Volume 25 — North Carolina Reports

<p>This was an aetion on the case, brought in Macon Superior Court of Law, and tried at the Fall Term, 1842, of the Superior Court of Cherokee county, before his Honor Judge Pearson. The action was brought under the Statute in relation to the removal of debtors, Rev. Stat. c. 50, s. 9, and the plaintiff declared that the defendant, with an intent to hinder, delay or defraud his creditors, aided and assisted in removing one who was a debtor of the plaintiff out of the county of Lincoln. The defendant pleaded the general issue. The court, on the trial, intimat-an opinion that the Statute, upon which the action was was a penal Statute; that the action was therefore local, and could only be sustained in Lincoln county. The facts were then agreed upon by the Counsel: At the time of the removal, the plaintiff, the defendants and the debtor, all resided in Lincoln county, and the defendants still reside there. The plaintiff, after the cause of action arose, removed to Macon county, and there commenced this action. He afterwards removed to Cherokee county, and the case was regularly transferred to the latter county, under the provisions of the Act of Assembly. The plaintiff, upon the intimation of the opinion of the court, submitted to a non-suit, and appealed to the Supreme Court.</p>

This was an appeal from the Superior Court of Law of Buncombe county, at Fall Term, 1842, his Honor Judge Pearson presiding. A sci. fa. was issued' against the.defendant, to shew cause why the fine imposed upon him nisi for not attending as a witness at the April Term, 1839, of Buncombe Superior Court of Law, should not be made absolute. The defendant relied’upon his plea, that he was unable to attend court, in consequence of an injury upon his knee.

An appeal from the Superior Court of Law, of Cherokee 0ounEVi at Spring Term 1842, his Honor Judge Bailey presiding. The action commenced before a Justice of the ^*eace> and, on a judgment being rendered against the defendant, he appealed to the County Court. The plaintiff was there nonsuited, and appealed to the Superior Court, in which latter Court, a verdict and judgment were rendered for the plaintiff.

An appeal from the Superior' Court of Law of Macon County, at the Fall Term, 1842, his Honor Judge Pearson presiding. The defendant was indicted for an assault and battery on Eli McKee.

The defendant was tried at that term upon the following indictment. State of North Carolina, ? Superior Court of Law— Anson County. $ ' Fall Term, 1841. The jurors for the State, upon their oath, present that one William Bailey, being arrested by one WilliamH.

<p>When an order is made, in a suit pending in a Court, that a notice shall issue to one of the parties, the Clerk is not bound to issue such notice, unless it be applied for in behalf of the party who obtained the order.</p>

An appeal from the Superior Court of Law of Cleaveland County, at Fall Term, 1842, his Honor Judge Pearson presiding. This was an action of debt upon the bond of Lackey; as constable, and the other defendants as his sureties. Breach assigned, that he had not paid over certain moneys received on claims put in his hands for collection. The bond was in the usual form, dated at March Term, 1841.

This was an action of debt on a bond, executed by William B. May, the defendant’s intestate, to Peter May, the plaintiffs’ testator. The execution qf the bond was duly proven.— The defendants relied upon the plea Of payment, and introduced a variety of evidence to prove that the bond had been fully paid off and discharged in the lifetime of their intestate. The plaintiffs also introduced evidence to prove that the bond had not been discharged.

This was an action of Trover-to recover the value of a lot of timber belonging to the plaintiff, and alleged to have been converted by the defendant. The plaintiff proved that he had a quantity of hewed timber in the mill pond of the defendant, which mill pond was a common thoroughfare for all persons above the mill to raft timber through to Wilmington.

<p>Appeal from fhe' Superior Court of Law of Iredell County, at Fall Term, 1842, his Honor Judge Nash presiding.</p> <p>The defendant was indicted for trading with a slave, and in his defence, relied upon the act prescribing the time within which such indictments should be commenced. From the evidence it appeared, that morq than one year had elapsed after the trading had tafeen place, before the filing of this bill of indictment. Tó answer this objection, it was shewn that, within one year from the commission of the offence, another bill of indictment had been filed against the defendant for the same offence, and was then pending in Court.— At the request of the counsel, the question as to the lapse of time was reserved by the Court. The jury, upon the evidence, convicted the defendant/ On the question reserved the Court was of opinion, that the present bill was barred by the Statute, as well upon-general principles, as upon the provisions of the Statute under which the indictment was preferred. In the Act, limiting the time within which misdemeanors in general shall be prosecuted to two years, it is provided, that when the'prosecution shall be commenced in time, but a nol. pros, shall be entered on the judgment arrested, a new bill may be sent, in which case the time shall be computed from the termination of the first. The Act, under which this bill was preferred, has no such reservation, and it was passed at the same session of the Legislature with the other. The Court directed the verdict for the State to be set aside, and a verdict for the defendant to be entered.— The State appealed to the Supreme Court.</p>

The action was trespass for taking and carrying off a quantity of corn. By consent of the counsel, the jury found a verdict for the plaintiff, subject to the opinion of the court, upon the following facts agreed. Johnson Murratt, who was a Cherokee Indian, lived in a hut, and planted and cultivated a field of corn around his hut, situated in the Indian Territory ceded by the treaty, in the Spring of 1838.

The action was assumpsit, brought to recover the amount of a book account for goods sold to one Commodore Long, between the 6th of June and the 2nd of December, in the year 1837. The plaintiff proved the sale and delivery of the goods to Commodore Long. The-plaintiffs alleged that the defendant was a copartner of C. Long, at the time the goods were purchased.

A warrant from a justice of the peace had been issued against the defendant,- É. D. Jarrott, to answer the complaint of “ Wall and Holton, in a plea of debt, &c.” Upon the trial before the magistrate,-judgment was given against the defendant, (Jarrott,) for the amount claimed. Upon this judgment a ca. sa. issued.- Neither the judgment nor ca. sa. mentioned the Christian names of the plaintiffs.

■ Appeal from the Superior Court of Raw of Macon county, at Fail Term, 1842, his Honor Judge Pearson presiding-. This was an action of Trover for a horse. After the jury were impannelled, the plaintiff’s counsel stated, that he was surprized by the fact that a record from Burke Superior Court, which he expected to- offer in evidence, had no seal to the Clerk’s certificate, or the seal was too indistinct to be identified, and intimated an intention to submit to a nonsuit.

This was an action on the case, in the nature of an action of deceit, brought to recover damages fora deceit in the sale of a horse. On the trial, a variety of testimony was introduced, but the only material parts, which relate to the question brought before the Supreme Court, are stated in the opinion of the court. The jury found a verdict for the plaintiff.

<p>In all cases the effect of long and notorious possession, as affording presumptive evidence of right, is very powerful. In questions of boundary, it is at least tantamount to a general reputation.</p> <p>When a course is resorted to for want of a better guide to find the terminus ' or boundary of a tract of land, it is the course as it existed at the time to which the description of the tract of land refers. If it appears that because of the magnetic variation, that course is not the same with that which the needle now points out, it is the duty of the jury to make allowance for such variation, in order to ascertain the true original line.</p> <p>The case of McNeill v Massey, 3 Hawks, 91, cited and approved.</p>

This was an action of debt upon the official bond of the defendant Deaver, as a constable of the County of Buncombe. The breach alleged was, that the constable had not diligently endeavored to collect a certain judgment in favor of the relator against one Hickman, and the relator, as a part of his evidence, introduced a receipt from the officer to him for the said judgment.

This was a warrant, commenced before a justice of the peace, and brought by successive appeals to the Superior Court. The warrant was brought on a note. The defend’ ants pleaded a former judgment, and the sole question was, whether that was a bar to the plaintiff’s recovery. The entry by the justice upon the former warrant was as follows : “ May 12th, 1838. Judgment against the plaintiff for costs of suit, forty cents, by me.

This was a petition for dower. The defendants moved to set aside the report of the jury, because the one-third part assigned as dower, exceeded in value one-third of the whole. From the evidence offered to the court it appeared, that the land, although consisting of several parcels acquired at different times, adjoined. There were 639 acres, worth about 1800 dollars. The dwelling house, barn, &c. were comfortable log buildings, usual on farms.

This ejectment was brought for a part of the lands known as the Cherokee purchase.

