Volume 28 — North Carolina Reports

The defendant was convicted upon an indictment for perjury, and moved in arrest of judgment; but the Court over-ruled the motion and passed sentence on the defendant, and he appealed.

This was an appeal from an interlocutory order made in the catee by his Honor Judge Caldwell, at the Fall Term 1845 of Sampson Superior1 Court of Law, overruling certain exceptions, made by some of the plaintiffs, to the report of the Commissioner, appointed to- divide the negrops, which were the subject of the petition. John Lamb made partial advancements of Slaves to several of his children, and then died intestate, leaving other Slaves and other personal estate.

The defendant was convicted in the Superior Court of Yancy of Perjury, upon an indictment, which charges “ that at a Superior Court of Law for the County of Yancy held at… Held: and that Judge Caldwell presided, and that the prisoner was sworn on the trial, as s*ct forth.” In the defence, it was admitted that the prisoner swore falsely, but it was insisted that ho did not swear corrupt-, ly. On that point the Court left the case to the jury, who found'the prisoner guilty.

<p>Appeal from the Superior Court of Law of Anson County, at the Pall Term, 1845, his Honor Judge Caldwell presiding.</p> <p>The defendants were indicted for a forcible resistance to a part of a patrol; in entering a negro house belonging to them, and preventing their searching it. The Jury found the following special verdict. “ That in the captain’s district, in which the defendants live, there were eight persons appointed' Patrollers for the year 1844, by the committee of patrol, and they also find, that three of-the eight persons so appointed, went to the house of the defendants in the night as patrol, and made themselves known as such; that they went to the cook-house or kitchen, a house within the curtilage ; that they were met at the door of it by the defendants ; that the éntrance of said persons was resisted, and the entry .prevented by threats and weapons used by the defendants; and, by reason of such resistance, they did not search the house, and they also find that the defendants negroes slept in said house, and also that the County Court of Anson had not made any rules or regulations for the government of the-patrol. If, in point of law, the defendants be guilty, then they so find, but if in point of law, not guilty, then they so find.”</p> <p>On this finding the presiding Judge was of opinion, that. <the house' in question Was the subject of search-, but as the County Court of Anson had made no rules or regulations for the government of the patrols, less than a majority could not act; that the resistance made by the-defendants was not criminal, and rendered judgment in their behalf. The State by her Solicitor appealed.</p>

This action is debt on a bond, and the plea is a set-off of a larger sum, due on a bond of the plaintiff to the defendant.

This was an action of debt for $350, founded on the statute against excessive Usury. The declaration contains two counts.

This was an action of assumpsit, upon an agreement to pay a certain sum per diem, for work performed' in building a mill; in which the defendant offered, as a set-off, the record of a j udgment, obtained by him against the plaintiff in Macon Superior Court. The legality of this set-off was denied, and the evidence objected to, but the Court over-ruled the objection, and admitted the evidence of the set-off.

The prisoner was indicted for Bigamy in marrying Elizabeth Robbins, a wife, to whom he had been some years before married, being still alive.

This case, which was an action of Detinue for a negro named Moses, was as follows. A man by the name of Flinn died in the year 1840, having duly made and published in writing his last will and testament, in which one Williamson was appointed Executor. At the May term, 1840, o'f Mecklenburg Court of Pleas and Quarter Sessions this was duly proved, and at the October term of said Court in the samo year, administration, with the will annexed, was granted to the plaintiff.

This action was brought to recover possession of a tract of land. The plaintiff claimed title under a deed of trust, made by the defendant to Jesse Harper, the lessor in one of the demises contained in the declaration. To support his title, the deed, which had been duly registered, was offered in evidence, and its reception’ was opposed, on the ground that, before it could be read in evidence, it ought to be proved by the subscribing witnesses.

The plaintiff recovered a judgment against Dabney Walker and Samuel Forkner, in which case the defendant became the special bail of each of… Held: and instructed the jury, that, notwithstanding the previous escape of Walker, whether it was negligent or voluntary, the directions of the creditor, after the Sheriff had taken the debtor again into custody, that he should not be detained, and the discharge of the debtor by the Sheriff in obedience to those directions, worked a…

This was an action of replevin for negroes Mary and Bill. The defendants pleaded the general issue ; and, on the trial below, the jury found a verdict for the plaintiff on the issue joined, “and assessed his damages to live hundred dollars.” The plaintiff had not shewn any title to the negroes in controversy. From the judgment rendered on the verdict, the defendants appealed.

<p>Appeal from the Superior Court of Law of Brunswick County, at the Fall Term, 1845, his Honor Judge Caldwell presiding.</p> <p>This is an action of Trover, to recover from the defendant the value of a negro man named Abram, belonging to the plaintiffs, as they allege, and converted by the ■defendant The facts are as follows: In the year 1839, Hannah Locke gave by deed to the plaintiffs, her grandchildren, eleven negroes, and among them the one in controversy. The deed bore date in May, 1839, and at that time Hannah Locke owed to the defendant a debt of about $300, and owned over and above the 11 negroes so conveyed, a tract of land and eight or nine negroes, the whole worth between two and three thousand dollars.— In December, 1840, the defendant obtained a judgment in the Court of Pleas and Quarter Sessions of Brunswick County, upon his claim against the donor Hannah, and the execution, by his direction, was levied on the laird— which was worth $600. The sale of this land was postponed by order of the plaintiff in the execution, the present defendant, and a venditioni issued, which was also by him postponed — the levy was then discharged, and a Ji. fa. issued, and was levied by the Sheriff on the negro Abram. At the sale, the defendant purchased. The debt due the defendant was the only one at that time or at any other, as far as the case shows, which was owing by the donor. On behalf of the defendant, it was insisted in the Court below, that the deed, under which the plaintiff claimed the negro, was fraudulent and void in law as to creditors and purchasers ; and, ho being' a creditor at the time of the gift, and purchaser, it was void as to him. He further insisted, that the deed being made in May, 1839, t'he act of 1840-41 did not affect the question, but left it at common law. The presiding Judge, being of opinion that the act of 1840-41 did operate upon the deed, it was submitted to the jury as a question of fact, to be decided by them, as to the intent with which it was made. The jury found a verdict for the plaintiff, and from the judgment thereon, he appealed.</p>

The action was covenant on the following instrument, executed by the defendants to the plaintiff: “ On or before the 1st of August,… Held: that such failure on the part of the plaintiff would give to the defendants an action on the covenant against the plaintiff, but did not excuse the defendants for not making the fans by the time appointed, and, therefore, that the plaintiff was entitled to recover.— Verdict and judgment for the plaintiff for $113 ; and the defendants…

The petition sets forth, that Jane M. Townsend died intestaté in the year leaving a considerable personal estate ; that administration was granted to the defendants, who took into their hands all the personal property ; that James M. Townsend was one of the children of Jane M., and that he, for a valuable consideration, assigned to the petitioner all his interest as one of her next of Ida; that more than two years had elapsed, after the qualification of the defendants, and…

This is an action of assumpsit on the following case. Tiie plaintiff was the owner of a house and lot in the town of Koxborough, which he sold and conveyed to the defendant at a Stipulated price, to secure which the defendant gave him his bond for #350. This bond Size-more, for valuable consideration, transferred by endorsement to the Messrs. Webb. Afterwards, and while the above bond was the property of the Messrs. Webb, these parties entered into a new agreement.

