Volume 27 — North Carolina Reports

The writ in this case was. returned to the Superior Court of Burke County, at the Spring Term, 1842, and required the defendants to answer the plaintiff as administrator, &c. “ of a plea of Trespass on the case to plaintiff’s damage fifteen hundred dollars.^’ At the Fall Term, 1844, the following record appears: “ The defendants appeared by their attorneys, and by leave of the Court entered the following pleas: General issue, statute of limitations, payment and set off,…

The case was this: At March Term, 1837, of Brunswick County Court, administration on the estate of J. Corbit, deceased, was granted to the plaintiff, Nathaniel Galloway. John McKeithen, who opposed it, took an appeal to the Superior Court.

<p>Appeal from the Superior Court of Law of Bladen County, at the Fall Term, 1844, his Honor Judge Bailey presiding.</p> <p>The record in this case, taken in connexion with the statement made by the presiding Judge, shews, that, at the March Term 1844, of Bladen County Court, a petition was filed by the plaintiff, suggesting to the Court, that Martha Lewis was alunatic and was wasting her property, and calling upon the court to issue a writ de lunático inquirvndo. The prayer of the petition was granted, and a writ is sued to the Sheriff, and at August Term following was returned, together with the inquest of the jury. The jury found that Martha Lewis was a lunatic, and at the same Term the plaintiff was by the court appointed her guardian. From this order, the defendant, as the executor of Richard Lewis, prayed an appeal to the Superior Court, which was granted: and in the Superior Court, on the motion of the plaintiff, through his counsel, the appeal was dismissed, and the defendant appealed to the Supreme - Court.</p>

<p>Appeal from the Superior Court of Law of Yaney County, at the Fall Term, 1844, his Honor Judge Battle presiding.</p> <p>This was an action on the case for the seduction of the plaintiff’s daughter. For the plaintiff it was proved by his daughter, that she was seduced by the defendant some time in the month of September, 1841 — that pregnancy was the consequence of this seduction, and, that on the 11th day of the following June, she bore a child — that, at the time of the seduction, she was living with her father and performing service in his family, and continued to do so, until the March following, when she left her father’s house and went to live with her grandmother — that she remained with her grandmtoher until sometime after the birth of her child, when she returned to live in her father’s family — that, about five or six weeks after s'he became pfegnání, her health was somewhat impaired in consequence thereof, and she became less able to perforrfi the services usually required of her — and that/just before she left her father’s family, she became altogether unable to discharge some of these services, though the lighter ones, such ds knitting, &c. she Could perform as well as usual; She fuf-ther testified, that she became twenty-one years of age in the month of November, 1841. The writ was issued the 31st of March, 1842.</p> <p>The court insttucled the jury, that, before the daughter bá-tame of age, the action might be sustained by the fathef in his paternal character for the loss of the services of the daugh-tér, and that, after she became of full age, it must be sustained in the character of master for the loss of the services of his servant — that in this action the loss of some service must be proved, in order to entitle the plaintiff to recover anydam-ages at all, but if the evidence satisfied them of the loss of any services of the daughter, as daughter or servant, in consequence of the defendant’s act of seduction/ then they might take into their consideration the anguish and disgrace brought upon the plaintiff and his family, in order to enhance the damages.</p> <p>The jury found a verdict for the plaintiff. The defendant moved for a new trial, 1st. Because the action ought to have been trespass vi and armis, and not case ; 2ndly. Because the action could not be maintained before the birth of the child; 8dly. Because the action could not be maintained without proof of an actual contract for services after the daughter be. Came of age. The court over-ruled all the objections, because it deemed them unfounded iu law, and the last for the additional reason, that it had not been so contended for in the argument of the defendant’s counsel, and no specific instructions *-° e^ec*; had been prayed.</p> <p>Judgment being rendered for the plaintiff, the defendant ap-pea|e(j £o the Supreme Court.</p> <p>The judge was right in each of the positions, to which the defendant excepted :</p> <p>I. The form of action was proper. Where the injury complained of forms the subject of an action of trespass, and there is also a consequential damage, either' case or trespass may be brought at the option of the plaintiff. 2 Stephen N. P. 1005. Hence in cases of seduction and critn. con. the plaintiffs have sometimes declared for the original act of wrong as a trespass, alleging the loss of service or society under a per quoad, and sometimes in case for .the consequential damages resulting from the act of wrong, as the injury complained of. In Woodward v.Walton, 2 Bos; & Pul. N. R. 476, and Tullidge v.yVade, 3 Wils. 18, the form- of action was trespass. In Dean v. Peel, 5 East 45: Irwin V. Dearborn, 11 East 23. Weedon v. Timbrell, 5 T. R. 357, dictum of Grose, J. Speight v. Oliveira, 2 Stark. R. 435, per Abbott, Ch. 3. Holloway v. Abell, 32 Eng. C. L. R. 615. Terry v. Watkins, idem. 520. Hewitt v. Prime, 2.1 Wen. R. 79, and Mastín v. Payne, 9 John. R. 387, the plaintiff declared in case. And although both forms of declaring were supported, yet there is no conflict between the cases. They are founded upon and reconcilable by the position before stated, that the plaintiff may, at his election, bring either action. That he may do this, is expressly held by the Supreme Court of New York, Morans. Dawes, 4 Cow. R. 412, and by the House of Lords, Chamberlain v. Hazelwood, 7 Dowl. P. C. cited in 2 Steph. N. P. 1006. 3 Step. N. P. 2353. So are the opinions of the text writers and the forms given by them. Tide Step. N. P. ut supra. 1 Chitty’s PI. 134. 2 Chitty’s PI. 641; and note (d.) 643; note (g.) 850.</p> <p>II. The action was properly brought before- the daughter’s confinement. 3- Steph. N. P. 2353. Joseph v. Cavander, RoscoeEv. 483. Stiles v. Tilford, 10 Wen. R. 338.</p> <p>III. A contract by the daughter to serve the plaintiff was not necessary to be proved, in order to support the action, although the daughter was of full age at the time of theseduction. It was sufficient that she lived with her father as a member of his family, and rendered actual services, however small and unimportant. Tullidge v. Wade, %it supra. Bennet v. Allcott, 2 T. R. 166. Moran v. Dawes, ut supra. See also, Mastín v. Payne, ut supra, and Nicldeson v. Stryker, 10 John. R. 115.</p>

The lessor of the plaintiff claimed the land sued for, as a purchaser at a sale made by the sheriff under several executions issued from the County Court of Robeson. The plaintiff' produced the sheriff’s deed and copies of the records of the judgments and executions, under which the sale was made. From them it appeared, that the defendant confessed four several judgments before a justice of the peace, in favor of the lessor of the plaintiff, on the 10th of November 1841.

This was an action of debt upon the administration bond of the defendant, as administrator of his father, Moses Fuller, deceased. The relators were some of the next of kin of the said Moses, and alleged, as a breach of the conditions of the said bond, that the defendant had not accounted to them for a negro woman, Judy and her children, part of the estate of the intestate.

In thisx action of ejectment a verdict of guilty was submitted to by the defendant, subject to the opinion of the court upon the legal validity of the deed, under which she set up title. And it was agreed by the parties, that, if that deed should be deemed sufficient in law, the verdict might be set aside and a non-suit entered. The deed was objected to on the ground, that there is no consideration, moving the donor, stated upon its face.

This was an action of debt on two bonds for $250 each, which were, given by the intestate Saunders, to the intestate Ferebee. Plea — payment. On the trial the defendant insisted, that his intestate had made the payment to one John Q,. Perkins for the plaintiif.

<p>Appeal from the Superior Court of Law of Anson County, fit the Fall Term, 1844, his Honor Judge Bailey presiding.</p> <p>This was an action of debt against the defendant, upon his official bond as Sheriff of Anson County, dated the 15th of October, 1838, to recover the amount of certain claims placed in the hands of one William H. Gulledge, who, it was alleged, was the deputy of the said defendant, and had collected moriey for the plaintiff, as deputy, and upon demand refused to pay.</p> <p>Joseph White, the present sheriff of Anson, and who succeeded the defendant in October, 1840, proved a demand of the defendant before suit brought. He stated, that, in a conversation with the defendant upon the subject, the defendant said he would see Gulledge and get him to settle it — that, when he went to serve the writ, the defendant remarked that he should have the money to pay, and that, if James Horne was not as great a rascal as Gulledge, he would confess a judgment and have recourse to the sureties of Gulledge — that the defendant said they could not prove that Gulledge was his deputy for more than three months. The witness further stated, that, soon after he entered upon the duties of his office in the Fall of 1840, the defendant recommended Gulledge to him as a suitable person as deputy sheriff, stating at the same time that Gulledge had on hand some unfinished business, which he wished to wind up. This witness further stated, that he never heard the defendant admit that Gulledge was his deputy for more than three months, but never heard him say, in any of the conversations alluded to, that he was not his deputy for more than three months.</p> <p>The plaintiff then offered in evidence the receipts of Gull-edge, for claims to collect as deputy sheriff", dated 25th October, 1839, which evidence was objected to by the defendant but admitted by the Court.</p> <p>The defendant then introduced Gulledge, (having first released him) who stated that he was appointed a deputy of the defendant in October, 1838 — that his deputation was in writing, and that it was lost and could not be found — that he was appointed for three months and three months only, during which time there was no defalcation — that, after that period, he acted for nearly two years as deputy sheriff in the county of Anson, and in the town of Wadesborough, where the defendant lived — that he served warrants and returned them before justices of the peace on public days in the town of Wades-borough, as deputy sheriff — that this was frequently done— that he advertised lands and other property for sale to satisfy executions in his hands for collection — that he did not remember that he added the letters D. S. to his name in the advertisements, but that he put them to his name endorsed on warrants and executions — that he arrested and took persons to jail — that the defendant had once sent him to summon a witness and gave him no special deputation — that he did not know that the defendant ever knew that he acted as deputy, after his written deputation expired — that he continued to act as deputy until October, 1840, and was never forbidden by the defendant so to act. There was no evidence at what period the various sums were collected, but it was admitted on the trial, that, at the time of the demand, Gulledge had in his hands collected of the plaintiff’s money as principal, $323, and the plaintiff admitted that out of this should be deducted $104 86.</p> <p>The court instructed the jury, that, if Gulledge acted as deputy of the defendant in the county of Anson, and with his approbation and consent, and had, as such, collected money for the plaintiffs and refused to pay it over to them, that the defendant as sheriff would be responsible for the amount collected after demand made upon him, although a written deputation had been given him for three months only— that the testimony was submitted to them to enquire, whether Gulledge acted as deputy when the money was collected, and whether it was known to the defendant that he was so acting and by his consent — and in the next place to enquire what amount of money Gulledge had collected, at the time of the demand, of principal and interest — that if they were satisfied he had acted as deputy with the consent of the defendant, and had collected money, as such, and refused to pay, after demand upon the principal, they should find for the plaintiffs. And, as it did not appear when the several claims were collected, they should calculate interest at 6 per cent, from the time they were due up to the demand, and that after that they should calculate interest at 12 per cent, per annum to the present time — that if they were satisfied he did act as deputy, but without the consent or approbation of the defendant, they should find a verdict for the defendant.</p> <p>The defendant’s counsel requested the court to instruct the jury, that, if they believed Gulledge, who stated that in fact he was deputed for three months and for three months only, within which time there was no defalcation, the defendant was entitled to their verdict, notwithstanding Gull-edge had done any acts, such as before mentioned. The court refused to give this instruction; and again instructed the jury, that it was not necessary for the plaintiffs to prove that an express appointment was given to Gulledge by the defendant to act as deputy — but if it was known to the defendant that he was acting in that capacity, and he was doing so by his consent, he, the defendant, would be responsible for his conduct, as much as if he had a deputation in writing.</p> <p>The jury under these instructions found a verdict in favor of the plaintiffs and allowed interest on the claims to the time of the demand, and 12 per cent, afterwards.</p> <p>The defendant’s counsel moved for a new trial, upon the grounds: First, That the receipts should not have been admitted in evidence ; Secondly, That the court did not charge the jury as required; Thirdly, That interest should not have been calculated upon any claims from the time of the receipts by Gulledge, but only from the time of the demand ; Fourthly, That 12 per cent, interest should not have been allowed at any time upon any claim. The court discharged the rule for a new trial, and rendered judgment for the plaintiffs, from which the defendant appealed to the Supreme Court.</p> <p>submitted the following argument :</p> <p>Four objections were taken below and made the ground of motion for a new trial.</p> <p>The first is, that the receipts of Gulledge were admitted as evidence against the defendant, and in support of this objection,' reference is made to the case of The State v. Fulenwi-der and others, 4 Ired. $64.</p> <p>The second is, that the judge refused to tell the jury as requested by Counsel, “ that if they believed Gulledge, who stated that he was in fact deputed for three months only, within wliich time there was no defalcation, the defendant was entitled to their verdict, notwithstanding Gulledge having done any acts, such as before mentioned.” Now if this proposition was true in law and in fact, it seems to me to follow that the defendant was entitled as a matter of right to have it stated— and a refusal on the part of the judge so to declare when requested, was equivalent to an intimation that it was not true. That the fact is true that Gulledge so stated, is set forth in the record j whether the jury believed such statement, was a question solely for them, but what if they believed the statement was the legal conclusion, was a matter for the Court, and the parties had surely a right to the opinion of the Court thereon. And the only question now is, should the opinion of the court thereon have been in favor of the defendant ? That all public officers must derive their authority from some proper source appears plain, and that persons treat them as such or not, at their own peril. State v. Briggs, 3 Ired. 35T. Admit, for the sake of argument,- the principle to be, that between individuals where a number of acts of agency are proved to have been performed by one person' for another, the jury is at liberty, in favor of one who has acted upon the faith of such appearances, to' make the person whose authority has been thus used, responsible for the acts of the other as his general agent,- and it is submitted that even in that case>it woüld be going very far, and that truth must in numberless cases be sacrificed to po! icy. Yet can it be so with a public trust which the holder ought to delegate very cautiously, and ought never by inference to be forced to delegate, where in point of fact he had not. Not only the private interest of the sheriff and his sureties, but the public interest might be much compromit-ted by such strained inferences. How is the sheriff to prevent a man from serving process which others may put into his hands? If, as in this case, the sheriff has given the party a limited deputation which expires by its own limitation, he cannot be required to give notice <jf that fact to any one, and if required, how is he to give such notice, and to whom ? If he gives a general authority, all he can do, (and that I suppose he may do) is to revoke it, but if, after he has revoked, other persons choose to go on and treat the person as the sheriff’s deputy, how can he help it ? Besides, public convenience requires that the sheriff should have it in his power to employ agents from time to time in special services, (and we know the bailiffs in England act under a special warrant in every case.) But if his happening to employ the same agent several times in such special services would justify an inference that he is his general agent against direct proof to the contrary, then the bailiff.is in this dilemma: he must either suffer the public service to be tardily performed from a needful caution in employing agents, or expose himself and his sureties to certain ruin, by rendering every hardy ruffian, who may be' well suited to particular services by the frequency of his employment, his general deputy, and himself and sureties liable for all his abuses of an imprudent trust that others may repose in him. But it may be said that it is hard for creditors who place debts for collection in the hands of a person under Such circumstances to lose for want of liability in thé sheriff. By no means; their course is a plain one. When they think of putting papers in the hands of a person whom they suppose to be an officer, they have only to ask the sheriff if he is so — if he answers negatively, it will be their own folly to trust him — if he answers affirmatively and according to the truth, the sheriff cannot disprove, it — and if he answers affirmatively, and not according to the truth, then he Will at least be liable for the deceit. Surely thus much diligence at least is not hard upon a creditor. But it seems to me we were entitled to the charge as a legal conclusion upon another ground. The acts "relied on were only circumstantial proof of an existing agency; they did not constitute the fact itself. Circumstances are only of value when they lead to truth, and no right reason can justify us to conclude from circumstances the existence of a fact, the non-existence of which fact is proven by credible and credited evidence. Now, if the jury believed Gulledge, he disproved the fact which the circumstances tended to prove; and the refusal of the judge to charge as requested, involved the proposition, that, although they might believe Gulledge, and therefore that he was not the deputy of the sheriff at the time of his defalcation, yet they might still rely upon the circumstantial evidence, and conclude that he was; or in other words, that they might believe Gulledge, although such belief involved a necessity of finding for the defendant, and yet believe quite the contrary, and find for the plaintiff.</p> <p>The other points are submitted without remark.</p>