This was an action of slander. The plaintiff proved that some few weeks before the writ issued, the defendant had in several conversations about him said, “ old Colbert in his suit with me about the corn, swore to a lie, he swore I was to pay him $1 37s per bushel, when I had agreed to give him but ft 25 per bushel, and I can now prove he swore to a lie, for I have it in writing, and if he and his sons don’t cut their sails low, I will have his back whipped, though he is an…

<p>Courts of probate are not, like courts of law, under an absolute inability to rc-form their judgments after they have been rendered; and therefore application for relief against.any of their judgments, may be made to the courts in which they were rendered.</p> <p>But when the sentence of such a court has been regularly pronounced, it will not be set aside or vacated, except under such circumstances as would induce a court of equity to order a judgment at law to be set aside, and the matter to be re-tried.</p> <p>Where a will was offered by the executor for probate in the County Court, and a caveat entered, and the jury found in favor of the caveators, upon which the executor was about to appeal, but declined to do so upon the assurance of the caveators, that if the widow of the testator did not assent to certain terms they proposed, the verdict might be set aside and a new trial had, and the widow refused' her assent to these terms: Held, upon the petition of the widow, that the sentence of the County Court against the will should be revoked, and the will re-propounded for probate.</p> <p>The case of Redmond v Collins, 4 Dev. 430, cited and approved.</p>

<p>A debtor, arrested upon a ca. sa., gives bond under the insolvent debtors’ law for jjjg appearanco at the County Court. On his appearance, an issue of fratfd is made up; the jury find the fraud and concealment alleged, and the court order the debtor to be imprisoned till he makes a full disclosure of his effects. The debtor appeals from this judgment, and gives bond and security for his appeal. In the Superior Court the issue is again tried and found against the debtor, but upon being called, he fails to appear: Held that the plaintiffs are entitled to judgment against the sureties in the appeal bond for their debt and costs.</p> <p>Upon such an appeal, the debtor is bound to appear in the Superior Coart, as he originally was in the County Court.</p> <p>‘Although the ca. sa. on which the debtor was arrested may have been defective, yet it is not competent for the sureties to the appeal bond to make that objection after judgment has been rendered against the principal.</p> <p>The cases of Mooring v James, 2 Dev. 254, Arringtons Bass, 3 Dev. 95, and Page v Winningham, 1 Dev. & Bat. 113, cited and approved.</p>

This was an action on a constable’s bond, given by the defendant Stephens and the other defendants, as his sureties. The breaches declared on, were for collecting and not paying over, and for negligence in the discharge of his duty in not collecting certain claims put in his hands for collection by the relator of the plaintiff.

of Edgecomb county, at Fall Term, 1842, his Honor Judge 'Battle presiding. Held: and so instructed the jury, that the demand' stated by the witness, ir believed, was sufficient — that the defendant Sugg was bound then and there to have paid or tendered the money he had collected, and that failure to do so was a breach of his official bond, for which he was responsible, and that what the relator afterwards said…

This was an action of debt upon a bond executed in August, 1834, by the defendants, as sureties of Arthur Whitfield, appointed Clerk of Nash County Court. Pleas, conditions performed, and Statute of Limitations. Upon the trial, the following facts were proved or admitted. In the year 1S35, and prior to the month of August in that year, a sum of money amounting to $210, was paid into the Clerk’s office, belonging to the relators, who were minors.

' Appeal from the Superior Court of Law of Granville county, at Fall Term, 1842, his Honor Judge Settle presiding. This was an action of debt upon a constable’s bond. The breach assigned was, the failure to levy and collect certain executions, which the relators had placed in the hands of the defendant Dilliard, as constable, against Thomas A. York and W. S. Lloyd.

at Fall Ter'm, 1842, his Honor Judge Manly presiding. On the trial of this ejectment the lessor of the plaintiff, as a part of his title, produced a judgment in favor of William McCurdy against Noah Blanchard, obtained before a justice of the peace, and: a separate execution with subsequent legal proceedings in favor of Reuben Blanchard, against Noah, Blanchard.

This was a petition to alter a public rood between certain termini designated in the petition, and was brought up by appeal to the Superior Court. The petitioners merely prayed for an alteration of the road without assigning any reasons therefor. A copy of the petition had been served on the defendant, who appeared and opposed it.

The defendant was -tried upon the following indictment, to which he pleaded not guilty, viz: State of North Carolina, ) Superior Court of Law— Craven County. \ Fall Term, 1841.

<p>Appeal from the Superior Court of Law of Stokes county, at Fall Term, 1842, his Honor Judge Settle presiding.</p> <p>The defendant was tried upon the following indictment: °</p> <p>State of North Carolina, Stokes County.</p> <p>Superior Court of Law begun and held on the second Monday after the fourth Monday of September, A. D. Í842.</p> <p>The jurors for the State, upon their oath present, that "William B. Dunkley, late oí the said county of Stokes, laborer, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the thirteenth day of August, in the year of our Lord one thousand eight hundred and forty-two, with force and arms in the county aforesaid, in and upon one Archibald McHone, in the peace of God and the State, then and there being, fe-loniously, wilfully, and of his malice aforethought, did make an assault, and that the said William Dunkley, with a certain knife of the value of six pence, which he the said William Dunkley in his right hand then and there had and held, the said Archibald McHone in and upon the right hip, and the left side of the back near the back bone of him the said Archibald McHone, then and there feloniously, wilfully, and of his malice aforethought, did strike and thrust, giving to the said Archibald McHone, then and there with the knife aforesaid, in and upon the said right hip and the left side of the back near the back bone of the said Archibald McHone, several mortal wounds, each of the breadth of three inches and of the depth of six inches; of which said several mortal wounds the said Archibald McHone, from the said thirteenth day of August, in the year aforesaid, until the twenty-ninth day of the same month of August, in the year aforesaid, as well in the county aforesaid, as in the county of Patrick, in the State of Virginia, did languish and languishing did live, on which said twenty-ninth day of August, in the year aforesaid, the said Archibald McHone, in the said county of Patrick, in the State of Virginia, of the said several mortal wounds died ; and so the jurors aforesaid, upon their oath aforesaid, do say, that the said William B. Dunkley the said Archibald McHone, in manner and by t¡ie means aforesaid, feloniously, wilfully, and oí his malice aforethought, did kill and murder, against the peace and dignity of the State.</p> <p>JOHN F. POINDEXTER, Sol’r.</p> <p>Upon the trial of this Indictment, the jury returned a verdict of guilty. The prisoner’s counsel then moved in arrest of judgment, upon the ground that the indictment did not conclude against the form of the Statute. This motion was overruled, and the court proceeded to pass judgment, from which the prisoner appealed to the Supreme Court.</p>

This was a recordari from the Superior Court of Law of Burke county, to certain justices of Caldwell county, requiring them to bring before the court, &e. the proceedings in an inquisition of forcible entry and detainer lately had before them in the county of Caldwell, at the instance of Jane Fleming against Charles Mitchell.

<p>Appeal from the Superior Court of Law of Haywood county, at Fall Term, 1842, his Honor Judge Pearson presiding.</p> <p>The proceedings in this case in the court below, are fully set forth in the opinion delivered in this court.</p>

On the trial oí this ejectment the following iacts were agreed upon. Josiah Brown, Sen. died in the year ISO 1, having duly published his last will and testament in writing in - due form to pass real estate, which will was subsequently admitted to probate in the proper court.

Bailey presiding. On the trial of this'Ejectment, ihe following fact's were agreed upon. The lessor of the plaintiff shewed title in himself to the premises, and that the defendant was in possession at the time the’suit was brought.

It was an action of ejectment, to which the defendent pleaded not guilty. Both the lessors of the plaintiff and the defendant claimed under one Samuel Fraley.

<p>Appeal from the Superior Court of Law of Currituck county, at Fall Term, 1842, his Honor Judge Bailey presiding.</p> <p>This was an action of debt, brought by the relator of the plaintiff on the bond given by Caroline M. Williams, the defendant, on being appointed by the County Court of Cur-rituck administratrix of Hollowell Williams, deceased.— The breach assigned was, in not paying to the relator of the plaintiff the distributive share to which his intestate was e-titled, as one of the children of the said Hollowell. It was in evidence, that Hollowell Williams had his domicile in Virginia, and died there, but had personal property both in that State and in North Carolina, and that the defendant Caroline took out letters of administration on his estate both in Virginia and in North Carolina. It was further in evidence that the decedent left surviving him six distributees, of whom the intestate of the testator was one. It further appeared that there was in the hands of the administratrix on account of her administration in the State of North Carolina, after the payment of debts, the sum of $1,530 091, with interest from the 25th of May, 1837, and a balance on account of her administration in Virginia of $2,515 35, with interest from the 7th of March, 1837.</p> <p>The defendants insisted that the action couíd not be sustained at all, inasmuch as the administration here was ly ancillary to that in the State of Virginia, and that as soon as the debts here were paid, the funds remaining in the hands of the administratrix on account of her administration in North Carolina, if the administration had been committed to two different persons, ought to be paid over to the personal representative in Virginia, to be distributed according to the laws of the country where the decedent had his domicile ; and that inasmuch as the personal representative in each State was the same person, by operation of law she held the fund as administratrix in Virginia, the place of her intestate’s domicile, to be there distributed according to the laws of that State, and that there was no breach of her administration bond in this State. His Honor overruled the objection. It was then contended by the defendants, that at most, the relator of the plaintiff was entitled to recover in this action only the distributive share, to which his intestate was entitled, of the fund remaining in the hands of the said Caroline, on account of her administration in North Carolina. His Honor being of that opinion, refused to give judgment for the whole amount of the distributive share to which the intestate of the relator of the plaintiff was entitled on account of the administration in both States, to-wit, the sum of $851 13s, with interest on $419 22$, from the 25th Aug. 1841, and interest on $255 01 from the same time, but was of opinion that he was entitled to recover one sixth of the fund on account of the' administration in North Carolina. And accordingly judgment was entered for the penalty of the bond, to be discharged on the payment of $319 70, with interest on $255 01 from the 25th August, 1841, until paid. From this judgment the plaintiff appealed to the Supreme Court.</p>

