Volume 26 — North Carolina Reports

This was an appeal to June Terra, 1842, of this court, which term began ón the 13th day of the month. The defendant was the appellant, and filed the transcript on the 29th of May. Although the opinion of the court was delivered at that term, (see 2 Ired. Rep. 440), the judgment was not entered, and it was afterwards ascertained, that the plaintiff Lea, the administrator of Harris, died on the 7th of June,-1842.

On the trial below the case was submitted to the court upon the following facts, and it was agreed, that, if the law thereon was for the plaintiff, he should have judgment for $414 23 and costs ; otherwise he should be nonsuited. Elijah W. Kinsey was indebted to Jones, the plainiiff, in the sum of $611, payable in six annual instalments, with interest from June 28th, 1843 ; and on that day he executed to the plaintiff a mortgage of a tract of land in fee to secure the debt.

Appeal by the defendants from the Superior Court of Law of Henderson county, at Fall Term, 1843, his Honor Judge Dick presiding, ' The defendants were tried upon the following indictment to wit: “State of North Carolina, ) Superior Court of Law, Henderson county. \ ss' Fall Term, 1843; “ The jurors for the State upon their oath present that Mont. Patton, President, and James W. Patton and Wm.

This was an action of debt on the bond of Gabriel Wash* burn, as a constable for the county .of Rutherford for the year 1839.

<p>In a proceeding under the Processioning act where the processioner hbfe* beeii stopped in running the lines by a party claiming the land, it is not necessary to shew that such party had previous notice that the lines were about to-be run.</p> <p>The report of a processioner that he has been stopped by a party in running a disputed line, constitutes, between the parties claiming and disputing that line, a cause of record, and each, withoúí further notice, must be presumed-to know what is judicially done therein.</p> <p>An objection to any of the commissioners appointed by the court is in the nature of a challenge, and should be brought forward when the"appointment is about to be made.</p> <p>The adjudication of the commissioners affects only the rights of the parties' contesting.</p> <p>The cases of 1 Hay. 405-. Wilson v Shuford, 3 Murph.-5U4, and Carpenter v Whitworth, 3 Ired. 204, cited and approved.</p>

This was a scire facias against the defendant as bail of one Abraham Crow.

This action of ejectment was instituted on the 3d of February, 1842, and the plaintiff claimed title as follows : In November, 1815, Moses Martin by deed conveyed the premises, as described in the declaration, to the lessor of the plain-tifi; and he immediately entered and hath retained possession ever since ; except, as it appeared, that at the time of bringing this suit the defendant had taken possession of a field, part of the land so conveyed to, and possessed by the…

The plaintiff filed his petition in the County Court of Caldwell County, in conformity to the provisions of the act of Assembly, “ concerning Mills and Millers ” (Rev. Stat. c. 74), in which he represented that he was the owner of a tract of land and a mill — that the defendant was the owner of an adjoining tract and of a mill thereon lower down .the stream — and that the defendant raised the water of the stream by reason of his mill darn, so as to overflow the petitioner’s…

On the trial of this ejectment the possession of the defendant was admitted. The plaintiff relied entirely on the title of the heirs of James Joiner, the lessors in the third count of the declaration.

This was an action on the case, brought by.the plaintiff against the defendant to recover damages, which she alleged that she had sustained by the malicious prosecution of her negro slaves, in consequence of which she had been deprived of their services, and put to costs in paying their jail fees. The defendant objected that the action could not be sustained, but the court held differently.

Cleaveland County, at Fall Term, 1843, his Honor Judge Dick presiding. This was an action of assumpsit, brought in the Superior Court of Law of Cleaveland county, on two promissory-notes ; the first for the sum of sixty-one-dollars and forty* three cents, due the 21st of November, 1841, with a payment endorsed of forty dollars on the 12th of July, 1842; the second for seventy-three dollars and eighty-seven cents, due the 16th of June, 1842.

<p>Where an appeal is filed in the Superior Court, and the appellee removes the cause to an adjoining County and suffers it to remain there for three years, before he moves to dismiss the appeal for want of an appeal bond, Held that the motion comes too late and that the appellee must he intended to have waived his right to a bond.</p>

This action was brought to recover the value of a horse, taken and sold by the defendant as constable, under sundry executions against one Robert L. Dawson. The horse at the time of the seizure was in the possession of the said Dawson.

<p>Appeal from the Superior Court of Law of Chatham County at Fall Term, 1843, his Honor Judge Manly presiding.</p> <p>This was an action of debt upon a bond of the defendant, ^t°ught by the plaintiff as the administratrix of John Jones Alston. The case appeared to be this. Joseph John Alston ap-p0jnte(j John jones Alston, the defendant Samuel S. Jackson, and one Rives, the executors of his will; of whom the two former only undertook the office at the death of the testator. John Jones Alston, having in his hands money belonging to the estate, lent the sum of $711 74 to Jackson, the co-executor, and took his bond in the following words, viz :</p> <p>“One day after date I promise to pay to John J. Alston, executor of the last will and testament of Joseph John Alston, deceased, seven hundred and eleven dollars and seventy four cents; which sum I have borrowed of him in my private and individual capacity, and not in my character of executor of the said will; and which is to bear interest until paid. September 23d. 1841. Samuel S. Jackson, (Seal.)”</p> <p>John Jones Alston afterwards died intestate, and the plaintiff became his administratrix, and came to a settlement of her intestate’s administration with Rives, who had then qualified also as an executor; and, upon that settlement, the plaintiff accounted for the money mentioned in the bond and paid it to Rives. The plaintiff, as administratrix of John Jones Alston, then brought this action on the bond ; and it came on to be tried on the general issue.</p> <p>To the evidence of the settlement and the payment of the money to Rives the defendant objected ; but it was admitted by the Court.</p> <p>It was then insisted for the defendant that the plaintiff could-not maintain the action, but that the debt belonged to the surviving executors of Joseph John Alston. But the Court held otherwise ; and a verdict and judgment were rendered for the plaintiff. From the judgment the defendant appealed.</p>

This was an action of detinue, in which the parties submitted the cause to the judgment of the court upon the following case agreed, to wit: Janies D. Ridley, by his will, made the 15th of August, 1820, and soon afterwards admitted, to probate, devised and bequeathed as follows, to wit, “ Item 1st. My will and desire is, that, after my debts are paid, all my property, both real and personal, should be kept together for the use of my beloved wife Elizabeth J. Ridley} and for…

This was an action of debt on the bond of Henry W. Skinner, as the administrator of Joshua Wooton, dec’d ; and the following case agreed was submitted to hi's Honok. The defendant’s intestate- died in the year 183'9, without issue, leaving the relators his only next of kin, and this action is brought to recover what may be due to them as the distributees of the said Joshua Wooton.

<p>In the ease of an appeal from the County to the Superior Court, where the cause has been continued for two years in the Superior Court and witnesses summoned on both sides, it is too late for the appellee to move to dismiss the appeal for the want of an appeal bond. He will ‘be considered as having waived his right to a bond.</p>

This was an action of trespass on the case in which the plaintiff declared against the defendants for conspiracies with one Edward Bouldin : 1st, to entice away his daughter and marry her to the said Edward; and 2dly, to defraud him, the plaintiff, out of certain moneys by inducing him to become surety for the said Edward, he being insolvent.

<p>Where on a contract for the sale of a horse the vendor is to retain the title until the purchase money is paid, and the vendee gives his note for the priee and takes posséssion of the horse, it is comp.etent for the vendor, in an action to recover the horse from one claiming under the vendee, to shew a judgment on the vendee’s note, execution and return of nulla bona, in order to shew that the price had not been paid;</p>

This was an action of trover for a horse, on the trial of which the jury found the following special verdict.

This was action of assumpsit brought by the plaintiff to recover the sum oí $>200, with the legal interest thereon.

It appeared from the records, that the plaintiff had obtained a judgment before a justice of the peace against John Gaster, one of the defendants ; and on the 20th of March, 1843, he took out a process thereon, which was intended to be a capias ad satisfaciendum.

This was an action of trover for a quantity of corn. On the trial the plaintiff oifered evidence to shew, that the defendant rented a small tract of land to one Elijah Powell, a free man of colour, for the year 1841, and that the said Powell cultivated the land in corn, and agreed to give the defendant one half of the crop.

This was an action of Ejectment. At the Fall Term, 1842, the deaih of the defendant William Scott was suggested on the record. At Spring Term, 1843, there was an order for a scire facias to issue to lames Scott, of Burke county, and an order of publication as to the other heirs at law of the said William Scott. A scire facias issued from Spring Term, 1843, made returnable to Frjill' Term, 1843.

In this case the plaintiffs, alleging that the record of the suit was destroyed in the fire by which the court-house and all its contents were consumed in March last, proposed to… Held: that, if the existence and destruction of the record were proved, then it was competent for the plaintiffs to supply the losSj first, by the production of a copy if that might be had, but if no copy had been taken and preserved, then, in the seeond place, by parol proot oí its contents.

This suit -commenced by a warrant before a justice of the peace of Duplin county,, and was carried by successive appeals to the Superior Court of the county.

This was an indictment for petit larceny. A witness, by the name of Elizabeth Earnest, was examined on behalf of the State. The defendant offered a witness by the name of Kincade, and asked him ifhe knew the general character of Elizabeth Earnest. The witness replied that he did not know whether he did or not. The Court then asked the witnesss, if he knew what a majority of the neighbors said of her.

This was an indictment against the defendant for falsely arresting and imprisoning one Bonnard Long, to which the defendant pleaded not guilty. It was proved on the trial, that the defendant arrested and took into his custody Bonnard Long and detained him in custody several hours. It was also proved, that the defendant said he arrested Long on a warrant in favor of Bryson & Alison. The defendant proved that he was a constable-for Macon County, in which the arrest was made.

<p>Appeal from the Superior Court of Law of Buncombe County, at an extra session in August, 1843, his Honor Judge Pearson presiding.</p> <p>This was an action on the case in the nature of an action of deceit for a fraud in the sale of a mare. • It was proved on the trial, that in November, 1839, the defendant, Marvill Edney, being much indebted, executed to the defendant, Rufus Edney, a deed of trust, which was duly proved and registered, for his real and personal estate, including several tracts oí land and many articles of personal property, among others the mare in question, in trust to sell and apply the proceeds to the payment of the debts specified — that in December, 1839, the said Rufus-the trustee, sold all the property at public sale — that the plaintiff attended and bought the mare at $75, for wich he gave his note and surety to the trustee according to the terms of the sale — that Mar-vill Edney was present at the sale, but took no part in it and said nothing one way or the other to the property. It was also in evidence, that in the spring of 1839 the mare had a colt and soon afterwards was discovered to be very lame in her left fore-leg — that she continued lame during the summer, but, early in the fall after the‘colt was taken from her, she got in good order and was to all appearance well. One of the witnesses said that, although when standing or walking nothing seemed to be wrong, yet when put in a trot he could perceive she was a little stiff. As to this, the evidence was contradictory. On the day of sale sheappeared to be well. gome weeiIS aftev the sa]ej the plaintiff, although he had been told, soon after he purchased that the mare had been lame the spring before, said he was well pleased withjher. About the first of February, 1840, the mare became very stiff in all her joints and died soon afterwards. There was other evidence which it is not material-to.state.</p> <p>The Court charged the jury, that there was no evidence that the defendant Marvill had sold the mare to the plaintiff, or had made any misrepresentation, or done any act to assist the defendant Rufus in practising a fraud, supposingthelatter to have been guilty of a fraudand, inasmuch as the legal title had passed out-of Marvill and was vested in Rufus, he was not accountable as an owner would be, who procured an auctioneer to cry-his property, merely as his agent, and ■stood by in silence. As to the defendant Rufus, the Court charged, that although he acted as trustee in making the sale, yet, like all other persons who sold, he was bound to act honestly and to disclose defects if he believed them to exist. It was then left to the jury, whether the mare was unsound at the time of the sale, and whether the defendant Rufus knew or had reason to believe that she was unsound —if so, as he failed to state the circumstances, he was liable in damages. The jury found a verdict in favor of the defendants. A new trial was moved for, on the ground of error in the charge of the Court as to the defendant Marvill .and refused — and judgment being rendered pursuant to the verdict, the plaintiff appealed.</p>