This is a ease agreed, and is as follows. The plaintiff brought an action of debt on a bond, executed by the defendants and Archibald Yarborough, deceased. The defendant Yarborough, pleaded fully administered, and, to sustain his plea, shewed, that Archibald Yarborough, on the 30th of March, 1841, executed to the State his bond for the sum of $5000, and on the 15th of April executed another bond to the State for $1600, each having the same condition.

This was an action of ejectment. From the case it appears, that Benjamin King, who was the owner of the land in dispute, leased it to the defendant, and that the lessors of the plaintiff are the heirs at law of Benjamin King, he being dead. The plaintiff relied upon the lease as an estoppel to the defendant. On the part of the defendant it was denied that it would have such effect, as it was void and of no effect, because made .upon an usurious consideration.

This is an ejectment for a House and Lot in Greens-borough, on the forfeiture of a lease. The demise is laid on the 11th of December, 1843, and the declaration was served the day next succeeding.

The plaintiff declared in assumpsit upon a special contract ; in addition to which, the declaration contained the usual money counts. The case was as follows. A constable, of the name of Cook, had in his hands two executions against the defendant, Cotten, to the amount of $ in favor of one Curl.

<p>Keeping an open shop and selling goods on Sunday, is not an indictable offence in this State.</p> <p>Profanation of Sunday is only punishable here by certain pecuniary penalties, imposed by the Legislature, and to be recovered before J ustices of the Peace. The case of the State v. Williams, 4 Ired. 400, cited and approved.</p>

<p>A witness, who is summoned in this State, while casually here, but who resides in another State, cannot be amerced for non-attendance, if he has. returned to his own State and is there at his domicil, where his presences as a witness is required in one of our Courts. .</p> <p>The case of Meredith v. Kent's Ex’rs, Martin’s Rep. 28, cited and approved.</p>

The defendant was tried upon an indictment for Forgery. Upon the first count in the indictment, he was acquitted.

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 indictment against the defendant, a free negro, commenced in the County Court of Granville, which charged “ that he did buy of, traffic with and receive from a certain negro slave, Lewis, the property of Fleming Beasley.” Upon the trial it was proved, that the defendant bought and received from the said slave, Lewis, a peck of corn. It was also proved, that the corn was the property of Fleming Beasley. The Court charged the jury upon the evidence.

The plaintiffs and the defendants arc the children, or •their representatives, of John W. Mayo, deceased. The testator had been twice married, and had children by each venter. And he advanced, in his life-time, $2000 worth of property, at different times, to each of five of his eldest children, as they married off.

This was an action of detinue for certain slaves mentioned in the declaration. The plaintiffs claimed the slaves under a bequest in the will of John Lea, who died in March, 1803, and whose will was admitted to probate at April term, 1803, of Caswell County Court.

<p>Appeal from the Superior Court of Law of Martin-County, at the Fall Term, 1845, his Honor Judge Settle presiding.</p> <p>This is an action of ejectment. The declaration cone tains four counts. The first is on the joint demise of Mary Roberson, Jesse Barnes and his wife Nancy, Joseph 3S. Blount, Joshua Smithwick, Julius Robbins and his wife Susan, and Martha Ann Smithwick. The second, on the demise of Mary Roberson. The third, on that of Jesse Barnes and his wife Nancy, and the fourth, on the joint demise of the other parties named in the first count Joseph Roberson died seized of the land, leaving the above named parties, together with Martha Cherry, the wife of Alfred Cherry, his heirs-at-law. Mary Roberson, the tenant for life, is dead. After the death of Joseph Roberson, Mary Roberson administered upon his estate. Two warrants were issued against her; one at the instance of John Hoyt, and the other at that of James Slade ; and upon their return before the magistrate, judgments were ■obtained, to the amount of the claims of the respective plaintiffs. The defendant, the administratrix, having suggested to the magistrate the want of assets, the cases were by him transferred to the County Court, according to the provisions of the Act of the General Assembly. There, the defendant in each case pleaded, that she had fully administered the assets of the intestate, which had come to her hands, and that she had none wherewith to satisfy the demands of the respective plaintiffs. The truth of the plea was admitted by the plaintiffs, and upon the suggestion, that real estate had descended to the heirs of Joseph Roberson, and on motion, the Court ordered that a scire facias should issue in each case against the heirs; jcire facias accordingly did issue against the heirs, naming them individually, to shew cause why executions should not issue, to subject the lands descended, to the satisfaction of the judgments, And upon their return, executed, judgments were obtained according to the scire facias, and executions ordered to issue. Under this order of the Court, the process issued which is alleged to be an execution, and under which the land in question was sold by the Sheriff; and the defendant became the purchaser and took possession. To these judgments the plaintiff, Jesse Barnes, and his wife, are not parties. The process tindor which the land was sold, commanded the Sheriff, “that of the lands arid tenements of the heirs of Joseph Roberson, descended, you cause to be made, &c.” The introduction of the executions and deed from the Sheriff, was opposed by the plaintiff, on the ground that the executions were void, and conferred no authority on the Sheriff to sell. The objection was over-ruled, and under the charge of the presiding Judge, the jury found a verdict for the defendant, on the 1st, 2nd, and 4th counts, and for the plaintiff on the 3rd.</p>

The prisoner was indicted in Willces County, as principal, with one Duncan as accessary before the fact, for the murder of one Peden. Both of the accused joined in a motion to remove the trial, and it was removed to Iredell. In forming* the Grand Jury at Iredell, at the term at which the trial took place, the Jurors were drawn by a boy of thirteen years of age.

The prisoner was indicted in Wilkes Superior Court, as accessory before the fact, with one Underwood as principal, for the murder of- one Peden. After a plea of not guilty by Underwood, the prisoner, Duncan, also pleaded not guilty, arid they united in obtaining a removal of the trial to Iredell. When brought to the bar in Iredell, the two stated, that they were ready for trial; but they prayed to be tried separately, and it was allowed by the Court.

This is an action of debt, brought under the statute, by the plaintiff, as endorsee of a sealed note, bearing date October 19th, 1841, for $300, payable six months after date; which was given in this State by Daniel Jones, to the defendant, Taylor, and by Taylor endorsed to James Owens, and then by Owens endorsed in Virginia to the plaintiff, before the note became due, in payment of a debt which Owens owed the plaintiff.