An appeal from the Superior Court of Law of Pasquotank County, at Fall Term, 1842, his Honor Judge Bailey presiding. The action was detinue, brought to recover cert.-in slaves-mentioned in the declaration. On the trial, the will of William W. Freshwater was offered in evidence, (of which the parts material to this case are quoted in the opinion delivered in this court.) It was admitted that the executor qualified to the will, and assented to the legacies contained in it.

<p>Appeal from the Superior Court of Law of Bertie county, al Spring Term, 1842, his Honor Judge Manly presiding.</p> <p>This was an issue of devisavit vel non, submitted to the jury, upon the trial of which a paper writing purporting to be the last will and testament ot David Gaskins, sen’r. was offered by the plaintiffs, as executors thereof, for probate as a will of personalty. The plaintiffs proved by Dr. A. W. Me-bane, that during the last illness of David Gaskins, Sr. he was requested by Gaskins to write his will — that he wrote the paper writing propounded by the plaintiffs, according to the directions given him by the said David Gaskins — that when he had written it, he read it over to Gaskins, who approved it — that Gaskins was then of disposing mind and memory — that when he had written it he handed it to Gas-kins, who said he would send for two of his neighbors and get them to sign it as witnesses — that Gaskins knew it was necessary he should sign it, and that it should be attested by two witness — that the witness then returned home, and that he never wrote any other will for Gaskins. The plaintiffs then proved by two witnesses, that they were for by Gaskins, about two days after Dr. Mebane had written his will — that when they arrived at his house it was in the night — that they found him upon his sick bed, but in his senses — that he informed them he wanted them to witness a will, which Dr. Mebane had written for him, but it was then night, and he would sign it in the morning and get them to witness it — that late in the night Gaskins was taken worse, became speechless, and continued speechless, and seemed to be insensible from the time he was taken speechless, until he died, which was about two days from the time they went to his house as above stated. The paper writing offered for probate was then read and identified by Dr. Mebane, as being in his hand-writing, and the same that was written by him at the time before stated. It was not signed by the testator, nor subscribed by any one as a witness. His Honor upon this evidence instructed the jury, that if David Gas-kins intended to sign the paper in question, and have it witnessed by witnesses before it should operate as a will, this intention must either be revoked or fulfilled, or its fulfilment prevented by some unavoidable necessity. If it were revoked at any time, and the intention entertained that it should operate in its existing state, it would be good as a will of persoualty, and they should so fir.d. But if his intention to sign and have it witnessed was at no time abandoned, this intention must be fulfilled to make it effectual, unless he was prevented from doing so by some overruling necessity, as by the sudden visitation of God. Wherever the finishing of a will as to its execution or-publication has been voluntarily postponed, for the sake of convenience or other cause, to some future period, and death intervenes before the period arrives, and prevents the execution, this would not constitute such a providential interference, as to dispense with the intended completion. And if this latter •were the case before the jury, they should find that the paper writing was not the will of the supposed testator. The court further informed the jury, that the principles thus laid down should govern their deliberations, although they might be satisfied the paper embodied all the dispositions the deceased intended to make of his estate.</p> <p>There was a verdict for the defendants, and judgment haying been rendered accordingly, the plaintiffs appealed.</p>

■ The following facts were admitted by the parties as constituting a case agreed for the opinion of the court. The writ of the plaintiff was issued on the 14th of February, 1839, and executed on the 7th of March, returnable to the May Term of Nash County Court.

Appeal fr'om tbe Superior Court of Law of Yancy County, at Spring Term, 1842, his-Honor Judge Baxley presiding. The facts of the case are sufficiently stated in the opinion delivered in this court.

<p>Appeal by the Solicitor for the State, from the Superior Court of Rutherford, at Fall Term, 1842, his Honor Judge Pearson presiding.</p> <p>The charges in this indictment, and the facts of the case^ are fully set forth in the opinion delivered in this court.</p>

This Was an' action of assumpsit, to which the defendants pleaded the general issue, and on the trial, the facts appeared to be these.

<p>Upon a writ against one A., the sheriff took a bond, executed by the said A. and by one B. and conditioned that the said A. and B. should make their personal appearance &c., to answer &c., and then to stand and abide the judgment of the said court &c. Held that it was unlawful (by the act, Rev. St. c. 109, s. 19,) for the sheriff to take such abond, and that the bond was . therefore void</p> <p>This is not the contract of bail in its terms, nor can it be inferred from the bond, that one is bail for the other, but each is alike bound to perform the judgment.</p> <p>The case of Rhodes v Vaughan, 2 Hawks 167, cited and approved.</p>

<p>Appeal from the Superior Court of Law of Henderson County, at Fall Term, 1*842, his Honor Judge Pearson presiding..</p> <p>This was an indictment against the defendant for an assault and battery on Elias Cantrell, to which he pleaded “ not guilty.” The jury impannelled to try the issue returned the following special verdict: Elias Cantrell, on the day set out in the indictment, being a constable, and having a fieri fa-cids against the- goods of.the defendant Morgan, went to the House of Morgan, in the county of Henderson, and, in the presence of Morgan’s wife, she forbidding him to do so, took into his hands a gun, the property of Morgan. She then proposed that Cantrell should not take the gun off until Morgan was sent for. Cantrelf assented, and held the gun in his hands, in the presence of the wife, in the yard, having stepped out of the house into the yard with the in his hands, until Morgan came, which was about ten minutes. Morgan came up with an axe in his hand, and required Cantrell to give up the gun. Cantrell refused; whereupon Morgan stepped up within reach of him, held the axe up in a position to strike, and said “ give up the gun or I’ll split you down.” Cantrell did not at the time give up the gun, but proposed some arrangement, upon which Morgan let the axe down. The matter was arranged, and then Cantrell gave up the gun. Morgan was, at the time, liable to muster, and the gun was his arms tor muster. The jury further find, that Morgan, at the time he went up to Cantrell and raised the axe within reach of him, intended to strike, unless Cantrell gave up the gun ^ but did not intend to strike, if Cantrell gave up the gun — that Morgan used no more force than was necessary to eompel Cantrell to give up the gun. Whether, upon these facts, the defendant, in law, committed an assault, and, if so, whether the assault was justified as being in the defence of his property, the jury are ignorant and pray the opinion of the court. If the court, upon these facts, is of opinion that the defendant is guilty, then the jury so find; and if the court is of opinion that the defendant is not guilty, then the jury so find.</p> <p>' The court was of opinion, that raising the axe, with an intention to strike unless the gun was given up,|did amount | to an assault! for if a man draws a weapon, intending to strike if the other does not pull off his hat, or surrender his money, or do some act which he has no right to require, the offer and intention amount to an assault, although it be his intention only to strike, provided his unlawful terms are not complied with. But the court was of opinion, that, as the officer had no right to take the gun under the execution, although he did trke it in his hands, yet the wife being present, when the defendant came up, the possession of the gun was not so lost by him and acquired by the officer, as to take from him the right to justify an assault in defence of his property; for a man may not only prevent another from laying hands on his property, but he may prevent him from taking it off, although it happens to get into the hands of the before he is stopped — the possession for this purpose not being lost, while the property remains in the presence °f his agent or himself. The court, therefore, pronounced judgment in favor of the defendant, from which the Solicitor for the State appealed to the Supreme Court.</p>

The defendant was indicted for an assault and battery on Robert Dean, and pleaded not guilty. On the trial of this issue, the jury found the following special verdict.

This was an action of Assumpsit. The facts were, that the plaintiff was indebted to the defendant in the sum of one hundred dollars, and, being desirous of paying this debt, agreed with the defendant to sell him a tract of land — that the defendant agreed to re-sell the said land, and whatever he obtained for it over and above the' one hundred dollars as aforesaid, he promised to pay to the plaintiff.