<p>Appeal from the Superior Court of Law of Anson County at Pall Term 4843, his Honor Judge Battle presiding.</p> <p>This was an action of assumpsist, in which the plaintiff’s counsel, in opening the case, stated that he declared on a special contract in writing, of which the following is a copy, viz.</p> <p>ss. “ State of North Carolinaf Anson County,</p> <p>This is to certify that I am to pay John Ashcraft four hundred dollars for the delivery of his brother James Ash-craft to me, in Wadesboro’ between this and September next, this 1st May 1838. (Signed bythe defendant) T. II. Allen.”'</p> <p>The plaintiff then called as a witness one Redfearn, who testified that the defendant was sheriff of the County of An-son during the- year 1838, and, as such, had one'James Ashcraft, a brother of the plaintiff, in his custody in the public jail of his county — that the witness was then a deputy of the defendant, and heard him say that James Ashcraft had broken jail and made his escape — and the witness- saw him at his, James’, house, and the plaintiff his brother with him, but he could not state at what time this took place;</p> <p>James Ashcraft was then called for the plaintiff, andstat-edlhathe was confined in the jail of Anson County for debts-amounting in the whole to ten or twelve thousand dollars — that he made his escape therefrom by breaking the jail without the knowledge, contrivance or assistance of any other person — that after escaping he resolved upon going to Alabama, and with that purpose went to take leave of his father and mother and his own family — -that he first met his brother, the plaintiff, at his father’s, and informed him of his intention of going to the South West — that in a few days afterwards his brother came to him in the woods, near his, the witness’, house,, and shewed him the written contract above recited, and told him the defendant would be bound for his debts, unless he was re-taken — that he then refused to surrender himself, but after some further conversation, told his brother that he intended to go on through Camden and Columbia in South Carolina, and that, if his brother would meet him the next day at a place he designated in South Carolina, he would tell him his final determination with regard to the surrender of himself — that his brother did meet him at the time and place appointed, and he at last agreed to surrender himself to his brother, upon condition that he should be permitted to go home and see' his family, before being delivered up to the sheriff — that he arid his brother, then, after remaining in the woods alt night, went together to the house of the witness, where they arrived the next morning — that, finding one of his children very sick, he requested his brother to permit him to remain at home until the next morning, which his brother consented to do, and remained with him — that,' during this time, he considered himself the prisoner of his brother, though he was not confined in any way — that eáii'y the next morning, before the witness had got up, the defendant Came in company with three o:r four other persons,some of whom were armed, to the house of the witness-, and, as soon as he had dressed himself, entered the room Where he was and said “I am glad to see you, you must go with me to Wadesborough” — that the plaintiff then stepped into the room and said, “no, he is my pris'oner, and I am going to take him to Wadesborough” — that the witness requested them to wait until he could have breakfast, but the defeiv dant insisted upon setting off immediately, and they all went Wadesborough — that the plaintiff went in company with the defendant and his attendants, and, after entering the town, said to the defendant, “l now surrender you my brother” ; to which the defendant replied, “I have had him all along”, but the witness said he had been his brother’s prisoner. This witness stated further, that the plaintiff persuaded the witness to surrender, and,overcome by his persuasion, he consented to surrender himself as the prisoner ot the plaintiff, to be by him delivered in Wadesborough to the defendant, provided the plaintiff would permit the witness first to go home and visit his family — that this was in the spring of 183S — that the witness was returned to the jail in about a fortnight after he had escaped. This witness also stated that the contract above recited is the same, which the plaintiff exhibited to the witness in the woods — that he had no knowledge oft his contract until it was exhibited to him in the woods, nor had he any reason to expect that any such contract: would have been made by the plaintiff.</p> <p>The plaintiff here closed his case, when the Court intimated an opinion, that the action could not be sustained ; in submission to which the plaintiff submitted to a judgment of nonsuit.</p> <p>A motion was subsequently made to have the nonsuit set aside and a new trial granted, the plaintiff’s counsel alleging that he was entitled to recover,either upon the ground that he had performed his part of the contract, or that, if he had not done so, he was prevented by the act of the defendant himself, and' that at all events he was entitled to recover upon a count for a quantum meruit. The Court held that if the action could not be sustained upon the special contract, it could'not be sustained at all, and that a count upon a quantum mreuit would not now be allowed without the defendant’s eonsent, which was not given — that the plaintiff had not proved'a compliance with his part of the contract, which was essential to the maintenance of his action — that his permitting his brother to go home and remain there a day justified the defendant'in taking him himself, and, having done so, the plaintiff had no longer any claim to compensation under the contract. The court held further, that, if it were contended for the plaintiff, that under the contract he had a right to give his brother ease, then the contract was against the policy of the law and void. The motion for a new trial being over-ruled, the plaintiff appealed.</p> <p>cited Platt on Gov’ts. 137. Powell on Con, 370. Hurleston on bonds, 31. Shep. Touch. 375.</p>

This was an action of trover to recover the value of certain chattels, which the plaintiff claimed under a deed of trust executed by one John Beard to the plaintiff as trustee for certain creditors.

This Was a petition for dower, f.Ied by the widow of Thomas McGee dec’d. against the defendants,- who1 are his children and his heirs at law. The counsel for the defendants moved to dismiss the petition, because there, was no allegation that the defendants, as heirs,- had entered, and were seised, as heirs, at the filing of the petition.

This was an action ot assumpsit to recover the balance of an account for goods delivered and work and labor done. The account was originally for $203, but the plaintiff had given credit on it for $158 84, leaving a balance due of $44 16. The action commenced by warrant before a single justice, and was brought by successive appeals to the Superior Court, when the plaintiff declared on a special eon-tract and also on the common counts.

This was an indictment against the prisoner for the murder of John Bedford.

This was an action of ejectment commenced on the 17th of February, 1842. Held: that the said possession of the defendant under such claim, without suit or claim by Williams or Ray-ner, would bar them, and give her a title for life in the premises allotted for her dower; but that, by acknowledging the title to be in the lessor of the plaintiff in 1842, and continuing her posssession that year under him and…

<p>Where a vendor, before he'sells to a partner, has notice that there is a partnership, but that each partner is to be liable only for his own purchases, the vendor cannot look to the partnership for payment, but can have recourse only against the partner purchasing-</p> <p>But where the vendor is informed there is no partnership extsting, he may, upon discovering the partnership, make all the partners responsible for goods he has sold to any one, and which have been carried into the copart-nership concern.</p>

r Judge Manly presiding. This was a motion made by Charles Mock, clerk of the County Court of Davidson, for a judgment against the defendant under the following circumstances. There had been before a justice of the peace an action, by warrant, in favor of Daniel Shuler against the defendant Wagoner, in which a judgment was rendered for Shuler. From this judgment the defendant appealed.

At March Term, 1843, of Lincoln County Court, the Sheriff returned into court a number-of writs of venditioni ex-ponas and Ji.fa. issued from that court against one William Fullenwider, at the instance of different creditors, among whom was the present plaintiff, Jacob Ramsour, and the present defendants.

This was an action of slander, in which the declaration alleged that the defendant had charged the plaintiff’s wife with incontinence: Plea, not guilty.

This was an action ofdebt brought upon a sealed instrument of writing, which the plaintiff alleged was the official bond of the defendant McAlpin, as sheriff of the County of Robeson.

This was an action of detinue to recover two negro boys, the children of a woman named Peg. The defendants pleaded the general issue and the Statute of limitations.

The following is the case, as it appears from the record. Term, 1839, of Randolph County Court, John D. Brown, a processioner ..of 'Randolph County, reported to> t|~e coliVt, that he had 'been required by William Matthews to procession a tract of land for him, and, particularly, to establish the ’lines between his land and that of Ezekiel Matthews ; and that on the 23d day of May, 1839, he met the said parties-on the said land of William Matthews (which is, not described)…

- This Was an action of debt, brought in the County Court on a bond for $300; in which the defendant pleaded pay-meut and set off. The jury found sundry payments, and t])at t¡.]0 [,ajnnce ¿¡ue tjle plaintiff was $60 88 cts. Before the verdict was entered, the defendant moved the court to dismiss the suit; and, after having the verdict recorded, the court allowed the motion.

This was an action of trover, in which the plaintiff de-dared for the conversion of eighty hogs and thirty-one head 0f cattle.

<p>Where a father puts his sen in possession of a plantation and slaves, and permits him for three years to appropriate the crops to his own use, the crop the fourth year, as well as the preceding ones, are to be considered as gifts from the father to the son and liable to the claims of the son’s creditors.</p> <p>A sale of a crop of corn in afield, by a sheriff under execution, iS' good, although the sheriff was not in nor immediately at the field, if he was near enough to be in plain view, so that bidders saw what they were bidding for ; for that is the purpose of requiring the thing to be present.</p>

This case came before the Court upon the application of the defendant, the Sheriff of Edgcomb, to the County Court of that county, at August Term, 1841, which application was in the following words, viz: “The sheriff being doubtful to whom to apply the moneys raifed by the sale of the defendant’s lands, as mentioned in his return on the fi. fa. of Wilson C. Whitaker against Benjamin P. Porter, brings into Court here the sum of five hundred and fifty eight dollars forty two…

<p>Appeal from the Superior Court of Law of Cumberland County at the Special Term of the said Court in December, 1843, his honor Judge Manly presiding.</p> <p>This was an action of trespass quare clausum fregit brought to recover damages for cutting down and using a number of pine saw-mill timber trees, and for cutting down and using pine cord wood, and for cutting down and using pine rail timber, not needed nor used for plantation purposes, upon a certain tract of land. The plaintiff produced a deed, dated in July, 1800, from Archibald Reed to James Gee, of whom the defendant was the son and heir. This deed conveyed to the said James Gee the tract of land in question, called “the pine thicket” containing 200 acres, “to have and to hold the aforesaid tract or parcel of land with all and singular the appurtenances to the same belonging or appertaining, reserving only to himself the said Archibald Reed and his heirs and assigns forever all the saw-mill pine timber on the same land standing and being or which may hereafter stand or be on the said land or any part thereof, with full and absolute privilege of egress and regress in and upon the said land at all times for the purpose of cutting or taking away the said reserved timber except only such timber as shall be at any time necessary for fencing and for plantation uses on the said land.” And then followed the usual covenant of warranty. The plaintiff then produced a deed dated in February, 1803, from the said Archibald Meed to one David Anderson in which the description of the premises conveyed is as follows, “ a certain piece or parcel of land in the said County of Cumberland, situate, lying and being as follows, “ Beginning &c.” (here the boundaries are described) “ being the same land which was sold to James Gee some years ago and the saw mill timber excluded — Which sawmill timber on said land the said A. Reed .only sells to David Anderson and his heirs &c. forever, and the said A. Reed doth warrant and defend the same to the said David Anderson and his heirs forever, and that the saidD. Anderson shall at all times and wheP .he pleases, go upon the said land and take off and cut down any such saw mill timber as he thinks proper free from any hindrance or molestation whatsoever from the owner of the said land or any other person or persons;” By virtue of an execution issuing on a judgment against the said David Anderson the sheriff sold, and, by deed bearing date the 4th November, 1818, conveyed to Jonathan Evans in fee “ a certain piece .or parcel o.f land &o.” (describing it) “being the same land sold by Archibald Reed to James Gee on the 15ih of July, .1800, and all of the pine saw mill timber excepted thereon, which said pine saw-mill timber was sold "by the said A. Reed to D. Anderson by deed bearing date the 28th of February, 1803 ; and it is the true intent and meaning of this instrument to sell and convey only the pine saw-mill timber which now is and which ever hereafter shall be on the aforesaid 200 acres of land, with all the rights and privileges vested in the said D. Anderson.” Jonathan Evans on the same day by deed conveyed to the plaintiff all that had been conveyed to him by the said deed of the Sheriff. It was in evidence that the tract of land, called “The Pine Thickett,” had never been cleared except about three acres, upon which was a house inhabited, and that nearly the entire growth thereof was pine — that the widow of James Gee, after his death, which happened nearly forty years ago, had used the land without stint as her own, and enjoyed more than twenty years actual possession of it; and there was no proof that the plaintiff, or those under whom he claimed, had ever exercised the right of getting saw-mill timber on the said land5 but it was in proof that he had got some rails thereon about the time of the alleged trespass by the defendant, and also that the defendant acted under his mother’s authority. It was also in evidence that the defendant admitted he had cut down for market about thirty cords of pine-wood, but denied that he had cut down any trees fit for saw-mill timber. And it was also proved that, at divers times, the defendant had cut down pine wood for the use of his mother’s plantation adjoining, though no times were fixed upon as those at which the acts were done.</p> <p>It was insisted by the defendant that the plaintiff could not recover in this action, first, Because the reservation in the deed from Reed to Gee was void as a reservation; second, ly, That it could not operate legally as an exception, and, therefore, first, that lieed had nothing in him to convey to Anderson, and, secondly, that even if Reed had any thing in him and had conveyed to Anderson, the judgment, execution and Sheriff’s deed had not conveyed that interest from Anderson to Evans; thirdly, That the plaintiff and those under whom he claimed had lost their right by lapse of time, there being no proof of its having ever been exercised; Fourthly, that, supposing the exception in the deed from Reed to Gee to be valid, there was an exception to an excep- ... , ..... tion, which gave Gee a right to use even saw mill pine timber, whén necessary for fencing or other plantation uses, and that the proof was that any timber of any .description taken by the defendant had been for fencing or other plantation uses; Fifthly, that there was.no proof that any saw mill pine timber had been used or taken by the defendant for any purpose; Sixthly, the defendant relied on the statute of limitations; and Seventhly, that the action of Trespass quare clausum fregit 'was not the proper action, if the plaintiff could maintain any action.</p> <p>His Honor charged the jury. Reserving all other questions, which had been raised by the defendant in this cause, he left it to them to say, whether the defendant had at any time within three years before the institution of the plaintiff’s action, cut down or otherwise used or destroyed any pine trees fit for saw mill timber, not necessary for fencing the land or other plantation uses, or had commanded thesame to be done or had assented to its being done before or after-wards or had taken benefit thereof. For the present he held the action to be properly brought; and that the plaintiff had a right to all the saw mill pine timber, which might at any time be standing on the said land, subject to the exception, that the defendant might use as much thereof as might be necessary for fencing or ^other plantation uses on the said land; what was saw mill pine timber was a question for them; and having ascertained what was saw mill pine timber from the evidence submitted to them, they were next to en-quire if the defendant had used or caused to be used, at any time within three years before the plaintiff’s suit, any such timber; and, if so, whether it was necessary for fencing or other plantation uses on the said land, and if they so found they would assess the plaintiff’s damages accordingly; -otherwise they should find for the defendant. The jury found a verdict for the defendant. The plaintiff moved for a new trial, First, because his Honor did not. as requested, charge the jury, that, if the defendant cut or used any pine timber, wnich might thereafter have become fit for saw mill timber, it was necessary for fencing or other plantation uses, he was guilty of a trespass; Secondly, Because His Honor did not charge the jury, that, if the defendant cut or used (or caused it to be done) any pine timber fit for saw mill purposes, he was guilty of a trespass, whether the same was applied to fencing or other necessary plantation uses on said land or not.</p> <p>A new trial was refused, and judgment being rendered pursuant to the verdict, the plaintiff appealed.</p>