The case was as follows: On the first of October, 1837, the plaintiff and the defendant, Martin, entered into partnership as Merchants in Wilkesborough, with a capital of $6000 ; whereof the plaintiff put in $4000, and Martin the residue. The business was to be continued five years, unless sooner dissolved' by consent.

This was an action of detinue for certain slaves, in which the defendant pleaded non-debinet. On the trial, the following statement, as a case agreed, was submitted to the judgment of the Court. The negro slaves mentioned in the plaintiff’s writ and declaration, were the property of tire late Presley C. Person, who by parol gave the same to his daughter Mary C. wife of William 0.

This was an action of debt against the Sheriff of Rock-ingham, for the sum of $285, for the escape of one John F. Lane. It was brought originally against the Sheriff, and upon his death revived against his administrator.

<p>Where one consideration is mentioned in a deed, and others referred to, though not specified, the latter may be proved by parol.</p> <p>The case of Jones v. Sassers 1 Dev. and Bat. 452, cited and approved.</p>

<p>Appeal from the Superior Court of Law of Chatham Comity, at the Fall Term, 1845, his Honor Judge Dick presiding.</p> <p>This was an action of ejectment, in which the plaintiff declared on the demises of John O’Rorke and Elizabeth his wife, John Louis Guthrie, and Joseph Harper. On the trial, the plaintiff gave in evidence, a grant made in the year' 1788, to one William Finley, and a certified copy of a deed made in the same year to one Samuel Guthrie, and proved that Samuel Guthrie died about forty years agb, leaving three children — William Guthrie, John W. Guthrie, and Elizabeth Guthrie, his heirs at law; that the said William Guthrie died many years ago, leaving two infant daughters, who shortly afterwards died.unmarried and without issue; that afterwards, in the year 1821, the said John W. died, leaving the said John Julius Guthrie, then an infant of tender years, his only child and heir at law, and that more than twenty years ago, the said Elizabeth intermarried with the said John O’Rorke. . The plaintiff then gave in evidence, a power of attorney, by which the said John O’Rorke, and Elizabeth his wife, and the said John Julius Guthrie, appointed Robert W. Haywood their attorney, to sue for and take possession of all lands belonging to them in Chatham County, and to sell and convey to Joseph Harper, one of the lessors of the plaintiff, the premises mentioned in the declaration, which he did, by deed dated the 22d of March, 1843. This last deed contained only a covenant of special warranty against the grantors and their heirs, and those claiming or to claim under them.</p> <p>The defendant objected to the admissibility of the copy of the deed from Finley to Samuel Guthrie. Upon this objection being made, the said Joseph Harper swore that the original was not in his possession or power, and that it never had been — -that, when he purchased the land of Haywood, the attorney of the other lessors, he received from him the copy now produced, and which he then supposed to be the original deed ; that he did not discover it was only a copy, until the last term of the Court; that he then requested Haywood to search for the deed; that he, himself, had endeavored to find it, by enquiring of a person, with whom Samuel Guthrie was well acquainted, and used to transact business respecting his lands, but could not discover it. J?ü. Haywood being also sworn, deposed that, when he received the power of attorney, he received also from the parties, as he supposed and as they alleged, all the papers relating to their lands, and amongst others, the said copy, which at the time was supposed to be an original deed; that the contrary was not discovered till the last term of the Court; that since then, he had applied to Mr. O’Rorke and his wife, and with them had searched their papers for the deed, but it could not be found, and he had no doubt the deed was either lost or destroyed; that John Julius Guthrie had entered early in life into the naval service, and was still an officer in the navy, and absent from the State ; that he had 'written to the said Guthrie, and had procured a friend to apply personally to him, for information on the subject, and had received for answer, that he had no such deed, and knew nothing of it; that the said Guthrie was on his way to this State since the last term of the Court, Avhen he was met at Norfolk by orders from the Department, which compelled him to go to sea; but that he, Haywood, had not made any personal application to the said Guthrie. The plaintiff also called Mr. Gunter, the Register of the County, who produced the Register’s book, containing the Registration, corresponding exactly with the copy. By the book and the copy, it appeared that the deed was proved before Judge Williams, on the 21st of June, 1788. Mr. Gunter also deposed, that he had made diligent search for the deed in his office, and it was not to be found. The copy was,' on its face, a very old paper, and was certiffed by John Thompson, who was the Register many years ago.</p> <p>The defendant’s counsel still insisted that the plaintiff had not sufficiently accounted for the non-production of the original, and moved for a non-suit. His Honor reserved the question, and a verdict having been rendered for the plaintiff, the Court, upon the matter reserved, set aside the verdict, and directed a non-suit to be entered. From this judgment, th®.plaintiff appealed.</p>

<p>Appeal from the Superior Court of Law of Tyrrell County, at the Fall Term, 1845, his Honor Judge Manly presiding.</p> <p>On the trial of this action of ejectment, the plaintiff shewed title in his lessors, Thomas Weatherly, Jun. and Thomas Weatherly, son of John, under a deed from Thomas Weatherly, Sen. executed in January, 1821. It was admitted that the defendant was in possession.</p> <p>The defendant relied upon a color of title and seven years actual occupation of the premises in dispute, between the years 1828 and 1839. Thomas Weatherly, Sen. died in the latter part of the year 1838. It was admitted that Thomas Weatherly, the son of John, was protected by infancy from the operation of the statute of limitations, and that a moiety of the lands had been heretofore recovered in his behalf; but it was insisted that, under the, deed of January, 1821, the grantees would have a right of possession, at least against all except the grantor himself, and that Thomas Weatherly, Jun. being under no disability, was barred by the possession of the defendant.</p> <p>A verdict for the plaintiff was submitted to, subject by agreement to be set aside and judgment for the defendant to be entered, as upon a non-suit, in case the Court should think, in construing the deed of 1821, the said Thomas Weatherly, Jun. was barred by the statute of limitations.</p> <p>The following is a copy of all the parts of the deed material to be recited in this case :</p> <p>“ This indenture, made the day and year of our Lord between Thomas Weatherly, Sen. of the County of Tyr-rell, of the one part, and Thomas Weatherly, Jun. and Thomas Weatherly, son of John, of the other part, wit-nesseth: The said Thomas Weatherly, Sen. as well for and in consideration of the good will and love and affee.tion, which I have and beareth unto the said Thomas Weatherly, Jun. my son, and Thomas Weatherly, my grand-son, as also the better maintenánce and preferment of the said Thomas Weatherly, Jun. and Thomas Weath-erly, my grand-son, hath given and granted, aliened, en-feoffed and confirmed unto the said Thomas Weatherly, Jun. and Thomas Weatherly, my grand-son, all that mes-suage, &c.” (hero the land is described) “ containing one hundred acres more or less, tobe equally divided between Thomas Weatherly, my son, and Thomas Weatherly, my grand-son,” (here follow some limitations in case of the death of the grantees without issue) “ and all the estate, right, title, interest, property, claim and demand whatsoever, of him the said Thomas Weatherly, Sen. of, in, and to the said messuage, tenements, land and premises, and every part and parcel thereof, with the appurtenances, and all deeds and writings concerning the said premises, now only in the hands and custody of the said Thomas Weatherly, Sen. or which he may get or come by without suit in law. To have and to hold the said messuages or tenements, lands and premises hereby given and granted, or mentioned, or intended to be mentioned, given and granted unto the said Thomas Weatherly, Jun. and Thomas Wcath-erly, my grand-son, their heirs and assigns(then follows a clause of warranty) “ and furthermore, we the said Tilom-as Weatherly, Jun. and Thomas Weatherly, my'grandson, their heirs and assigns, are not to interrupt the said Thomas Weatherly, Sen. during his life-time on the said premises, by them terms, I have hereunto set my hand and seal, this 14th of January, 1821.</p> <p>THOMAS-WEATHERLY, (Seal.)”</p> <p>The Court was of opinion that the deed in question did not contain a reservation to himself by the grantor of a life estate, or indeed any estate whatsoever in the land, hut was at most a mere engagement on the part of the grantees, upon accepting the deed, that they would not molest the grantor in his occupation. The Court was, therefore, of opinion, that the statute of limitations, began to run, as against Thomas Weatherly, Jun. with the beginning of the defendant's occupation, and that the said Thomas was barred by the statute.</p> <p>In conformity to this opinion, a judgment, as upon a non-suit was rendered, and the plaintiff appealed.</p>