Fall Term, 1842, his Honor Judge Bailey presiding'. This was an action of detinue to recover two slaves, the title to which they proved to have-been in James Swain the elder, in his life-time. The plaintiffs claimed title under the will of the said James Swain, dated in January, 1817, and proved at February Term, 1817, of Bertie County Court, a copy of which they produced.

Appeal by the defendant from the Superior Court of Law of Cleaveland county, at Fall Term, 184-2, his Honor Judge Pearson presiding. The nature of the proceedings and the questions involved in this case are fully stated in the opinion delivered in this court,

This' was an action of detinue for four slaves, to-wit, Matilda and her three sons, Jerry, Sara and Doctor, commenced in January, 1840, in which possession by the defendanfand a demand by the plaintiff immediately before bringing the action were admitted.

This was an action of trespass vi & armis, and the parties submitted it to the court upon the following case agreed: On the 23d of July, 1805, John Moring, then a citizen of the county of Surry, in the State of Virginia, and the owner of certain negro slaves, made and executed a deed of manumission of the said slaves, according to the law of Virginia, which deed was by him duly acknowledged in the court of the said county on the same day and ordered to be recorded, and was…

<p>Appeal from the Superior Court of Law of New tIiano-ver County, at Fall Term, 1841, his Honor Judge Peah-son presiding.</p> <p>This was an action on the case for & breach of contract in not receiving and paying for a'barouche sold to the defendant, to which the defendant pleaded not. guilty.</p> <p>On the trial it was proved by one Hatsfield that he was a carriage maker in Wilmington — that on the day of 1839, the plaintiff and the defendant came to his shop with a barouche — that the plaintiff told the witness, in the defendant’s presence, that he had sold the barouche to the defendant, who wished it altered in some way, and requested the witness to alter it as he should be directed by the defendant; and he, the plaintiff, would pay for it — that,the defendant then pointed out to the witness the alteration he wished made ; it was a trifling alteration in the straps of the top — that the defendant said he wished the work done in about two hours, when he would call for the barouche, and the witness promised to have it ready — that, after the plaintiff went off, the witness asked the defendant what he was to give for the barouche, and he said about $200, as well as the witness could recollect, and asked the witness what he thought the barouche ought to be worth — that the witness had the work finished within the two hours, but no one called for it, and it remained there sometime — that the plaintiff paid witness for his work. One Morris swore that in 1839, at the request of the plaintiff, he called on the defendant for the sum of $150, the price of the barouche— that the defendant refused to pay, and said he had not bought the barouche — that afterwards, on the same day, the plaintiff, in the presence of the witness, asked the defendant if he did not intend to take the barouche; that defendant replied, no, and said he never had bought it — that the plaintiff then said, I give you notice it is just where we left it. One Hatch swore that sometime in 1839, the defendant bought a few articles in his store, and said he would call in about a week and pay for them ; that he had to come to town about that time to say farewell to the plaintiff and his family, who were going to the north, and for the purpose of getting a ba-rouche he had bought. One Williams swore that, before the plaintiff went to the north, he requested him to advertise the barouche, and have it sold at auction, which he accordingly did in about one month after the alleged sale — that it sold for $96, which he received as the agent of the plaintiff and paid over to him.</p> <p>The defendant did not controvert the facts, so deposed to, but insisted, 1st, That no parol contract for the sale of property is binding, unless the property is delivered — or something is paid as earnest — or some time is fixed on for its completion, because otherwise there is no consideration_ 2ndly. That the vendor must prove a tender. 3rdly. That by the re-sale at auction the vendor had waived the right to sue on the contract, if he ever had any such right. The court charged that a parol contract to sell property, such as1 a barouche, was binding, without delivery, without the payment of earnest and without fixing on a time certain. As to the delivery, the distinction was, that after delivery the property was changed, and it amounted to a contract executed, or sale — before delivery, it was a contract executory, but an action might be sustained for a breach. As to the payment of earnest, that was not necessary at common law to bind a bargain, and was only made so in certain cases by some English Statutes to prevent perjury, which did not apply here. As to fixing on a time, when no time was fixed on, the law presumed that the matter was to be closed within a reasonable time. As to the consideration, the promise on the one side was the consideration for the promise on the other. As to the tender, the court charged, that, when by the contract the vendor was to deliver the article at a certain place or time, to enable him to recover, he must shew that he had the article at the place and time, and was ready to comply with the bargain on his part; but when by the contract the vendee was to receive the article where it then was, it was sufficient for the vendor to shew that he had the article there, and was ready and willing to comply with his part of the contract. As to the re-sale, the court charged, that, when a vendee refused to receive and pay for the article, the vendor might leave it and sue for the whole price if he saw proper, but if he did not choose to give up a lien he had on the article for the price, he might retain the possession and sell it over, in which case, provided the re-sale was fair and bona fide, the price it brought would be a proper consideration in estimating the amount of damages.</p> <p>The jury found a verdict in favor of the plaintiff, and a motion for a new trial being made and overruled and judgment rendered pursuant to the verdict, the defendant appealed.</p>

<p>An appeal from the Superior Court of Law of Beaufort county, al Spring Term, 1842, his Honor Judge Battle presiding.</p> <p>This was an action of assumpsit brought upon two notes, of one of which the following is a copy, viz:</p> <p>Six months after date, with interest from date, we promise to pay John C. Blachford, or order, the sum of two dred and seventy dollars, for value received ; this 10th November, 1838.</p> <p>JUSTIN MARTINDALE,</p> <p>CARTER & LAMB.</p> <p>The other note was an exact copy of this, except that it was payable twelve months after date. The defendant Carter was sued alone, and pleaded the 11 general issue.” On the trial it was admitted, that at the time when the notes in question were given, one Lamb and the defendant Carter were engaged in business as merchants in the- City of Raleigh, under the name of Carter and Lamb, and that the notes were signed by Lamb in the name of the firm. The defence relied upon was, that the notes were given by Martindale as principal, and were signegp^e^fesifeiaiB:, name of Carter and Lamb, only as done without authority from the defenmiiq and thatn®|S never been assented to by him. For this, Mr. Jones was called as a witrMss and testmed^mat when the notes were given he wa^f<^l®|^,^^l^rm'd Lamb — that Martindale, who was a carf*¿j]ter in thejpify of Raleigh, had purchased a parcel of brick ofS!$SliIorcí, and gaves these notes therefor — that the notes were executed in the counting-room of the store of Carter and Lamb, and were signed by Lamb in the absence of Carter, who was at that time in the county of Hyde — that Martindale was a customer of Carter and Lamb, and as such was indebted to> them for a store account, but that they did not owe him any thing. Upon cross-examination, the witness stated that he was present when the notes were given, that he knew of the purchase of the brick by Martindale from Blachford — . that he does not recollect that any thing was said,- at the time-the notes were given, about the consideration of them, but he thinks he heard afterwards from Lamb that they were given for the brick, and Carter and Lamb were only sureties. The witness stated further, that Carter and Lamb-dealt only in dry goods. The plaintiffs introduced as a witness Mr. Blackwell, who stated that on one- occasion he was speaking to the defendant about these notes, when the latter “ he had once signed a note for Martindale, which he expected to have to pay, but as for these Blachford notes, he ^ nothing of them and would not pay them.”</p> <p>The plaintiffs contended, 1st. That there was no evidence that Carter and Lamb were only sureties in the notes, or that Blachford knew or had any reason to believe they were such, but if he had and the jury should be satisfied that they were only sureties, then 2dly. The defendant was liable, unless he could shew that he had given no authority to his partner to sign the notes in the name of the firm; and, that at all events, as Martindale was a customer of Carter and Lamb, it must be presumed that each partner had authority to sign the name of the firm as surety for him. And Bdly. That the declaration by the defendant that he had signed a note for Martindale, was evidence from which an authority to the other partner-to sign the name of the firm might be inferred.</p> <p>His Honor instructed the jury that one partner had a right to bind the other by any act within the scope of his authority, but that, if in this case the jury believed that the notes were given for Martindale’s own debt, and Carter and Lamb were only his sureties, then the plaintiffs could not recover, unless they could shew that Carter had authorized his partner to bind the firm as surety, or had subsequently assented to the transaction; and that in this case there was no evidence of either an assent or authority given by the defendant.</p> <p>The jury returned a verdict for the delendant, and judgment having been rendered accordingly, the plaintiffs appealed.</p>

This was an application to the County Court to admit to probate, as a will of real estate, an instrument signed Ann McKennie Pasteur, which had been previously proved in the same court as a will of personalty only. The application was dismissed in the County Court, and an appeal taken to the Superior Court, where the same sentence was passed, and the plaintiff then appealed to the Supreme Court. The material facts are set forth in the opinion delivered in this Court.