This was a petition filed by the plaintiff, who was a daughter of William B. Meares deed., bom after the making of her father’s will, to obtain a share of his estate, under the provisions of the act of Assembly, Rev. Stat. c. 122, s. 16, 17, The executrix and the legatees, heirs and next of kin of the deceased, were made parties defendant. The following are the material facts disclosed by the pleadings.

<p>The case, McKinder v Littlejohn, 1 Ired. 66, cited and approved.</p> <p>Appeal from the Superior Court of Law of Granville County, at Fall Term, 1843, his Honor Judge Manly presiding-.</p> <p>This was an action of debt, commenced the 31st of July, 1837,011 a bond given by the defendant’s intestate and one John Vaughan on the 15th of August, 1811, payable the 31st of August, 1811. The defendant pleaded “payment,” and to establish it relied on the presumption of payment from the lapse of time. This presumption was attempted to be rebutted on the other side by proof of the insolvency of the defendant’s intestate, connected with his residence at a great distance from the place where the plaintiff resided. It was admitted that the plaintiff resided in Norfolk, Virginia, and the defendant’s in testate, after his removal in 1812 from North Carolina, where the debt was contracted, resided until his death in 1819. . - ’ in the State of Mississippi. John Vaughan, the other obli-gor, it was admitted, had always been insolvent. The tiff’s witnesses deposed that the defendant’s intestate was insolvent, when he came to reside in Woodville, Mississippi, in the year 1812; that his practice then as a physician did not more than defray his and his family’s ordinary expenses ; that he was never able to pay for the house in which he lived,, of which the price was only $250; that he left at his death some of his store bills unpaid, and from the insolvency of his estate they never will be paid ; that he was insolvent when he died, leaving his only child upon the charity of his friends. It was also proved that, a short time before his death, he wrote a desponding letter to his brother in this State, complaining of his continuing distressed circumstances as to property and his bad state of health, and begging his brother to take care of his child in case of death, which he shortly expected. It was proved that this letter was of the same character with many others to his brother during his residence at Woodville. The plaintiff’s witnesses .deposed, that, at no time from his coming to settle at Wood-ville to his death was he able to pay a sum equal to this debt, except the current bills for the support of himself and his family, and indeed that he did not pay all of them. On the other hand the defendant’s witnesses deposed, that when the defendant’s intestate went to Wroodville in 1812, he was insolvent; that he then commenced the practice of medicine and had a very good practice, supposed to be worth upwards of $2000 a year up to the year 1817 or 1818, when from his bad health he was compelled to give up his profession ; that he- then obtained five or six thousand dollars worth of goods, and carried'on merchandize for about eighteen months until his death in 1819 ; that he was in possession of a dwelling-house and lot, a store house and a doctor’s shop ; that he was reported to be solvent and in good credit ; and these witnesses gave it as their opinion that he was able in those times to have paid the debt now sued for.</p> <p>The defendant’s counsel prayed the Court to inslrncfthe as follows, 1st That if upon the evidence before them • * ' * they should be of opinion that the defendant’s^ intestate during his residence at Woodville in Mississippi, solvent and able to pay the p'aintiff’s debt, then the presumption of payment was not repelled, and they should find for the defendant onrhis plea of payment. 2dly, That if, upon the said evidence, the fact of the intestate’s solvency during his said residence was left in doubt, so that the jury should be unable to say from the evidence, whether he was solvent and able ter pay or the contrary, then, as it was for the plaintiff to-shew the insolvency affirmatively, the defendant was entitled to the benefit of the doubt, and the jury should find for the defendant on his said plea. 3dly,That, if the evidence did not shew to the jury a continued inability in the said intestate to pay, from the 21st of August 1811, till his death, the presumption of payment remained, and the jury should find for the defendant on his said plea.— 4thly, That, if the jury believed the witnesses for the defendant instead of those-for the plaintiff, and found the solvency and ability of the said intestate to be as stated-by the said witnesses for the defendant, then the presumption of pay. ment was not repelled, and they should find for the defendant on his said plea. Stilly, That, in passing upon the plea of payment, the jury were not at liberty to consider the residence of the parties, that is to say, that of the plaintiff in Virginia1 and that of the intestate in Mississippi, as repelling the presumption of payment or as affording any evidence tending to repel the same.</p> <p>The Court declined to-give these instructions as prayed for, but instructed the jury, that whenever a bond like the one before them had- continued to lie for twenty years or more after it fell due, the law declared it should thereafter lie under a presumption of payment — that the jury, therefore, in investigating the case, should begin by assumingthe legal position, that the bond in question is paid, and then proceed to enquire whether there is proof sufficient to satisfy them that it is not paid? that it would be erroneous for the Jury to consider the case upon the point of enquiry, whether there is proof of payment in the defence; that the to entitle himself to recover, must make out, as a part of his case, not only that the bond was executed, but that it remains unpaid; that proof of the negative was an active duty, which the law cast Upon the plaintiff, and, if he had not performed that duty, he had not entitled himself to the verdict of the jury. The jury were then directed to consider the whole testimony, and determine, whether the presumption oí fact, that the bond was paid, had been disproved or rebutted— whether the proofs with regard to the pecuniary embarrassments of the defendant’s intestate and the distance of his separation from the plaintiff, taken together, were sufficient to satisfy them, that the said obligor could not, and in point of fact did not, pay the bond. If theproof be sufficient and the jury be satisfied, that the presumption already explained has been repelled, there should be a verdiet for the'plaintiff; otherwise, if the jury be not satisfied, the presumption which the law raises must have its effect, and the verdict should be for the defendant. The jury were informed in conclusion, that the Court could not say there was no prdoftending to shew that the bond was not paid. There was believed to be some proof (such as that already mentioned) bearing upon this point, and it was submitted to them. Whether it be sufficient for the purpose was a question for the decision of the jury.</p> <p>The Jury found a verdict for the plaintiff, and judgment being rendered thereon, the defendant appealed.</p>

This was an action of Trespass, in which the jury found a verdict for the plaintiff, subject to the opinion of the court upon the following case reserved.

<p>Where an appeal from a Superior to the Supreme Court has not been filed in proper time, a certim-ari will not be granted, unless it be applied for at the term when the appeal should have been filed.</p>

This was an action instituted by the relator against the defendant Magness, as a constable for the year 1838, and the other defendants as the sureties on his bond for that year; and the breach assigned was the failure of the constable to collect a debt placed in his hands for collection.

The indictment in this case was found in Burke Superior Court of Law at Fall Term 1843, and charged, that the defendant “being an evil disposed person and wickedly designing and intending to cheat one Joseph Curtis, on the 15th day of May, 1843, with force and arms in the County aforesaid, did knowingly and designedly by means of a false'token, to wit, by means of a counterfeit ten cent piece, which the said Alexander well knew to be counterfeit, then and'there obtain from…

, This was an indictment against the defendants for assault and battery in shooting the prosecutor’s slave. The offence was committed in what is still the Comity of Anson, and the defendants both lived in what is now the Comity of Union. The indictment was found at Spring Term, 1843. At Fall Teim, 1843, the defendants moved to have the cause removed to the Superior Court of Union Coimty, according to the act of Assembly constituting a Superior Court of law in that comity.

The defendant was tried and convicted upon the following indictment, viz: State of North Carolina, Bertie County, Superior Court of Law, Spring Term, 1844.

This was an action on the case against the defendant, who was the Sheriff of Yancy County.

<p>A master cannot be made liable for work dono for his slave and money lent to his slave.</p> <p>A general licence, by the master to his slave to make bargains for work to be done only for the benefit of the slave, or a licence for the slave to borrow money on his own account, will not render the master a debtor to a person, who should be so inconsiderate as to run up an account with a slave thus licensed.</p>

The defendants were tried upon the following indictment, to wit : “ North Carolina, ) { Superior Court of Law, Wilkes county, > S ‘ { Spring Term, 1844.

This was an action of assumpsit for the price of 280 logs of timber sold and delivered. The evidence was, that in May, 1842, Thompson, who was the agent of the defendant at his saw-mill in Edenton, and was engaged in buying timber on the Roanoke and elsewhere, came to the plaintiff’s landing on the river about eight miles above Plymouth, and offered to buy 280 logs then lying at the landing. Thompson measured the timber, marking each log, and offered $>5 SO per hundred.

This was an action of assumpsit on a parol warranty of soundness in the sale of a negro, of the name of Matthias. The unsoundness of the negro was proved.

. Appeal from the Superior Court of Law of Burke County, at Spring Term, 1844, his Honor Judge Settle presiding. This was a proceeding to charge the defendant as the father of a bastard child of one Eliza Justis. The examination of the mother, as returned by the magistrates, did not purport to have been taken within three years- from the birth of the child ; and on that ground the defendant, on the return of the proceedings, moved the County Court to quash them.

This was a proceeding to charge the defendant, as father of a bastard child of one Susannah Justis. The examination of the mother did not purport to have been on oath, nor to have been taken within three years after the birth of the child. The defendant was bound to the Comity Court; and he appeared and moved that the proceedings should be quashed.

<p>A person is indictable for buying from' of selling to a slave, on his own account, even if the owner of the slave has given his permission for that purpose, unless that permission be in writing.</p> <p>An authority cannot be given by any person to the slave of another to sell an article, though that article be the property of the person giving the permission.</p> <p>Where an indictment charges both a selling by a slave and a selling to a slave in the same count, advantage cannot be taken of this, though not strictly proper, by a motion in arrest of judgment: After trial, at least, such a defect in form is cured by our Statute of amendment, Rev. Stat. c- 35. s. 13.</p>

This was an action of trover brought to recover a horse. On the trial it was proved, that a man by the name of Step, indebted to the plaintiffs, conveyed to them, by a deed of sale, the horse in dispute. This deed, though absolute on its face, was accompanied by a parol agreement, giving to the gapj gtep a right t0 redeem the horse.