This was an action of debt on a single bond, in which the defendant relied on the plea of payment. There was a verdict for the defendant, on which, judgment was pronounced, and the plaintiff appealed.

<p>Appeal from tlic Superior Court of Law of Lincoln County, at the Fall Term, 1845, his Honor Judge Pearson .presiding.</p> <p>This was an action of debt upon a bond of the defendant’s intestate. The case, sent up to this Court is very minute in its statement of the evidence on the trial and the opinions of the Judge on the various points raised by the counsel. But as the Supreme Court has, in giving its opinion, stated more succinctly all the material evidence and the points insisted on, so far as principles of law were concerned, it is not deemed necessary to copy the case sent up. The question was on the liability of the defendant for assets, which, it was alleged, he had of his intestate. A verdict having been rendered for the plaintiff, in pursuance of the charge of his Honor, judgment was rendered accordingly, and the defendant appealed.</p>

‘ Appeal from the Superior Court of Law of-New Hanover Comity, at the Fall Term, 1845, his Honor Judge Cai.dwell presiding. This was an action to recover a penalty of #50, for retailing spirituous liquors, contrary to the provisions of an Act passed in the year 1800, in relation to the towns of Newbern and Wilmington.

The case was as follows: Rufus K. Speed and the present relator were opposing candidates, at the election for Clerk of the County Court of Gates, in August 1845. Held: that the ground was insufficient, and adjudged that, if the facts were as stated by the relator, the Court could not therefor avoid the election.

The plaintiff claimed the land in controversy, under ail alleged grant from the Royal government to one John Slay, who conveyed the whole to tine Auld. By mesne conveyances, the land in dispute, consisting of twenty acres, came to a man by tbe name of Field, who conveyed it to Joseph Clarke.

The defendant was indicted for obstructing a public highway in the County of Caldwell.

The defendant was indicted for the wilful murder of Thomas F. Harrison, and, being convicted and judgment pronounced against him, appealed to this Court.

This, was an action of debt for one thousand dollars, upon the following instrument, to-wit: “ Know all men by these presents that I, Asa Anesley, do contract and agree to and with Jonathan J. Lindsay, that I will execute to the said Jonathan J. Lindsay, his heirs or assigns, a deed of bargain and sale for a tract of. land, lying in Washington County, containing by estimation one hundred and sixty-five acres, more or less, it being a tract of land recently conveyed by me to…

This was an action on the case, commenced on the 1st day of July 1842, against the defendant, as Sheriff of Lincoln. Plea, not guilty. The plaintiff, on the 19th day of August, 1839, issued'an original attachment against one True for a debt of $131 80, and placed it in the hands of the defendant, who, on the same day, caused it to be levied on a coach and eight horses, the property of True.

This is a petition, filed under the Rev. St. ch. 74 in March 1841, to recover damages for overflowing the plaintiff's land, by the ,erection of a water grist mill. Upon the hearing in the County Court, the writ of ad quod damnum as prescribed in the act, was awarded, and the jury assessed damages; and from the judgment thereon, the defendant appealed.

.Appeal from tlie Superior Court of Law of Hertford County, at t!be Fall Term, 1845, his Honor Judge Manly presiding. This is an action of ejectment, to recover the premises mentioned in the declaration. The notice was duly served on Samuel J. Wheeler, the tenant in possession, who failed to appear. At ilxe term of the County Court, to which the declaration was retoñecí, John II. Wheeler was, by an order of the Court, made defendant, and entered into the common rule.

The plaintiffs, as administrators, sued the defendant in debt, by way of warrant, before a Justice of the Peace. The suit went by successive appeals, taken by the defendant, to-the Superior Court of Cleaveland, where it was tried, and the plaintiffs were cast. The defendant then issued an execution de bonis pro-priis, against the goods and chattels, lands and tenements of the plaintiffs to recover his costs.

This was an action of assumpsit, in which the plaintiff declared on a special contract, and also for work and. labor done at the request of the defendants.

The case appeared upon the record to be this: At February Sessions, 1845, the County Court of Lincoln, on affidavits filed by the plaintiff, made a rule upon the defendants, to show cause at the next term, why the record in a suit between the same parties, made at J une Term, 1842, should not be amended in the manner stated in the said rule. The defendants, on the return of the rule, appeared and filed counter affidavits, and resisted the motion.

This was an action of ejectment for the premises claimed in the declaration. The defendant entered into the common rule, and pleaded not guilty. The following case agreed was submitted to the Court. Both parties claimed under William Borden, Sen. William Borden, Sen., in the year 1790, made a deed, of which the following arc the substantial parts.

At the. Spring term, 1843, of the Court of Picas and Quarter Sessions of Haywood County, a paper writing', purporting to be the last will and testament of Abraham Enloe, deceased, was, by the executor therein named, brought forward and propounded to the Court for probate. It was admitted to probate in the common form. At the same term, some of the next of kin of Abraham Enloe filed a petition for re-probate, which was ordered by the Court.

<p>A party is Hover permitted to produce general evidence to discredit his own witness ; but if a witness prove facts in a cause, which make against tlse parly who called him, yet the party may call other witnesses to prove that these facts, were otherwise.</p> <p>One, who has made a mortgage of property to secure a debt, may afterward» convey the same property to the mortgagee absolutely, in satisfaction oS the debt, provided the conveyance be bona fide and for a fair price.</p>

. John Moore, the plaintiff, Joseph Lemmon, (the defendant’s intestate,) and five other persons, were tenants in common of a parcel of slaves. They, under the Act of Assembly, filed a petition in the County Court of Rockingham, to have them divided. The Court decreed accordingly, and appointed commissioners to make the division.

