaction, it was admitted by the court for that purpose,and for that alone. This witness testified further, that, after the judgment was given, he immediately took out a ca. sa., which was issued by Eason; that, whether he did this from any suggestion of Eason then made or of his own accord, he did not recollect, but Eason had formerly told him that a ca. sa. would have to be issued; that about the time 'the ca. sa. issued, Jones said, that, if he were permitted, he could give security for the stay of execution, and named Am raff Beeman, who lived about a mile off, and who was sufficient security, or that he could gel the money from Mr. Webb, who lived three miles off in the county of Edge-combe, if he were allowed to go there; that Jones then got one Willie Barnes to go off after security, and they waited until his return; that upon his coming back without security, the witness, Eason, and several other persons set off to parry Jones to Snow-Hill, (where the jail was,) and after proceeding about a mile, they met John Beeman, whom Jones asked to^be his security, to which Beeman replied, by asking him whom ■hej.cdtilcl. get to stand with him, to which Jones sai,d he did’ nolúchow that he could get any person, and the witness did not hear Beeman offer to stand alone; that soon , afterwards Eason started on, when the witness called to him and said, “ stop, squire,- perhaps it can be accommodated,” but he said i£ was not worth while to be bothered with it, as they had to go on any how. This witness stated further that he bad another warrant against Jones, in favor of Eason, of which he had notified Jones, and thqt, after they had the interview with John Beeman, they proceeded on towards Snow-Hill and stopped at the house of a Miss May, where Eason and Jones had a settlement of their own matters, and Eason paid the costs of his warrant, and then offered to be Jones’ security tor his appearance at court on the Moore debt, which Jones declined at first, but soon after called the witness to request Eason to become his security; that Eason said something about Jones’ family being poor and in distressed circumstances, when Jones said they had a barrel of meal and sixty pounds of meat; upon which Eason said to the witness, go ahead, and they went and put him in jail. On his cross-examination, the witness stated, that while the party were at Eason’s gate, Eason invited the whole company, including Jones, to take breakfast with him and likewise to drink with him, which Jones refused. Willie Barnes testified that he was present at the trial of the warrant in favor of Moore, and that the note was not proved, though Jones required it — that after the ca. sa. was issued, Walston, the officer, asked Jones what he would do, to which Jones said he could do nothing, unless he could be permitted to go and ge.t security — that the witness went alter Amraff Bee-man, who, he said, would be his security, and went for that purpose, but the party had gone before he got there — that A. Beeman lived about a mile from Eason’s, and witness was gone about an hour — that Eason was not present when the witness started after A. Beeman. This witness testified further, that three or four weeks before this tranaction, he heard one Asa Gay tell Eason that Jones had warranted him, when Eason said, if he had, he (Eason) would put him in jail. John Beeman stated, that when Jones a sired him to be his surety, as testified by Walston, cretionary with him, whether he woulc said he could get any person, upon wh&h'Eason ; be damned to h — 1 fire, if any man liv| and h — 1 shall stand his surety.” Will Walston to know where the judgment was done with the intention of becoming though he did not distinctly tell the company, {unintended to do so. Walston said to Eason, “ stop, you know what you have io do to day;” upon which Eason repeated that no man should stand. This witness had been at variance with Eason three or four years. Jeremiah Beeman stated that pe Was the son of John Beeman — that he carried a letter from J. T. Eason to the defendant, the Tuesday after the transaction spoken of by the other witness. — that the defendant said, if it had been presented to him the day before, he would have been bound to take the surety mentioned in it, but he did not think he was then bound; tut that he would take the letter home, and if he found it according to law he would let his father know it — .that Eason then said he saw