Volume 29 — North Carolina Reports

The lessor of the plaintiff claimed' the land in controversy, under a judgment and' an execution against the heirs at law of Garnett Neely,,deceased, and a Sheriff’s; sale and deed to him as the purchaser. The defendant contended, that there was no proper and legal execution, under which the Sheriff could have sold the land and of this opinion was the Court, and' judgment was rendered for the- defendant, wherefrom the plaintiff appealed.

The action is assumpsit for goods sold and delivered, and was tried on the general issue. The facts were, that the defendants, Thomas II. Alexander, Joseph Alexander, and Abner Alexander, entered into partnership in a fishery in Tyrrell County; and, by the agreement, each of them was to furnish certain things, needful to the prosecution of the business, as parts of his stock therein.

Upon the trial of this ejectment, a title was established in the lessor of the plaintiff to an undivided moiety of the premises as a tenant in common with the defendant. It was thus derived : John Andres died seised in fee, and from him the land descended equally to the present defendant, and one Elizabeth Locke ; and the latter devised her share to the plaintiff’s lessor.

The testator, Thomas L. Shannonhouse, in the tenth elause of his will, gave to four of his children, naming them, the residue of his chattel property, and directed his executor to convert it into money, and equally divide' it between his said four children, “ except one' (Susan Forbes,) to have five hundred dollars less, for the two negro girls already given to her.” William Shanon-house, one of the four legatees, died in the lifetime of the testator.

This is an action on the case brought to- recover of the defendant, who is the sheriff of Washington County,. damages for failing to sell the real estate of the infant heirs at law oí John D. Bennett, under two Fi.

<p>Appeal from the Superior Court of Law of Hyde County, at the Fall Term, 1846, his Honor Judge Bailey, presiding.</p> <p>This is detinue for a slave, tried on the general issue. The plaintiff claimed title under an execution sale by the Sheriff of Hyde, and his bill of sale. One Joel McLean instituted an action of debt on a bond, in the County Court of Orange, against the defendants, Cason G. Spencer and Peleg Spencer, the administrators of Isaiah H. Spencer, deceased, and against Daniel Murray and John Buffalow. In that Court, judgment was rendered for the plaintiff against Spencer, who appealed to the Superior Court, and there a verdict and judgment were, in June 1843, rendered for the plaintiff, against Spencer’s administrators, $1,610 debt, besides damages and costs, and a fieri facias issued thereon to the Sheriff of Hyde, de bonis intestati, in the hands of the said administrators. There were also two judgments in Or&nge County Court, in favor of James Webb, against Spencer’s administrators, on which writs of fieri facias were likewise issued to Hyde County. The latter writs, however, did not name the persons, who were the defendants, as administrators of Isaiah H. Spencer, but commanded the sheriff to make the money “ of the goods and chattels of Isaiah H. Spencer, deceased, in the hands of his administrators,” and in other respects, did not conform to the judgments. All' the executions came to the hands of the sheriff of Hyde, in July, 1843, who seised several slaves, of which, the negro claimed in this action was one, and sold them, under the three executions, on the 31st of July, 1843, and on that day, made a bill of sale for this slave to the plaintiff as the purchaser. The negro had, in the beginning of the year 1843, been hired out by the administrators to a person in Hyde, for one year, and the hirer had the possession, until the sale by the sheriff, when the negro was present; and after the sale, the hirer again took him, and kept him until the end of that year, and then, the present defendant claiming, as one of the administrators of Isaiah H. Spencer, took the slave again, and after a demand, refused to deliver him to the plaintiff, and this action was brought.</p> <p>When the plaintiff offered, in evidence, the Sheriff’s bill of sale, the defendant objected to* its competency, for want of due registration. It was- registered in Hyde County in November, 1844; and the defendant insisted that Hyde was not the proper County. In support of the objection he proved by witnesses, that the plaintiff, for several years before 1840, resided and kept a Hotel in Raleigh, to which place, he removed from a farm he owned in Hyde, and which he cultivated and occasionally visited -r and that in 1840, the plaintiff went with his family to the farm- in Hyde, and generally remained there-until June, 1843. At the latter period, the plaintiff went with his family again to Raleigh, where he had a dwelling; and the family remained in Raleigh until the autumn of 3844, and the plaintiff also remained there principally during that period, though he visited Hyde in the winter of 1843 and 1844. In the month of November, 1844, the' plaintiff resided and has- continued since to reside in Hyde exclusively. The Court received the bill of sale in-evidence,</p> <p>In the bill of sale, the executions in favor of Webb ar'e alone referred to-, as being in the Sheriff’s hands, and no notice is taken of that of McLean. For" that reason, the' defendant, insisting that Webb’s executions were void, because of their form and variance from the judgments, as before mentioned, prayed an instruction to the jury, that nothing passed by the Sheriff’s sale and conveyance. But the Court refused the instruction prayed for, and inv formed the jury, that although Webb’s executions were' void, yet that the purchaser might get a good title, if the Sheriff sold under McLean’s execution, notwithstanding, that execution was not recited in the Sheriff’s deed. The' defendant, then further objected, that the fieri facias of McLean was not valid, because his suit was brought originally against Murray and B-uffalow, as- well as-Spencer, and the record did not shew in any proper manner that it had been determined ais to Murray and Buffalo w. By the transcript of the record of McLean’s suit in Orange Superior Court, it appears, that, in the transcript sent to that Court from the County Court, upon Spencer’s-appeal, it is not stated, why the judgment was against Spencer alone, or how Murray and B-uffalow were discharged from the suit; but that in the Superior Court Spencer’s-administrators alone appeared as appellants and defendants, and the judgment was against them alone ;■ and, moreover, that at March Term,. 184S, the Superior Court of Orange (after reciting that the plaintiff, McLean, had entered a nolle prosequi in the County Court as to Murray and Buffalow, and that the Clei'k of the County Court had, by mistake, omitted to insert the same in- the transcript sent to the Superior Court,) or* dered, that the transcript in that Court be amended by inserting therein the nolle prosequi as of the proper period. Thereupon-, his Honor held, that the writ of fieri facias in that case gave a valid authority to the Sheriff to make the sale.</p> <p>The defendant, then, further gave evidence, that the plaintiff was not the purchaser of the negro at the. Sheriff’s sale, but that James Webb was, at the price of $459 99 ; and contended that, for that reason, the plaintiff could not recover. The plaintiff then gave evidence,, that Webb, immediately after he was declared the highest bidder and purchaser, transferred his bid to the plaintiff and directed the Sheriff to make the bill of sale to him, and the plaintiff paid the price bid, and received the deed at once. Thereupon the defendant insisted, that the bid could not be thus transferred, and especially as the person, who had hired the negro for the year 1843, was entitled to him during that year, and the possession was adverse to the Sheriff and to Webb. But the Court refused, so to instruct the jury. There was a verdict for the plaintiff, and judgment; and the defendant appealed.</p>