The defendant had issued an original attachment against one Cagle, returnable before a Justice of the Peace. The plaintiff had been summoned as a garnishee, and the Justice had rendered a judgment against him on his garnishment. The plaintiff, afterwards, made the affidavit mentioned in the case, and obtained from a Judge a writ of recordari, and removed the proceedings on the said attachment and garnishment junto the Superior Court of Henderson Count}'.

This action was for slander, and, in order to prove the defamatory words charged, the deposition of one Green was read in evidence by the plaintiff. To contradict Green, two witnesses were examined by the defendant, to prove, that, subsequently to the taking of the deposition, he had made to them a statement, different from the one he had deposed to.

The case was this. The plaintiff filed a petition, in the County Court of Guilford, to have dower assigned to her in the lands, of which her husband died seized in fee. The jury made an allotment of land for her dower. The defendants (the heirs at law) contended, that the jury had given her more land in value, than she by law was entitled to. The cause came bjr appeal from the County to the Superior Court, where affidavits for and against the verdict of the jury were filed.

The plaintiff declared, in debt on a bond, executed to him by the defendants for $175 50, with interest from its date, and dated on the 10th day of May, 1839, and payable on the 1st day of January, 1840. Plea, Usury.

In this case, a paper writing, purporting to be the last will and testament of William McDaniel, dcc’d., was offered for probate, and being contested, an issue of devis-avit vel non was made up.

The defendant, in right of his wife, was entitled to a tenth part of the personal estate of one Clark, who had died intestate in the State of Alabama. Pie gave a power of attorney to the plaintiff, (who was also one of the next of kin of Clark, and was going out to receive his share of the estate,) to receive of the administrator his share also of the said estate, and bring it home.

The plaintiff sued out an attachment against the defendant, which was levied upon a carriage. Upon the return of the levy, Thomas Waddill interpleaded and claimed the carriage as his property.

This was an indictment against the defendant for being an accessory before the fact to the murder of William W. Peden. Qn this indictment, the defendant was tried and convicted, and sentence of death being passed, he appealed to this Court.

This was an indictment against the defendant, a free person of color, for marrying a slave contrary to the provisions of the Act of 1880, (Rev. Stat. c. 91, sec. 77.) The facts of the case are stated in the opinion delivered by the Judge 'in this Court.

The defendant was indicted for violently resisting the service of a fieri facias by a Constable, which was issued ■on the judgment of a Justice of the Peace, against the defendant and another, for $14 58. The defendant justified his resistance upon the ground that the judgment was void, and also the execution.

The plaintiffs, who are non-residents of this State, sued •out an original attachment against the estate of the do-fendant, a resident and absconding debtor, returnable to the County Court of New Hanover. The Sheriff summoned one William Cook, as garnishee.

The following case was reported by the Judge : This was an indictment for perjury. The Solicitor, acting for the State, read in evidence a State’s warrant and the proceedings of the committing magistrate thereon. The warrant was against Archibald M. Hemphill, Benjamin C. Hemphill, Jesse Watkins and John R. Hemp-hill, charging them with an assault and battery on the present defendant.

■ The defendant was indicted for forcible trespass in seizing a certain mare, and the case presented the following facts: The indictment charged, that the' defendant with force and arms, and with a strong hand, unlawfully took and carried away a mare from the possession of one David Miller, against the will of said Miller, who was then and there present, forbidding the same.

This was an action of assumpsit, in which the facts appeared to be these : The plaintiff was the agent of the defendant to sell for him clocks in the County of Haywood. He sold one to Conrad Rhinehart, which he warranted.

1846, his Honor Judge Manly presiding. This was an action of trespass, to recover damages for taking a parcel of hogs. On the trial below, the following case agreed was submitted to the Court: The defendant, Longest, was the Constable of the town of Beaufort, in the County of Carteret, and the other defendants Commissioners.

Thomas Hinton died in Gates; County, having made a will, which was proved in the County Court at November term, 1844.

The following is the statement of the case : The defendants were the sureties for one Tilly in the office of Constable, and he collected for Guess, the plaintiff, the sum of #23 02, and failed tq pay it over. The plaintiff issued a warrant against the defendant for that sum, thus due to- him, and the interest, and recovered judgment before a Justice of the Peace.

<p>The declarations and admissions of an agent, after his agency has ceased, as to past transactions, are not competent evidence against his principal.</p> <p>To make the acts of one person evidence against another, as his agent, the creation of the agency must, in the first instance, be established by proper evidence, independent of such acts and declarations themselves.</p> <p>A Constable has no official authority to collect money, except upon execution ; and he and his sureties are only liable on his official bond, under the Act of 1818, (Rev. Stat. ch. 24, sec. 7,) giving a remedy to the creditor on that bond for notes, accounts,' &e. put into his hands for collection, when it is proved that the Constable was the creditor’s agent for collecting the money due on the claims.</p> <p>The case of the Governor v. Carraway, 3 Dev. 436, cited and approved.</p>

This was an issue of fraud, made upon a capias ad sat~ isfaciendum under the 10th section of the Act for the relief of insolvent debtors, (Rev. St. c. 58.) It appeared that the defendant had filed a schedule and given notice, as required by law, which schedule was in the following words: “ all my interest, if any, in and to all the accounts on the black-smith’s book for work done for sundry individuals, and which is in the possession of, and my interest therein assigned to,…

<p>Appeal from the Superior Court of Law of Pasquotank County, at the Spring Term, 1846, his Honor Judge Bailey presiding.</p> <p>The following were the facts of the case :</p> <p>The defendant, Pool, was the Sheriff of' Pasquotank, and the other defendants his sureties on his official bond. At the March term, 1841, of the Court of Pleas and Quarter Sessions of that County, several judgments were obtained against Josiah Jordan, who died during the same week and after their rendition. Executions upon these judgments were issued from the same term, returnable to the succeeding one in June. One of them was levied upon all the property of Josiah Jordan, both real and personal, and togéther with the others, which were not levied., duly returned. From June term, a ven-ditioni exponas issued upon the one which had been levied, and ji. fas. upon the others. The property so levied on was, at the September term of the Court, sold under all the executions, and produced a sum sufficiently large to discharge them, and leaving in the hands of the defendant Pool, a surplus of $1200. To recover this sum the action is brought upon the Sheriff’s official bond, by the relations who are the heirs-at-law of Josiah Jordan, and against whom no process had issued. At the sale made by the defendant Pool, the personal property produced a sum sufficient to discharge the venditioni exponas.</p> <p>The presiding Judge charged the jury, that, under the facts of the case, the sale of the land by the Sheriff was void, as he had no authority in law to make it, and that the surplus was not in his hands in his official character, and the action could not be sustained.</p>

The following is the case sent up to this Court front the Court below.