<p>Appeal from the Superior Court of Law of Stanly County, at the Fall Term, 1844, his Honor Judge Bailey presiding.</p> <p>This was an indictment, for an assault, and the jury returned a special verdict, in which they state, that the defendant presented a loaded pistol at one Rowland Forrest, the prosecutor, while he was attempting to enter the house of the defendant, in the day time, claiming to do so by virtue of a warrant issued by a justice of the peace, to search the house of the defendant for a negro, alleged to have been stolen from one Thomas Rowland, and farther alleging that the negro was in the possession of the defendant; and the jury being ignorant whether said warrant was of sufficient legal form and substance to justify the said Rowland Forrest in entering the house of the defendant against his will, at the time and for the purpose aforesaid, submit the same to the judgment of the court, and if the court is of opinion that the warrant is of sufficient legal form and substance to justify the said Rowland Forrest, then they find the defendant guilty; if otherwise, they find him not guilty. The warrant, which is set forth in the special verdict, states that “ whereas it appears to me, A. C. Freeman, one of “ the Justices of the Peace for Stanly County, that the follow- “ ing negroes (to wit. &c.) have within the last three days, been. “by some person unknown, feloniously stolen or went out of “the possession of the said Thomas Rowland, jr. in the county “aforesaid, and that the said Thomas Rowland, hath proba- “ ble cause to suspect, and doth suspect that the said negroes “ are in the possession of Edith, Doctor F. and Rowland H. “ Mann, in the county aforesaid.” It then goes on to command the officer, to enter the dwelling house of the said parties, warning them, and to search for the said negroes; if found, to bring them and the said parties before the said A. C. Freeman, or some other justice of said county. The judge presiding, decided that this precept did not justify the officer in entering the dwelling house of the defendant against his will, and gave judgment for the defendant; from which the State appealed.</p>

It was decided in the Superior Court on a case agreed, to the effect following: In the year 1826, James Boswell intermarried with Nancy, the daughter of Aaron Simpson, and, very shortly afterwards, Simpson put into the possession of Boswell the slaves now in controversy, or one from which they descended. In 1832; Simpson made his will and died.

<p>In the trial of a capital case, the original venire ought to he first drawn and tendered; hut if the judge should, where there are only eleven of the original panel, direct tales jurors tobe drawn with them, the prisoner has no right to a venire ite novo on this" account, if he has had an opportunity of accepting or rejecting all of the original venire.</p> <p>Where one of the venire, upon being called, was challenged by the State and directed to retire till the'panel was gone through with, and was not after-wards recalled, the prisoner making no motion to that effect and it being known that the juror was a witness for the prisoner, held that this was no ground for a venire de novo on the part of the prisoner.</p> <p>A short absence of one of the jurors impannelled, for necessary purposes and without any imputation of improper motives, does not vitiate the verdict of the jury.</p>

The case was, that the plaintiff sued out his writ against Redding J. Hawkins and Figures Lowe, returnable to Halifax County Court, which was executed by the defendant Brickell, he being then the sheriff of said county, without taking any bail. The plaintiff prosecuted his suit regularly to judgment, and then sued out his ca. sa. against the defendants, to wit, Hawkins and Lowe.

This was an action for an assault and battery on the feme plaintiff, in which the defendant justified under a State’s warrant, issued by a justice of the peace of Cherokee county, and produced on the… Held: that he was. The counsel further contended, that the warrant was void, because first, it was issued without a charge on oath: and secondly, because it was not under seal.

This 'action was detinue for two slaves; plea, non deli-net. The defendant married a daughter of Allison after 1806, and soon after the marriage, Allison sent the slaves home with his daughter, and they remained in the possession of the defendant until Allison’s death, intestate; which occurred eighteen years afterwards. The plaintiff then administered on Allison’s estate, demanded the negroes, and upon the defendant’s refusal to deliver them, he brought suit.

County, at Fall Term 1844, his Honor Judge Battle presiding. This was an action for maliciously prosecuting the plaintiff for a conpiracy with certain other persons. The defendant pleaded “not guilty,” and upon the trial he gave evidence, tending to show probable cause for the prosecution of the plaintiff.

This was an action of trover, to recover damages for the conversion of a slave. Plea, not guilty. William Hatsell made his will, and thereby bequeathed to his wife all his slaves, for her life or widowhood; and on her death or marriage, he gave the whole of his said slaves to his children and wife, should she marry, to be equally divided between them.

<p>Appeal from the Superior Court of Law of Surry County, at the Fall Term, 1844, his Honor Judge Manly presiding.</p> <p>The case was this. Thomas Patterson was convicted of Bigamy, and appealed to this court, and for that purpose entered into bond with Greenberry Patterson, as his surety. The judgment was affirmed, and the certificate thereof sent down to the Superior Court at September Term, 1842, with directions to proceed to execute the sentence, and to give judgment for the costs in that court. At September Term, 1842, the Superior Court gave the judgment in obedience to the mandate from this court in regard to the punishment, but that respecting the costs was omitted. A rule was obtained at April Term, 1844, on the defendant and his surety, to shew cause why judgment should not be entered for the costs, or why that rendered in 1842 should not be amended by an entry there-: in, nunc -pro tunc, of a judgment for the costs. At September Term, 1844, the rule was made absolute, that judgment should be entered nunc pro tunc, and the defendant appealed.</p>

This was an action of detinue brought to recover the possession of five slaves.

The case was as follows: In the County Court of Camden, Haywood S. Bell propounded a script as the last will and tes-lament of Margaret Dozier, deceased, in which he was nominate(j executor. It purports to devise both real and personal estate to Edmund D. Sawyer, and is duly attested by two competent witnesses. The heirs and next of kin of the party deceased contested the probatd, and an issue of devisavit v'el non was made up under the direction of the court.

This was an action of debt on the bond of the defendant Pool, as sheriff of Pasquotank county, and of the other defendants, as his sureties. The case appeared to be this: In the year 1840, Joshua A. Pool was elected Sheriff of Pasquotank county for two years, and, at September Term of the County Court, he gave the usual bond for the performance of his duties.

This was an action on the case brought by the plaintiff for the purpose of recovering damages, which he alleged he had sustained by the interference of the defendant with his seine, whilst he was enjoying his exclusive right of fishing in the waters of the Albemarle Sound. The plaintiff proved and read in evidence a lease of an undivided half of the premises from Benbury, one of the defendants, to H. W. Collins.

<p>The mere delivery hy a clerk to a sheriff of a book, purporting to he a tax list, unauthenticated by the official certificate oí the clerk, is not competent evidence that such was the tax list.</p> <p>Where the clerk’s office had been burnt, and the records destroyed, and it was proposed to establish the assessment of a particular lot for a certain year, and the sheriff was offered to prove that he had seen either in the clerk’s office the original list, or in his predecessor’s hands an authenticated copy of the tax list, and to show its contents, it not appearing that the latter was lost or destroyed, Held that the evidence was incompetent, and could not be left to the j ary.</p> <p>It is always a question of law, whether the best evidence in the party’s power and of which the nature of the case admits, has been produced.</p> <p>It is essential to the validity of a sale for taxes, that the sheriff shall have returned to the County Court, at its term next preceding the sale, a list of the lands on which the taxes are unpaid, and which he purposes to sell, with, the names of the owners, if known, &c. as required by law. The statute is not merely directory, but a sale made without complying with its provisions is void.</p>

The case was heard upon the pleadings, and according to them the case is this. Benjamin Brown died in September, 1822, having made his will in October, 1821, and therein provided for his wife by gifts of both real and personal property, and appointed the defendant executor. In November, 1822, the defendant proved the will, and delivered to the plaintiff and other specified legatees, their legacies.

The defendant was indicted for burglary and grand larceny in Johnston Superior Court, at Spring Term, 1844, and on his affidavit, the cause was removed to the Superior Court of Franklin county, where he was tried at the Spring Term, 1844, and convicted of grand larceny.

<p>Whex’e A. by apenal bond stipulated that he would, by his last will and testament, devise a certain tract of land to O.S. in fee and in fact such will devised the saidland, as follows,to-wit, “I give and devise to my grandson C.S. agreeably to the bond which I executed, the land, (here describing it,) and in case C. S. shall die without leaving a child or children living at his death, then I give, &c. the said land to my grandson W. S. and his heirs and assigns forever.” Held that this not being a devise of the land in absolute fee simple, the condition of the bond was broken.</p> <p>Secondly — that the proper measure of damages was the difference in value between an estate in absolute fee simple, and the defeasible fee here devised, though the damages could not exceed the penalty of the bond.</p>

Charles L. Summers applied for a writ of certiorari to bring up to the Superior Court of Iredell an order made by the County Court, fining him fifty dollars for a contempt, that it reconsidered and reversed, or set aside. In the affidavit, on which the application was made, the party stated that the .fine was .imposed on Monday, the first .day of the T.erm, in May, 1S43, and a copy of the order is set forth .as follows: “Theophilus Falls 1 '• v. S Ca. Sa.

<p>A judgment of dismission is a proceeding unknown in Courts of common law jurisdiction.</p> <p>"Where' a magistrates gives a judgment against a defendant for a sum beyond his jurisdiction, the .defendant may have an action for any acts done under it, or he may resort to a writ of false judgment to have it set aside. If he chooses to appeal to the County Court, he can there take advantage of the objection only by plea in abatement, or, according to the established course of our courts, under the general issue.</p> <p>A single magistrate has jurisdiction of debts, though above sixty dollars, founded upon a former justice’s judgment.</p>

This was an issue of devisavit vel non, upon an instrument propounded as the will of Robert Tucker, deceased, of his real and personal estate, dated the 3d day of September, 1842. By it he gives to his wife 100 acres of land, two slaves, and some other chattels. To his son John he gives five shillings \ and to Sarah, the daughter of John, he gives a negro girl.

The plea is non detin et. The plaintiff claimed the slaves under a bill of sale for the woman and one of the children, then born, made to her by her father, bearing date the 9th day of June, 1838. The defendant contended on the trial, that the conveyance was fraudulent against the creditors of Malcom Buie, who was largely indebted at the time he made it, and, indeed, was admitted to have been then insolvent.

This was an action of trover, to recover damages for the conversion of a stage coach, harness, and eight horses, which the plaintiff claimed a property in, by virtue of levies, which he had made as a constable of the county of Lincoln, under six several attachments, issued at the instance of six several creditors of one Trice, an absconding debtor; each attachment was for the recovery of a sum of money within the jurisdiction of a justice of the peace.

<p>To charge a man with having stolen bank notes in South Carolina, is not ae-tionable in this State, unless it be shewn by proof, that, by the laws of South Carolina, such stealing is subject to an infamous punishment.</p> <p>No such presumption can be made by the court, as by the common law the stealing oí bank notes was not indictable, nor was it indictable in this State until the passage of a statute in 1811.</p>

This was a proceeding under the act relating to bastardy. The woman, Nancy Wicks, had been regularly examined on oath before two justices of the peace, and charged the defendant with being the father of her bastard child then lately born. On the return of this examination to the County Court, an issue was made up, on the application of the defendant, to try whether he was or was not the father of the child.

This ease was before this court at the last Term, 4 Ired. 275, upon a motion for a new trial, because the judge then presiding had improperly rejected the testimony of Mrs. Gwynn, the widow of the deceased. She had been introduced to testify as to conversations between herself and her father, the present plaintiff, relative to the negroes, before they were sent to her husband.

<p>An execution, under which an officer takes actual possession of the personal property levied on, has precedence over one previously levied on the same property, hut under which no actual possession has been taken and retained by the officer levying it.</p> <p>Where a slave belonged to one for lile, and to another in remainder, and an execution was against both, but the remainder man, prior to the lien of the execution, had conveyed his interest in the slave to a trustee to sell for the payment of debts, held that only the interest of the tenant for life was subject to the execution, the remainder-man having parted with his legal estate, and having no such certain resulting trust as was liable to execution.</p> <p>And although in the same deed of trust, a tract of land was conveyed for the same purposes, and the debts were all satisfied by the sale of this land, after the institution of an action for the slave founded on the levy, yet this didnot enlarge the interest in the slave, which was obtained by the levy.</p> <p>Where an action of replevin is brought to recover possession of a slave, in which an estate for the life' of another is claimed, and the tenant for life dies pending the action, the plaintiff is only entitled to recover the value of the life estate and damages for the detention.</p>

This was a petition of Losada Elliott, widow of John Elliott, deceased, for a year’s allowance.

In this action of ejectment, the lessor of the plaintiff claimed under a justice’s execution, returned to May Term, 1839, with a levy endorsed, as having been made on the 3d of May, 1839. The case was continued to the next August Term. The notice required by law was given and returned to August Term, 1839, and the order of sale was entered at November Term, 1839, under which the sheriff sold the land.

The defendant and another were finéd by the County Court of Yancy, for a contempt of the court, “by fighting in the yard of the court-house, before the court-house door, and in the presence of the court.” The défendant appealed to the Superior Court, where it was agreed by the Solicitor for the State, that the case should be presented to the Court, as upon a cer-tiorari.

The defendants were tried in May, 1842, on an indictment for adultery; and their defence was, that they were man and wife. Held: that, as the marriage was before the a.ct of 18.38, ch. 24, which prohibits marriages between colored and white persons, the marriage between these parties was not unlawful, and therefore gave judgment for the defendants, from which the Solicitor for the State appealed ¡to the Supreme Court.

This was an action of debt on a bond, given by Harrison King, as a Constable in Cherokee county, and by the defendants as his sureties. Held: nor shew a sufficient number of justices present. But his Honor held the objections insufficient, and there was a verdict for the plaintiff and judgment, and the defendants appealed.