that witness’ father wanted to stand for Jones the day before, but he gave him to understand he did not want him to have any thing to do with it — that he saw that J. T. Eason had influenced his father to take a part in it, to get some chance of the law on him — and said lurther, that he had taken a part in it himself about the proof of the note. William Webb testified that he lived three miles from Eason in the county of Edgecombe, and that, had he been applied to, he would have paid Jones five dollars, which he owed him. This testimony was objected to, but received by the court. For the defendant, Elkanah Bailey was examined; and testified that he was present at the trial of the warrant at Eason’s gate — that Eason read the note as if it was nine dollars and some cents, when Jones said it was seven dollars — that Jones disputed the note, but Eason said he knew his hand-writing, and. therefore gave judgment — that Jones, after the ca. sa. was taken out, said, that, if he could see ’William Webb, who lived two or three miles off in Edgecombe, he could give security, but Eason replied he should not release him io go after security — that Walston, the officer, said that if the men, who were summoned, would risk him, he might go after security — that Barnes went in search of security for him. This witness stated further that he was present when they met John Beeman, and heard Jones ask him to stand for him; but Beeman did not agree to do so — that he did not hear Eason, on that occasion say, that he would not 'take any person, though he was only five or six yards behind — that( at May’s, Jones and Eason settled their .individual matter of dispute, and then Eason offered to be his surety on the Moore claim, to which Jones said, if Moore had a mind to put him in jail, he would pay him there — that, after leaving May’s, Jones asked Walston to request Eason tobe his surety, when Eason said he was sorry for Jones’family, to which Jones replied that he had meat &c., and Eason thereupon told Walston to go on. * This witness stated further that Eason furnished horses and carriages for the party to ride, but Jones refused to accept the accommodation, and that he heard nothing of the expressions attributed to Eason by John Beeman, though he was near enough to have heard them. Other witnesses were introduced by the plaintiff, who testified to very nearly the same facts as those stated by the witness Bailey, and further, that Moore placed the note referred to in the hands of Eason to have it collected, and that Eason had no interest in it other than as agent. The defendant’s counsel objected, that the action could not be sustained for any thing done by the defendant in his official capacity as magistrate — that, after Moore’s claim was put into the officer’s hands for collection, the defendant ceased to be Moore’s agent, and had no right to control, and did not control the process — -and that the officer was solely responsible, if there was any abuse of the process — and that the case made out did not support the plaintiff’s declaration.</p> <p>The court instructed the jury, that the plaintiff was not entitled to recover, and in this action did not seek to recover damages, for any thing done by the defendant, Eason, while acting in his official capacity; but that, after Jones was arrested on a ccs. sa., he was entitled to have a reasonable opportunity to discharge himself, either by paying the debt or procuring sureties for the stay of the execution, or for his appearance at court to avail himself of the act for the relief of insolvent debtors — and that, if Eason, acting as the agent of Moore, by his conduct deprived Jones, or prevailed upon the officer to deprive Jones of such reasonable opportunity to procure his release, either while at Eason’s gate or after-wards when they met John Beeman, the plaintiff was entitled to recover in this action. The jury were instructed further, that if, after the arrival of the party at May’s, on their WRy fo the jail, the defendant, Eason, offered in good faith t0 become Jones’ surety, so as thereby to procure his release, and Jones refused through obstinacy to accept the offer, he was not entitled to damages for his subsequent detention. The jury found a verdict for the plaintiff for fifty dollars damages. A motion for a new trial having been made and refused, and judgment having been rendered according to the verdict, the defendant appealed.</p>