<p>Appeal from the Superior Court of Law of Greene County, at the Spring Term, 1846, his Honor Judge Manly presiding.</p> <p>This was an action of Detinue for six slaves, which was decided upon the following case agreed. Elizabeth Rogers, then the wife of the plaintiff, upon her libel in the Court of Equity, obtained in 1837 a divorce from bed and board; and it was decreed further, that she should have “ alimony and a separate maintenance of the estate of her said husband ; and the Court doth allot as her alimony and separate maintenance, one-third of the rent of a certain tract of land and mill conveyed to the defendant by, &e., and the negroes Esther, Wilie and Mary; and for the purpose of securing the payment and enjoyment of the said alimony, the Court doth further decree, that the defendant deliver to the said Elizabeth the said negroes within five days and the decree then provided for receivers to lease the land and mill, and directed them to pay one-third of the rent annually to the wife, and the residue to the husband. The wife received annually during her life, the sum of $60 for her share of the rents. The negroes were delivered according to the decree; and, being a woman and her two small children, they were, taken together, unprofitable to Mrs. Rogers, and she sold thorn, to the defendant on the 13th of August, 1838, for $1000, then paid to her. The other three ne-groes sued for, are the issue of Esther, born since the defendant’s purch'ase. Elizabeth Roger’s died in May, 1845, and, after the defendant refused to give up the ne-groes, the plaintiff brought this suit. It was agreed, that, if the Court should be of opinion the plaintiff was entitled to the negroes, there should be judgment for him lor certain sums as the values of the several slaves and damages, and if he was not so entitled, then that there be judgment for the defendant.</p> <p>The Court gave judgment for the plaintiff, and the defendant appealed.</p> <p>Alimony is an allowance for maintenance of a wife from year to year. 5 Eng. Ec. Rep. 129 — note to DeBlaquiere v. DeBlaquiere, Poynter on Mar. and Div.</p> <p>The divorce a mensa et thoro does not dissolve the marriage contract, and neither the rights of the husband of wife as it respects property (except only such as ^acquired by the personal services of the wife) are afFected by it. Reeves Dom. Rel. 209. It does not preclude the wife from her dower. Co. Lit. 32 a. 10 Eng. Com. Law. Rep. 85. Lewis v. Lee.</p> <p>The decree of the Court, divorcing a mensa et thoro? does not impose any obligation upon the parties to live separately — they can come together again by mutual consent and no conveyance- is necessary to vest title in the husband in the property allotted to 'the wife for her separate maintenance — even where by statute a written transfer is required.</p> <p>The husband still retains his marital rights in a great degree — they are only partially suspended and the policy of the law encourages the re-union of the parties.</p> <p>If a legacy be given to the wife in this state'of separation, the husband may receive or release it. Bacon, Ah. Baron and Feme D. If the faculties of the husband increase, the alimony may be increased by the spiritual Court, and e converso, which shews that her interest in the allowance for alimony is not absolute, but may b© increased or diminished according to the changing circumstances of the husband or wife — it is in truth an allowance to continue during separation only; and that is the very essence and definition- of alimony. Poynter 85. 2 Kent. Com. 127.</p> <p>There is no essential difference in principle between1 the doctrines held here and in England, on this subject. 2 Kent. Com. 128.</p> <p>The alimony m this case is allotted under the latter c-lause of the statute : “ by assigning to her separate use such part of the real and personal estate of the husband’ as the Court shall think fit, not exceeding- one-third part &c. which shall continue until a reconciliation shall take place between the parties.”</p> <p>This is by way of defeasance of her estate. It has the qualities and capacities of a life estate — it may endure for life, but, if the parties be reconciled, it shall cease, so that it certainly does not enlarge the separate estate into absolute property or a fee. The Court may assign a third part of the real estate — the wife is still entitled to dower, because the marriage subsists. Then upon the death of the husband, the heir, upon the supposition that the wife has a fee in the real estate assigned for alimony, would be almost ousted of his inheritance.</p> <p>By sec. 11, she is entitled absolutely to her earnings — ■ the acquisitions of her industry and management. The allowance is for her maintenance from year to year, which is presumed to be expended, and the law now makes a discrimination between that fund so specially allotted, and what she may thereafter acquire by her own industry, as by descent, devise, &c.; and this property may, on her death, be transmissible. Thus, by the rule “ expressio unius est exclusio alterius,” exempting' from transmission on her death, the property assigned for her alimony.</p>

The following is a statement of the case. This was a warrant, which came up, by successive appeals, to the County and Superior Courts. The plaintiff declared upon a parol contract.

<p>Appeal from the Superior Court of Law of Chowan County, at the Spring Term, 1846, his Honor Judge Bailey presiding.</p> <p>The facts of the case are fully stated by the J udge delivering the opinion of the Supreme Court.</p>

<p>• Appeal from the Superior Court of Law of Mecklen-burg County, at the Spring Term, 1846, his Honor Judge Caldwell presiding.</p> <p>The following are the facts, so far as relates to the questions of law submitted to this Court.</p> <p>- The prisoner, a slave of one "Wallace, was convicted of a rape upon one Elizabeth C. Rogers, a white woman. On the trial she was a witness, and proved the offence fully. On the part of the prisoner, it was admitted that he had connexion with the woman; but he alleged that it was by her consent, and that there had been a previous criminal intimacy, between them. In order to establish it, the prisoner offered to prove by a witness, that, on a certain night, some time before the alleged rape, he and the prisoner went from Wallace’s towards the residence of Harvey Rogers, the husband of Elizabeth C. Rogers, and that after having gone together some distance to a neighbor’s house, the witness stopped, and the prisoner went on; and after having .been absent some time, the prisoner returned and told the witness that he had been to the house of Rogers, who was from home, and had been admitted by his wife. Upon objection from the Solicitor for the State, the Court rejected this evidence.</p> <p>After an answer in the negative to a question put to Mrs. Rogers on her cross-examination, whether she had not allowed the prisoner to put his hands on her in a free and familiar manner, it was proved by another slave of Wallace, on the part of the prisoner, that he had frequently seen the prisoner treat her in that manner.. And the prisoner offered further to prove that the witness, Rogers, had permitted other negro men to kiss her and take other liberties with her. But upon objection by the Solicitor, the Court rejected this latter evidence also.</p> <p>The prisoner offered further to prove, that Harvey Rogers, the husband, had in the presence of his wife of-fei'ed to compound this prosecution with Wallace, the owner of the prisoner. But the Solicitor objected to this evidence, and the Court refused to admit it.</p> <p>It was then proposed, on the part of the State, to give in evidence the confession of the prisoner ; and, for that purpose, one Springs was examined. Pie stated that on' one occasion, after the prisoner .had been committed to jail on this charge, he saw the prisoner and asked him to whom he belonged, and why he was in prison; to which the other replied, that he belonged to Wallace, and was in jail for a rape on Mrs. Rogers. The witness, having heard something of the case, then said, “ Yes, I have heard of you ; and it is said you choked her, and had your will of her and the prisoner answered, that he did. The witness said that he then asked the prisoner why he did so, and the latter replied, that he supposed he. must have been drunk; and that to the question from the witness, “ Did you know it would hang you 1” the prisoner replied that he did not. To this evidence, the counsel for the prisoner objected; but the Court received it.</p> <p>After sentence of death upon conviction, the prisoner-appealed to this Court.</p>