The defendants were tried upon the following indictment, to wit: “Fall Team, 1843. “ The jurors for the State upon their oath present, that Mark D. Armfield, Martin Booe, and William H. Martin, all late of the said county, laborers, on the 8th cay of August, in the year aforesaid, with force and arms, and with a strong hand in said county, from and out of the possession of one John Myers, a certain negro man named Baal, unlawfully, forcibly, violently, and with a strong…

This was an action of trespass vi & armis, to recover damages for taking a bed and bed clothing.

This was an action of covenant on the followinginstrument executed by the defendant’s testator to the plaintiff: “ To all to whom these presents shall come : I, William Wilson, of the county of Northampton, and State of North Carolina: Know ye that I, the said William Wilson, for, and in consideration of the natural love and affection which I have and bear unto my friend, Richard W. Taylor, of the county and State aforesaid, and for divers other good causes and…

This was an action on the case brought to reco ver damages for enticing the plaintiff’s apprentice from his service, and conveying him out of the State. It was in evidence that the lad, George W. Sharpe, was bound in the year 1833, then of the age of 9 years, to' learn the business of a tailor, and that he continued in the service of his master until the year 1840, when the defendant conveyed him away.

<p>Appeal from the SuperiorjCourt of Law of Henderson County, at the Fall Term, 1844, his Honor Judge Battle presiding. ■</p> <p>This was an action of trespass for seizing and taking away a quantity of corn, which the plaintiff alleged was his proper^ t y. Under the instructions of the court, the jury found aver-diet for the plaintiff, and judgment being rendered accordingly, the defendants appealed.</p> <p>The facts are fully stated in the opinion delivered in this court.</p>

The defendant was indicted in the following words, to wit: “ The jurors for the State upon their oath present that Clarissa, a slave, late the property of one Arthur Cl.

—■ This was an action of Ejectment, in which, under the instruction of the court, the jury found a verdict for the plaintiff. Judgment being rendered accordingly, the defendant appealed. The facts are stated in the opinion delivered in this court.

<p>It must appear on the record that amajority of the justices were present in the County Court when the poor tax was laid, otherwise the sureties in the sheriff’s hond will not he bound for it.</p>

This was an action of trespass quare clausum fregit, brought by nine persons as plaintiffs, styling themselves, “Elders and Trustees of the Church of Centre Congregation.” The suit was returnable to Fall Term, T843.

<p>In an action of assumpsit for goods sold and delivered, brought in the County Court, the damages were laid at $200. The evidence in support of the action was on the following instrument: “April 22d, 1840. Received 1500 • (hundred) weight of bacon at 6 cents, and 128 lbs. of lard. (Signed) Wm. Tabor.” On the back was endorsed, “ Credit $36, paid April 22d.” The jury found a verdict for $76 20 cents. Held, that this instrumenttvas neither a promissory note nor a liquidated account, and therefore the case did not come within the provisions of the act of 1826, (Rev. Stat. ch. 31. sec: 40,) prohibiting the courts from taking jurisdiction of any sum less than $100 due by bond, note or liquidated account.</p> <p>Held also, that if this were not so, yet the court could not dismiss the suit on motion, as the action was “ commenced” for more than $100 — the defendant’s objection should have been urged by a plea in abatement.</p>

Lewis. The plaintiff alleged, that the de-yencjant ajso claimed únder the said Lewis, and gave him notice to produce on the trial the contract or instruments under which he claimed; and, accordingly, the defendant produced the bonds hereinafter mentioned, and the plaintiff read them to the jury.

This was a scire facias against bail. The plaintiff sought to subject the defendant, who was the sheriff of Grange county, as the specialbail of one Nathaniel J. King, to the payment of a judgment, which he had recovered in Orange County Court against the said King, and Henderson, Norfleet and Durham.

This was a scire facias against the defendant as bail of one Samuel Falkner and Joseph M. Richardson. The defendant pleaded nul tiel record, no ca. sa. &c. The court found the issue as to nul tiel record in favor of the plaintiff; and the jury, under the instructions of the court, found the issue of fact as to the ca. sa. in favor of the defendant Judgment being rendered accordingly* the defendant appealed. The facts are stated in the opinion delivered in this court.

This was an action of covenant, in which the following case agreed was submitted to the court. Held: that the defendant was liable for his rateable part of the loss by Willis’ failure; so that judgment was directed to be entered up for the sum of $572, which sum is made up of the $500, and the defendant’s share of the loss by Willis, including interest on both sums — ■ this amount to be subject to a deduction for the $100, paid by…

1844, his Honor Judge Baxley presiding. The defendant, a free person of color, was tried upon the following indictment, viz: “ The jurors for the State, upon their oath present, that Elijah Newsom, a free person of color, late ofthe county of Cumberland, on the 1st day of June, in the year of our Lord, 1843, at Cumberland aforesaid, unlawfully did carry about his person, one shot gun, without having obtained a licence therefor from the Court of Pleas and Quarter Sessions of…

<p>Where A. conveyed negroes to B. in trust, “ to be kept, hired out, or otherwise disposed of, for the maintenance and support of C. — Held, that C. had no such equitable interest, as was the subject of execution under the act of 1812, (Rev. Stat. eh. 45, s. 4.)</p> <p>The principle, well established by our courts, is, that the legal estate is not to be transferred or divested out of the trustee by an execution, unless that may be done without affecting any rightful purpose, for which that estate was created or exists. Where the cestui que trust has not the unqualified right to call for the legal estate and to call for it immediately, as where the nature of the trust requires it to remain in the hands of the trustee, who, by the terms of the deed, is to do acts from time to time, the act of 1812 authorizing the sale of equitable interests does not apply.</p>

<p>Appeal from the Superior Court of Law of Person County, at the Fall Term, 1844, his Honor Judge Pearson presiding.</p> <p>This was an action on the case, in which the plaintiffs declared in tort for breach of contract, and also in trover for the conversion of certain bonds, notes and attorneys’ receipts, which the plaintiffs had placed in the hands of the defendant, to be by him collected for them. The breaches assigned in the first count were, 1st, failure to use due diligence in collecting; 2dly, failure to pay over moneys collected. The defendant relied upon the pleas of the general issue, and his certificate of discharge under the bankrupt law, which he obtained in January, 1843. The facts,, as disclosed upon the trial, were as follows : In 1836, the plaintiffs placed in the hands of the defendant the bonds, notes and attorneys’ receipts referred to, which were then due to the estate of the plaintiffs’ intestate from persons living in the State of Alabama, which bonds, notes, &c., by his receipt for the same, he agreed to collect or return. The defendant proceeded to the State of Alabama in the autumn of 1836. While there, he collected a part of the said bonds, &c., and left a large residue in the hands of his brother Robert M. Dickens, who was a partner in trade in that country with the defendant and others. Of the notes and bonds so left in his hands, Robert M. Dickens by his deposition proves, that he collected a large amount, which in part be paid over to the plaintifFs’ agent; but leaving a balance unaccounted for by him to the plaintiffs, of about .$900, It further appeared, that this balance of $900 was used by Robert Dickens for the benefit of the firm of Dickens, Webb, &. Co., of which the defendant, as above stated, was a member. And, upon the failure of the said firm, which took place in 1839, a general assignment of the effects of the firm was made for the benefit of their creditors, and this balance of $900 was, by a schedule annexed to the said assignment, admitted to be due the plaintiffs for claims left in the hands of Dickens, Webb, & Co. for collection. It was also proved, that the assets of the said firm were not sufficient to pay the said sum of $900. The plaintiffs also proved a demand before action brought.</p> <p>On behalf of the defendant, the testimony of John A. Hogan was introduced. Mr. Hogan stated, that in February or March, 1837, at the request of one of the plaintiffs, he had an interview with Mr. Robert Dickens in regard to the funds above mentioned. In that interview, Mr. Robert Dickens told him that he, Dickens, would visit North Carolina in the course of the ensuing summer, and would adjust the matters in regard to these funds with the plaintiffs and the defendant. Mr. Hogan further stated that in the course of the winter of 1838, he had another interview with Robert Dickens in Alabama, in relation to these funds, and Dickens then informed him that a portion of the funds was in the hands ofCol. Irving (an Attorney) and that he, Hogan, could call on Mr. Irving and obtain them. Mr. Hogan accordingly obtained from Mr. Irving the amount of $2175, or thereabouts. Mr. Hogan further stated that Mr. Robert Dickens, previously to his obtaining this sum from Irving, informed him (Hogan) that the funds, which were to be collected by Stephen Dickens for the plaintiffs, were collected or were considered by him (Robert Dickens) as collected ; that one of the debts was not actually collected, but was due to the plaintiffs from his overseer, and that he would, at the end of the year, retain this debt out of the overseer’s wages. The amount of this debt was four or five hundred dollars ; and soon after the first of January, 1839, Mr.R. Dickens sent Mr. Hogan a draft for five hundred dollars, which was duly paid on presentment. Mr. Hogan further testified, that Mr. R. Dickens said, that he ought to pay the funds he had collected to the plaintiffs, but that he had no funds at the time, which were available for that purpose; that his northern debts were pressing him, and that the payment he could make to Mr. Hogan depended upon what arrangement he could enter into as to his northern debts, and what collections he could make as to the debts due to the firm. In the first interview between Hogan and R. Dickens, the latter spoke of having made remittances to the defendant, and stated that what he owed the plaintiffs would depend upon the application the defendant had made of those remittances. Mr. Hogan further stated, that when the plaintiff, Williamson, first requested him to give his attention to these matters in Alabama, he stated, after shewing Mr. Stephen Dickens’ receipt, that Stephen Dickens had placed the debts mentioned in the receipt, in the hands of Robert Dickens for collection. In one of his interviews with Robert Dickens, Mr. Hogan told him that his brother Stephen would probably be sued by the plaintiffs for the debts he had to collect. To this suggestion R. Dickens replied, that he regretted, or that his brother ought not to be sued, for that he, Robert, had the funds in his hands. The plaintiff, Williamson, authorized Hogan to treat with Mr. Robert Dickens in regard to these debts.</p> <p>On the part of the plaintiffs it was contended, that they had made out their case against the defendant, and had a right to recover, notwithstanding his discharge in bankruptcy; 1st, because the defendant, by his undertaking to collect as the agent of the plaintiffs, established between himself and the plaintiffs a fiduciary relation, which, under the bankrupt law itself, precluded him from the benefit of his discharge: 2ndly. The plaintiffs having declared in tort, as they had a right to do under the facts of this case, the discharge ill bankruptcy 110 kar to action- But his Honor having intimated an opinion against the right of the plaintiffs to maintain their action, the plaintiffs submitted to a non-suit and appealed to the Supreme Court.</p>

This ,\vas an action on the case brought by .the plaintiff, as the executor of Theophilus Hyman, to which the defendant pleaded, among other pleas, the general issue and nc tinques executor. On the trial it appeared that Theophilus Hyman, testator? fpsicjed in the County of Edgecomb till the year 1839? during which time he made a last will and testament, ¡.ie nameci the plaintiff his executor, and deposited it jyith a friend.

This was an action of debt upon a bond given to Martha Webb for $‘185, dated the 5th day of March, 1833, and endorsed after it was due to the present plaintiff. Pleas non estfac-tum, payment. On the bond, two credits were entered before the assignment; the one for $86 18 cents, dated August 27th 1834; the other for $25 75 cents, dated Marsh 14, 1836.

This was a motion to the County Court to direct the application of $ ,- which Was raised from the sale of the real estate of Thomas D. Crain, dec’d. and paid into the office ofthe clerk of the County Court. Thomas D. Crain died in April, 1842. At the time of his death, justices’ executions in favor of H. G. Parish and others, the present plaintiffs, against the said Crain were in the hands of one E. G. Mangum, a constable, all being tested the 16th or 17th of March 1842.

The defendant was tried upon the following indictment, to which he pleaded not guilty, to wit: “ The jurors for the State upon their oath present, that Anderson Harris, late of the said county of Person, laborer, on the eighteenth day of March, A. D. 1844, in the county aforesaid, unlawfully, fraudulently, deceitfully and feloniously did attempt to pass, and did pass, for the sake of gain to one John Y. Parker, of the said county, a certain false, forged and counterfeit bank…

rpfrg defendant was tried upon an indictment containing two counts ; one under the seventh section of the act of 1832, incorporating the Portsmouth and Roanoke Rail Road Company, (Rey.