This was an action of assumpsit. The declaration contained two counts. First, on a special promise and undertaking, that, in consideration the plaintiff would trust and confide to the defendant’s care a note for $80 against one New-land, lie, the defendant, would use ordinary diligence in collecting and paying OYer the same; whereupon the said note was put into his hands for collection, and he had failed, through gross negligence, to collect and pay OYer the same.

<p>Appeal from the Superior Court of Law of Perquimons County at Spring Term, 1844, his Honor Judge Bailey presiding.-</p> <p>This was an action of debt upon an administration bond executed by the defendant John Norcom and the other defendants as his sureties for his administration on the estate o£ -yyjjyam Long; dee’d, the execution of which was admitted, The breach assigned was the failure to pay the relators their respective distributive shares. The evidence established the following case. In the year 1817, Thomas Long made his will, and bequeathed several slaves to three of his daughters, Mary, Sarah and Harriet and to the child or children with which his wife was supposed to be pregnant, to be divided among them when his daughter Sarah arrived to the age of sixteen years. Sarah did arrive to the age of sixteen years, and the slaves were divided among the legatees agreeably to the- testators will. William, the defendant’s intestate and the son who was- in ventre sa mere at the date of the will, afterwards died without issue, leaving brothers and sisters surviving him, the children of the testator. The two relators in this suit are the children of a brother and sister of 'William Long, the defendant’s intestate, who died before him. The testator, Thomas Long, by his will made the following limitation of the property bequeathed as above: “ And if either of my daughters or the child which my wife now appears pregnant with, as aforesaid, should die after the division, without lawful issue, it is my will that such part should be equally divided between my wife and my surviving children,” The question, before the Court was, whether the two relators were entitled to have any portion of the staves, which their miele William derived from father under the above bequest. The Judge was of opinion that they were not entitled to any part of the said slaves.</p> <p>The jury under the instructions of his HoNon rendered a verdict for the defendants, and judgment being given accordingly, the plaintiff appealed.</p>

<p>Mutual promises constitute a good consideration for a contract.</p> <p>In general a mere agent, who makes a contract in behalf of another, cannot maintain an action thereon in his own name, either at law or in equity.</p> <p>But where the agent, who makes a contract, has a beneficial interest in its performance for commissions, &c. as in the case of a factor, a broker or auctioneer, or a captain of a ship for freight,' he may sustain an action in his own name, although the principal or owner might sue in his own name.</p> <p>The consent of the principal or owner is not necessary to enable the agent, in those cases, to sue in his own name: it is implied from the nature of the agency.</p> <p>Tho case of Surlburt v Simpson, 3 Ired. 236, cited and approved.</p>

This was an action brought by the plaintiffs, as the endor-sees and holders of a bill of exchange, payable to the defendant, Williamson, and by him endorsed to Roane and by… Held: that the plaintiffs could not recover in this action, without filling up the endorsements, so as to shew on the bill a title to it in the plaintiffs; and the plaintiffs, insisting that they were entitled to recover without filling up the endorsements, ° declined to do so, and, in submission to the

This was an action of debt on a bond for $297, in which the pleas were, non est factum and usury. Upon the issues the jury gave a verdict for the plaintiff, and assessed his damages by way of interest to $32,62. The defendants moved the Court for a hew trial, which was refused; and there was then judgment for the plaintiff for his debt ahd damages as aforesaid, and the defendants appealed therefrom.

This was an action on the case, in which the plaintiff declared in two counts; 1st. Trover in taking and converting two horses,abridle andsadle; 2dly.

This was an action brought upon a bond, given by the defendant, Wiggins, as a constable for the County of Gran-ville, the other defendants being his sureties in the said bond.

This was an action of detinue to recover three slaves, to wit, Ann, Mary and her child Henry.

This was an action of debt upon a bond, dated the 10th of Feb. 1837,. Plea, Payment.

In this case the defendant had been arrested on a ca. sa., at the instance of the plaintiff, on the 15th of February, 1842, and gave bond for his appearance at the County Court of Randolph at February Term, 1842. The defendant, on the 18th of April, 1842, filed his schedule in the office of the Clerk of the County Court aforesaid, which schedule was dated on the 1st day of April, 1842.

This Avas an action of debt upon a bond, with a condition. The following case agreed was submitted to the Court. William M. Watt, the defendant, on the 24th of May, 1842, executed to the plaintiff the obligation declared on.

This was an action of ejectment, commenced on the 19th of November, 1842. On the trial the plaintiff gave in evidence an instrument executed by the lessor of the plaintiff, in these words: “I have this day agreed with Rhoderick McIntosh to let, him occupy the house now in his occupancy on my lot at the rate of fourteen dollars per annum, rent to commence on the 26th of October 1841, he having settled with me for the rent up to that time.

<p>An action for the penalty under the statute against usury cannot be supported, unless the usurious interest, or some portion of it, has been actually received, either in money or money’s worth.</p> <p>A. loaned a sum of money to B. at usurious interest, and to secure the payment B. conveyed to a trustee a house and lot worth more at the time than the money borrowed and the usurious interest: afterwards the property was sold by the trustee at public auction and purchased by A. who gave for it what was then its fair value, but, owing to the depreciation of the property, the sum for which it sold did not amount to the principal of A.’s debt. Held that A. was not liable to the penalty under the Statute against usury.</p> <p>The case of ELrmghaus v Ford, 3 Ired. 528, cited and approved.</p>

This was an action of trover for a gold watch. The evidence was as follows: The defendant was the widow of the plaintiff’s intestate N. N. Southall. It was in proof that the said N. N. Southall was an innkeeper in the town of Henderson ; that his circumstances were limited, but he was in good credit, until shortly before his death; and that he did not leave property sufficient to pay his debts.

The defendant was indicted for obstructing a public road by erecting and keeping across it a gate, without a licence from the County Court.- On not guilty pleaded, the jury found a special verdict: That a former owner of the land,through which the road passes, erected the gate in qestion ; that, four years before the bill was found, that person sold and conveyed the land to the defendant, with the gate then standing; that the defendant did not at any time actually enter into…

This was an indictment for a forcible trespass at common law.

<p>The occupation of pine land, by annually making turpentine on it, is such an actual possession, as will oust a constructive' possession by one, claiming merely under a superior paper title.</p> <p>Where the extent of a wrong-doer’s possession is so limited as to afford a fair presumption, that the party mistook his boundaries, or did not intend to set up a claim within the deed of the other party; it would be a proper ground for saying, that he had not the possession, or that it was not adverse. But it is otherwise, where the possession was wilful, open and notorious.</p> <p>The entry of an owner upon a trespasser will enable the former to maintain trespass; but it must bo an entry for the purpose of taking possession, which may be evinced by acts of ownership on the land asploughing it or the like, or by a formal declaration of the intention accompanying the entry.</p> <p>But although such entry be made, yet if the wrong doer continue his possession, the deed of the owner, not being made on the land and such adverse possession continuing, is not valid to pass a title to the land.</p> <p>The cases of Carien v Burnett, 1 Dev. & Bat. 546, Green v Harman, 4 Dev, 158, and Carrv Carr, 4 Dev. & Bat. 179, cited and approved.</p>

Term 1844,. his Honor Judge Manly presiding. The indictment, under which the defendant was tried, was for the obstruction of a- public highway, by the erection of a gate across it. The evidence in the case was, that the defendant had erected a gate across the road, as laid in the bill of indictment, about 9 or 10 years before the commencement of the prosecution, and that this obstruction had continued to the time of the prosecution.

<p>Appeal from the Superior Court 'of Law of Hertford County, at Spring Term, 1844, his Honor Judge Bailey presiding.</p> <p>This was an action of assumpsit. The evidence was that the plaintiff, the defendant and several other persons were present at the sale of a house and lot in Murfresborough belonging to one George Spiers,- sold by virtue of an execution at the instance of the defendant, tested November Term 1842. The plaintiff stated, in the presence and hearing of the persons attending the sale, that he had a claim upon the house and lot by virtue of a deed in trust, executed by George Spiers, the defendant in the execution, conveying to biin the house and lot in trust to pay, amdng other one to himself for sixty five dollars, and unless the purchaser, whoever he might be, would agree to pay him the amount of his debt so secured by the deed in trust, he would forbid the sale. Mr. L. M. Cowper then stated, that it was true that Jordan, the present plaintiff, held a deed in trust, securing to him a debt which Spiers owed him of about sixty five dollars. The plaintiff said further that if the purchaser would pay his claim upon the land he would make no objection to the sale. A witness testified that the plaintiff and the defendant got together and had a conversation, but he did not hear what it was. Several witnesses testified that they understood, and they supposed all present understood, that the purchaser was to pay the plaintiff’s claim under the trust. It was proved that George Spiers’ interest in the house and lot was sold by the Sheriffj that the defendant became the purchaser for the sum of seven hundred and thirty five dollars, and that this amount was entered as a satisfaction on the execution. The plaintiff, having released George Spiers, at the last Term, his debtor, introduced him as a witness. He stated that he had executed the deed in trust, and was indebted to the plaintiff the sum of sixty five dollars therein mentioned. The deed of trust was then offered in evidence. It bore date the 25th day of November, 1830, was proved on the 5th of March 1831, was deposited with the Register on the 25th of May 1831, as appears by his endorsement on the deed, and was transcribed in the Register’s books on the 30th of May 1831. Mr. Spiers stated, that he had given a deed in trust before, conveying the same property to secure the same debt, but did not know what had become of it, but after the burning of the Court house and records of Hertford County, he was called upon to give another, and he executed the deed just exhibited.</p> <p>The defendant contended, that no contract was made between the plaintiff and himself and that there was no evidence of such a contract — that if there was a contract, it was not binding, because there was no consideration to support it — that, if there was any promise, it was a promise to pay debt, default or miscarriage of another, and was void because «ot reduced to writing — and, if these points were against him, the defendant contended, that, the plaintiff having released the debt of George Spiers during the pendency of this suit, and this having been pleaded since the last continuance, the action could not be now maintained.</p> <p>. The Court charged the jury, that what occurred immediately prior to the sale was for them to consider — that there was some evidence of a contract between the parties to this suit — and that, if they were satisfied that the defendant expressly or impliedly promised the plaintiff to pay him $65, if he would not forbid the sale, and the plaintiff had a deed tor the same land and Spiers was justly indebted to him the amount mentioned, and that the plaintiff did not forbid the sale nor make any objection thereto in consequence of this understanding, there was in law a sufficient consideration to support the promise — that this was not one of those cases embraced in the statute of frauds, which provides that “ no action shall be brought to charge the defendant upon special promise to answer the debt, default or miscarriage of another person, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party charged therewith, or some other person thereunto by him lawfully authorized ”— and that the release given by the plaintiff to his debtor, George Spiers, would not prevent the plaintiff’s recovery.</p> <p>The jury found a verdict for the plaintiff, and a new trial being refused and judgment rendered pursuant to the verdict, the defendant appealed.</p> <p>contended 1st, That as the jury had found there was a contract and some evidence to that effect had been offered, this Court could not grant a new trial on the ground that there was no contract. 2dly, That the consideration was sufficient. If the slightest benefit he conferred on the defendant by the plaintiff^ or if the plaintiff sustain tbe least injury, inconvenience or detriment, or subject himself to any obligation, even without beneñíting the defendant or any other person, the consideration is sufficient, Cliitt. on Cont. 7. The deed in trust to the plaintiff was good.</p> <p>Having been handed to the Register within sis months after’ its execution, it was in law then registered. McKinnon v McLean, 2 Dev.' & Bat. 79. But if the deed were void for want of registration, the promise is binding, as the compromise of a doubtful right is a good consideration. The agreement benefited the defendant by causing the property to sell for a fair price, the title being then undisputed,- and the sale bound the plaintiff in a Court of Equity. It would be a fraud in him to assert his legal title after assenting to the sale, which operated as an equitable estoppel as to him. Sug. Law of Vend. 522. Roberts on conveyances 528, and cases there cited. Jones v Sasser, 1 'Dev. & Bat. 452. Sas-ser v Jones, 3 Ired. Eq. 19. Thirdly, to shew that the contract was not within the Statute of Frauds, he cited Williams v Leper, 3 Bar. 1886. Cooper v Chambers, 4 Dev. 261. Farley v Cleveland, 4 Co wen, 4391. Leonard v Vredenburgh, 8 Johns. 29. Myers v Moore, 15 Johns. 425. Ohnslead v Greely, 18 Johns. 12. Ellwood v Monfc, 5 Wend. 235. Mareen v Mack, 10 Wend. 461.</p>

This was an action commenced by warrant before a justice of the peace, under the Act of Assembly, to recover money, which it was alleged the defendant, Jones, as a constable of the County of Gates, had collected upon a claim, which the plaintiff had given him to collect. The suit was against Jones and the sureties on his bond.