This was an action of debt brought upon a bond, of which the following is a copy, viz: “ State of North-Carolina: Know all men by these presents, that we, Joseph Welch, E. L. Poindexter and Joshua Parsons, proprietors of the Tennessee River Turnpike Road, and Asa Enloe, Benjamin S. Brittain, Gideon F. Morris and Isaac Truitt, are held and firmly bound unto Montford Stokes, Governor of the State of North-Oarolina, and his successors in office, in the sum of four thousand…

On the trial of this ejectment, it was admitted that the defendant was in possession.

In the court below the following facts were submitted to the Judge as a case agreed. The plaintiff’s intestate became surety on a note given by the defendant’s intestate, on which an action was instituted and judgment obtained against the plaintiff’s intestate, at Pasquotank County Court, at March Term, 1841.

This was an action on the case, brought for the purpose of recovering damages for interrupting the plaintiff in fishing his several fishery. On the trial it was in evidence that thé defendant Benbury was the co-tenant, with Mrs. Harvey, of the Sandy Point Fishery, on the Albemarle Sound — that by several demises the two co-tenants Benbury and Harvey leased the said fishery to H. W. Collins, who transferred it to Josiah Collins, and by him it was assigned to the plaintiff.

This was an action on the case for a malicious prosecution, in causing the plain tiff to be arrested on a warrant, charging her with feloniously stealing a parcel of belt ribbons — Plea, the general issue. In support of her action the plaintiff introduced and proved the warrant, as stated in- the declaration, issued at the instance and on the oath of the de-fondant.

This was an action of debt, brought on the administration bond of the defendant, John S. Neill, to recovera distributive share of the estate of one deceased, to which distributive share the relator, James Stephenson, was entitled in right of his wife Nancy, the other relator.— The plaintiff’s counsel now alleged to the court, that the said Nancy was dead, and that administration on her estate had been granted to Noble M. Mills, by the County Court ■of Iredell, at February…

The action was on a Constable’s bond, to which the defendants pleaded “ conditions performed and not broken.” — ■ After the plaintiffs had made out a •prima facie case, the defendants, in support of their plea, introduced as a witness, one Tidence Lane, who testified, that, some time before the action was commenced, he saw the principal defendant pay to one of the plaintiffs a sum of money larger than that now claimed by the plaintiffs.

The case was this. An execution, tested the 23d of September, 1841, issued on a judgment obtained by the plaintiff against the defendant, before a magistrate, came to the hands of the Sheriff of Randolph, who on the same day made return thereon, that he had levied on the goods and chattels of Branson, one of the defendants, and also on three tracts of lands adjoining each other and the lands of other persons in the return named, on one of which the said Branson lived.

This was an action of debt, in which the plaintiff declared in two counts: First, on a bond for two hundred and sixty-five dollars and two cents. Secondly, on a simple contract for the samo amount. The defendant pleaded the general issue to each count. On the trial the plaintiff produced a bond for the sum stated in the declaration, payable at nine months, and dated the 3d February, 1839, and proved the defendant’s signature thereto.

This was an issue to try whether a certain instrument of writing, propounded by tne plaintiff, was the last will and testament of John Sherrod, deceased.

The action was covenant on the following bill of sale under seal for a negro slave : to wit, “ Received of James Sloan the sum of nine hundred dollars in full satisfaction of a negro man by the name of George, aged twenty-one or two years, which negro I warrant to be of sound mind and body, and I warrant the right and title of the said named negro from the claim of myself and all other persons.

<p>Although it is erroneous to submit to the jury an enquiry of fact, as to which there is no evidence; yet this Court will suppose the evidence, as staled in the.case brought up from the Court below, to have been stated only in reference to the objections there raised, and will not grant a new trial, where an exception, as to the total want of evidence, does not appear to have been taken, either on the trial or on a motion for a new trial.</p> <p>Where matters might have been offered in evidence on the trial, but wore not, they form no ground for granting a now trial.</p> <p>In an action at law against the maker of a deed, which he impeaches for fraud, the only fraud he can allege must he in procuring the execution of the deed ; and therefore evidence that he was imposed upon by the other party in a contract, the performance of which this deed, subsequently executed, was intended to secui-e, is irrelevant and admissible.</p> <p>The cases of Long' v Gantly, 4 Dev. <& Bat. 313. Terrell v Wiggins, I Ired. 172, and Gibson v Partee, 2 Dev. & Bat. 530, cited and approved.</p>

<p>Ejectment cannot be maintained in this State upon a naked possession, once had, where there is no presumption of a convyance of the legal title, hut it appears affirmatively to,he in another person.</p> <p>The purchaser at an execution sale need only shew, as against the defendant in the execution, the judgment, execution, sale and sheriff’s deed.</p> <p>The cases of Sheppard v Sheppard, No. Ca. Term Rep. 108. Murphey v Barnett, 1 Law Rep. 106, and Gorham, v Brenon, 2 Dev. 174, cited and approved.</p>

The following case was agreed upon by the parties. At March Term, 1842, of Northampton County Court, which was on the first Monday of March, a petition was filed at the instance of James W. Harding, Archelaus Tisdale and others, praying for a sale, in order to make partition of certain slaves held in common by the petitioners ; and it was then decreed by the court that a sale should be made upon a credit of six months, and the petitioner James W. was appointed commissioner…

This was a petition filed by all the. children who were alive and the representatives of those who were dead, to recover from the defendant, who was the executor of Sarah West, the amount of a legacy left by her to them.

<p>Appeal from the Superior Court of Law of Craven County; at Spring Term, 1843, his Honor Judge Bailey presiding.</p> <p>This was an action of assumpsit, in which the plaintiff declared upon the common counts and also upon the following special agreement: “ Be it known that I, Isaac Wingate, am held and firmly bound unto Spicer Lane in the sum of two hundred dollars, to be levied out of my goods and chattels, lands and tenements.</p> <p>The condition of the above obligation is such, that I, the said Isaac Wingate, for certain consideration to me in hand paid by Spicer Lane, which I do by these presents acknowledge, have agreed to take from the said Lane a certain old negro woman named Rhoda, and her to keep and maintain, so as to exonerate him the said Lane from any charge or expense on her account; provided, therefore, thatT, the said Wingate, doth fully perform, agreeable to this agreement. the above obligation to be null and void — otherwise tore-main in full force and virtue.</p> <p>(Signed) ISAAC WINGATE.</p> <p>December 12th, 1832.”</p> <p>It appeared in evidence, that, upon a contract made between the plaintiff and the defendant, the plaintiff had agreed to sell certain negroes to the defendant, and the defendant was desirous of purchasing also a negro boy named Daniel, and that the plaintiff declined selling him, alleging that he wanted Daniel to wait upon an old negro woman in his possession named Rhoda, who was upwards of one hundred years of age, to which the defendant replied, that il the plaintiff would let him have Daniel, he would support old Rhoda tor life; that thereupon the plaintiff agreed with the defendant to let him have Daniel, in consideration that he, the defendant, would support old Rhoda during her life ; the parties valued Daniel at two hundred dollars, and the defendant executed the agreement as above recited, the boy Daniel having been conveyed to the defendant by the plain- • tiff, as the consideration of the said agreement. This evidence was objected to by the defendant, but admitted by the Court, to shew what was the true consideration of the written agreement. It further appeared in evidence, that old Rhoda went into the possession of the defendant, directly after the execution of the said agreement, under the same, and remained there for about four weeks, after which timo she returned to the house of the plaintiff, where she has remained ever since up to this time, and been supported by him; and that, within a month or two before the issuing of the writ in this case, the defendant was heard to declare, that the plaintiff wanted him to take old Rhoda and support her, or pay him the two hundred dollars mentioned in the agreement, but, before he would do either, he would get clear of every thing he had, It farther appeared, that it was worth twenty-five dollars a year to support Rhoda. The defendant then introduced in evidence a bill of sale under seal from the plaintiff to the defendant, for the boy Daniel and other negroes, dated on the same day with the agreement above rec¿tec¡) jn whieh the plaintiff acknowledges that he has received five hundred and fifty dollars in full for the said ne-groes ; and the defendant insisted, that, as the agreement declared upon was founded on the consideration of the sale of Daniel as aforesaid, the plaintiff was estopped by the said deed to recover under the said agreement; and, moreover, that his right of action in this case was barred by the Statute of limitations.</p> <p>Upon the question of the Statute of limitations, the Court intimated to the plaintiff’s counsel, that, there being no seal affixed to the signature of the defendant in the agreement declared on, the plaintiff was barred of his recovery by the statute ; but, by consent of the parties, this point was reserved, and the case was submitted to the jury upon the facts before stated, and, under the instruction of the Court, they found a verdict for the plaintiff, assessing his damages at seventy-five dollars. Upon the question reserved, after argument of counsel, the Court was of opinion that the statute of limitations was a bar to the recovery of the plaintiff, and therefore the verdict was set aside and a nonsuit entered, from which the plaintiff appealed.</p> <p>The Statute of limitations does not bar. This is but a contract of indemnity, in which the defendant agrees to take from the plaintiff negro Rhodn, and her to keep and maintain, so as to exonerate the plain-úfffrom any charge or expense on her account, and if the defendant “doth fully perform agreeable to this agreement, then the obligation is to be void.” In the case of a promise of indemnity, the statute does not apply until the lapse of three years from the actual damnification, that is from the time, when the party to whom the indemnity is given, actually pays the debt or damages, and not from the time his liability to pay accrues. Chitty on Contracts, 815. Huntley v Sanderson, 1 C. & M. 467. Collinge v Heywood, 9 Ad. & E. 633. The mere taking of the negro by the defendant for four weeks, was not a compliance with the contract, so' that the statute of limitations would begin to run from that time, but he was to take her, and keep her, and maintain her, so as to exonerate the plaintiff, and when he refused so to do, the statute began to run from that time. The fact has been affirmed by the jury, that within a month or two before the writ was issued in this case, a demand was made upon the defendant for the “ charge or expense” for keeping' Rhoda, and when the defendant refused to pay the same, then the plaintiff was damnified, and his cause of aetion on the agreement arose. This was a subsisting and continuing contract, during the lifetime of negro Rhoda, and the plaintiff would have a cause of action upon the same at any time during her life, when the defendant should refuse to keep-and maintain her so as to exonerate the plaintiff. When'he refused upon the demand to perform the contract, then the statute begins to run. Cowper v Godman, 23 Eng. Com. L. Reps. 452. If the consideration be executory, the time of limitation does not commence until after the consideration has been executed, and so it is it the act to be performed is executory, no cause of action arises until a refusal. The statute did not begin to run, from the time of making the promise, but from the time damages were sustained; and on a promise to indemnify, one action may be brought, and a recovery had for a breach or breaches; and then a subsequent action on the same promise for another breach or breaches happening after the first recovery, and so toties quoties. Hale v Andrus, 6 Cowan’s Rep. 225. There was no error in permitting the plaintiff to shew that the sale of Daniel was the consideration of the agreement declared on. The evidence did not contradict, vary, or add to the deed, but merely explained or elucidated it. Clark v McMillan, 2 Car. L. Rep. 265. Robbins v Love, 3 Hawks, 82. The action is not brought to recover the consideration money mentioned in the deed, but upon a contract founded upon that consideration. There is therefore no estoppel, and if it did arise, the defendant cannot avail himself of it on the pleadings, there being no release pleaded. 3 Dev. R. 508. Buin v Buie, 2 Iredell, 87.</p> <p>.If the defendant is not liable upon the special agreement, jig jg jn tpjjs action upon the other count for the support furnished by the plaintiff to the old negro woman Rhoda, whom the defendant was under a legal obligation to maintain, and the jury have accordingly rendered their verdict for the last three years support, they having found that the plaintiff both demanded and sued for the same in time.</p>