<p>Appeal from the Superior Court of Law of Guilford County, at the Fall Term, 1844, his Honor Judge Peabson presiding.</p> <p>The following is the case presented by the record:</p> <p>The relator, Caldwell A. Gillaspie, obtained a writ of man-damusj directed to the justices of the Court of Pleas and Quarter Sessions for Guilford county, and commanding them to make an order, that he should receive from the sheriff of that county a license to retail spirituous liquors by the small measure, at his shop in the town of Greensborough, in that county.</p> <p>The writ was granted on the affidavit of Gillaspie, in which he stated that he was a free white inhabitant of Greensbo-. rough, of good moral character, and, as such, had been licensed by the County Court, for several years next preceding Feb-rudry term, 1844, to retail, and that he had during that period retailed spirituous liquors at a shop in Greensborough: that February term aforesaid, the justices of the court, a majorify 0f them being present, resolved that the retailing of spirituous liquors was a practice injurious to good morals, and against the public policy ; and, therefore, that they would not pass an order for a license to any person. He further stated, that, at May term following, he moved the said court, more than seven justices being present, to grant him an order for a license to retail spirituous liquors at his shop aforesaid; and, in support of his motion, produced more than two credible witnesses of known respectability, to whom his character had been known for a number of years preceding, who deposed and satisfactorily proved to the court on oath, that he, the relator, was a man of good moral character. But that the said court refused the motion, resolving to adhere to the said resolution of the preceding term, and holding that it was at their choice, whether they would order a license to any person or in any case. Nevertheless, the court ordered the said motion to be entered of record, and also that the relator was duly proved to be a person of good moral character, and also that the court refused the motion, and the reason therefor, as above stated. To this writ, many of the justices, (upwards of thirty) returned, that the relator had applied to the court, ten magistrates being present, and was refused, as stated in his affidavit ; and that he had then duly proved that'he was a person of good moral character, and that the court had ordered the whole matter to be entered of record, so as to facilitate his remedy in the premises; that the reasons for the refusal of the application were as follows: that the court had resolved at February term, 1844, a majority of all the justices being present, that thereafter no license should be granted to any person as the said justices entertained the opinion, that the retailing of spirituous liquors was against the public policy, and a hurt to the morals of the people and especially to the young, and had observed many evil effects from tippling houses in the county, and particularly in the town of Greensborough, in which there is a flourishing grammar school, that is much resorted to by the youth from many parts of the State ; and although the relator had shown himself to be of good moral character, yet the justices thought that the business of retailing would, of itself, in that place produce the same evil effects, that would occur if men of bad character were licensed to carry it on ; and, moreover, the inhabitants of Greensborough had generally petitioned the court to refuse orders for retailing in that place; and they insist that they are advised, that, by the law, the granting of orders for such licenses or refusing them, is a matter entirely in the discretion and free choice of the justices of the County Court; and submit whether they could be compelled to grant a license to one, though of good moral character, for a tippling shop at the door of a church or an academy.</p> <p>On the foregoing return, a motion was made on behalf oí the relator for a peremptory mandamus, and each side, waiving all error and irregularity in the proceedings, desired that the motion should be decided on its merits, as depending upon the question, whether the justices have or have not the right to enter into a resolution, that they would not grant a license to any person, and, upon the ground of that resolution, refuse a license to a person, admitted to be, otherwise, a proper person, and entitled to a license if one were to be granted at all. The court held, the justices had no right to refuse to license any free white person, who proved a good moral character in the manner prescribed by the statute ; and that, as the relator had established those qualifications in the County Court, he was entitled to a license, and therefore the peremptory mandamus was awarded. From that judgment the justices appealed.</p> <p>A judge out of court, has no power to award a mandamus. It is a high prerogative writ, and in England issues from the Court of King’s Bench, and upon deliberation. 3 Bl. Com. 110. 1 Ch. Gen. Pr. 789. ^ *s regarc^e^ as one of the highest and most important branches of the jurisdiction of that court.</p> <p>But waiving this objection, it is insisted that the writ in this instance has erroneously issued, for the authority to grant licenses to retail is a trust reposed by the law in the justices of the County Court, and they of necessity must exercise a sound discretion in its exercise ; and there are other considerations, which are very material, besides the mere fitness or moral qualities of the applicant for license: such as the time of application, and the place where the spirituous liquors are to be retailed. The justices might think that a sufficient number of licenses had been already granted for a particular neighborhood or village. They might also think that the proximity of a dram shop, to an academy for the education of boys in learning and moral habits, was an insurmountable objection, and that the welfare of the rising generation, (the future hope of the State) was well worthy of their regard, and had claims paramount to those of retailers of spirituous liquors.</p> <p>If then the justices have a right to exercise their judgment, or to deliberate upon the propriety of granting license in any particular case, the Superior Court cannot control such judgment; for a peremptory mandamus (as this is) only issues to command the performance of an ascertained duty. State v. Jones Sp al. 2 Ired. 435. 15 East, 135. Rex v. Young Sp al. 1 Bur. 556.</p> <p>If it be a mere duty to be performed by the justices, and the applicant, on shewing that he has a good moral character, is entitled to his license, why should the act require seven justices to be present? Surely the ordinary number could ascertain and adjudge upon the moral character of the applicant, particularly as the law specifies the degree of proof. The legislature must be presumed to nave had an object in requiring seven justices, and that undoubtedly was, (among other things) because they would more adequately represent the county in this matter of county police, and would have the benefit of consulting and advising with each other.</p> <p>The mandamus will only issue where the plaintiff has a specific legal right to the thing in controversy, and no other remedy to enforce it. 1 Chi Gen. Pr. 790. 1 Ired. 134.</p> <p>The Superior Court will not prescribe what judgment the inferior court shall render; but when they refuse to act, will put them in motion by mandamus; 4 Blac. Ab. 510. . 1 Ch. Gen. Pr. 796.</p> <p>Here the inferior court has already acted, and if the plain» tiff has not obtained what he is by law entitled to, his remedy is by appeal, or certiorari, or writ of error. 15 East, 126.</p> <p>The justices have in their return assigned a sufficient reason for refusing plaintiff’s application, viz: the proximity of his shop to the academy. The plaintiff has not traversed the return as he might have done under the statute; it must therefore be taken as true, and if any one good reason be assigned for their refusal, it is sufficient, although it may be blended with other and insufficient reasons; nor will the argument of the return render it vicious ; it will be regarded by the Superior Court as surplusage.</p>

This was a petition by the plaintiff to recover damages for injury to the petitioner’s land, and the health of his family, occasioned by the erection of a mill by the defendant.

<p>An act or acknowledgment of one partner, after the dissolution of the partnership, which prevents the operation of the statute of limitations as to that partner, will also prevent its operation as to the other partners.</p> <p>Making a payment on a note repels the statute. It is assuming the balance anew.</p>

cited the following authorities: That the sheriff had no authority to sell for the taxes, Martin v. Lacy, 1 Murph. 311. Den ex dem. Pentland v. Stewart, 4 Dev. & Bat. 386. Ormond v. Faircloth, 1 Mur. 36. Jones v. Gibson, N. C. Term R. 41. Avery v. Rose, 4 Dev. 549. That ejectment might be maintained against two, ¡Stead’s Ex’ors. v. Cowes, 4 Cranch 402. cited Jackson v. Hazen, 2 John. Rep. 437. Rougher v. Pointer, 12 Eng. C. L. R. 311, 2 Stark, on Ev. 806.

. The defendant was indicted for burning the public jail of Franklin county. The indictment charged, that “he feloni-ously, wilfully and maliciously did set fire to the public jail belonging to the said county, and the said public jail, then and there being, by such firing aforesaid feloniously, wilfully and maliciously did burn and consume, contrary tothe statute,. &c.” The prisoner pleaded not guilty.

This was an action upon a covenant, of which the following is a copy : “ Robert Love and Ninian Edmonston agree thus, as respects the tract of land, on which said Edmonston lives, called the Probe Bottom, which has been valued to the said R. Love under a contract with James Lockhart, and said Edmonston agrees thus with the said Love, that, in case the said Lockhart will unincumber the said tract of land from a mortgage to James Greenlee, he will well and truly pay to the…

This was an action of debt upon a constable’s bond, executed by one Hooper in the year 1837, with the defendants as his sureties. It appeared in evidence that, during that year, the constable levied an execution in favor of one Gunn, amounting to about thirty dollars, on a slave, the property of Anderson, the relator’s intestate, and sold the same for about five hundred and eighty-four dollars.

This was an action of assumpsit, to which the defendant pleaded the general issue and the statute of limitations. Upon the trial it appeared, that the defendant’s testator was acting as the deputy of the sheriff of Tyrrell county, and, as such, had an execution in his hands against the plaintiff, and under it raised about $ 16, which was endorsed upon it.

This was an action of detinue, brought by the plaintiffs as administrators of one John Cheek to recover certain ' slaves. The principal question made in the case was upon the construction of the will of Silas Cheek, which was made in 1808, and of which the following are the material parts. “I do lend to Mary Smart’s four base born children, namely, Robert T. Smart, Sarah B. Smart, Rebecca Armstrong, and John S. Smart, all my estate, real and personal.

The defendant was convicted on an indictment for “ unlawfully, wickedly and maliciously” cutting and destroying a quantity of standing indian corn, the property of, &e. His counsel moved in arrest of judgment on the ground, that standing indian corn was not such personal property's could be made the subject of malicious mischief. The motion was disallowed by the court, and judgment being pronounced for the State, the defendant appealed.

<p>Where a woman has been examined on oath, under the Bastardy Act, before two justices, and one of them omits to sign the examination, the court, to which the proceedings are returned, may permit the justice then to sign the examination.</p>

The defendant was indicted for the obstruction of a road in Macon County, leading from Franklin towards the Tennessee line. . A witness was called to testify, that he had lived near the road for 15 years, and during that time it had always been used as a public road, and that it was reputed to have been so used from its first construction.

The indictment in this case charged, that, the defendant “ on, &c. in the county of Montgomery, did become drunk and intoxicated \yith spirits, and being so drunk and intoxicated, did go out and exhibit himself in the streets ofLawrence-ville, during the sitting of the Superior Court of Law for the county of Montgomery, in the town of Lawrenceville, the good citizens of the State being then and there assembled for the transaction of business, and passing and repassing, The…

The case presented by the record is as follows: The plaintiff took out an attachment against one James Keith, an absconding debtor, returnable beforo a single magistrate. This attachment is dated the 10th November, 1836. On the 12th of November, a notice is issued, by the plaintiff, Thomas S. Deaver, to John A. Sorrell, summoning him as a garnishee in the case.

This was an action for slanderous words spoken. It is stated, in an exception taken by the defendant, that the pleadings were not drawn out at large before the trial, but that by consent of the attorney an incipitur was filed instead of a declaration, and a memorandum entered on the docket, instead of the pleas, as follows: “ General issue, statute of limitations.” The memorandum by the plaimtiff’s attorney was in these words: “ That the defendant said of the plaintiff ‘ he…

<p>When tipoa a contract for work to be done, the party who is to do (he work agrees to be answerable for lost time, the demand for this lost tima is in the nature of unliquidated damages, and cannot be set off; but when the party afterwards acknowledges in. a letter how much he owed for suchlosttimo, indebitatus assumpsit may be brought for it.</p>

This was a suit .commenced by attachment. The defendant pleaded in abatement, that both the plaintiffs and the defendant were non-residents of this State, and were residents of another government, to-wit, the plaintiffs of New York, and the defendant of Texas. To this plea, the plaintiffs demurred. The court overruled the demurrer and dismissed the attachment, from which judgment the plaintiffs appealed.

<p>A return of a sheriff to a fi. fa. that“ he had made a levy on personal property and taken a forth-coming bond, but had not sold it, that the obligors not deliver the property on the day, and that, after the day, it was too late to make a sale,” is not such a “ due return” of the process as will exempt the sheriff from amercement.</p> <p>The act, allowing the sheriff to take a forth-coming bond, operates only between the sheriff and the debtor and his sureties. The creditor is left to all his rights and remedies against both the debtor and the sheriff.</p>

This action is brought to recover from the defendant the amount due upon his subscription to the stock of the company. The charier of this company was granted by the legislature in the year 1833, and in 1835, the capital stock was increased, and at the session of the legislature, 1836-’37, a joint resolution was passed, authorizing the Public Treasurer to subscribe for two-fifths of the stock, when three-fifths had been taken by private individuals.

This is an action by the plaintiffs, as the holders, against the defendants,-as endorsers, of a bill of exchange for $253 92,' drawn by James C. Crane, at Richmond, Virginia, in favor of the defendant, Williamson; on Wiatt Walker, of Yanceyville,' in this State, at 90 days,- which was accepted by Walker, payable at the branch of the Bank of Virginia, at Danville, and' was endorsed by Williamson to the other defendant, Roane, and by the latter to the plaintiffs.

<p>Appeal from the Superior Court of Law of Johnston County, at the Spring- Term, 1845, his Honor Judge Dick presiding.</p> <p>The prisoner was tried for murder; and, upon the return of the jury into court, they were polled at the prisoner’s request. Eleven of them, each for himself, answered simply .that he found the prisoner guilty. The remaining juror answered, that when the jury first went out he was not for finding the prisoner guilty, but that a majority of the jury was against him, and that he then agreed to the verdict as delivered in by the foreman. He was further asked, “what is your verdict now?” and he replied, “I find the prisoner guilty.”</p> <p>A motion was then made for the prisoner to set aside the verdict, upon the ground, that it thence appeared, that the jury had agreed to decide according to the majority; and upon the further ground, that the constable, who had the charge of the jury during their retirement, left the jury for the space of half an hour, and thereby afforded an opportunity for the j,ury to be tampered with..</p> <p>In support of the latter ground, it is stated in the record, that the prisoner read his own affidavit and those of two other persons, which stated, that the jury room opened from the Court room, and that the jury retired about 9 o’clock at night and the judge then left the bench: that the court room was crowded with persons, while the jury was out, who were talking about the case, and that the son-in-law of the deceased and other enemies of the prisoner were often near the door of ihe jury room •, and that it was several times opened, but by whom the witness could not state; and that the officer, having charge of the jury, was several times absent from the door for some minutes at a time. The prisoner swore, that he believed there was opportunity to tamper with the jury, although he could not say, that any person actually attempted to do so.</p> <p>On the other side the constable himself swore, that when the jury retired he immediately locked the door of their room, and that, until the jury came out to deliver their verdict, it was not opened, except to enable him to supply the jury with water and candles, and then, only as long as was necessary for those purposes That he generally stood at the door, as well as kept it locked ; but that he left it, when the jury wanted water and candles, and went for them ; and that he also once went to the Judge to ask permission for the jury to have food: That whenever he left the door, he took the key with him, after locking the door; and that he believed itfimpossi-ble, that any communication could have been had with the jury through the door.</p> <p>The record states, that the court refused the motion and passed sentence of death on the prisoner, who appealed. The presiding Judge ordered the affidavits, which had been read to the court-; to be sent up as part of the case.</p>

The following is the case as transmitted by the presiding judge: The defendant was indicted for an assault with intent to commit a rape. On the trial of the indictment, Mary A. Caldwell, a girl of fourteen or fifteen years of age, upon whom the assault was alleged to have been committed, was introduced as a witness for the State, and proved the forcible attempt to violate her person, as charged in the bill.

This is an action of trover for a parcel of corn, in which a verdict was found for the plaintiff, subject to the opinion of the court on the following facts. On the 1st of January, in the year 1840, Iredell Armstrong was seized in fee of a tract of land, which he then leased to one Levi Fisher for one year, at a rent of one-third of the corn and oats, that should be made on the land during the year.

This was an action upon a constable’s bond for the year 1835, whereon it was insisted that a recovery could not be had, because there was not sufficient evidence of the appointment of the defendant Eskridge to the office of constable, and, if there were, yet no more than nominal damages could be recovered.

This was an action of detinue for slaves, in which the following case agreed was submitted for the decision of the court. The negroes in controversy formerly belonged to Eri Barrow, who died in the year 1832, having previously made his will, of which he appointed his son Joseph W. Barrow, and his two sons in law John Mardree and Alfred S. Barrow executors, all of whom qualified.

This is a petition for a year’s allowance to a widow and her family, out of the personal estate of her deceased intestate husband.

This was an act of detinue, brought to recover possession of a bond, which it was alleged belonged to the estate of William Martin, of whom the plaintiff was the executor, being the executor of Atlas Jones, who was the surviving executor of the said William. The case is as follows. William Martin died in the year having previously made and published in writing his last will and testament, and therein appointed Atlas Jones and Archibald McBryde, his executors.

On the trial of this ejectment, the plaintiff introduced a deed from the executors of William Cox to John Needham and his wife Susannah, the lessor of the plaintiff, bearing date the 24th of March 1823, conveying in fee the land set forth in the declaration. A deed of trust was also produced, executed on the same day by the said John Needham and his wife Susan-nah to Hugh Moffitt, conveying the same lands, but as to this deed the said Susannah had never been privily examined.

This is the same ease, which was at this Court at June term 1843, in which the judgment was reversed and a venire de novo awarded. 3rd Ired. 381. Upon the second trial, the plaintiff again offered Owen Clark as a witness, to establish that the articles, which the defendants had sold as the property of Clark, were not his property, but belonged to the plaintiff and were delivered by him to Clark to sell as the plaintiff’s agent.

This is a petition for dower brought by the widow of Mo-sesW. Alexander against his-children and heirs at law. The only question m the case is with respect to a tract of land, of which Joseph McKnitt Alexander died seized in fee, and of which the petitioner alleges her late husband was, in his lifetime, and at his death in February of the present year, also seised in fee, under a devise thereof to him in and by the will of his father, the said Joseph McKnitt Alexander.