This was the case of a certiorari. At July Term, 1843, of Martin County Court, Watts recovered a judgment against Boyle in an action of debt, for $394 61 principal money and $9 07 for damages and costs of suit. From that term he sued out a writ intended to be a ca. sa., but which, instead of being “ to satisfy,” used the words u then and there to render to the said Watts ” the sums recovered as aforesaid.

This was an issue Devisavit vel non. The plaintiff propounded the paper writing offered in evidence as the last will and testament of Joseph Dean.

County at Spring Term, 1844, his Honor Judge Pearson presiding. This was a suit against the defendant, as administrator of Ray Helme, to recover a balance due on a bond of the intestate, commenced by warrant from a justice of the peace on the 10th of June, 1837. On the return of the warrant, the trial was postponed, at the instance of the defendant for nine months from the 4th Monday of November, 1836, which was the time at which the defendant administered.

This was an action of ejectment. The lessors of the plaintiff shewed two judgments, against the defendant, which had been recovered before a justice of the peace, one for the sum of $75 and the other for the sum of $80, upon which executions issued, dated the 25th April, 1843, which, for the want of personal property, were levied on that day on 'the lands described in the plaintiff’s declaration by the of-fleer who served the warrants.

This was an action of debt upon a bond, executed by the defendants, as sureties for one Keener as a constable for the County of Lincoln.

<p>Appeal from the Superior Court of Law of Gates County at Spring Term. 1844-, his Honor Judge Bailey presiding.</p> <p>• This was an action of ejectment. The plaintiff deduced a title from the State to one Drew Welch. He then shewed a judgment in Gates County Court at the instance of Pierce & Co. against the said Drew Welch, an execution thereon levied on the land described in the plaintiff’s declaration, and the Sheriff’s deed therefor to the lessor of the plaintiff as the purchaser at the execution sale. The defendant offered in evidence a deed of trust, executed by the said Welch, by which he conveyed all his property, including the said land, to a trustee for the benefit of certain creditors. The deed of trust was executed, duly proved before the clerk, and handed over to the person acting as register of Gates County and actually transcribed by him upon the books of the register’s office of Gates County, several months before the rendition of the judgment above-mentioned. He also proved that the trustee sold the premises in dispute, by virtue of the said deed of trust and that they were purchased by the defendant. The plaintiff then offered in evidence the records of the County Court of Gates, from which it appeared that, at May Term 1829, a majority of the justices being then on the bench, the following order was made in relation to the appointment of a register, to wit, “John Walton, Esquire, was declared to be elected Public Register for the County of Gates. Ordered that he enter into bond with surteies as the law directs.” It also appeared that Walton at that term entered into bond as register of the said Comity Avith sufficient sureties. The records furnish no other evidence of his qualification as register. At May Term 1.836, four justices being on the bench, the following -order was made, to wit, “Ordered that John Walton renew his bond as register for this County, agreeably to law, and give H. Bond and T. Walton for securities.” And-it appeared that Walton at that term entered into bond as register with the required sureties. It was proved on the part of the defendant, that the said Walton had discharged all the duties of register of the said County from the time of his first appointment in 1829 up to the present time, and that he had in every respect acted as register since his original appointment, and that no other person had been engaged in the discharge of the duties of that office.</p> <p>Walton was the person who registered the deed of trust.</p> <p>Upon this evidence, it was insisted on the part of the plaintiff, Frst, That the appointment of Walton terminated at the expiration of four years from his original appointment, by virtue of the Act of Assembly applicable to such cases, and that all his acts, since the expiration of his official term under the original appointment were wholly void; and that, therefore, the deed of trust had never been duly registered, and of course no estate passed to the trustee. Secondly; It did not appear from the records that Walton took the oaths prescribed by law for his qualification as register, and therefore he could not legally enter upon the discharge of the duties of the office.</p> <p>The defendant insisted that Walton Avas duly appointed register, and by the virtue of his appointment in 1829 and his giving bonds, he Avas invested with the office, that his acts as register were valid, until the office Avas declared to be. vacant by judicial proceedings properly instituted for that purpose; and that, being recognized as the officer and engaged -in the discharge of the actual duties of the office, he was the register de facto, and his official acts could not be treate<^ as nullities in any proceedings, by which their validity was questioned incidentally.</p> <p>His Honou ruled, that Walton had a vilid appointment under the order of the County Court of Gates at May Term 1839, and that it was not necessary the record should shew that he had taken tile prescribed official oaths: blit that this appointment expired by limitation of law at the termination of four years from the time it was made; and that, without a new appointment, according to the Act of Assembly, which would be valid itself, all his official acts were null and void; that, as no valid appointment of Walton to the office of register had been made since 1839, the deed of trust, under which the defendant claimed, had not been registered, when the lessor of the plaintiff obtained title.</p> <p>Under these instructions, the jury returned a verdict for the lessor of the plaintiff and the Court rendered judgment accordingly, from which the defendant appealed.</p>

This was an action of assumpsit to recover back money, alleged to have been improperly paid to the Company by the plaintiffs.

<p>Appeal from the Superior Court of Law of Surry county, at the Spring Term, 1844, his Honor Judge Battle presiding.</p> <p>This was an action of assumpsit, brought to recover from the dejendant his proportional part of a sum paid by the plaintiff, as a co-surety for one Shelton. Besides the plaintiff and defendant, three other persons were sureties for the said Shelton, all of whom, as well as the estate of Shelton, were insolvent when this suit was commenced. A suit had been brought, and judgment obtained by the Bank of Cape Fear, against the principal and all the sureties, and a fi.fa. issued thereon had been levied on certain real estate of the principal, but returned without a sale; whereupon, from the same term, to which this fi.fa. was returnable, a venditioni exponas was issued, commanding a sale of the said property. After the teste and before the term to which the fi.fa. was returnable, Shelton, the defendant in the execution, died. The venditioni, under which the land was sold, was tested after the death of Shelton, and no scire facias had issued against his heirs, though there had been no intermission in the series of executions. This execution was in the hands of the plaintiff in this suit, who was then the deputy sheriff, and who also had in his hands an execution against the same defendant in favor of one Humphreys, of a leste later than that of the original fi.fa. above spoken of but prior to the venditioni exponas, under which the land was sold. The agent of the said Humphreys bid off the tract of land, at the sale under the venditioni for the sum of g>380, and claimed to have that bid applied to the satisfaction of his execution. This was objected to by the plaintiff, Samuel, but, on a reference of the matter to counsel and their advice, it was agreed to. The agent of Humphreys, however, having-ascertained that the land was not worth the amount oí his bid, agreed to assign it to the plaintiff, Samuel, for the sum of f>150, which was accordingly done; and no part of the price of this land was applied to the payment of the execution, in which the present plaintiff and defendant were interested. It was not shewn whether a credit for the price of the said land had been given on Humphrey’s execution, or that satisfaction had been entered thereon.</p> <p>The defendant’s counsel contended, that the execution against Shelton and the present plaintiff and the defendant and others was entitled to a' credit for the whole, or at least a part, of the price of this land. But the court instructed the jury, that the sale of the land was void, and, if it were not, the appropriation of it by th&-plaintiff, Samuel, as deputy sheriff, to the Humphreys’ execution, could not be objected to by the present defendant in this action, and that the present plaintiff, having in fact paid the execution out of his own money, was entitled to receive his proportional part from the defendant. The counsel then objected, that the plaintiff could only recover a fifth part of what he had paid, that be-*ng his aliquot proportion according to the number of sureties; but the court held, that, as the other co-sureties wdre insolvent, he could recover one half. The jury, under these instructions, found a verdict for the plaintiff for one half of the amount he had paid. Judgment being rendered pursu* ant to this verdict, the defendant appealed.</p>