<p>A pledge of personal property, as for example, a pledge of Bank stock, differs from a mortgage, and is not included within the words or meaning of the Registry Act.</p> <p>A mortgage is a pledge and something more, for it is an absolute pledge, to become an absolute interest, if not redeemed in a certain time.</p> <p>A pledge is a deposit of personal effects, not to be taken back, but on payment of a certain sum, by express stipulation to be a lien on it.,</p> <p>Generally speaking, a bill in Equity to redeem will not lie in behalf of a pledger, or his representatives, as his remedy is at law upon a tender of the money.</p> <p>Per Nash, J. The Legislature clearly recognized this distinction between mortgages and pledges of property, for the payment of debts to Banks, in the Act chartering the Cape Fear Bank in 1804, and in the Act chartering the Merchants’ Bank of Newbern in 1S34.</p> <p>Per Ruffin, C. J. The stock in the Bank, pledged in this case, was not tangible property, subject to execution,' and therefore did not come within the words or meaning of the Registry Act, nor within the mischief intended to be prevented by the Legislature in directing incumbrances on property to be registered. Pledges of personal property, tangible to legal process, are as much within the Act as mortgages or deeds of trust.</p>

. 1 This was an action of debt on a bond for $239, given by the defendant to the plaintiff. Pleas : Payment and set-off. On the trial, the defendants proved that the defendant Justice executed the bond as surety for the other defendant. And they offered to prove further, that the plaintiff had assigned the bond, without endorsement, to one Brown, and that this suit was brought for Brown’s-benefit: and that Brown was indebted to.

The two defendants, a man and woman, were indicted for committing the crime of fornication, by bedding and co-habiting together, without being married. They pleaded not guilty, and were put on their trial together, and the jury found Mainor guilty and Wilkes not guilty. Upon the motion of the defendant, Mainor, the judgment was arrested ; and the Solicitor appealed.

This was an action of trover for a horse, in which the following facts appeared: John Farrier had been the owner of the horse in question, and sold him to Hezeldah Grant, the plaintiff’s intestate, upon an agreement that he should be the property of Grant upon the full payment of the purchase money.

<p>Under our statutes, a second action may be brought on a Sheriff’s bond, for money, which he holds as County Trustee, by any person who is injured thereby — toties qnoties — until the penalty is exhausted.</p> <p>But the party injured may, if he prefers it, recover what is dne to him by a scire facias on the first judgment, setting forth other breaches.</p>

<p>Appeal from tbe Superior Court of Law of Cumberland County, at the Spring Term, 1846, His Honor Judge Dick presiding. • ■ ' '</p> <p>•The: questions presented to this Court are stated in the opinion delivered by the Court.</p>

The following are the only facts upon which this Court thought it necessary to pronounce the law: This was an action of assumpsit, brought to recover money paid by the plaintiif to the use of the defendant. The wardens had maintained an aged slave, named Susan, belonging to the estate of Robert Silverthorn, deceased. The defendant pleaded “ Ne unques executor,” and the plaintiff replied, that he was an executor de son tort.

<p>Appeal from the Superior Court of Law of Duplin County, at the Spring Term, 1846, his Honor Judge Settle presiding.</p> <p>The only material facts in this case are stated in the opinion delivered in this Court.</p>

<p>A plaintiff may recover in ejectment upon the demise of only one of several tenants in common, to the extent of his interest; and there may be a general verdict and judgment that he recover his term, as under the writ of possession the lessor of the plaintiff proceeds at his peril.</p> <p>Where, in an action of ejectment, the defendant relied upon the Statute of Limitations, and the evidence was, that the defendant ánd A., under whom he claimed, had had seven years actual possession, except for the space of four or five months, an interval that elapsed between the time when a tenant of A. left the premises, and the time when the defendant entered under his purchase. Held by the Court, that the interval between these two occupations was too large to found a presumption on of a continued possession, in the absence of any intermediate act of ownership by A. or any one under him.</p> <p>The eases of Bronson v. Paynter, 4 Dev. and Bat. 393, Godfrey v. Cartwright, 4 Dev. 487, and Blair v. Miller, 2 Dev. 407, cited and approved.</p>

This was an action of detinue for slaves. Plea, Non Detinet. On the 14th day of February in the year 1824, John Sneed and Alexander Sneed conveyed the slaves in controversy to John C. Mingas, to hold them in trust for the sole and separate use of Elizabeth Sneed, the wife of Alexander Sneed. On the 14th day of August in the year 1S26, Elizabeth Sneed, then being a widow, made a deed of gift of the said slaves to the plaintiff, reserving: a life estate in the same to herself.

This was an action of debt upon a bond, given by one Fielding A. Belvin, upon being appointed a constable for the County of Wake, in February 1841, in which the breaches assigned were for the failure'of the officer to collect two executions, which were placed in his hands for collection, and which, by the use of due diligence, he might have collected ; for making a false return thereto, &c. The pleas were “ Non est factum, conditions performed and not broken.” The relators,…

The plaintiff, on the 23d day of April, 1841, received of the defendant, for bacon sold him, two notes then due on Alexander Shammell. The defendant guaranteed the notes to be good, and Shammell’s estate was then considered to be good. The plaintiff did not, however, demand the money, due on the notes, until the 29 th day of July, 1842. The plaintiff gave notice to the defendant, on the 29th day of February, 1844, that he was looked to for the money.

v This was an action of ejectment for a tract of land, which both parties claimed under Isham Doby; the lessor of the plaintiff under a deed from Doby to him, bearing date the 23d of April 1840; and… Held: that the judgments arid orders of sale in the County Court were sufficient, without further proof of such notices. The jury found for the defendant, and judgment was rendered thereon, and the plaintiff appealed.

This was an action of trover, brough to recover damages for the conversion of two fishing seines. Plea, “ Not guilty.” In the year 1841,, the seines belonged to John Bennett and F. Fagan, as partners in the business of fishing. In August 1842, Fagan conveyed his interest in the two seines to the plaintiff.

ey presiding-. This is an action of debt founded on the statute of Usury. The declaration contained two counts, but all the evidence was directed to the first, and on that the judgment was rendered for the plaintiff.