<p>On the trial of an issue, it was incumbent on the defendant to shew that he had given to his father a valuable consideration for a slave, and he produced a bill of sale, the execution of which he proved by a subscribing witness, and which expressed a consideration of $300. The plaintiff’s counsel asked the witness if he saw any money paid, and the witness replied that he did not, but that he saw a bond delivered by the defendant to his father, and being asked by the same counsel what bond, he replied “ the defendant’s bond to maintain his father and mother during their lives.” Held, that this examination on the part of the plaintiff did not dispense with the necessity of the defendaht’s producing the bond, or shewing that he had used the proper means to procure its production and then proving its contents¡</p>

The defendant, being an administrator, hired to one P. F. Long, for the year 1843, a slave belonging to the estate of his intestate. During the year the slave was taken sick, and P. F.'Long, without the consent or knowledge of the defendant, called on the plaintiff, who is a physician, to attend the slave, and he did so.

This is an action of debt upon a bond, executed by the defendant’s testator, Erasmus Ingram, and payable to the State ,of North Carolina.

This was an action of debt against the defendant, to charge him as executor de soil tort of Francis Ackiss, tipon a judgment obtained against the latter in his life time, at'June term 1840 of Pasquotank County Court.

<p>Appeal from the Superior Court of Law of Haywood Coun-íy, at the Spring Term, 1842, his Honor. Judge Bailey presi- - .ding.</p> <p>, This was a petition and scire facias by the heirs of an .elder against a junior patentee, to vacate a grant, under the act of 1798, Rev. St. ch. 42, s. 31. The petition set forth the plaintiffs’ ancestors and the defendants’ grant, describing them, and alleging that the defendants’ grant covered the land previously granted to the plaintiff’s ancestor, and that the defendant and those who claimed under him, were continually harassing them with suits, and praying that the defendant’s grant might be declared' void. The defendants in their answer to the petition, insisted that, for certain reasons there mentioned, the plaintiff’s grant was void. The scire facias merely recited, that “ a petition had been filed by the heirs of James Holland, deceased, under the act of 1798, praying that the grant to John Crow for, certain lands, may be repealed and va,cated,” and commanded the sheriff “ to make known to John Crow (and others named as assignees) that they should be and appear, &c. then and there to shew cause, if any they have, why such grant or patent to the said John Crow should not be repealed and vacated.” Upon the return of the scire facias executed, the following issues were submitted to a jury: 1st, tyas Janies Holland, the ancestor of the plaintiffs in this case, the senior patentee? 2ndly. Did the defendant, John Crow, know of the existence oí the plaintiff’s grant, at the time the said Crow obtained his grant. The jury found both of the issues in favor of the plaintiffs. On the tria], a witness on the part of the plaintiffs proved, that, in a conversation with Crow, he informed the witness that he had made an entry on the Holland old field; when the witness observed, why did you do so ? do you not know that Holland long since obtained a grant for the said tract ? Crow answered, I do, but understand the title is not good, and it will not cost me much any how ; I will try it. The jury having found the issues as above stated, his Honor, believing the defendants’ grant was obtained by fraud and upon false suggestions, ordered, adjudged and decreed that the defendants’ grant be vacated. From this judgment the defendant appealed. .</p>

The defendants, William Tolever and Caroline Tolever, were tried upon the following indictment, to wit: State of North Carolina, ) Superior Court of Law, Ashe County, )ss' Spring Term, 1843.

This action commenced by a warrant, returnable before a justice of the peace, for a penalty or forfeiture of thirty dob lars, incurred by the defendant for refusing or neglecting to send thirty hands to work one day on the public road, lying between Doctor’s Bridge and the Dark Entry, in Onslow county.

the Special Term in May, 1845, his Honor Judge Pearson .presiding. Ejectment for 749 acres of land in Mecklenburg; and upon the evidence the case was this ; Thomas Davidson was seized of the premises, and devised them to his only child and heir, Mary L. Davidson, in fee simple, and died in 1801. The said devisee entered and died in 1802, intestate and without leaving issue, or brother or sister, or the issue of such, and leaving her mother surviving her.

This was an action of assumpsit for $ 60 commenced by warrant. The facts appearing on the trial were these. Tha plaintiffs are physicians, practising in partnership, and declared for professional services, rendered in 1843, to a female slave, the property of the defendant.

<p>Where one has a deed of trust for personal property, other than slaves, to se» cure a debt, and he admits the debt has been paid,- and permits the •who made the deed, to keep the possession of the property and sets up no claim — Held that the title to this property is revested in the person Who had conveyed in trust, without any formal re-conveyance.</p> <p>A fieri facias, although it creates a lien on property, which prevents the owner from selling it, unless subject to the lien, yet does not divest the property out of the debtor, until a seizure, and, even after the seizure, the sheriff gains but a special property, such as is necessary for the satisfaction of the debt, and leaves in the original owner the general property, which is an interest that he may convey and sell at law.</p> <p>Therefore, where the plaintiff received a bona fide conveyance of property, which was subject to the lien of a fi. fa., and the defendant, after the date of such conveyance, levied executions from a justice on the said property, and the same was sold by the sheriff and constable jointly, the plaintiff iá entitled to recover from the defendant, who caused the' property to be sold under the justice’s execution, and received the amount of such sale, the excess beyond what was sufficient to satisfy the sheriff’s execution-.</p>

<p>Appeal from the Superior Court of Law of Union .county, at the Fall Term, 1844, his Honor Judge Manly presiding.</p> <p>The present defendant, Morgan, filed his petition in the County Court of Union county, at July Term, 1843, setting forth that he owned a tract of land lying on Rocky River, in the county .of Stanly, and also a quarter of an acre on the opposite side of the river, and situate in Union county, and that, except the said quarter of an acre, the present plaintiff, Brooks, was the proprietor of the land lying on the river in Union and opposite to the land of Morgan, situate in Stanly, as aforesaid. The petition stated that he wished to build a public grist mill on the said stream, and that he could not do so, unless he could get one acre of the said land of Brooks, opposite to his own as aforesaid. The prayer was for a summons to Brooks, and that the court would order four freeholders to jay off, view and value on oath, an acre of the said land of Brooks, and also an acre of the land of the petitioner opposite, and report their opinion and proceedings to the court.</p> <p>At October Term, 1843, Brooks appeared by attorney, but pnt in 110 answer, and the court made an order, appointing four persons “ to lay off and value an acre of the land of the ¿efencjallt [n qie petition mentioned and report.”</p> <p>At January Term, 1844, the transcript of the record states, that “ the report of the commissioners was filedbut it does not set it'forth. The transcript then proceeds as follows: “ In this case it is ordered and adjudged, that the report of the commissioners be confirmed. Whereupon, it is further ordered, that the said report be recorded; and ' that said Drury Morgan have leave to erect a mill, as prayed for in his petition, on said acre of land, and that he pay the costs of the suit; and thereupon the said Morgan pays down in court, for the use of the said defendant, Brooks, the sum of ten dollars, the valuation of the acre of land condemned by the said commissioners.” From that order Brooks prayed an appeal, which was refused by the court.</p> <p>At February Term, 1844, of the Superior Court, Brooks moved for and obtained a certiorari to bring up the proceedings, upon his affidavit, in which he stated, besides the refusal of the court to allow hirn an appeal, that Morgan owned on the Union side of -the river, not only one quarter of an acre, but eighteen acres of land, on which he had erected a mill, which was in full operation at the filing of the petition. In an affidavit exhibited by Morgan, in answer to that of Brooks, he admits that he owned eighteen acres of land on the South or Union side of the river, and that he had a mill on it, the race of which ran through it; but he says he was not able to erect a mill thereon, that would be of public benefit or of profit to himself, for the want of some way to get the water off from the wheels into the river again, and that an acre of Brooks’ land, as laid off, was essential for that purpose.</p> <p>Upon the case being called in the Superior Court, the counsel for Morgan moved to quash the certiorari, because it had improvidently emanated, inasmuch as no appeal was given by law in this case, and therefore the Superior Court could not take jurisdiction of it in any way. The court refused the motion, but allowed the defendant, Morgan, to appeal, and ordered the affidavits and proceedings, herein before stated, to“ be sent up as presenting the question between the parties.</p>

This is an action of detinue for a slave, Dick, the issue of a female slave, named Olive.; and the plaintiff claimed him under a sale by one.Henry Williams, and the defendant claim-e(j ag j.jje… Held: if an executrix treat the goods of her testator as her own, and afterwards marry, and then treat them as the goods of her husband, she shall not be allowed to . object to their being taken in execution for her husband’s debt. The case of Fenton v. Reid, 4 John.

This was an ejectment, in which the evidence was, that Charles L. Crissman, being seized of the premises, made his will on the 19th of August, 1833, and therein devised as follows : “ First, I give unto Susannah, my wife, a life estate in the land and plantation whereon I now live, with the two tracts adjoining, containing in the whole 560 acres on the Yadkin river.

This was an action of trover for six slaves. Held: that where a woman, on the eve of marriage, makes a conveyance, which she keeps in her own possession,’ if got out of it against her will, does not bind her,- otherwise it doth.’ See also Hengoor's case, 9 Co. Rep. Í36. The case of Clavering v. Clavering, 2 Barn.

<p>In an action by warrant against a constable’s sureties under the Act, Rev. St. ch. 81, sec. 3, to recover moneys collected by a constable by virtue of his oí-fice, proof, that the constable had received goods or labor in satisfaction of the claim he had to collect, is sufficient to entitle the plaintiff to recover.— It is not requisite that he should have received the actual money.</p> <p>An action under that Statute can only be barred by the same length of time, that bars an action on the bond.</p>

This was an action of assumpsit for money had and received, in which the case appeared to be this. The defendant is the Sheriff of Wake County, and as such, demanded from the plaintiffs the sum of $ 100, as the amount of taxes, both State and County, assessed upon the house in the city of Raleigh, used and occupied by the plaintiffs as their banking house, and upon the lot on which it stands.

The action is brought in detinue to recover a number of negroes, under the following circumstances. John F. Smith died in the year-leaving three daughters, his only children* and entitled, as. his next of kin, to his personal estate. A petition was filed in the County Court of Craven, the proper tribunal, to. have partition of the slaves. The daughters, of whom Laura M. was one, were the plaintiffs, and stated in their petition, that they were tenants in common of the slaves.

This action is brought to recover’possession of the tract of land, described in the declaration. The facts, as disclosed in the case, are as follows : William Davidson was the owner of the land, and in 1830 conveyed it to W. Morrison, to secure certain ^creditors and to make title to such persons as Davidson might effect a sale with, for the purpose of discharging the debt set forth in the deed.