<p>Appeal from the Superior Court of Law of Wayne county, at Fall Term, 1843, his Honor Judge .PearsoN, presiding.</p> <p>This was a motion to vacate a judgment, rendered upon a scire facias to charge real estate, and to set aside an execution issuing thereon, under which a sale had been made. The facts as they appeared before the court, were these:</p> <p>John Newsom became the guardian of his three children, Charity, Penelope and Sarah, and, after receiving personal effects of his wards, died intestate, seized of a tract of land, which descended to those three children and eight others, whom he left surviving him. One Theophilus T. Sims administered on the estate of John Newsom ; and a petition was filed against him by Charity, Penelope and Sarah New-som> succeeding guardian and prochein ami, Wil-liarn Barnes, for an account and payment of the moneys reCeived for them by their late father and former guardian. The administrator put in his answer, and therein denied, that he had assets of the intestate. Upon the hearing a reference was made to the clerk, to take the accounts involved in the cause; and he found that the sum of $1945 94 was due to the petitioners for a legacy to them, which their late guardian had received, and that the defendant Sims, had fully administered all the assets left by his intestate, and had no assets to pay any part of the sum - so reported to be due to the plaintiffs. The report was confirmed ; and a decree made, that the plaintiffs recover the said sum and the costs of suit out of the real estate of the defendant, John Newsom, that descended to his heirs at law. Thereupon a scire facias was sued out on the decree in the name of Chanty, Penelope and Sarah Newsom, as plaintiffs, against the said Charity, Penelope and Sarah, and their eight brothers and sisters, naming them, (infants;) which recited that the plaintiffs had recovered against the administrator, T. T. Sims, the sum of $1945 94, and the further sum of $15 85 for costs, whereof the said T. T. Sims, administrator ns aforesaid, is convicted as appears of record, and also recites,11 that it was suggested by the said defendant, T. T. Sims, administrator as aforesaid, that he had fully administered, so that execution of. the debt and costs could not be had against the personal estate, that was of the said John Newsom, lately deceased, and that it was also suggested that the said John Newsom died seized of lands sufficient to satisfy the said sums of money, which descended to the said Charity, Penelope and Sarah, and the eight other children (who are named,) and that the said Charity, Penelope and Sarah Newsom, by their next friend, William Barnes, had solicited some fit remedy in this belief;” and thereupon it commands the sheriff to make known to the said heirs at law to appear &c. to shew cause &c,, wherefore the said plaintiffs should not have execution of the said debt and costs against theaforesaid real estate descended asaforesiad &c.</p> <p>The scire facias was made known and returned j and “judgment was entered according to scire facias for $1945 94, with interest from 20th August, 1840, until paid.” Thereupon an execution was issued, returnable to February Term, 1842, which begins by reciting, that, “whereas William Barnes, guardian, to the use of Lary Newsom, lately in our court <fcc. recovered against Theophilus T. Sims, administrator of John Newsom, deceased, the sum of &c., and it being suggested that the said administrator had fully administered and had no assets, so that execution could not be had of the personal estate of the said John, dec’d, and whereas a writ of seire facias did issue from our said court, commanding the said sheriff to make known to Charity New-som, Penelope Newsom, Sarah Newsom (and the eight others named) heirs at law of the said John Newsom, deceased, that they should appear &e. and shew cause wherefore William Barnes, Guardian, should not have execution against the lands of the said deceased, to satisfy the said judgment and costs j which said writ was duly returned, made known : and whereas the said heirs failed to appear and shew cause as aforesaid, and judgment having been given against the said heirs : These are therefore to command you, that of the lands and tenements of the said John New-som, deceased, you cause to be made the aforesaid sums of &c. and have you the said moneys before &c. then and there to render to the said his debt and costs aforesaid. Herein &e.” Under the foregoing process the sheriff sold the land that descended from John New-som to all his children, and it was purchased, at a price which satisfied the debt and interest, by one Lary Newsom, who claimed to be the assignee of the judgment; and the sheriff returned the execution satisfied thereby. At February Term, 1842, a rule was obtained on William Barnes and Lary Newsom to shew cause, why the execution should not be set aside and the judgment vacated ; which at the next term was made absolute, and thereupon Lary Newsom was ordered, upon pain of attachment, to pay immediately to the defendants in the execution the said sum for which ^an<^ so'^' From that order Lary Newsom appealed to the Superior Court.</p> <p>jn the Superior Court, in support of the motion to vacate the judgment and set aside the execution, it was insisted, First, that the defendants in the scire facias, being infants, should have appeared by guardian, whereas the judgment was rendered by default, dr upon plea by an attorney, they having no guardian. Secondly; That the whole proceedings were irregular and void, inasmuch as the plaintiffs, Penelope, Charity and Sarah were also defendants and sued themselves. Thirdly; that the sci.fa. proceeding was irregular and void, being based upon a decree of the County Court, acting as a Court of Equity, and because it does not set forth that it had been proved that the administrator had fully administered, but merely that he so suggested. It was insisted in support of*the motion to set aside the execution; First, That it is irregular and void, being issued before the expiration of one year Secondly ; That the execution does not conform to the judgment, as it directs a sale of the land of John Newsom, instead of the lands of John New-som in the hands of his heirs. In opposition to these motions, it was contended, (hat, although the proceedings might be informal and erroneous, still .they were not void and of no effect; and could not be set aside in this summary way, but only by writ of error.</p> <p>Upon the first question his Honor was of opinion, that a judgment against an infant by default or upon appearance and plea by attorney, although voidable, was not void; for, if void, either party might treat it as a nullity, whereas the infant alone is permitted to complain, and this by writ of error. Upon the second question, the Court was of opinion, that the proceeding by sci. fa. being the only remedy for a creditor to subject real estate, it was not irregular for one of the heirs, being a creditor, to issue the proceedings against himself and the other heirs. The debt had been established in the suit against the administrator. This was an application to charge the real estate. If it was suggested that the administrator had not fully administered, then. the administrator was brought in as a party on one side, all the heirs being parties on the other and all equally en- • i , ' . . , , , , , , . titiecl to a portion of the real estate and to charge the administrator. Upon the third question, his Honor was of opinion that a decree or judgment against the administaator in the County Court, although entered upon petition and the proceedings thereon, as provided by Act of Assembly giving that Court jurisdiction in cases of filial portions, &c., and not by suit on the guardian bond, was still the judgment.of a Court of Law, and the remedy by sci. fa. was not irregular and void. His Honor was also of opinion, that as the scire facias recited the judgment against the administrator and stated the fact that execution of the debt and costs could not be had out of the personal estate, the omission to state, that upon a reference to the-clerk, the fact of fully administered had been established, although it rendered the proceeding informal, yet it did not make it void. For these reasons his Honor refused the motion to vacate the judgment.</p> <p>Upon the first question in relation to the execution, his HoNor was of opinion, that execution could properly issue, when one of the heirs was of full age, within the twelve months. Upon the other question he was of opinion, that, although the execution was informal in directing a sale of the lands of John Newsom, dec’d. and perhaps the sheriff might have been justified in returning that John Newsom had no lands, yet from the whole execution it was clear, that the lands mentioned were the lands of John Newsom in the hands of his heirs, and that this informality did not render the execution void. The two motions were therefore refús-' ed, and the plaintiffs appealed to the Supreme Court.</p> <p>in support of the motions, contended, First; That the judgment was void, because the plaintiffs are also defendants in. the scire facias and in the judgment rendered thereon. Pearson v dfeshit, 1 Dev. 31-5,, Secondly, The judgment was void, because the sci. fa. ^oes not set ^01'^ suc^ a judgment as gave the Court juris-diction over the hand — it does not shew “a finding of fully a<jministere(j)) by the administrator ; and unless such a judgment is shewn, according to the Act of 1784, Rev. Stat. c. 63 sec. 1, the Court has no power to act. It is only a judgment against the administrator and not against the lands. The sci. fa. can only issue on a judgment virtually against the lands — for, until the act of ¿1784, there was no provision for the creditor, on the decease of the debtor, against the land. Barrow v Arrerdon, 1 Ired. Rep. 223. Pellijohn v Beasley, 1 Dev. & Bat. 254. Thirdly, the judgment Avas void, because a sci. fa. will not lie upon a decree, but only upon a judgment at laAv. Jeffreys v Farborough, 1 Dev. Eq. 506. Fourthly, if the judgment Avas not void, the execution was, because not Avarranted by the judgment. Fifthly, the execution Avas irregular, because it issued before the expiration of twelve months, and Avas levied upon the lands of the minors and they Avere sold. If the execution could have issued against the lands of the adult heirs, according to the case of the Bank of .Wewbern v Stanly, 2 Dev. 476, yet here the only adult heirs were the plaintiffs in the execution — as to them it was void — and it was only an execution against the present plaintiffs, A ho Avere all minors. If the execution could have rightfully issued against them, yet the 11th section of the 63d chapter of the Revised Statutes prohibits. a levy upon the lands of minors, until after the expiration of twelve months from the judgment.</p> <p>insisted, that the judgment was not void, because the court had jurisdiction of the subject matter. Judgments are set aside on motion, only Avhen the Court transends its poAver or where a mere office judgment is entered up, contrary to the course of the Court. That it is rendered by default against infant heirs is only ground of error, but does not make the judgment null-. Jennings v Stafford, 1 Ired. 404. While v Albertson, 3 Dev. 142. Oxley v Mi&lc, 3 Murph. 251. 2 Bac.'ab. Let. a. p. 450. Pettiyolin v Beasley, 1 Dev. & Bat. 256. Whitley v Black, 2 Hawks 179. Upon the sci. fa. against heirs, devisess &c. they must all be made parties defendant, for where land is chargeable by any lien, the charge ought to be equal, and one alone shall not bear the burthen. Harbert’s case, 3 Co. 12. 24. Here hy our Act. Rev. Stat. ch. 63, where any person shall die seized of any lands and shall be indebted &c. all the lands, of which he died seized, shall be liable &c. The lien is in the nature of a statute staple or statute merchant. In this case there is no other mode of subjecting the lands, but under the Act of Assembly. That the parties, plaintiffs in the sci. fa. notified themselves, is no ground of complaint by the present plaintiffs. They sustained no injury thereby, nor were they prevented from shewing cause, under the sci. fa., why the lands descended should not be sold. Indeed the controversy had been settled hi the prior proceeding against the administrator. ¡Sanders v Sanders, 2 Dev. Eq. 262. The execution must necessarily conform to the judgment, and be issued against all the defendants, as well infants as adults. The Act of Assembly is only directory to the Sheriff to forbear levying on the estate of the infants, but if he does levy and sell, the purchaser is not responsible for his omission, or for the irregularity in the preliminary proceedings. Bank of Newbern v Stanly, 2 Dev. 476. Dobson v Murphy, 1 Dev. & Bat. 596. Ejectment is the proper remedy for the plaintiffs in this motion. In that action the validity of the judgment and execution would come directly in controversy.</p>

<p>a prosecutor) on a charge of larceny, has reasonable grounds, at the time he institutes the prosecution, to believe that his goods have been stolen, he is not liable to an action on the case for malicious prosecution, though he may have discovered, after the time the prosecution was commenced, that his goods had not in fact been taken out of his possession, but had been accidentally mislaid.</p> <p>A search by a store keeper, who supposed his goods to have been stolen, for the purpose of ascertaining whether his goods were missing, need be only such a search as might reasonably satisfy him of the fact. The law does uot require the utmost diligence in making such a search.</p> <p>The same case, 3 Ired. 289, cited and approved.</p>

This was an action on the case, for malicious prosecution. The evidence was precisely the same’as in the preceding case of Antoinette Swaim against the same defendant,-except that no witness stated that the present plaintiff was seen with- any ribbon in- her hand while in the store of the defendant.

<p>Appeal from the Superior Court of Law of Martin County, at Fall Term 1843, his Honor Judge Bailey presiding.</p> <p>The defendant was tried upon the following indictment; to wit, “The jurors for the State upon their oath present, That Joseph J. Williams, late of Martin, being a common Sabbath breaker and profaner of the Lord’s day. commonly called Sunday, at and in the county of Martin on the 10th day of July 1842, the said day being Sunday, and on divers other days both before and since the said 10th day of July 1842, which other days were also Sundays, unlawfully, wil-fully and with force and arms, for his own lucre and gain, and not for any charitable purpose or being induced thereto by any supposed necessity, did cause certain men slaves, to wit, Elias, George and Talbot, being the property of him the said Joseph J. Willliams and being then and there under his control to work and labor on the farm of the said Joseph J. Williams in making and putting up enclosures and fences around and about the corn-field and whiskey distillery of him the said Joseph J. Williams to- the common nuisance of the good people of North Carolina and against the peace and dignity of the State.” To This indictment the defendant pleaded not guilty. On the trial, the witness for the State swore, that he was the overseer for the defendant during the years 1841, 1842 and 1843 — that sometime in the year 1842, he, the defendant, having lost some corn and shoats, and suspecting his slaves, including those mentioned in the indict-menf, of stealing the property .or knowing who had stolen it, directed the witness to put them to work on the Sabbath day and continue them at work on the succeeding Sabbath days, until they confessed that they had stolen the property or discovered who were the thieves — that he, the wit. ness, put all the negro men to work on the -Sabbath day and worked them three Sabbaths in succession — that the work consisted in putting up fences round his field and whiskey distillery — that after working them the thirdSabbath, the defendant, discovering who had stolen his property, did not compel them to work any longer. The witness further stated that the negroes did not work the' whole of the days as before mentioned, but commenced work after breakfast and ended about 12 o’clock or dinner time, and that their work, was not of much value to the defendant, and that he did not make them work for'the profit arising therefrom, but asa punishment for not confessing that they had stolen his property or discovering who had done it. It was admitted that the place where the work was done was at such a distance from any public highway, that the laborers could not be seen, by persons passing to and fro.</p> <p>The Judge charged the jury that if they believed the witness introduced on the part of the State, the defendant was gitilty as charged in the bill of indictment. The jury found the defendant guilty and judgment being rendered pursuant thereto, the defendant appealed.</p>

The prisoner was indicted for the wilful murder of one Madison Johnson.

<p>In the caso of a petition to a County Court to permit a party to cut a ditch for the purpose of draining his land through the land of another, the jury alone have the power to decide whether the ditch is needed, how it shall be dug and the damages to.be paid to the owner of the land. The County Court can only direct the verdict to be recorded, or order a new jury.</p> <p>No appeal lies from the decision of the County Court on these matters to the Superior Court.</p> <p>The Superior Court may, however, revise the decision of the County Court, either by writ of error, or by a certiorari in the nature of a writ of error.</p> <p>The case of the Raleigh and Gaston Rail Road Company v Jones, 1 Ired. Rep. 24, cited and approved.</p>

■ Appeal from the Superior Court of Law of Chowan County, at Spring Term 1844, his Honor Judge Bailey presiding.