This was an action on the case instituted in the Superior Court of Law of Anson county, the writ being returnable to March Term, 1841, when the following rule was entered upon the appearance docket, to wit, “ Referred to John A* ■McRae and A. D. Boggan and their award to be a rule of court.” And at Spring Term, 1843, the plaintiff moved that an award filed by the said referees, pursuant to the preceding rule, might be made a rule of court, and that judgment might be rendered…

This was an action of debt upon the administration bond of William W. Long, andministrator of Thomas Oaks, deceased, the defendant’s intestate being one of the sureties in said bond. The following case was agreed upon. William W. Long was appointed administrator de bonis non of Thomas Oaks, deceased, at August Term, 1831, of Rowan County Court, and gave bond, with the defendant’s intestate and John Hoskins as his sureties, in the usual form.

<p>Appeal from the Superior Court of Law of Davie County, at Fall Term, 1843, his Honor Judge Nash presiding.</p> <p>This was an action of debt upon the administration bond of William W. Long, administrator de bonis non of Thomas Oaks, deceased, on the trial o£ which the following facts were agreed upon by the parties. William W. Long was appointed administrator de bonis non of Thomas Oaks,at August Term, 1831, of Rowan County Court, and gave' bond with Nathan Chaffin and John Hoskins as his sureties. Thereafter, at November Sessions of the said Court, Long and Chaf-fin had some difference, and Long, to relieve, as he supposed, the said Chaffin from liability as his surety in the said bond, persuaded the defendant with the said Hoskins to enter into the bond, on which the suit is brought, and tendered it to the Court, by whom it was accepted, and on demanding "that the bond executed by Chaffin at the August Sessions should be surrendered, the Court refused the application, observing that they would hold on to both. The bond was in the usual form. About the year 1833, the relator, Rachel, by her then guardian; and the rest of the next of kin of the said Thomas Oaks, deceased, filed their bill in the Court of Equity, of Mecklenburg County, against the said Long, administrator, and his wife, who was also one the children of the said Oaks, and against the said Long as administrator of of Thomas J. Oaks and Pleasant Oaks, for , , . . ' . ,. . ... an account of the said estates. The defendants put m then-answer, to which replication was taken. A reference was made to the Clerk and Master, an account taken, reported, and the report confirmed, shewing that there was nothing-due to the relator, and a final decree entered in favor of the defendant Long, so far as regarded the present relator. The present suit was brought to recover an alleged amount in the hands of the said Long, with which the Clerk and Master in taking the account had failed to charge him. If the law be in favor of the relators, then judgment is lobe rendered in their behalf for the sum of jgS32 91, of which, $441 S4 is principal, and to bear interest from the 11th of October, 1841;. if for the defendant, then judgment accordingly-. The presiding judge, having been of counsel in the case, declined sitting in it, but at the request of the parties, and to take the case to the Supreme Court, gave judgment proforma for the defendant.</p>

This was an action of assumpsit, in which the plaintiff declared in three counts, 1st. for the price of a slave; 2dly„ on a written assumpsit by endorsing a bond in the words and signatures following, to-wit; “ One day after date I promise to pay James Tucker, three hundred dollars, value received. Witness, my hand and seal. Sept. 14th, 1835. (Signed) D. WALKER. [Seal.]” Endorsed as follows : “I assign the within note to James Moore, for value received. Sept. 15th, 1835.

Received of James Williamson and Co. twenty two hundred dollars in full for two negro men, Ephraim, a blacksmith, about 32 years old, and James, about thirty-three years old, which negroes I warrant sound, healthy and free from all claims — and I lurlher bind myself to ever warrant and defend a good and lawful right and title for and to the said negroes, unto the said James Williamson and Co. and their heirs forever. Given under my hand the date above written.

The defendant was tried upon the following indictment, to wit: “State of North Carolina, i gg Superior Court of Law Henderson county. \ ' Spring Term, 1S43.

The defendant was indicted and tried for an assault and battery upon the prosecutor, who alleged that he was a constable. The facts were, that the prosecutor had a writ of fieri facias against the defendant, issued by a justice of the peace of Gates county to any lawful officer to execute, and under the said execution seized the goods of the defendant, and the defendant committed the assault in attempting to remove the goods from the possession of the prosecutor.

This was an action of debt upon two notes under seal for two hundred and fifty dollars each, payable to George Fere-bee, Clerk and Master in Equity for the County of Camden, and his successors in office. The execution of the notes was not denied.

On the trial of this ejectment it was proved, that the father of the defendant was the owner of .the land, and had put the defendant in possession, with an express agreement that he was to leave it whenever the father should require him to do so. There was no promise or agreement by the father to give the land to the defendant. The defendant remained in possession of the land more one year, and made improvements on it.

This was a proceeding by original attachment. B. H. Blount, the clerk of the Superior court of Nash county, was summoned as a garnishee, and stated in his garnishment the amount of money he had in his office as clerk, which apparently belonged to the defendant. The plaintiff moved the court that the money thus held by the clerk be condemned to the satisfaction of his demand.