The action was an action of debt, brought by the plaintiff-, as clerk and máster, on a penal bond'for five thousand dollars, alleged to have been executed by Andrew Bowman and others, of which the following is a copy.- “Know all men by these presents, that we, Willis Pilking-ton, Ryland Roberts and James Martin, Jun., A. 11. Ruffin, William Barr, Andrew Bowman, Isaac Nelson, Joseph.

This was an appeal from an interlocutory order made at the Spring Term, 1842, of Montgomery Superior Court of Law by his-Honor Judge Nash. The action, which was in detinue, was brought in the name of Olive Green, against the defendant, returnable to the Spring Term, 1840. At September Term, 1840, the defendant appeared by his Attorney and pleaded non detinet, and admitted on the record a demand of the plaintiff and that he was in possesion of the slaves sued for.

This was an indictment for Bigamy, charging the first marriage to have been in Tennessee in the year 1823, with Deadema Kidwell, and the second marriage in Surry County in this State, in the year 1838, with one Leah Carter.

The action was of Trover for five negro slaves, which the plaintiff claimed under a parol gift by the defendant in the State of South Carolina. The law of South Carolina on the subject of parol gifts of slaves was proved by the depositions of professional men in that State to be the same as the common law, in relation to parol gifts of other personal chattels.

<p>Appeal from the Superior Court of Cabarrus, at Spring Term, 1842, his Honor Judge PisarsoN presiding.</p> <p>This was an indictment for perjury in swearing corruptly and falsely, in a former indictment against one J3. Erwin and others in the County Court of Cabarrus county, for an affray. It is unnecessary to state the facts proved on the trial and reported by the judge, and the various objections urged by th.e defendant’s counsel, as the opinion of the Supreme Court is confined entirely to the motion in arrest of judgment. The verdict of the jury was against the defendant; whereupon his .counsel moved in arrest oí judgment, because the indictment did not recite the record of the bounty Court, in which the former indictment w.as found and tried; upon the ground that, the act of 1791 being omitted in the Revised Statutes, indictments for perjury must be drawn as at common law. The court overruled the motion in arrest; for, supposing the act of 1791 to be omitted, the act of 1811 is retained, and the act of 1811 is general and applicable to all indictments, and so includes the act of 1791, which is confined to indictments for perjury. The motion in arrest was overruled, and, judgment being given against the defendant, he appealed. The objections to the indictment urged on the motion in arrest of judgment are fully stated in the opinion of the court.</p> <p>All indictments for perjury must be drawn as before the act of 1791, which is omitted in the Revised Statutes; and the defects in this indictment are not cured by the act of 1811. Every thing, constituting the crime of perjury as at common law, must be recited on the face of the-indictment and proved as charged. Any variauce will be fatal. ¡State v Ammons, 3 Murp. 123. King v Doiolin, 5 Term Rep. 311. Queen v Carter, 6 Mad. 162. 2 Strange Rep. 776. /State v Moses, 2 Dev. 452. Arch. Crim. Plead. 428, 429. 1 Esp. Rep. 97. 2 Russell on crimes, 538, note “ y,” 2 Chitty’s Crim. Law. Precedents in Wentworth, Rastall &, Cokes Entires.</p> <p>The apparent defects in this -indictment are cured by the act of 1811. Setting forth the record &c. at length is not matter of substance. State v Jeffreys, Tay. 216. State v Bryson, 1 Car. L. Rep. 503. State v Moses, 2 Dev. 452. 1 Stark. Ev. 434. Berryman v Wise, 4 T. R. 366. Roscoe on Ev. p. 7, State v Owen, 1 Murph. 452.</p>

<p>An indictment for a conspiracy, charging the object of the conspiracy te be, to cheat and defraud the citizens at large or particular individuals out of their land entries, is not supported by evidence, that the defendants conspired “ to make entries in the land office before it was opened, or before it was declared to be opened, or after it was opened, ■for the purpose of appropriating-the -lands to-their own use and excluding others.”</p>

<p>A deed, executed in So.uth Carolina, for a slave then being in this State, with certain limitations over, which by the law of that State are invalid but which by our law are good, must be construed according to the law of that Slate, and, therefore, th.e limitations over are void.</p> <p>A deed for a female slave and “ her increase” can only convey the woman and her issue born after the execution of the deed.</p> <p>5Vher,e a father signed and sealed in South Carolina a deed for a slave to his daughter, who resided in North Carolina, and delivered it in South Carolina to his son, to be given to his daughter; Held that the delivery was complete, and the deed therefore well executed in South Carolina.</p> <p>The cases of Cole v Cole, 1 Ired. 460, Banlc of jSfewbern v Pugh, 1 Hawks 198, and Tale v Tate, 1 Dev. & Baf 22, cited and approved.</p>

This was an action of trespass forTaking five negro slaves, named Jack, Henry, Daniel, Toney and Moses.