<p>The facts in this case are as follow: At the last term of this court, a case was brought up, by appeal of the prisoner, from judgment of death, pronounced on a conviction for murder in the Superior Court of Edgecombe. It was decided by the court, and is reported 41red. 113. A certificate .of the decision, that there was no error in the record or in the proceedings on the trial, was, by order of the court, sent to the Superior Court by the clerfe of this court under the seal of the court, according to the last proviso in the sixth section of the act concerning the Supreme Court, Rev. Stat. ch. 33, to the intent that the Superior Court should proceed to judgment agreeably to the.said decision and the laws of the State.</p> <p>At the last term of the Superior Court, the Attorney General moved the court, on the certificate, to pass sentence of death on the prisoner, and order its execution. That was opposed by the prisoner on his affidavit, in which he stated, that he was informed and believed, that, during the last term of the Supreme Court, the Honorable William Gaston, one of the Judges thereof, died before the appeal of the prisoner was finally heard, and that it was decided by the two surviving Judges alone; and that, as he was advised they had no authority in such case to hold the court, and majce the decision. This motion of the Attorney General and this certificate, and this affidavit of theprisbner being thus brought before his Honor Judge Pearson, then presiding in the Superior Court of Edgecombe, he delivered the following opinion and judgment, to wit:</p> <p>The opinion 1 have formed, that the two surviving Judges do not constitute a Supreme Court, with power to hear and determine questions, is formed upon this train of reasoning, which I deem it proper to file as a part of the case, that it may appear I had not differed in opinion without due consideration; for a hasty opinion, under the circumstances, would indicate a want of self-respect, as well as a want of respect for those two gentlemen.</p> <p>By the 6th sec. of “ the act concerning the Supreme Court” £< The Court has power to hear and determine all questions” &c. The enquiry is what constitutes “The Court ?” The 1st section provides for the appointment of three Judges, to be styled Judges of the Supreme Court. The 2d sec. provides that said Judges shall hold a court at Raleigh, twice in every year ; that they shall continue to sit at each term until &c., and that said courtshall be styled the “Supreme Court.” Throughout the act a distinction is made between the Judges of the Court and the Coui't. By the 7th, 10th and 16th sections, the Judges of the Supreme Court have power to appoints clerk, to prescribe rules of practice for the Superior Courts, and to appoint a reporter. By the 6th and 14th sections^The Court has power to hear and determine all questions. — to make amendments and orders.</p> <p>The Court means the three Judges sitting together, consulting and advising one with the others, upon the questions before them for judicial decision. The decision of the court means the joint opinion of the three Judges, so sitting together, or the joint opinion of two aided by the opinion and reasoning of the third, who has set with them. Should the three Judges, severally, without consulting and advising,, form the same opinion, it would be the opinion of the three Judges; but it would not be the opinion of the Court. Should the three sit, consult and advise together, and two cometo a conclusion, after duly considering the opinion and reasoning of the third who differs, it would be the opinion of the Court, although it is not the opinion of the three Judges. The distinction between the three Judges and the Court is not a distinction without a difference. Any one, accustom-to ihe investigation oí legal questions, knows, that in some cases, although three men, when apart, may come to one conclusion, yet the same three, had they been together wilen question was raised, would have come to a different conclusion, and that, in many cases, although two men, when together, come to a conclusion with which they are satisfied, yet if a third man had been present, who entertained a different opinion, the weight of his opinion and reasoning would induce one, it not both, of the other two to give tip their opinion and adopt his. It must be conceded, that the joint opinion of three sitting together is more apt to be correct, than the several opinions of the same three, and the joint opinion of two sitting with a third, who differs, and thereby causes the question to be viewed in all its aspects, is more apt to be correct, than the joint opinion of the same two without the interposition of the third. It is an even chance that such interposition will induce one of the others to change his opinion, and thus the result would be different.</p> <p>When the Legislature gave power to three men to settle the law, it must be presumed to have been the intention, that they should act in the way most apt to result in a correct conclusion : the joint opinion of three is most apt to be correct, it is therefore required. An exception is admitted when one dissents; ex necessitate the opinion of two must be taken ; otherwise there would be no decision, until the constitution of the court is changed,</p> <p>This necessity dees not exist when the third is dead, or absent — as soon as the court is full, a joint opinion may be obtained. No change is required in the constitution of the court, but simply the presence of ali its members. To allow the opinion of two in such cases to settle the law, is a departure from the mode most apt to result in a correct conclusion, without necessity, and without the aid to be expected from the presence of the third, and cannot be consistent with the construction of the act, in the absence of an express provision to that effect. The argument stands thus.</p> <p>The mode most apt to result in a correct conclusion is required . The joint opinion of the three is that mode : from necessity, an exception is made, when one, dissents. Is it logical to extend the exception to cases, where the necessity does not exist, and when there is not the test'of correctness produced by the presence of the third?</p> <p>It belongs to the law-making power to- decide upon the expediency, for the sake oí convenience, of introducing a third set of legal authorities, varying in degree. One set is the joint opinion of three — the second, the joint opinion of two, with a dissent — the third,, the mere opinion of two.</p> <p>By the 4th sec. it is provided that in the absence of one from sickness &e., the others may hold the eonrt, hear and determine questions &e. This provision is unnecessary, or it fully sustains the view taken above. It would be strange if the Legislature should in 1834, and again in 1836, make an express provision which was uncalled for. This provision must now be taken as a part of the act, under which the court derives its power, and must have an influence upon the construction. When making provision for a case of sickness, why did not the Legislature provide for a case of death ?</p> <p>If in the opinion of that body two Judges could not act as a court, when one was absent from sickness, and a provision was necessary, the same reasoning would make it as clear, if not more so, that two could not act when one was dead.</p> <p>It is said that two Judges had acted in 1830 upon the death of Judge Taylor, and so the Legislature concluded a provision was unnecessary. For the same reason, they might have concluded, the provision made was unnecessary; for if two could act when one was dead, of course two could act when one was side. The inference to be drawn from this section is, that the Legislature, being aware of the necessity of an express provision to enable two Judges to act as a court, thought it expedient to provide for a case of absence from sickness or other inevitable cause, which, not creating a vacancy, might leave the business undetermined for an indefinite time : but did not think it expedient so to provide in a case of death, or removal from office, which created a vacancy, that it was presumed would be promptly filled 5 for it was Considered an uncalled for departure from the principle requiring the law to be settled in the mode most ap( (0 reSu)t in a correct conclusion.</p> <p>If an analogy be resorted to in aid of the construction ; it is found that in all commissions of oyer and tefmiuer, courts of admiralty &c., this clause is inserted “si om7ies interesse non possetcss, tunc nos tres &e.,” from which the inference is, that, but for this proviso, all must act. The Courts of Kings Bench and Common Pleas are, by usage, held by some of the Judges in the absence of others, which usage justifies this inference, that a clause equivalent to the “ si omnes" was contained in the original commission or act of Parliament under which they derive authority. Onr County Courts are to be held by the Justices of the county. There is an express clause, authorising three to act, equivalent to the si omnes ; but for this, it is presumed all would be required to act, and if all were sick or dead but two, they could not be authorised to act as a court. “ Arbitrators form a court of the parties’ own choosing.” If a submission be made to three, the award of a majority to be binding; should the three separately give an opinion, although they agree, it is no award. Shofild two meet in the absence of the others and agree, it is no award — if one dies, the submission is at an end.</p> <p>Much stress is laid on the fact, that Judges Henderson and Hall, after the resignation of Judge Toomer and before Judge Ruffin took his seat, acted as a court. It is understood the matter passed without discussion — they did not hear and determine a single case, and the matter did not af-terwards present itself for decision to the three Judges, holding the court, The question being, have two authority to act as the court, it is taking the question for granted (“peli tioprincipii") — to urge that two did act as an authority or precedent to settle the question. The most that can be yielded to it is, that two learned men were of the opinion, that two of the Judges could pass orders &c., after the third was dead, and do what they did as a court. This, it must be recollected, was before the act of 1831, and the act of 1830, in which the provision is retained. The fact, that the two surviving Judges, after the death of Judge Gaston, came to the conclusion that they could act as a “Court,” and did proceed to hear and determine questions, and did so, in the' particular case, cannot be admitted as an authority binding in law, without taking for granted the question, about which there is a difference of opinion. The most that can be yielded to it is, that two learned men for whom the highest respect is entertained, acted upon that opinion.</p> <p>Should the Supreme Court, when constituted of the three Judges of said court, sitting together as a court, in the case which is now presented, decide that two of the Judges, upon the death of one, have power to act as a court and to hear and determine cases, such decision will be the law, and be yielded to as authority.</p> <p>His Honoe then made the following order, to wit:</p> <p>It appeared to the satisfaction of the court, that the three Jridges of the Supreme Court, met as required by law ; that the appeal in this case was taken up for argument; but before the argument was closed, Judge Gaston died ; that af-terwards the two surviving Judges heard a further argument, and then proceeded to decide and deliver the opinion as certified, and the court, being of the opinion that the two surviving Judges did not constitute the Supreme Court, and were not by law authorized to hear and decide causes, and that the appeal in this case is still pending in the Supreme Court;- and is not decided, ordered the prisoner to be remanded to Jail, there to abide the decision, and refused the motion of the Attorney General for judgment. From this order the Attorney General prayed for and obtained an appeal' to the Supreme Court.</p> <p>Upon the' coming on of this appeal in the Supreme Court, the Attorney General moved, upon the case therein stated, for a peremptory mandamus to the Judge of the Superior Court of Edgecombe county, commanding that court to proceed tc sentence on the prisoner, in obedience to the former certificate.</p> <p>Badger,- who appeared with the Attorney General, for the State, in support of the motion,</p> <p>1. How did the Judge in the Court below inform himself that the judgment, in this case was rendered by two Judges only? If he took notice judicially, as we suppose he might, ofthe death of Judge GastoN, he must also have taken notice that this event happened on the 23d January, after the Court had been in session several weeks ; and, consequently, the judgment might havebeen rendered during his life. The certificate sent down stated a judgment of the Court, and if the presence of the three Judges was necessary to constitute a Court,then as all the Judges might have^been present, the-Judge below was bound to presume that all were present. This presumption, we learn from the transcript, was rebutted by the affidavit of the prisoner, who, being in close jail at Tar-borough, deposed to events which happened in Raleigh. Surely this was not very strong evidence, upon which to impute to two Judges of the Supreme Court what the Judge below deemed an usurpation of authority to award a judgment of death. If the affidavit of the party himself could be received, he ought, at least, to have sworn positively to what he might personally have known.</p> <p>2. The Judge erred in hearing any averment or proof against the certificate transmitting the mandate of this Court. That certificate was in the regular and legal form, by which judgments here have been in every case authenticated to the inferior tribunals, was signed by the proper officer, and sealed with the seal of the Court. Behind this, the Judge could not rightfully look, upon any suggestion or any proof. If he could,, then in every case he might receive evidence to impeach what on its face appeared the judgment of a Court. For instance, in debt on a judgment of a County Court, upon the plea of mil tiel record, if a proper exemplification of the record were produced, the Judge might hear a witness or even the affidavit of the defendant, to shew that there were but two justices on the bench when the supposed judgment was rendered, and upon this evidence pronounce for the defendant on the plea. But if this cannot be done by a co-ordinate or even superior tribunal, when called upon in a regular mode to enforce the judgment of a Court of equal or inferior authority, it follows plainly, that it cannot be done by the inferior, when required to execute -a mandate of the superior tribunal, to which by law it is subordinate and owes obedience. It is not too much to -say, that if what the Judge has in this case done be lawful and be followed out to its legitimate consequences, there is an end in this State, not only to all subordination amongst -our courts, but to all security for our rights whicji depends on that absolute verity which the law ascribes tq records. It is true entries of judgments may be forged as well as made by mistake or usurpation of authority, and for this a remedy should exist, and no doubt does; but that remedy is not the one applied by the Judge in this case. It - is one which leaves the subordination of courts — the eifect of proper exemplifications, and the security of rights unimpaired, and the whole symmetry of our legal system perfect.</p> <p>3. But the Judge was equally in error, if the facts, relied upon by him to justify a refusal to obey the mandate, had all appeared upon the face of the certificate itself. The Judges of this court are not arbitrators appointed to decide a private dispute by the parties to it, who must shew their authority in the terms of the agreement, nor are they commissioners to execute a public trust, such as ascertaining boundaries, or settling the position of a Court-house, but they are the Judges of a court established for the permanent administration of justice, and their authority is not regulated by the principles which govern either private arbitrators or special commissioners. The administration of justice is neither to be denied nor delayed, and such construction is to be made in regard- to courts established for that administration, as will tend to keep their functions in constant activity. Hen^e, by the common law, if a court consist of several Judgtes, any one of them is competent to hold it, in the absence of the others, unless their commissions direct to the contrary. — . 2 Hawks, P. C. ch. 1, s. 10.</p> <p>Hen.ce, also, whore there are divers officers (for example Coroners of a county,) who have both ministerial and judicial functions, although, when acting as ministers, they must all join, yet it is clear, that, when acting judicially, one is competent without the others. Lamb v Wiseman, Hob. 70. 3 Yin. Abr. Authority (B.) pi. 20, 3?. 6 Yin. Abr. Coroner (D.) pi. 1, 2, 3, 4, 7. Therefore, but for the provision in our statute directing two judges to hold the court in the absence of the third, which probably operates to restrain less than two from acting, we might well contend that, one only of the Judges of this Court is competent to' hold it. As it is, we insist: First, that where a court consists of several Judges, of which the major part have power, when all are present, to pronounce the judgment of the “ Court” then if some of the Judges die., the major part remaining, that major part constitutes the court, and has all the powers of the whole number. This is evident, for it would be absurd to say, that two Judges can pronounce the judgment of the court in the presence and against the opinion of the third, and yet pannot do the same thing, when they constituted all the Judges of the Court. This position is supported, if its intrinsic force needed any support, by the case of ministerial officers, where the greatest strictness is applied. For, “ if there are four Coroners in one county, and a writ is directed to them, if one dies, yet the other three may execute the-writ because there still remains the greater number.” 3 Yin. Abr. Coroner, (D.) pi. 5. The conclusion seems to us irresistible. If where a writ is directed to four to do a ministerial act, to the valid execution of which it is necessary all should join, yet if one die the others can well execute the writ, a forlio.ri if two Judges can give a judgment, contrary to the opinion of the third, they can do the same thing after the death of the third. Secondly: Wherever a court consists of several judges, some of whom may act in the absence of others, they can also act upon the death of the others. This principle has been recognized and established by the highest authoiity. By the law of the United States, the Circuit Court of Connecticut consisted of the Judge of the District Court of that State, and the Judge of the Supreme Court of the United States residing in the Circuit to which Connecticut belonged. The act of Congress authorized one of those Judges to hold the Court, in the absence of the other, but made no provision for the case of the death of one of the Judges. One of the Judges died, and before the appointment of a successor, the surviving Judge held a term of the Court. The question was brought before the Supreme Court of the United States, Ayhether he had authority so to do, and that Cout held clearly and unanimously that he had. Pollard v Dwight, 4 Cranch. 421.</p> <p>It is worthy of remark, that the same kind of a astute and technical logic was used against the jurisdiction of the surviving Judge in that case, as has been urged against the authority of the surviving Judges in the case before the Court. The counsel there said — “If the Circuit Courtis to ^ consist ” of a particular Justice of the Supreme Court and a District Judge, it cannot exist without such a Justice of the Supreme Court. A whole consists of all its parts, If any part be wanting it is not a whole. A session of the Court may be h olden by one Judge, but the Court must be in existence. Whenever there are not two Judges of the Court in existence, its functions are suspended.” But the Supreme Court did not deem the argument strong, enough to require particular refutation; the Chief Justice, in delivering the opinion of the Court, declaring that there was no foundation “ for the exception taken to the manner in which the Circuit Court was constituted,” The analogy of that case to this is plain and exact. A Circuit Court consists of two Judges; if one is absent the other by express provision of law may act; and therefore, by the Supreme Court, if one be dead, the other may act, and the functions of the Court are not suspended until his place is filled. So here this Court consists of three Judges, of whom if one be detained, the other, two may act in his absence — therefore, if he be dead they may act, and their functions, which were in legal activity while he lived, are not suspended by his death.</p> <p>It Ras been suggested that the Legislature contemplated a consultation of three, though two might decide. Doubtless; but a consultation of three is as desirable and quite as possible when one is absent from 'indisposition, as when he is dead; yet in the former case two may decide without the consultation, and why not in the latter? It may be said, that where the indisposition of the absent Judge is neither serious nor probably of long continuance, the remaining Judges will not be disposed to act without him and their discretion may be trusted. True ; and so in the case of his death, if the vacancy will be speedily filled, the remaining Judges will not be disposed to act without the aid of his successor ; and in that case also, their discretion may be safely trusted.' ■ The power is the same in both .cases, and in neither will Judges be inclined to act without a full Court, except from the influence of a strong sense of public duty.</p> <p>Upon the whole, we conclude that the refusal of the Judge to obey the mandate in this case, was, in fact and in law, an act of judicial insubordination, although not so intended by him, and that a peremptory mandamus ought to issue.</p>