<p>Appeal from the Superior Court of Law of Cumberland1 County at the Spring Term 1845,- his Honor Judge Pearson presiding.</p> <p>Ejectment for 1100 acres of land in Robeson,-commenced the 15th September 1836 against John Campbell, then the tenant in possession. The demise is laid the 1st March 1836. — ■ Campbell appeared, entered into the common rule, and pleaded, not guilty. In March 1838 his daughter Mary Ann Campbell (who has since married Evans) procured herself to bo made defendant instead of John Campbell.</p> <p>On the trial the plaintiff showed,- as his title, a judgment obtained by one Johnson and one Davis in September 1833 against John Campbell for $780 26, and a fieri facias thereon, and a sale of the premises to the lessor of the plaintiff by the Sheriff in January 1834, and a return on the execution of* sale of the legal and equitable interest of John Campbell in the land. The plaintiff then showed two Sheriffs deeds to the jegsor Qf tjje plaíotifi: The one, dated May 26th 1834, which recites that under the execution the Sheriff seized and took into liis hands “a certain tract of land, that is to say, the equitable interest of the said John Campbell in the same” &c., and then conveys the land in dispute : The other, dated March 26th ■ 1837, is in all respects like the former, except that it does not refer to any equitable interest of Campbell in the premises, but purports merely to be a conveyance of the legal estate.</p> <p>The counsel for the defendent then stated the defence to be, ' that, before the judgment was rendered, under which the lessor of the plaintiff purchased, the premises had been bona fide sold under another judgment and fieri facias and purchased by and conveyed to the State Bank of North Carolina, who held the same, subject to an agreement for the redemption of the premises by the said John Campbell upon the payment of the sum of $144' and interest thereon, and certain costs; and that, underpaid agreement, the said Campbell was permitted by the Bank to remain in possession; and that he had no other interest in the premises; and that a part of the said sum of $144, namely, the sum of $88, remained due to the Bank at the time of the sale to the lessor of the plaintiff, and still remained due and owing from the said John Campbell to the Bank or its assignees. The counsel for the plaintiff insisted, that he had shewn conclusively a title against John Campbell, and that it was not competent for him or the present de-fendent-to deny it; and therefore he objected to any evidence in support of the. defence, as stated. But the court overruled the objection and allowed the defendant to go into the evidence.</p> <p>Upon the evidence the case was thus, in 1821 the State Bank got a judgment against John Campbell, and the premises were sold upon an execution thereon and purchased by the Bank and a Sheriff’s deed executed. The Bank and Campbell then agreed, that Campbell might redeem by paying the debt and costs,- and that in the mean time he might retain the possession and use of the land. Campbell sold several parcels of the land between 1821, and 1833 and the Bank conveyed to the purchasers. In 1833 the debt had been reduced by Campbell to $88 — which was stated on the books of the bank to be “ secured by mortgage of landand at that time one Tuton, at the request of Campbell, his wife, and his said daughter, paid that sum to the Bank, upon an agreement that, when it should be repaid, the premises should be conveyed to the daughter, as they stated that Johnson &■ Davis had their judgment against John Campbell, and therefore it would not do to have the conveyance made to him, John Campbell, as the land would be sold immediately for his debt. At that time Mary Ann Campbell was about sixteen years of age, lived with her father and had no property at all. In 1836 Mary Ann Campbell repaid to Tuton his debt and interest, and in 1837 a deed was made to her in fee. John Campbell continued to live on the premises and his daughter with him, until her marriage in 1841, when the father left the possession to her and her husband.</p> <p>The presiding Judge thereupon instructed the jury, that there was nothing to be left to them, but that the questions in the case were all matters of law, which it was his duty to decide ; and that, although it was a general rule, that a debtor, whose land has been sold, cannot in an action of ejectment by the purchaser, dispute his title or show the title to be in a third person, yet in this case the debtor, John Campbell, had but an equitable right of redemption, which might lawfully be sold; and which was purchased by the lessor of the plaintiff; but that would not enable the plaintiff to maintain this action, which must be founded on a legal and not an equitable title. And his Honor proceeded to state to the jury, in an argument of considerable length, his reasons for thus laying down the law to them, and allowing the defendant to shew, that John Campbell had not the legal titleAt the time of the purchase by the lessor of the plaintiff; which reasons it is not material to state in order to a proper understanding of the points decided.</p> <p>In submission to the opinion of the Court, the plaintiff suf-~f"el'ed a nonsuit, and appealed to the Supreme Court.</p> <p>We contend that all the points have been already decided by this Court in this same case. Davis v. Campbell, 1 Ire. Rep. 482.</p> <p>1. We say that the plaintiff was .entitled to recover upon the mere production of his judgment, execution, sale and Sheriff’s deed, as against, Campbell Den on dem of Hodges v. Thompson, .3 Murph. 546, Hatton v. Dew, lb. 260, Smith v. Kelly., lb. 507, Duncan v. Duncan, 3 Ire. 317.</p> <p>2. It is insisted, that the same rule applies to a subsidiary defendant, that he can shew nothing which the party in aid of whom he .comes in co.uld not do. Balfour et al v. Davis et al, 4 Dev. & Bat. 300, Gorham v. Brenon, 2 Dev. 174.— The Judge therefore erred in allowing .evidence of the transaction relative to the mortgage.</p> <p>3. But haying allowed it., he .erred in holding that the plaintiff could not recover, because the title of Campbell was a mere equitable -title., and of course Davis purchased nothing which would avail him in Equity. This is an exception to the general rule, that a party cannot recover in Ejectment on an .equitable title. The act .of Assembly authorizing the sale of such interest under an execution at law converts them pro hoc vice into legal estates. As soon as .the law interferes with such estates so far as to give execution against them., it must also furnish the remedy to make the .execution available. It is not to be expected that we should find any direct English authority upon this question, for equities of redemption there are not extendible, and no real estate can be sold by fi. fa., .but trust estates are extendible; but in executing an extent the purchaser is put into the actual possession, and the plaintiff does not loose the fruits of execution, because the defendant has a more equitable estate. Vid. Com. Dig. Title. Execution, ch. 14, and it would seem, that when an act gives the writ of fi. fa., where in relation to other real estate the purchaser gets the fruits of the purchase by ejectment, that as against the defendant in execution, and those coming instead" of or in aid of him, it must necessarily have his ejectment though the estate be merely equitable. No direct authority have we been able to find among our own decisions, upon this question, but it seems to us several of them necessarily in their conclusions must have taken this proposition for granted. In Campe v. Cox, 2 Dev. 502, and 1 Dev. & Bat. 52, it does not seem to have occurred to the Court to get rid of the difficult questions involved in that case by considering the parties just in the hands of the Court of Equity as they were before, and that no new relation was created by the purchase at execution sale. In Hamson v. Battle, 1 Dev. Eq. 541,2,3, the Court speaks of the creditors remedy at law, though it admits it may not be as effectual as in Equity, and goes on to say, that as to the trusts upon the personal property, there is no remedy but in this Court, &c. In Thorpe v. Ricks, 1 Dev. &> Bat. Eq. 613, the Court admits the right of the purchaser at execution sale to redeem j but of what avail would his redemption be, if in the mean time the debtor is to remain in the quiet occupancy of the land, reaping its profits, while he is pursuing his decree for foreclosure, unable to bring his action of ejectment until he had paid the money to tire mortgager, and obtained the legal title ; and in the case of Thorpe v, Ricks, it appears the creditor had already obtained possession of the lot, and so far as his action was concerned required no remedy, but only needed the assistance of the Court of Equity, to extinguish the title of the mortgagee. In Hall v. Harriss, 3 Ire. Eq. 289, Harriss had purchased the equitable interest of Morgan, and the matter is distinctly brought before the Court that an action of ejectment had been brought, not against the debtor in execution but against this alienee, and it was not thought of by the counsel or by the Court to make that an objection to the plaintiff ’s recovery at law. A Court of Equity protecting its own jurisdiction should refuse to dissolve the injunction. But we have, from other sources, express authority upon this question. Stephens N. P. 1288, and especially, note B., which states that except as against the mortgagee and those claiming under him, the mortgagor is considered the real owner, and may maintain ejectment, and the defendant can not set up the mortgage as an outstanding title; and cites Collins v. Torry, 7 John. Rep. 278, Wellingham v. Gale, 7 Mass. Rep. 138, Porter v. Millett, 9 Mass. 101, Hitchcock v. Harrington, 6 John. 290, Sedgewiclc v. Hollenback, 7 John. 376, Jackson v. Pratt, 10 John. 381, Jackson v. Bronson, 19 John. 325.. To the same purport is 4 Kent’s Com. 185 & 148, also the case of Jackson v. Davis, 18 John. Rep. 7. In Perkins Edition of Brown's C. C., Yol. 3, p. 478, in a note to the case of Lyster v. Dolland, it is stated, a purchaser at execution sale acquires the rights of the mortgagor, and cites Crow v. Tinsley, 6 Dana. 402, Wathington v. Lee, 2 Bland. 678, White v. Bond, 16 Mass. Rep. 400, Warren v. Childs, 11 Mass. Rep. 222, Kelly v. Brunham, 9 New. Hamp. 20, Steward v. Allen, 5 Green 103, Fitch v. Ayer, 2 Conn. 143, Coomb v. Jordan, 3 Bland 284. And further, the right of the mortgagor to redeem his estate is almost universally liable, in United States, to be taken and sold by execution creditors, and cites 1 Hilliard’s Ab. Law of Real Estates ch. 85, and cases cited, Pritchard v. Brown, 4 New Hamp. 402, Kelly v. Beus, 12 Mass. 368,390.</p> <p>4. But the permission to remain in possession and sell, was a legal title and under it the mortgagor might himself have maintained ejectment. Lyster v. Goldwin, 2 Add. & Elb. 142.</p> <p>5. If it should be objected that this was not such an equity of redemption as is subject to sale. Tide Thorp v. Ricks, 1 Dev. & Bat. 613, Poole v. Glover, 2 Ire. 129.</p> <p>6. As to the form of the conveyances, vid. Thorpe v. Ricks, 1 Dev. & Bat. Eq. 613.</p> <p>7. We are entitled to have the question left to the Jury on the presumption of the legal title having been surrendered, if not to a positive charge in our favor, from lapse of time. Stephens N. P. 1377, cites Lade v. Half on, Ball. N. 110, 3 Bun. 1416, 1 W. Black. 428, Syburn v. Slade, 5 Term. R. 682, Bennett v. Long, 9 Carr &, Payne 778, Williams v. Bennett, 4 Ire. 122, Cook v. Sottern, 2 Simon & Stuart, 154.</p>

<p>Appeal from tile Superior Court of Law of Mecklenburg County, at the Spring Term 1845, his Honor Judge Bailey presiding.</p> <p>The plaintiff, Lucretia, intermarried with one John N. Allen in this State, both being domicilled here, Her husband afterwards instituted a suit against her for a divorce for cause of adultery, on her part, in which there was a decree divorcing him a vinculo matrimonii. Afterwards the said Lucres tia and John R. Williams, both being citizens of North Carolina and domicilled here, with the purpose of evading the laws of this State, which prohibited her from marrying again, went into South Carolina and there intermarried, according to the laws of that State, and immediately returned to this State, and continued to live here for several years as man and wife, until the said John R, Williams died intestate.</p> <p>The plaintiff then filed her petition in the County Court for her year’s allowance under the statute, as widow of the said intestate; and the administrator appeared, and insisted that the marriage was void, and that the petitioner was therefore not entitled. Of that opinion,, was the County Court, and dismissed the: petition. The petitioner appealed to the Superior Court, and upon the facts above stated, the order of the County Court was there reversed, and the petitioner declared to be entitled; and from that the administrator appealed to this Court,</p> <p>The validity of the marriage depends upon the lex loci.— 4 Eng. Ee. Rep. 565. Bcrimshire v. Scrimshire, 571. Dal-rmyble v. Dalrymble, 4 Eng. tic. Rep. 485.</p> <p>This is according to the jus gentium, great mischief and confusion will arise from a contrary doctrine. 4 Eng. Ec. Rep; ,572.</p> <p>The matter of domicil makes no sort of difference in determining these questions. Ibid. 573.</p> <p>There is no such impediment here, to holding this marriage .to be valid as there would be in England, for there, the first marriage is indissoluble, except by the transcendant power of Parliament, and it is therefore against their policy. Our law permits divorces a vinculo, and the reason therefore does not apply. The doctrine of the American Courts clearly is, that •* the validity of the marriage depends upon the law of the place where it is celebrated ; and that law is resorted to for the pur» pose of ascertaining the capacity of the parties to contract. .Story’s .Comff. of Laws, 87, 112.</p> <p>Personal disqualifications of a penal nature arising from the positive or municipal law of our State, are not enforced in other countries, they are strictly territorial. Story’s Comfl. 97,</p> <p>The prohibition here on the plaintiff to marry again, was in the nature of a penalty, ,a forfeiture, and cannot have an extra-territorial operation.</p>

This was an action of detinue for several slaves, which, it was admitted, had been the property of the plaintiff. Some difference having arisen between the plaintiff and his wife, she left him, and instituted legal proceedings to procure a divorce and alimony. Their friends interfered and caused a compromise to be effected, so that the legal proceedings might be abandoned.

This is an action of trespass brought to recover damages of the defendant for beating the plaintiff’s slave Mary. Plea, not guilty. It was insisted by the defendant, that the slave then belonged to him, and that he had a right to chastise her. Immediately after he had beaten the slave, in the plaintiff’s field, where she was then at work, and before he left the field, he cursed and abused the plaintiff, (who was absent) and threatened to shoot or otherwise injure him.

This is an action of ejectment. The plaintiff claimed under a grant to William Whitfield, which was prior, in date, to that under which the defendant claimed, and deduced a regular title from the grantee to himself. The question, as it turned out, was one of boundary.

<p>Where a hank receives a bill of exchange from the drawer for collection, it acts as the agent of the drawer, and is entitled to no damages if the bill be protested; it can only claim expenses.</p> <p>Where a debtor by note to a bank paid the' full amount of the note to the cashier, declaring that the payment was intended to discharge that debt, the cashier was bound to make the application accordingly, and could not apply any part of the sum so paid to the payment of damages on a protested bill, which he alleged to be due to the bank from the debtor.</p>

<p>Appeal from the Superior Court of Law of Mecklenburg County, at the Special Term in May, 1845, his Honor Judge Pearson, presiding.</p> <p>This was an .action of detinue for a slave, named-John,The slave in controversy once belonged to William David» S0U- He being in insolvent circumstances, a creditor of his obtained a judgment and execution against him. The slave was levied on and sold by the sheriff, as William Davidson’s property, and the defendant became the purchaser. The plaintiff contended that her father, William Davidson, had sold the said slave to her bona fide and for a valuable consideration, before the teste of the execution, under which the defendant claimed him. She offered her father, as a witness to prove these facts: he stated that he had sold the slave to the plaintiff bona fide and for a valuable consideration, before the teste of the execution, under which the defendant claimed the said slave: that he had never made any actual delivery to the plaintiff of the slave, but that he had permitted her to hire out the mother and her boy John and receive the hires: that the consideration, given to him by the plaintiff for the slave, was a tract of land which belonged to her, lying in the State of Tennessee : “ that she had executed to him a deed of bargain and sale for the said land.” Neither the plaintiff nor the witness was able to produce the said deed, it being alleged to be in Tennessee. The court was of opinion that the deed would be the best evidence, that the plaintiff had actually parted with her title and interest in the said land, and also given a valuable consideration for the slave, and refused to permit the witness to give parol evidence of his acquiring the title to the said land. Whereupon the plaintiff was nonsuited and appealed.</p>

This was-an action of debt on a bond for ten dollars, commenced before a justice of the peace, and brought by successive appeals to the Superior Court. The execution of the ' bond being proved, the defendant introduced and relied on a • former judgment on a warrant for the same cause of action, , which judgment was in the following words, to wit, “ War- ■ rant dismissed and judgment for the officer for one dollar. ■ April 30th, 1844. Rob.

This was a motion to permit the sheriff to amend his return on a writ of Fi. Fa. that he levied and sold certain property, and to substitute in lieu of said return a return that no property of the defendant could be found. It appeared that an execution in this case issued against the defendant, which was levied on certain goods as the property of the defendant, and these goods were subsequently claimed by one Benjamin •Tyler.

<p>Appeal from the Superior Court of Law of Anson county, at the Spring Term, 1845, his Honor Judge'Pearson presiding.</p> <p>This was an action of covenant on the following instrument executed'by the defendant and delivered'to the plaintiff, to wit:</p> <p>“ I agree to pay John M. Ingram five hundred and twenty-four dollars, being the amount paid by the said Ingram as the security of Robert Ingram, deceased, as constable, on condition the sale of the house and lots in the town of Charlotte,, made this day and purchased by me, proves, on a controversy with the purchaser at a sale made formerly by the executors, to be good; and on condition, that the executor has no right in future to make a sale, so as to defeat the purchase made this day by me, at sheriff’s sale; the above sum to be paid as soon as the question settled.”</p> <p>The plea, “covenants not broken.” It appeared that Robert Sloan, the late husband of the defendant, made his Will, and appointed John Sloan his executor. He proved the Will and qualified. The testator, by his said Will, gave his executor a naked power, to sell three lots of land, lying in Charlotte, and then to divide the purchase money among his wife and children, The executor, by virtue of his power, sold the three lots to Hiram Sloan. Afterwards, to wit, on the 27th day of November, in the year 1833, the Sheriff sold the said lots, and executed to the defendant, as the highest bidder, the instrument in nature of a deed, mentioned in the case.— in which is recited, “ that an execution for $ 225, issued from Mecklenburg County Court, against the heirs at law of Robert Sloan, which debt was recovered by Durham Combs and others against the said heirs, as on record may appear; that he (the Sheriff) sold the said three lots on the 25th day of January 1832, at which time Margaret G. Sloan, became the best bidder, &e.” On the 28th day of January 1833, the defendant executed to the plaintiff the covenant now sued on ; and this action was brought on the 28th day of July 1840; and the defendant has been in possession of the lots, holding them adversely to the vendee of the executor, ever since her purchase at the Sheriff’s sale. On the trial, the defendant objected to a recovery against her, first, because the plaintiff did not produce the judgment and execution against the heirs of Robert Sloan, under which she purchased the land; and to support the Sheriff’s sale to her. The Judge was of opinion, that the defendantin making her covenant, took for granted, that all the proceedings to support the Sheriff’s sale were regular; and that she conditioned and restricted herself, only to a defect in her own title by reason of the sale to Hiram Sloan, then already made by the executor, or which he should thereafter make to any one, under the power in the Will. — • And if a defect existed, she should shew it. It was also in evidence that the defendant had had, under her deed from the Sheriff, seven years actual possession, adverse to the alienee of the executor.</p> <p>The jury, under the charge of the Court, found a for the plaintiff, and, judgment being rendered accordingly, the defendant appealed to the Supreme Court.</p> <p>Three objections were taken by appellant:</p> <p>1. Because plaintiff had not shewn a judgment and execution against the heirs at law of Sloan, to support the sale of their lands by the sheriff. The judge answers that objection by saying, that the covenant takes for granted that the proceeding to support the sheriff’s sale was regular, by restricting itself to a defect in the title by reason of the sale which the executor had then made or should afterwards make. And if the defendant be at liberty to avail herself of any defect of title by reason of any irregularity in the proceedings, it was for her to shew the proceedings and point it out.</p> <p>To which, I think, may be added, that the defendants undertaking was to pay to the plaintiffa sum of money with certain specified exceptions, and those exceptions being out of the way, the obligation is single. An irregularity in the proceedings under which the sheriff sold to her is not one of those exceptions.</p> <p>2d. It is objected, that the sale of the executor under the power of the will had passed title to Hiram Sloan, before the sale by the sheriff. To which the judge answers: The title did not pass to Hiram Sloan, for the widow’s dissent made it impossible to execute the power ; and the sale by the executor being after the judgment, execution, and levy, and the whole relating back at least to the teste of the execution, the title was divested out of the heirs before the sale by the executor, and therefore did not pass to feed the use raised by the exercise of the power.^To this I add nothing, but merely cite in support of its correctness, Pickett v. Pickett, 3 Dev. 6. Ba-zoin v. Lenoir, et al. 1 Dev. Eq. 225.</p> <p>3rd. It is objected in answer to the statute of limitations perfecting the defendant’s estate, that as the executor conveyed to Hiram Sloan subject to the defendant’s right of dower, that her possession was not adverse, and consequently the statute did not help her title. To this the judge makes no reply, thinking the case with the plaintiff upon the other grounds. Qoncurrjng with the judge in that opinion, I would, however, remark, that there is no privity between the widow and Hiram Sloan, or those under whom he claims, to wit, the executors. Her claim of dower is adverse to theirs, being founded not upon the will, but upon a dissent from it. And in Pickett v. Pickett, before cited, it is held that a possession adverse to the estate over which the power exists, will, under the statute of limitations, bar the power. But in truth, the widow does not claim by way of dower, her proceedings in dower never were consummated. Her claim is under the purchase from the sheriff, and this by her acknowledgment under seal, on which this action is brought, she is estopped to deny. She establishes beyond dispute that claim as adverse both to the power and the estate over, which it claims to exist. It is in fact adverse to Hiram Sloan, to the heirs at law of John Sloan and to his executors, and this adverse possession, having continued more than seven years, bars them, and of course secures her against all that the exceptions in her covenant were intended to secure her against.</p>

This was an action of ejectment. The title of the lessor of the plaintiff was a purchase and a conveyance of the premises from the Sheriff, upon judgments and executions against the defendant; who was in possession of the premises at the time of the Sheriff’s sale, and also when this suit was commenced.