<p>Appeal from the Superior Court of Law of Rockingham county, at Spring Term, 1843, his Honor Judge Battle presiding.</p> <p>This was an action of detinue to recover a slave named Julina. The plaintiff claimed title under the following clause of the will of Daniel Ellington, “ I lend to my cFaugh-ter Betsey S. Guerant, one negro woman and her increase that she may hereafter have, one negro girl named Jinny,. during her life, and after her death, I give them and their increase to be equally divided amongst the heirs of her body lawfully begotten.” It was admitted by the parties, that the slave in controversy is one of the children of a slave by the name of Tabby — that Tabby was the daughter of a woman by the name of Sylvia, and was born between the making of the will and the death of the testator, Daniel Ellington— that the testator owned the woman Sylvia at the time of making his will, and up to his death. It was further admitted ' that the plaintiff is entitled, as one of the children of Bet-sey S. Guerant, whatever that interest may be, and,’if entitled to recover, the suit is properly brought. The defendant admitted possession of the slave, claiming under a purchase at a sale under an execution against Thos. P. Guerant, husband of the said Betsey, which issued in February, 1841. The plaintiff proved that Daniel Ellington made his will at the time it bears date, and died about the first of November, 1813; that his will was proved at Rockingham County Court, November Term, 1813, when his executor, John Ellington, qualified, and that the slave Tabby was born on the 2Sth‘ of April, 1811. • It was also proved that Betsey S. Guerant died in 1838. The defendant insisted that the bequest was void for uncertainty ; that the limitation over was too remote, and that the same was barred by a sale of negro slave Tabby, made by the executor, John Ellington, to Thomas P. Guerant, on the 20th day of October, 1814. The plaintiff proposed to shew by parol, that the negro woman Sylvia, though not named in the will, was the slave intended to pass to Betsey S. Guerant under said testator’s will, by shewing the condition of the testator’s estate at the time -of his death. To the introduction of this evidence the defendant objected, but the court ruled it to be admissible. The plaintiff then introduced as a witness the said Thomas P. (Guerant, the court overruling an objection to his competency) who testified, that, with the consent of the executor, he took possesion of the negro girl Sylvia and her child Tabby> a short time after the testator’s death, and kept possession-of the slave Tabby up to the death of his wife Betsey, in ^ggg — tjjat he had had possession of Sylvia in- the lifetime' of the testator, but that he returned her to the testator some two years before his death and received another slave, Yiolet, mentioned in the will, in her stead — that this was done because Sylvia commenced breeding — that Yiolet was in his possession at the testator’s death, and that Sylvia and her child Tabby were the only slaves owned by the testator at his death, which were not bequeathed by name in his will. This witness, on cross-examination, testified that it was denied by one of the legatees that he could take the slave Tabby under the will — that whether there was any dispute about her, when he first took possession of her, he did not recollect, or whether he took possession under any special agreement he did not recollect — but he did recollect that his right to this negro Tabby was disputed- after he got possession — that, after the assent above spoken of, he and the executor came to an agreement that he might keep possession of Tabby until the opinion of certain counsel could be had — that considerable time elapsed before the opinion was had — that they, under the advice of counsel, concluded that, to satisfy the' other legatees claiming an interest in Tabby, the executor should sell her at public auction — that, before the sale, he came to a private understanding with all the nine legatees except one, Paschal Ellington, that he should have their shares at the sum of ten dollars each — that the slave was advertised, and he and several persons bid — that the executor bid for him at his request, and the slave was knocked off to him at the sum. of $136 50;- but that it was- then mentioned and declared by the executor that he bought for the witness, and the executor so returned it in his account ot sales — that this sale was in October, 1814, when the executor also sold some small articles of personal property belonging to the estate — that he, the witness, paid all the legatees,except P. Ellington, ten dollars each, and they gave to the executor their receipts in full for their share of the purchase money — that he also gave a receipt to the executor for his share — but that he paid the amount of the purchase money due to P. Ellington to the executor, $15 16, who paid it and took Paschal’s receipt therefor. This witness also proved, that after his wife’s death he sold Tabby to his son John, one of the tenants in remainder — that he did so, under the belief that he had a right — that John sold her to another, but, when the other children put up their claim John got her back and had her divided with the other slaves, the issue of Sylvia. The plaintiff also read the inventory of the executor, in which, among other things, he says “one negro girl named Tabby, in the possession of Thomas P. Guerant, which I have a bond from said Guerant to deliver me the said negro, provided said Tabby does not belong to said Guerant.”</p> <p>For the defendant Paschal Elliott testified, that shortly after the testator’s death all the legatees were present, when the testator’s will was opened — that he disputed Guerant’s right to take Tabby under the will — that Guerant took the child Tabby home with the mother Sylvia some time after the testator’s death, whether before or after the will was proved he did not recollect, under an agreement with the executor, that, if counsel declared he was not entitled to her, she was to be returned — that she was sold by the executor at auction, in October, 1814 — that several persons bid . at the sale — and she was bid off to Guerant. — that some time thereafter the executor paid him his share of the purchase money, when he gave him his receipt therefor as for a part of the estate of the testator. He also testified to similar receipts given by the other legatees, including Guerant. The defendant also shewed by an account of sales returned by the executor at November Term, 1814, that he had charged himself with the sale of a negro girl at the sum of $136 50, sold to Thomas P. Guerant.</p> <p>The court instructed the jury, that if they believed all the testimony in this cause, the plaintiff was entitled to recover. There was a verdict for the plaintiff, and judgment being rendered pursuant thereto, the defendant appealed.</p>

This was an action of assumpsit brought to recover the amount of a store account contracted from the year 1830 to 1833. Pleas, General issue and statute of limitations.

This was an action of assumpsit to recover the amount of a carpenter’s bill and also the amount of a claim for services rendered the defendant’s intestate as a doctor. Pleas, the general issue and' the statute of limitations. Upon the trial, the testimony introduced by the plaintiff shewed that all the items of the plaintiff’s demand, amounting to upwards of one hundred dollars, were contracted more than three years before the commencement of the action.

The facts of the case, so far as they relate to the point decided in this court, are sufficiently stated in the opinion-of the judge.

This was an action of Trover, brought to recover the value of a quantity of castings, alleged to have been converted by the defendants to their own use.

This was an action of ejectment, in which the plaintiff claimed title under a Grant, shewing mesne conveyances to himself, and proving the defendant to be in possession of the land claimed. Upon the trjal, a question arose respecting the construction of the description of the land contained in the grant.

In this action of ejectment, in which the.demise was laid from Alexander Brooks, the defendant pleaded specially her coverture and not guilty. The plaintiff regularly deduced a title to the land in dispute to Ezekiel Brooks. He then offered in evidence the inquest of a jury in the year 1818 finding the said Ezekiel Brooks an idiot, and also another inquest of a jury taken in 1836, finding the said Ezekiel Brooks an idiot from his nativity.

Judge Pearson presiding. This action wrrs commenced by warrant before a single justice of the peace. The proof was, that in 1841, the plaintiff’s intestate had got out a number of juniper rails in a certain swamp — that an action of trespass Q,.

<p>A sheriff has no right to take a recognizance to keep the peace from any person, arrested by him for a broach of the peace, or committed to his custody by a court for want of sureties for keeping the peace.</p> <p>A sheriff or other officer, when he arrests, as he has a right to do, for a breach of the peace, or to prevent a breach of the peace, can only carry the^offender before ajudge or justice of the peace, who may commit or bail him, as if ho had been arrested on a warrant.</p> <p>Regularly if a person be committed by a court for want of sureties to keep the peace, and he afterwards become able to give them, he should be taken by habeas corpus before a j udge, for the purpose of entering into recognizance. But in our practice the court generally, by consent of the prosecuting officer, entrusts the power of taking the recognizance to a justice of the peace.</p> <p>The case of the Stale v Mills, 2 Dev. 555, cited and approved.</p>

<p>Although the County Courts, in authorizing the erection of toll bridges, are to lay uniform tolls ; yet the owner of a toll bridge is not obliged to colled the same toll from every person. He may levy what he chooses from each person, keeping within the rates prescribed by the Court, or relinquish it altogether.</p> <p>The County Court of Perquimons has the same power, under the private act of Assembly of 1838, c. 11, in relation to the toll bridge over Perquimons liver, at the town of Hertford, which by that act they were authorized to purchase.</p>

<p>A sheriff, to whom a writ has been delivered, hut who goes out of office fore the return clay of the writ, has no power to make a return on it, and therefore is not subject to an amercement for not doing so.</p>

The defendant was tried upon the following indictment. The jurors fox the Stale upon their oaths present, that on the 1st day of January, 1842, there was and yet is a public bridge commonly called the Free bridge, situate and being in .the county of Henderson, on the public road leading from Mills river to Flat Rock in said county, on French Broad River, used by and for all the citizens of the said county on foot, and with their horses, coaches, carts and other carriages to…

This was an action of debt upon a bond, of which the following is a copy: “$250. One day after date, I, Henry Fullenwider, as principal, and’'William Fullenwider, as security, do promise to pay Henry Rhodes, his order or assigns, two hundred and fifty dollars, for value received. As witness, our hands and' seal's, this 25th of January, 1839. HENRY FULLENWIDER, (Seal.) WM. FULLENWIDER, (Seal.) The defendants pleaded the general issue and the statute against usury.