This was a case for slander, in charging perjury as to the sale and delivery of two sacks of salt. Before the jury were impannelled, the defendant challenged Mr. William Page for cause, and proved, by the oath of Page, that the plaintiff’s son had. married the, daughter of a brother of the jutor.

This was an action of assumpsit upon a promissory note, of which the following isa copy: “ $936 99. Philadelphia, Apg. 29,1838. Eight months after date, we promise to pay to the order of Hunn and Remington, nine hundred and thirty-six dollars 99-100, value received, payable at the Commercial Bank at Columbia, South-Carolina.

The facts as exhibited by the pleadings and proofs are these, to-wit: The petition was filed, by the petitioner Isaac and his wife Betsy, claiming certain sums received, or which ought to have been received by the defendant, as the guardian of the said Betsy Waggoner.

This was a proceeding under the bastardy act. The following are the examination and warrant as returned to the Comity Court: “ State of North Carolina, ) Rockingham County. \ The examination of Feriby Burras, single woman, this day taken before us, George W. Garrett and Sampson L. Cryer, two justices of the peace in and for the said county on oath, who states on said oath, that she was delivered of a bastard child on the 14th day of last month, September, and further on her…

This was a suit by the plaintiffs, who are citizens of North Carolina, against Judah & Block, merchants of New York, commenced on the 2d of February,-1842, by original attachment returnable to the February Term, 1842, of Washington County Court, Josiah Collins, the present defendant, was summoned as a garnishee, and at the said term filed his answer, in which he stated, that Hugh W. Collins was indebted to the defendants, Judah &. Block, upon a draft on account of' C..

This was an issue in the Court below of devisavit vel non, as to the will of William Salter, dec’d. The instrument, purporting to be a will, was dated the 6th of July, 1838, when it was signed and published by the testator and attested by one witness. The testator died in the fall of 1843.

<p>Where the plaintiff had covenanted that he would build and complete a house for the defendant, to be completed by the first day of April, 184.2, and the defendant in the same deed agreed to pay fthe plaintiff $2500 when the house was completed: Meld that the latter was a dependent covenant, and-the plaintiff could not recover on this covenant, unless he shewed that the house was completed by the first of April, 1842.</p> <p>The dependence or independence of covenants is to be collected from the evident sense and meaning of the parties, and, however transposed they may be in the deed, the precedency must depend on the order of time, in which the intent of the transaction requires their performance.</p> <p>Where a house has been built under a covenant, though not according to the conditions of the covenant, and the person, for whom it is built, accepts it; although the party building cannot recover on the covenant, he may, in a proper action, recover a remuneration for his work, labor, &c.</p>

This was an action on the case in the nature of a writ of conspiracy, in which the plaintiff charged the defendants with conspiring to defraud, and that they did defraud him of his property, particularly of a negro boy, a note for between 500 and 600 dollars, and the balance of a judgment for 3 or 400 dollars, and also conspiring to destroy his credit, and thus to cause his insolvency.

<p>Appeal from the Superior Court of Law of Randolph County, at Spring Term 1844, his Honor Judge Dick presiding.</p> <p>This case commenced by warrant before a justice of the Peace’ an<^ by successive appeals, came to the Superior Court. The warrant was sued out by the plaintiffs against defendant, to recover the price of 13§ pounds of iron. The plaintiffs had a broad bar of iron at the blacksmith’s shop of Elisha Plopson. When iron of this description was was wanted, they sent the customer to Hobson, who was authorized by the plaintiffs to cut off and deliver to 'the customer the quantity of iron wanted. Elisha Hobson proved, that he had a bar of iron belonging to the plaintiffs — that the defendant applied to him for a piece of the said bar, suitable to make a plough-share — that the witness shewed him a piece he had cut from the bar for one Kivet, and the defendant said apie.ce of the same size would answer his purpose — that the piece was cut off accordingly, and the defendant took it in a pair of tongs, carried it to the water and cooled it — that, when he returned to the shop, he objected to the iron, saying it had a flaw in it and it would not answer his purpose, and that he wanted the piece which had been cut off for Kivett — the witness told the defendant it was Kivett’s iron, and nothing further was said on the subject. The witness, the defendant, and a man by the name of Thrift, left the shop about dark. When they had proceeded about fifteen steps, the defendant remarked that he had forgot his iron, and returned to the shop and got a piece of iron, and the witness supposed it was the piece cut off for him. This witness further stated, that he weighed the piece of iron cut off for the defendant, that he also weighed the piece cut off for Kivett, and found the two pieces of the same weight— that he rendered an account of the iron cut off for the defendant to the plaintiffs, on the next day. The books of the plaintiffs were produced, and shewed a charge against the defendant for the iron. Mr. Lawrence, a witness for the plaintiffs, stated, that he saw the iron cut off for the defendant, that the defendant took it to the water and cooled it— that, when he returned to the shop, he objected to the iron— tf]&t Hobson remarked, there was a piece_he had cut off for Kivett, and he would not give a cent for choice. This witness saw both pieces o'f iron weighed and left the shop. Mr. Thrift, a witness for the plaintiffs, stated, that he helped to cut off the iron for the defendant — that the defendant objected to the piece cut off for him on account of a flaw in it, and remarked that he would rather have the piece cut off for Kivett — that both pieces of iron were then weighed — that Hobson said it was Kivett’s iron, but it was nothing to him which piece he took — that nothing more was said about the iron — that this witness, the defendant and Hobson left the shop together — that, when they had proceeded a few steps, the defendant returned to the shop and got a piece of iron, and they went off together.</p> <p>The defendant contended, that he never did take, or agree to take, the piece of iron which had been cut off for him, but objected to it on account of the defect in it — and that , Hobson consented he shoirld take the piece which had been cut off for Kivett. The defendant introduced several witnesses, who deposed to a conversation between himself and Hobson, in which the defendant asked Hobson, if he would deny, that he consented he should take the iron, which had been cut off for Kivett — to which Hobson replied, that he had not denied it and was not going to deny it. Other witnesses, introduced by the plaintiffs, stated, that they were present at the conversation last alluded to, and they understood Hob-son’s reply to be, that he had not denied it; and was not going to deny any thing he had said about it, and would leave it to Thrift and Lawrence, who were present when the iron was cut off. The defendant further proved by Samuel Hendriss, a witness introduced by the plaintiffs, that Hobson told him (the witness,) that he did tell the defendant to take the iron cutt off for Kivett, if he liked it better than the piece .cut off for himself. The defendant then proved, that he had paid Kivett for the iron he had got, before this warrant was sued out, and that he never had taken the other piece of iron from Hobson’s shop.</p> <p>The plaintiff’s counsel then asked the Court to charge the jury, that, if they believed either of the three witnesses, Lobson, Lawrence or Thrift, the plaintiffs were entitled to recover. The Court declined to give the instructions pray-e¿ forj |jLlt charged the jury, that, if they believed from all the testimony, that the defendant consented to take the piece of iron cut off for him, he was bound to pay for it, and the plaintiffs would be entitled to recover, although the defendant might afterwards have changed his mind and left the ■iron at his shop. Whether the defendant did ever consent to purchase the piece of iron cut off for him, or not, was for them to determine from all the testimony. The jury found a verdict for the defendant, and, judgment being rendered accordingly, the plaintiffs appealed to the Supreme Court.</p>

This was an action of trespass quare clausum fregit, brought by the plaintiffs to recover damages against the defendant, for entering on the lands claimed by the said plaintiffs, and cutting timber thereon. The plaintiffs proved, that the defendant had entered upon the lands by them claimed, within three years next before this suit was commenced, and had cut timber thereon and carried it away, to the value of one hundred and two dollars.

This was an action of Ejectment, which was submitted to his Honor upon a case agreed as follows, viz: William Fisher, Sen’r. late of the county of Carteret, on the day of , A. D. 1822, departed this life, having previously made his last will and testament, bearing date September 15, A. D. 1820, and therein devised as follows, viz: “ I give unto my grand-son, William F. Bell, (the lessor of the plaintiff,) and to my grand-daughter, Charity Elizabeth Bell, (the wife of the…

This was the same case, which was before the Supreme Court at its June Term, 1841, and reported in the first vol. of Iredell’s Reports, page 490. The evidence given upon this second trial was substantially the same as that stated in the printed report referred to, except that the witness Cross was not examined on the latter trial, and it did not then appear, that five of the warrants, upon which the defendants’ judgments and executions were obtained, had been signed in blank.

This was an application to tbe Superior Court of Wake County, on the part of Nathaniel T. Green, one of the defendants in the case, for a certiorari to bring up the record of a suit against him and Hugh Rogers, in which a judgment had been rendered against them in tbe County Court of Wake. The certiorari having been granted, on the hearing of affidavits, &c. in the Superior Court, it was ed, that the case be transferred to the trial docket.

This was an action of assumpsit, in which the jury found a verdict for the plaintiff, subject to the opinion of the Court upon the following case: In the month of August, 1836, the defendant, Cannon Bowers, offered at the Bank of the State in Raleigh, a promissory note for discount, payable to Charles Dewey, the Cashier of the Bank, which is in the following words, to-wit: “$6000. Ora nge County, Aug. 17th, 1836.

<p>Badger & Iredell applied to the Chief Justice for a Ha-beas Corpus in behalf of William Bradley, a prisoner confined in the jail of Anson county, upon affidavits staling the facts which are set forth in the opinion delivered by his Hon- or in answer to the application.</p>