<p>Wiiere a person, who had a lease until a day certain, having had notice to quit, held over, and an action of ejectment had been brought against him by the lessor, and pending this action he quittedthe possession, and then the lessor sued him and recovered a certain sum for his use and occupation of the premises, during the time he held over — Held, that this was not a waiver of the notice, nor evidence of a new tenancy irom year to year.</p> <p>If the money recovered in the last action had been recovered or received as •rent, it would have been evidence of a new tenancy.</p>

This was an action of trespass, brought by James L. Battle against the sheriff of Edgcombe, for seizing certain slaves, the property of the plaintiff, which the defendant justifies under writs oí fieri facias against the property of Jethro D. Battle, which came before the court on a case agreed. Mary E. Taylor owned the1 slaves in question, and. made her will in August, 1843, and died.

This was an action of ejectment, in which both parties claimed under one Josiah Unthanlt, The plaintiff, in order to shew title in himself, offered in evidence a decree of the Supreme Court, made at December Term, 1833, in the case of Redmond and others v. the said Unthank and others, with sundry fi. fa's, and vend. exponas1 s issuing thereon, all duly certified.

This is a scire facias against the administrator of Thomas Bouchelle, the bail of John E. Bouchelle.

This was an action of trover, brought to recover the value of a negro woman, sold by the sheriff of Rowan county by virtue of executions issuing in favor of the present defendants against the executors of one Hileck.

<p>Appeal from the Superior Court of Law of Nash County at the Spring Term, 1845, his Honor Judge Dick presiding.</p> <p>This was an action of debt upon a bond in the, following words and figures, to wit:</p> <p>Mobile, January 6th, 1837.</p> <p>$ 12,000. Twenty-four months after date, we or either of us, promise to pay to Archibald H. Arrington or bearer, twelve thousand dollars, for value received.</p> <p>CHAS. J. GEE, Seal.</p> <p>M.H. PETWAY, Seal</p> <p>STER. H. GEE, Seal.</p> <p>The only question was, as to the rate of interest this bond should bear. The following facts were agreed upon. The obligee, A. H. Arrington, then and now a resident of this State in the year took to the State of Alabama, many slaves, and sold them there to the first named obligor, Charles J. Gee, for the sum of $ 24,000, one-half of which was paid in cash, and for the residue of the purchase money he gave the bond, agreeing at the same time to give for his sureties the other two obligors, both of whom reside in this State, and their residences were well known to the obligee Arrington. The slaves were delivered, and the bond written and signed by Charles J. Gee in Alabama, and delivered to the obligee, Arrington, who brought it to this State, where the other obligors executed it as sureties of Charles J. Gee, upon the facts aforesaid being represented to them. The rate of interest fixed and allowed by the law of Alabama, upon contracts after they become due, is 8 per cent. The defendant’s counsel prayed the Court to instruct the jury, that, there being no place of payment designated by the terms of the bond, it was, in law, to be paid where the obligee resided, and therefore bore but six per cent interest. The Court refused to give this instruction, but charged the jury, that, from the face of the bond, and the facts agreed, the plaintiff was entitled to interest on the bond according to the laws of Alabama. The jury rendered a verdict for the plaintiff allowing Alabama interest, and from the judgment thereon the defendants appealed.</p> <p>1. The contract was made in Alabama. Clearly, it was as to the whole subiect matter thereof and as to the principal. J 11</p> <p>The signing of the sureties is but a part of the contract, and, when completed, refers back to the time and place of contract. Story’s Confl. Laws, 279 & 286.</p> <p>If this be not so, then there are two contracts by the same instrument and deducible from one and the same language— And if this be not so, something still more absurd, to wit, the governing the contract of the principal debtor by that of the surety, when the latter has undertaken expressly to secure the contract of the former.</p> <p>Inconvenience of any other rule, as where several sureties reside in different States having different rates of interest, and different customs affecting contracts. If the interest here was' 10 per cent, would the sureties be bound for that interest, and ■the principal for 8.per cent.</p> <p>2. If the contract was made in Alabama, it is governedal-together by the laws of Alabama, unless performance is to bo elsewhere. Story’s Confl. of Laws, 240, 263, 271.</p> <p>In all cases where the language is not directly expressive of the actual intention of the parties, but is to be tacitly inferred. Note dated in Dublin and sued in England, and payable in pounds, is payable in Irish pounds. Story’s Confl. of Laws, 272.</p> <p>If two contract in another country, the lex loci governs, unless there be a clear intention to the contrary. Story’s Confl. of Laws, 273.</p> <p>Contract between foreigner and natives, in the country of the latter, is governed by the laws of the natives. Story’s Confl. of Laws, 274, 276, 278, 279. ' '</p> <p>3. If performance is to be elsewhere, the contract is to be governed by the laws of the place of performance. But performance is to be niade at the place of contract, where no other place is expressly stipulated, or where the contract is payable any where. Story’s Confl. of Laws, 282 and note 3, 283, 272,317 and note 3. 2 Hay. 5.</p> <p>4. Forbearance of money due is like a loan of money, and such advances, where no place is designated, are reimbursable at the place of advance. Story’s Confl. of Laws, 2S4, 287. Winthrop v. Carleton, 12 Biass. Rep. 4.</p> <p>5. When foreign security is taken, it does not alter the locality of tile contract, with regard to interest. Story’s Confl. of Laws, 2S7, 288, 289, 290, 291 and note, and note top. 243, 293, 293c and note. 2 Foublaque Eq. 659, note at bottom •of page. C. Cond. Rep. Supreme Court, p. 146. De Wolf v. Johnson, same case, 10 Wheat.'383.</p> <p>0. When there is no express contract for interest, and it is. •implied, it is payable when the principal is, and governed by the law of place of performance. Story’s Confl. of Laws, 295, 296, which before is shewn to be the place of contract.</p>

845, his Honor Judge Pearson presiding. This was an action of assumpsit, for money had’ and received to the use of the plaintiffs. Pleas :• t!

The defendant was tried upon an indictment, which the Solicitor alleged to be an indictment for keeping a bawdy house, and which was in the following words, to wit: “North Carolina, ) Superior Court of Law, Rowan County. \ ss' Fall Term, 1844.

This was an action of assumpsit against the indorser of a promissory note, upon which, according to the statement of the presiding judge, the facts appeared to be as follows; In the year 1837, Rawlins and Coleman, a mercantile firm in Danville in Virginia, were very heavily indebted to the Bank of Virginia and the Farmers Bank of Virginia-, at their offices at that place, upon bills of exchange and promissory notes, drawn and made by Rawlins and Coleman, and em dorsed by…

<p>The refunding bond, which executors and administrators are authorized to take from legatees or distributees, are taken solely for the benefit of creditors.</p> <p>Therefore an executor or administrator, who has paid to a legatee or distribu-tee more than he was entitled to, cannot for his own use recover the excess so paid, by an action on the refunding bond given by such legatee or distri-butee.</p>

This was an action of Ejectment for a tract of land, of which it appeared the defendant was in possession, claiming under a deed from Levi Fagan and his wife Fanny to Thomas Walker, and the will of the said Thomas giving her a life estate therein. The land belonged in fee to the said Fanny, the wife of said Levi.

This was an action of debt qui tam, against the defendant, to recover the sum of one hundred dollars, as a penalty for a violation of the Statute (Rev. Stat. ch. 71, sec. 1, 2, 3, 4,) for marrying two persons without a license or the previous publication of bans.

This was an action of detinue for a female slave, named Caroline. The defendant admitted the detention. The plaintiff read in evidence a bill of sale for four slaves, of whom Caroline was one, executed by one Benjamin Boyd to the plaintiff, dated in April 1840, and registered in October 1841, purporting to be in consideration of the sum of $ 1550.