The defendant was tried upon the following indictment, found in Anson Superior Court : The jurors for the State upon their oath present, thaf Robert S. Huntly, late of the county aforesaid, laborer, on the first day of September, in the present year, with force and arms, at and in the county aforesaid, did arm himself with pistols, guns, knives and other dangerous and unusual weapons, and, being,so armed, did go forth and exhibit himself openly, both in the day time and in…

The defendant was tried upon an indictment for the murder of William G. Martin.

This was an action of debt upon a note under seal, for $930 80.

This case which has before been in this court, see 2 Ired. Held: that, though the contract was not very perspicuous in relation to this question, yet if it were admitted that the plaintiff was entitled to only ten dollars, as contended for by the defendants, for the first six months work, he was entitled for the time he worked over six months at the rate per month of $40 for six months, to wit,…

This is an action of debt brought by the plaintiffs, as executors of Joseph J. Alston, deceased, against the defendant for a debt dne to the testator in his lifetime. It appeared that the plaintiffs’ testator had appointed several executors, w^om plaiutUTs only qualified, the others having renounced or refused or declined to qualify.

Negle. The defendant pleaded fully administered and no assets, and on the trial relied on these pleas.

This was an action of debt on a bond, commenced by warrant before a magistrate and carried by successive appeals to the Superior Court. The execution of the bond was admitted. The defence relied on was, that the consideration of the bond was illegal, as being against public policy. It was admitted that the plaintiff was overseer of a road in the ¡said county, appointed at Term of the County Court, and that the defendant was liable to work on the said road.

<p>The declarations of the grandmother of one, who is charged to he a person of color, that his mother was the offspring of a white man and herself, are not admissible evidence upon that question.</p> <p>The aGt, prohibiting marriages between white persons and “ persons of color,” includes in the latter class all who are descended from negro ancestors to the fourth generation inclusive, though one ancestor of each generation may have been a white person.</p>

This was an action of debt upon a note executed by the defendant to the plaintiff, and was commenced by original attachment, which was levied upon the defendant’s interest in four negroes, and returned to Warren County Court.

Superior Court of Law of Granville County, at Spring Term, 1.84.3, bis Honor Judge Battle presiding. This was an action of-assumpsit brought upon an instru.ment, of which the following is a copy : “Received of'Mary Bryan, three hundred and fifty dollars, which I will pay as soon as collected, with interest from the time I have had it in my hands. This 11th day of September, 1837. (Signed) SOL.

<p>The refusal of the court to instruct the jury upon a supposed state of facts, which does not appear on the evidence, constitutes no error.</p> <p>What degree of care and diligence is required of one, who undertakes to sel-goods for another, and to sell to none but solvent persons, and what degree of attention and diligence in one who undertakes to collect notes or accounts for ^inothe.r, que.re 1</p>

The defendant was tried upon the following indictment, viz: “The jurors for the State upon their oath present, that on the ninth day of November, in the year one thousand eight hundred and forty, at and in the county of Washington, one Caleb Phelps confessed a judgment for the sum of forty-three dollars and seventy-nine cents, \vith interest from the 6th of January in the year aforesaid, in favor of one Wm.

,This was an action of assumpsit, in which the plaintiff declared upon a special contract , and in all the common counts. The defendant pleaded the general issue and the statute of limitations. The writ was issued the 25th of September, 1840.

This was an action of assumpsit, brought by the plaintiff to recover the sum of forty dollars. The jury found a verdict for the plaintiff1, subject to the opinion of the court on the following facts. The defendant had three acorn cups and a white ball, which he placed under one of the cups in the presence of the plaintiff1. The defendant proposed to bet the plaintiff twenty dollars, that he could not tell which one of the three cups the ball was under.

This was an action of debt upon the official bond of the defendant Tick, as Sheriff of the county of Nash, the bond containing the usual conditions for the faithful discharge of his duty as Sheriff. Breaches of all the conditions were assigned.

This was an action of Trespass for taking a hog belonging to the plaintiff.

This was a proceeding under the act of Assembly by scire facias against the guardian of the heirs of Edward Saunders, to subject the proceeds of the land of the heirs to the payment of the plaintiff’s judgment.

This was an indictment for an assault and battery on one' George W. Daughtry. On the trial it appeared there had been a political wrangle between Daughtry and a company assembled at a vendue in Johston county, which was continued into the twilight of the evening, until nearly dark. At that time, while Daughtry and one of his friends were engaged in conversation apart from the assembly, some one from behind struck Daughtry three blows with a knife, two of which wounded him.

The defendant was- tried and found guilty upon the following indictment, viz: “ State of North Carolina, ) Superior Court of Law Edgecombe County. \ ss Fall Term, 1842.

This was an action of trespass on the case for ponding water on the plaintiff’s land, by means of a dam erected on the defendant’s land. It appeared that a branch or natural drain passed through the lands of both the plaintiff and the defendant, the defendant’s land lying below that oí the plaintiff.

This was an action ou the case to recover damages for an injury done by the defendant to the plaintiff’s slave.

This was an action of debt upon a note under seal, for $960 90. The defendant relied on the plea of fully administered.

This was an action of debt upon a note for $4400, dated 17th June, 1842. The defence relied'on was the statute of Usury. On the trial, it appeared in evidence, that Williams and Green, the principals in the note, on'the 17th of June, 1842, had their notes in Bank, two for $1200 each, and one for $2000, that at the instance of Williams and Green, the Cashier agreed to consolidate the three notes, and the note in question was taken in renewal thereof.

The defendant was indicted for the murder of one Randolph Powell, and pleaded Not Guilty.

This was an action- of Assumpsit. The plaintiff proved that the defendant had contracted to sell him a piece of land, and that ha had taken possession of it' in pursuance of the contract; the title to be made when the land was paid for. The plaintiff was the overseer of the defendant; and attended to his hands on a plantation some few miles distant.

This was an action on the case, in which' the writ was directed to the sheriff of Edgcomfee county, where it was executed, and returnable to the Superior Court of Law of Warren county, at the Fall Term, 1842.

This was an action of Trover ior the conversion of a slave named James.

This case was before the Supreme Court, at June Term, 1842, when the points then presented were determined and a new trial granted. See 2 Ired. Rep. 414. On the return of this decision to the Superior Court of Rutherford, that court, on the application of the plaintiff, permitted him to amend his writ from detinue to trespass. In this new form the case came on for trial at the Spring Term, 1843, of Rutherford Superior Court.

This was an action of debt upon the bond of the defendant, Skinner, and the others, his sureties as constable. The bond was :in the usual form, and dated 10th of February, 1840. The breaches assigned were, 1st failing to pay over money collected ; 2dly. failing to collect. Pleas, conditions performed, conditions not broken. On the trial, the plaintiff produced two receipts of the defendant Skinner, as constable.

» This was an indictment against the prisoner for burning the store-house of Hugh M. Cowan, and concluded “ against the form of the statutes, Skipper, one of the town guard, testified, that about two o’clock on Sunday morning, the 22d of January, he discovered a light in the store of Hugh M. Cowan, and, on pushing the door with his stick, found it was not fastened — that on entering, he found the house full of smoke and a pile of goods in a light blace on the floor — that…

<p>declaration of a tenant in possession of a piece of land, that he claimed according to the boundaries of a patent, with which he cannot connect himself by a chain of title, is not admissible evidence for himself or those claiming under him, to shew that his constructive possession in law extended beyond his actual possession by cultivation, fences, &e.</p> <p>If one enters into land under a deed or will, the entry is into the whole tract described in the conveyance prima fade, and is so in reality, unless some other person has possession of a part, either actually or by virtue of the title. But when one enters on land, without any conveyance, or other thing, to shew what he claims, his possession cannot by any presumption or implication he extended beyond his occupation de facto.</p> <p>A partition of land, made by order of court on the petition of parties interested, is a good color of title.</p> <p>Whferé one, tinder a partition of land made by order of court according to the act of Assembly, takes actual possession of a part of the share allotted to him, his possession will be deemed to extend to the boundaries of the share so allotted, in tho same manner as if he had taken possession under a deed. The cases of Graham v Houston, 4 Dev. 232; Smith v Wilson, 1 Dev. & Bat. 40, and Davis v Campbell, 1 Ired. 482, cited and approved.</p>

<p>Where pleadings are not filed, no judgment will be entered in this court, (a.)</p> <p>(a.) NOTE BY THE REPORTER.</p> <p>It is the invariable rule of the Supreme Court to enter no judgment at law until the pleadings have been filed; and no decree in Equity, until the draft of the decree has been made by counsel and submitted to the Court.</p>