An appeal from the Superior Court of Rockingham county, at Spring Term, 1842, his Honor Judge Dick presiding.. This was an indictment for petit larceny in stealing a quantity of tobacco, the property of one John T. Chambers. The defendants’ counsel moved the court for leave to plead severally “not guilty” for each of the defendants, but the court refused the motion, and required them to join in their ~ plea.

<p>Appeal from the Superior Court of Currituck county, at Spring Term, 1842, his Honor Judge Manly presiding.</p> <p>This was an action of assumpsit, in which the plain tiff declared against the defendant for having warranted the soundness and healthiness of a negro slave, named Jim. It was shewn in evidence that the defendant sold a number of ne-groes at public auction, among which was negro Jim, which was purchased by the plaintiff — that the defendant declared, when the negro prior to Jim was offered, that he did not warrant that negro, as he was unsound — that when Jim was offered, he remarked “here is a young, likely, healthy negro,- what is bid for him?” whereupon the plaintiff bid the sum of $480, and Jim was stricken off to him as the last and highest bidder, and delivered to him. The plaintiff was proceeding to give evidence of the unsoundness of Jim, when his Honor remarked that he held, and should so charge the jury, that the words spoken by the defendant would not constitute a warranty. In submission to this intimation of his Honor, the plaintiff suffered a nonsuit. A rule was obtained to shew cause why a new trial should not be granted, and this being refused, the plaintiff appealed.</p>

The ease, so far as it is necessary to state it, was as follows: It was an abtion of detinue for a number of slaves.

<p>In an attachment, the defendant, by accepting a declaration and pleading to it, waives ail objection to defects in the process.</p> <p>When a bill of exchange made payable to a third person is protested and taken up by the drawer, the latter cannot again put it in circulation.</p> <p>A person cannot negotiate paper, when, by so doing, fie would render responsible on it another person, from whom he had taken it up under a prior responsibility.</p> <p>But a person, who takes up a negotiable paper once due to himself, may again put it into circulation, provided that, in so doing, he exposes no person to a prejudice but himseif, or those who are justly and legally liable on the paper before him.</p> <p>When a bill of exchange payable to A is taken up by the drawer and the endorsement of A stricken out, it becomes dead to all intents and purposes as a negotiable instrument.</p> <p>The case of Broghill v Wellborn, 4 Dev. 511. Book v Caswell, 1 Hay. 18, & Strong v Spear, 1 Hay. 214, cited and approved.</p>

Hertford county, at Spring Term, 1842, his Honor Judge Manly presiding. This was an action of assumpsit. The plaintiff declared upon the following agreement: “ October 9th, 1839. I have bought of John Waddell, one hundred bales of cotton of the present crop (1839) on his plantation in West Florida, to be delivered to Charles and George Reed in Norfolk. The said Waddell is to pay the freight. The cotton to be delivered as soon as it can be picked out and ’shipped.

An appeal from the Superior Court of Moore county, at Spring Term, 1842, his Honor Judge Nash presiding. This was a petition for a mandamus against the justices of Moore county. An alternative mandamus was issued, and upon its return and the answers oí the defendants being filed, the Superior court ordered that a peremptory mandamus should issue.

• This was a petition originally filed in the County Court of Perquimons, and brought thence by appeal to the Superior Court — where a decree was rendered in favor of the petitioner, and the defendant appealed to the Supreme Court. The substance of the pleadings, the facts, and the questions presented, are sufficiently set forth in the opinion delivered in this court,

This was an action for a breach of the covenant contained in a bill of sale, of which the following is a copy: “ Received, August 23d, 1833, of John Harris, sen., five hundred dollars, in full payment for a certain negro fellow called January, which I have this day sold and delivered to him, which said negro I do hereby warrant and defend for* ever, to the said John Harris, his heirs and assigns, forever. Witness my hand and seal, the day above written.

This was an action of trespass to recover damages against the defendant for seizing and detaining a negro slave Sam.

This was an action of ejectment. The plaintiff claimed title under a sheriff’s deed; and, in order to support his action, read in evidence two warrants against one Coley, and judgments thereon by a justicé of the peace, and executions thereon, dated 23d March, 1839.