<p>Appeal from the Superior Court of Law of New Hanover County, at the'Spring Term, 1845,, his Honor Judge Peak-son, presiding.</p> <p>The following case was presented by the Judge’s statement.</p> <p>The plaintiff obtained a judgment before a Justice of the peace, against the defendant, Floyd,"and sued out a capias ad satisfaciendum, on which Floyd was arrested. He gave the usual bond, with sureties for his appearance at the next County Court, to take the benefit of the act for ,s the relief of insolvent debtors. A person by the name of Miller, likewise had a judgment against Floyd, on which he was also taken, and &ave bond, as in the other case, to appear at the same term of the County Court. Floyd filed a schedule and gave a notice both to Williams and to Miller of his arrest in each of the cases, and of his intention to take the oath of insolvency and move for his discharge in each case. At the County Court, Williams suggested, in his case, a fraudulent concealment of certain property by the debtor, and Floyd took issue thereon. In like manner, Miller also suggesfed, in his case, a fraudulent concealment of property, and Floyd again took issue thereon. Upon separate trials of the issues, the juries found the fraudu* lent concealments, as alleged by the creditors respectively.— This was at the same term, and from the judgments Floyd appealed, and gave appeal bonds, with sureties in each case. In the Superior Court, the sureties in the' bonds, taken by the sheriff for the debtor’s appearance in the County Court, surrendered him, in each case, in discharge of themselves, and he was thereupon committed to the custody of the Sheriff, and was confined in prison. Subsequently the issue joined between Miller and Floyd, in the case between them, was tried, and a verdict was found for the defendant, that he had not concealed his property as suggested; and therenpon Floyd was admitted to take the oath of insolvency, and discharged, in that case, by order of the court. The same order for Floyd’s discharge was made in the suit brought by Williams, without trying the issue therein, upon the ground, that he had been discharged in the suit brought by Miller, and that Williams had notice, that he intended to move to be discharged in that suit. But, during the same term, the court set aside and expunged the last order, namely, that made for Floyd’s discharge in Williams’ suit: and the case was then continued by con-' sent. At the next term, the plaintiff, Williams, desiring to proceed to the trial of the issue, the defendant Floyd was called, and he failed to appear; and thereupon the plaintiff’s counsel moved for judgment on the appearance bond against the debtor and his sureties therein, to be discharged by the payment of the debt and costs; but the court refused the same, because those sureties had discharged themselves by surrendering their principal. The plaintiff then moved for judgment against Floyd for the debt and the costs of that proceeding. That motion was opposed upon the grounds, first, that Floyd had been duly discharged, as an insolvent debtor, and that was conclusive upon all persons; secondly, that, by the notice given to Williams in the case of Miller, and filed therein, the discharge of Floyd in that case exempted his body from further imprisonment by Williams ; thirdly, that there could be no judgment against Floyd for the debt and costs, as the appearance bond had been discharged by his surrender, and the only judgment, that could be entered against him, was, that he should stand imprisoned; and, lastly, that the discharge, which was entered in the case of Williams at the preceding term, was executed and could not be recalled, nor the debtor be further rendered liable in this proceeding.</p> <p>But the court granted the plaintiff’s motion and gave judgment against Floyd, upon his default in notappearing, for the plaintiff’s debt and the costs incurred in the premises in the County and.Superior Courts.</p> <p>The plaintiff’s counsel then further moved for a judgment on the appeal bond against Floyd and his sureties, to be discharged by the payment of the said debt and costs. That motion, the sureties for the appeal opposéd, upon th'e same grounds urged before for Floyd, and also because they had, (as was established) since the preceding term offered to surrender Floyd to the sheriff, and the sheriff refused to receive him as a prisoner.</p> <p>But the court granted this motion also; and from the judgments, Floyd and his sureties appealed.</p> <p>If the plaintiff was entitled to judgment against Floyd, the judgment against the sureties on the appeal bond followed as a matter of course. It was competent for the Judge to direct the order of discharge to be stricken out. It was a matter in fieri and in the breast of the Court during the term. This Court cannot decide what was stricken out, but will be governed by what was put in. As the record is, there was an issue of fraud joined between the parties. Pending this issue, tpe defen(jan(; was called and failed, and the plaintiff was entitled to judgment on the appeal bond.</p> <p>It is insisted, however, that the defendant was discharged by the oath taken in Miller’s case. But these were separate issues. Athotfgh, by the 20th section of the Insolvent laws, the defendant cannot be compelled to join in but one issue, it would be a forced construction of the proviso to say, that he has no election to join in more. He elected to treat them as distinct cases, and it is too late now for him to object.</p> <p>The surrender 'of the principal by his sureties on the ap' pearance bond, was no discharge of the bond. Nothing but payment and release will discharge a bond. The discharge of one obligor, by operation of law, is not a discharge of his co-obligors, the bond stood good against the principal, and upon his default, judgment was rightfully had upon it.</p> <p>Having joined issues with the plaintiff, by the 21st section the defendant could only be discharged by a verdict on that issue, or consent of the party. There was neither the one nor the other.</p> <p>But if he was entitled to his discharge, he was not there to plead it. This is a proceeding in personam, and the defendant could not shew his discharge by Attorney.</p> <p>The counsel cited Watts v. Bogle, 4 lred. 331, affirming Bolts v. Franklin, 4 Dev. & Bat. 465, and Wilkings Sp BoP den v. Baughan, 3 lred, 86.</p> <p>1. The case of Gidmy V. Halsey and others, 2 Hawks 550, was a case of motion upon a prison bounds bond after a certiora-' ri,the defendant having left the bounds and not being before the Court when the motion was made, and of course not pleading any thing in person ,and the motion was refused because, of the certiorari, which was of course shewn by the defend ants; which is an answer to the objection on the part of the Judge, that nothing could be shewn by the sureties, and indeed if this wére the law what Would the sureties do in case of the death óf the principal, for he could not be there in person to renew it for them. It was conceded by the Judge that the plaintiffs were not entitled to judgment on the ca.-sa. bond, but notwithstanding the discharge of his sureties the defendant was bound to appear, and that the bond-continued in force against him notwithstanding his commitment to prison, and discharged by order of the Court. And upon his failure to appear, judgment could be rendered upon the ca. sa. bond against- him, and his sureties being sureties to the appeal, were liable to have the same judgment entered against them on the appeal bond. This whole argument proceeds'upon the begging the-’ question that the ca. sa. bond-was still in force against the de- ’ ifendant; But can that be So ? The plaintiff having a judg-' ment against Floyd had a-right to levy execution of his goods ' and chattels, lands and tenements, or to take his body until he satisfied*the judgment. The act of 1822, Rev. Stat. ch. 58, - sec. 7, authorized the defendant to ranS'om his body by giving-bond, and-provides that the surety may surrender his principal in discharge of himself, and the stress is laid upon the ' expression himself. If we were to stick to the letter, if there were two sureties and one of them surrendered the principal, ’ it would-only be in discharge of himself, and although the defendant was put in jail, the other surety would still be liable' upon the ca. sa.- bond, and if the defendant escaped might be ' made to pay the debt.</p> <p>2. But supposing the bond to be in force, what'did it oblige-' him to do ?- Why, to take the benefit of the act for the relief of insolvent debtors. And does not the*record shew that he-has done that ? H’ow'then is' the bond broken 1 The question' is not now whether the plaintiff can arrest him again upon' his debt, but has he broken this bond? But if the' question-' was upon the plaintiff’s right to' arrest thé defendant again, • the case of Benton v. Dickens decides, that where a debtor-' takes the oath being in close confinement, as the defendant ' was in this case,-having-filed a schedule, it discharges him as’’ to all creditors theretofore- existing,- -whether notified or not, 3-’ Mur. 103, and iii Jordan v. James et al., 3 Hawks 110, it is l^a(; ^ae ^acf: a schedule makes no difference, and that under whichever clause of the act he is discharged, -j. -g avaxlable against all antecedent creditors, and that by force o£ the 39th section of the Constitution. Having taken the benefit of the act so as to be discharged from all antecedent creditors’ arrest, how can he have forfeited the condition of the bond, which was, that he should do so.</p> <p>3. But it is said, this could only be shewn by the defendant himself in person, and not by his sureties ; this has been in part answered already. I would however refer to the case of Howard v.-Pasteur, 3 Mur. 270 ; theret he defendant had given bond for the prison bounds but was never surrendered by the sureties to that bond, but being arrested upon another debt and committed to prison, he gave notice to the plaintiff at whose suit he had taken the prison bounds, of his intention to take the benefit of the act, took the benefit, was discharged, and left both the prison and the limits, and a motion being made, not against the defendant, nor the defendant and sureties, but against the sureties only, they were allowed to shew the facts in their discharge. It was not held that the Court could not become apprized of the fact of notice and other proceedings, because the defendant was not ihere in person to shew it. But it is amazing to me that while in this very proceeding the object of the plaintiff is to resist, and the record shews he has been all along resisting the effort of the defendant to take the benefit of the insolvent act that he can now be heard to dispute his having notice. A man is not allowed so to trifle with the Court in a contest about a road. Settle and others v. May, 3 Hawks 599, and shall he be allowed to do so in a question of the freedom of a citizen, in restraint of liberty so justly favored by the law.</p> <p>4.- The 20th sec. of the 58th ch. Rev. Stat. provides, “ that any creditor notified may suggest fraud, and the Court may permit as many other creditors as may be notified who shall choose to make themselves parties to the issues, but the debtor shall not be compelled to answer the suggestions of fraud in more than one case.” It has been already shewn by his own conduct that the plaintiff was notified; he had then his election to make himself a party to the issue of fraud or not, but had no right to make up another issue. If he was not a party he certainly can have no right to complain that the defendant took the benefit of the act without any objection on his part ; if he was a party why then the issue has been found against him, and the substance of his demand is to compel the defendant to try another issue, which the law says shall not be done. It is possible the case of Dobbin v. Gaster, 4 Ired. 71, may have had some effect upon the Court, but that case proceeds upon the ground that a judgment had been given against the party, and that although upon an appeal that judgment would have been reversed, yet no appeal was taken, and it was not competent for the Court at a subsequent term to set aside the judgment, on motion, which, however erroneous, was not irregular. The case of Watts v. Boyle, lb. 331, may have also had some influence, but that case turns entirely upon the extent of the powers of the Court upon an application for a cer-tiorari. The same may be said of the case of Betts v. Franklin, 4 Dev. & Bat. 464, referred to by the Court in Dobbin v. Gaster. The case of Wilkings &* Belden v. Baug-han, 3 Ired. 86; was pressed into the service of the plaintiff in this cause, because in that case a judgment was rendered against the sureties to the appeal bond, the principal having made default. But is that the case here 1 Has the principal made default? Has he not been regularly discharged ? So the defendants were allowed to plead, and so it was held by the Court so far as they were concerned on the ca. sa. bond. But it is objected that they cannot plead it to the appeal bond. In Wilkings &* Belden v. Baughan, the Court founds the judgment upon the appeal bond, upon the argument that it had been already rendered upon the ca. sa. bond, and thereby proving it ought to be rendered on the appeal bond, but here the Judge refused, so far as the sureties were concerned, to enter it on the ca. sa. bond. The converse of the argument it would seem ought to follow.</p> <p>5. It ought specially to be remarked, that after the surrender ;°f the principal'in this.case the proceedings became entirely " changed in their character, they were no longer under the act 0f 1822, but under the act of 1773, and as to the proceedings under this latter act, this Court has, in the case of the State v. Manuel, 4 Dev. & Bat. 27, affirmed the older decisions of Burton v. Dickens, and Jordan -v. James.</p> <p>6. And this Court has further declared in the case of Hawkins v. Hall, 3 Ired. Eq. 280, that where a debtor has been arrested on a ca. sa. and obtains his liberty by the consent of the creditor, no proceeding can be had against him or any ,other person. In this case, the debtor was discharged by the .actual consent of the plaintiff or by his consent judicially obtained.</p> <p>7. If discharged by the Sheriff without sufficient warrant, the Sheriff is responsible to the plaintiff and not these sureties.</p>

This was an action of assumpsit, brought on the 23d of May, 1843, upon a promise of the testator of the defendant’s to collect certain debts due to the plaintiff, and pay over the money to the plaintiff or his order, and for money had and received. The pleas were, the general issue, payment and the statute of limitations.

This is an action of debt brought upon the bond of Thomas H. Christmas, and the defendant’s intestate, of which the following is a copy: “ State of North Carolina, ?

This is a suit instituted by Rebecca Wood, against her husband, Lorenzo D. Wood, for a divorce a vinculo matrimonii, for the causes of cruelty and maliciously turning her out of doors, and adultery. The parties were married ill 1836, and lived together until October, 1840, when the petitioner left her husband, and went to reside with her parents, at some short distance off, and has remained there ever since. During heir cohabitation, they had issue two children.

This was an issue of devisavit vel non. A paper writing dated in 1884, was exhibited for probate at the ' On the part of the caveators it was insisted, that the paper, upon its face, was imperfect and shewed it was not finished by the deceased.

, ty, at the Spring Term, 1845, his Honor Judge Battle presiding. This was an action of debt upon a promissary note, for $4,400, dated the 17th of June, 1842. The defence relied upon was the statute against usury.

<p>Where, on a judgment recovered, the defendant is committed in execution to the Sheriff, either upon a ca. so. or upon an order ofcommitment on his petition for the benefit of the insolvent debtors law and his failure to entitle himself thereto, and the Sheriff volwntarily permits him to escape, the Sheriff is liable for the debt, even though he may afterwards retake his prisoner.</p> <p>The plaintiff in such a case may affirm the prisoner in prison at his suit; but such affirmation will not be presumed; it requires some positive act.</p> <p>The plaintiff cannot, in his action against the Sheriff, for such voluntary escape, recover more than the amount of the debt, costs and interest, at the lime of the escape.</p> <p>Where the plaintiff had two judgments against the deiendant, and it appeared from the records that the defendant was ordered into custody only on one, the Sheriff is liable for the amount of that one alone.</p> <p>Where a plaintiff, having two judgments against the same defendant, brought his aetion against the Sheriff for an escape and declared on both the judgments, Mdthat though he could not recover on one, he might on the other, judgment.</p>

<p>Appeal from the Superior Court of Law of New Hanover County, at the Spring Term, 1845, his Honor Judge Pearson presiding.</p> <p>This was an action of ejectment for a lot in the town of Wilmington» The defendants admitted themselves in possession, and claimed to hold for St. John’s Lodge, No. 1.</p> <p>It was proved that the lot belonged to one Joseph Dean, who, previous to the year 1803, had rented it td a Mrs. Cook. Mrs. Cook went out of possession in the year 1802, and Dean rented the premises, consistingof a tavern and boarding house and outbuildings and lot, for the years 1803 and 1804, to a Mrs. Smith, at a yearly rent of $250. Dean died sometime in the year 1804, while on a trip to the West Indies. He was a native of the State of Massachusetts, but had his domicil in the town of Wilmington, iu this State, at the time of his death, and had resided there ior many years. It was proved that the lessors of the plaintiffs were the heirs at law of Dean.</p> <p>The defendants claimed to derive title for the Lodge under sa“^ Dean ; and for this purpose read in evidence certain paper writings, purporting to be the last will and testameut of sa¡¿ £)eaI1) and t0 devise the premises to the Lodge. These papers were proved to be all in the handwriting of Dean, but there was only one attesting witness, and it was not shewn that they had been placed in the hands of any person for safe keeping, or that they were found among the valuable papers or effects of the deceased. The defendants proved, that, soon after theMeath of Dean, the Lodge set up .claim to the premises, under the papers purporting to bé the last will and testament of Dean, and, after the lease to Mrs. Smith for the year 1804, had expired, to wit, in the year 1S05, the Lodge, with the consent of the gentleman appointed executor of Dean, caused the premises to be put up at auction to rent for the term of one year, when Mrs. Smith, who had not moved out of the house, but who did not object to the premises being thus exposed for rent at auction by the Lodge, became the last and highest bidder, and accordingly gave her note for the rent of the year 1805, to the Lodge. The premises were thus exposed to rent for one year, for each and every year afterwards, until the houses were burnt down in the year 1830, and Mrs. Smith thus rented the premises each and every year during ■that time, and-paid the rent to the Lodge. After the fire the 'lot was not occupied for some two or three months, but another building was then erected, and the defendant Sherman went into possession, as the tenant of the Lodge, and has so 'occupied it ever since. The defendants also proved that the Lodge had paid the taxes upon the lot from the year 1805, up to this time, and for a good portion of the time had paid for the insurance of the premises. It was proved that the lessors of the plaintiffs were inhabitants of the State of Massachusetts, and it did not appear that either of' them liad ever been in this State. It was also proved that the Lodge-always claimed the lot under the supposed will of Dean, and never alleged or asserted title in any other way.</p> <p>The defendants’ counsel insisted that the papers, offered as a will, constituted a devise of the said lots to the Lodge, and that the age of the papers and the possession consequent thereon superseded the necessity of any further proof of the éxe-cution of the papers as a devise. Secondly, That the papers were color of title, which was ripened into a good title by the possession of the defendant, Sherman, as tenant, from 1830 to to 1839. Thirdly, That, as the Lodge had been in possession for thirty years, from 1805 to 1839, claiming the lots as its property, a presumption of property was raised, or the jury should be instructed by the judge to presume a title in the Lodge.</p> <p>The plaintiffs counsel insisted, first, that the papers, offered as a will, were not color of title: secondly, that the possession of Mrs. Smith was not the possession of the Lodge, as she held over after the death of Dean, but possession for the heirs at law of Dean, the lessors of the plaintiffs; that at least it was not such a possession, as would raise a presumption of title in the Lodge from the lapse of time, as she had never surrendered possession to the heirs, nor had she gone out of possession and left the premises vacant, nor had the heirs at law been notified, or otherwise informed, of her consent to become the tenant of the Lodge ; thirdly, that if the possession of Mrs. Smith was otherwise, yet, upon the facts proved, the presumption of title in the Lodge, against the heirs at law, was not an imperative one ; but the facts, as proved, might be sufficient to justify the jury in refusing to make the presumption.</p> <p>The court charged that the paper writings exhibited as a will did not constitute a color of title. The court further charged, that, when possession ivas held adversely for a great many years (say thirty-four) without interruption or claim made, the jury should presume a title. This presumption was to be made for reasons of policy and to quiet estates ; and it did not depend upon whether the jury, in point of fact, believed that a proper deed or title had been executed or not. In this case, if the jury were satisfied, that the Lodge had held adverse possession for some thirty-four years, in the absence of any sufficient reason, why the lessors did not make during all that time ; and none had been proved, (for ^act ^lat: f^e lessors lived in Massachusetts and had never been in this State was not sufficient) the jury should presume ¡n (¡ie L0clge; and the fact that the Lodge never averred that a deed had been made, but always claimed under the paper,supposed to be a devise, but which was not duly executed, would make no difference, because it was not an open question of fact, to be decided by circumstances, but the law gave to such long, uninterrupted possession, a technical force, over and beyond that, which it would naturally have. This case fell under that class of presumptions, which'the jury were to make, with the instruction and advise of the court— which the court could not make, but on which it was their duty to instruct the jury, that, under a given state of facts, they should make the presumption.</p> <p>As to the possession before the year 1830,, by Mrs. Smith, the court charged, that, had .the proof been, that Dean made a long lease to Mrs. Smith, say for thirty years, a nd, after his death, no alteration was, made in the possession, except that she paid the rent to the Lodge instead of to the heirs of Dean, a different question might have been presented. But, as the proof was that Mrs. Smith rented, of Dean, year after year, paying an aunual rent, and, after his death, the Lodge, claiming the lot under the supposed will of Dean, caused the lot to be put up at auction for one year, when Mrs. Smith,' as the highest bidder, rented for one year, and continued so to rent until the fire in 1830, and at the renting, Mrs. Smith became a bidder upon equal terms with others, claiming no preference from the fact, that sh“e had been the tenant of Dean in his lifetime, or from the fact that she had not actually gone out of his house and taken her furniture out, all of which facts were ■ not controverted, the court was of opinion, that this state of facts made her the tenant of the Lodge, and her possession, after that, was the possession of the Lodge. So that, taking the evideuce to be true, the Lodge had been in possession for some thirty-four years, and this authorized the jury to make the presumption of title. And the court instructed the jury, that it was their duty so to presume, from the fads stated.</p> <p>The jury found a verdict for the defendants, and from the judgment rendered thereon the plaintiffs appealed. s</p>