The following facts were presented by the case transmitted to this Court.. Munroe Treadwell died intestate, leaving several next of kin; and the defendant McKay became his administrator, and together with the other defendants, as his1 sureties, entered into a bond for the due administration of the estate.

The action is brought to recover from the defendants the price of a quantity of lumber, sold by the plaintiff, as he alleges, to them, and which was burnt in the town of Wilmington. The plaintiff brought the lumber to the town of Wilmington, where the defendants reside, and offered it for sale to the defendant Derossett, who agreed to purchase it, if, when he saw it, it proved to be good.

<p>Tamar Sanderlin had issue a legitimate son, Isaac Sanderlin, and an illegitimate daughter, named Zelia, who intermarried with Lemuel Sawyer. They died, leaving an only child, who is the propositus, to whom the premises were devised in fee by her grand-mother, Tamar. The pro-positus died without issue, leaving, as her nearest relations, a brother and sister of her deceased father, who are the lessors of the plaintiff, and also the said Isaac Sanderlin, under whom the defendant claims</p> <p>Held by a majority of the Court, Ruffin, C. X dissentiente, that no part of the land descended to Isaac Sanderlin, but the whole descended to the brother and sister of the father of the propositus.</p> <p>Held by Ruffin, C. X that the land descended equally to Isaac Sanderlin, the uncle ex parte materna, and to the brother and sister, uncle and aunt, ex parte paterna.</p>

<p>In an indictment for a libel, the indictment must set forth matter on its face libellous, in which ease the Court is to judge whether it be so or not; or it must aver that the matter charged, though not on its face libellous, was intended in fact to be so, and then the question is to be submitted to a jury.</p>

This was an action on the case in assumpsit. The declaration contains four counts, the first and second upon promissory notes, given by Daniel Murray and the intestate, Isaiah Spencer ; and the third and fourth upon contracts therein set forth. The case is as follows : Daniel Murray and Isaiah Spencer were the owners of a line of stages and jointly concerned in running it between Raleigh and Greensboro’.

<p>Where upon a writ of recordari judgment was rendered against the plaintiff, in the recordari, and the clerk entered the judgment against the sureties only for the costs, and the Court at a subsequent term directed that the judgment should be entered nunc pro tunc against the sureties, for the debt as well as the costs. Held, that the Court had the power to do so, if in their discretion they thought it right, and that this Court could not revise such discretionary power.</p> <p>The case of Gregory v Haughion, 1 Dev. 442, cited and approved.</p>

<p>Appeal from the Superior Court of Law of Brunswick County, at the Spring Term, 1840, Ilis Honor Judge Dicic presiding.</p> <p>This was an action of debt brought on the oilicial boud of the defendant Hankins, as the sheriff of Brunswick County, and his sureties. Hankins was duly appointed shei’iff, and his official year commenced the 5th of September 1837, and ended the 5th of September 1838. He appointed one Woodsides his deputy, to whom the relator Rockwell delivered, in time for collection, a number of notes and bonds upon solvent debtors. In October 1838, Woodsides received upon these obligations ten dollars, and did not receive upon them any money during the official year of the defendant Hankins. The writ in this case issued the 24th Oct. 1844. The pleas are the general issue — and stat. limitations — and covenants performed. On the trial, the plaintiff offered to prove a demand made on Woodsides in 1842: the Court rejected the evidence. The 25th of Feb. 1843, the plaintiff caused a suit to issue against the defendant for the same cause of action. At December term, the defendant appeared, when the case was put to issue, aud at June term 1844, the plaintiff was called and judgment of non-suit enier-ed against him. Ilis Honor instructed the jury, that the official year of the defendant Hankins ceased on the 5th of Sept. 1838, and the deputation of Woodsides ceased at the same time ; and therefore the defendant was not liable on this bond, for the ten dollars received by him in Oct. 1838 ; and as to the breach for neglect for not collecting, the defendants were protected by the statute of limitations.</p> <p>Under these instructions, the jury found a verdict for the defendants, and from the judgment thereon the plaintiff appealed.</p>

<p>The plaintiff was the trustee in a deed of trust made by A. to secure a debt he owed to B. The defendant was also a creditor of A. Under these circumstances, a promise by the plaintiff to forbear proceeding under the deed of trust would not amount to a good consideration at law, to uphold a promise of the defendant to pay to the plaintiff the debt due by A. to B. so as to enable the plaintiff to declare upon it in his own name.</p>

This is ejectment for a tract of land lying in Pasquo-tank County. Held: that the act of 1823 was not repealed, and that the sale to the lessor of the plaintiff was valid; and according to the agreement of the parties, there was a verdict entered for the plaintiff; and from the judgment thereon, the defendant appealed.

Ejectment for a tract of land situate in Currituck county. Both parties claim under sales made by the sheriff on writs of fieri facias against Jesse W. Doxey. That at which Baxter purchased, was prior in time and was made on the premises in dispute. Afterwards, the sale under which the plaintiff claims, was made at the courthouse, which was also the usual place of holding the petit musters of the militia company to which Doxey belonged.

The following facts appear from the report of the case by the presiding Judge and from the record. This was an indictment against the defendant for an assault and battery on one Kenneth Black.

<p>Appeal from the Superior Court of Law of Currituck County, at the Spring Term, 1846, His Honor Judge Bailey presiding.</p> <p>The facts are stated in the opinion delivered in this Court.</p>

<p>Appeal from the Superior Court of Law of Currituck County, at the Spring Term, 1848, his Honor Judge Bailey presiding.</p> <p>The facts of the case are stated in the opinion delivered in this Court.</p>

This was an action of assumpsit, brought by the plaintiffs against the defendants, as executors of James Mc-Nairy deceased.

This is an information, filed in this Court, on the 19tli of Jannary, 184(5, by the 'Attorney General, charging a forfeiture of the charter of the corporation.

<p>When it Las been shewn that a charter has been granted to a corporation, those in possession and actually exercising the corporate privileges must be considered as rightfully there, against wrong-doers and all, who have treated or acted with them in their corporate character.</p> <p>The sovereign alone has a right to complain, for, if there be an usurpation, it is upon the rights of the sovereign, and his acquiescence is evidence that all things have been rightfully performed.</p> <p>Therefore, where a corporation of trustees of an Academy, consisting of ten, was shewn to have existed, and corporate acts had continually been done in the name of the corporation, although it was shewn by the defendant, in an action against him by the corporation, that one of the original trustees remained alive — It was held, that the corporation was not bound, in such an action, to shew a regular succession of trustees down to the time of bringing the suit.</p> <p>The case of The Tar Hirer Navigation Company v. Niel, 3 Hawkes 537, cited and approved..</p>

<p>Appeal from the Superior Court of Law of Martin County, at the Spring Term, 1846, his Honor Judge Battle presiding.</p> <p>The facts are stated in the opinion delivered in this Court.</p>