<p>An executor or administrator has a right to a remedy by petition, under the Act, Rev. Stat. ch. 74, to recover damages for the overflowing by a mill pond of his testator’s or intestate’s land in the lifetime of. such testator or intestate.</p> <p>The cases of Gillett v. Jones, 1 Dev. & Bat. 343, and Waddy v. Johnson, 5 Ired. 323, cited and approved.</p>

This was a proceeding by petition under tlie Act of Assembly, Rev. Stat. ch. 74, prescribing the mode oí recovering damages for the overflowing of land in certain cases by a mill pond. The plaintiffs were the executors of the person, whose land had been overflowed, and the defendants were the executors of him, who, it was alleged, had committed the injury.

<p>Where on the trial of an indictment for murder, the prisoner’s counsel objected, that the name of the deceased as mentioned in the indictment wa3 not his true name, that was a fact to be tried by the jury.</p> <p>The purpose of setting ferth the name of the person, on whom an offence ha* been committed, is to identify the particular fact or transaction, on which the indictment is founded, so that the accused may have the benefit of an acquittal or conviction, if accused a second time. The name is generally required as the best mode of describing the person; but he may be described otherwise, as by his calling or the like,.if he be identified thereby as the individual and distinguished from all others, and if the name be .not.known, that fact may be stated as an excuse for omitting it altogether.</p> <p>The Act of Assembly restraining Judges from expressing to the jury an opinion as to the “ facts,’ of the ease, only applies to those “ facts,”-respecting which the parties take issue .or dispute, and on which, as having occurred or not oceured, the imputed liability of the defendant depends.</p>

The plaintiff and defendants each claim the land in dispute under Joseph R. Hanrahan.

This is an indictment for an assault and biting off “the ear” of W. H. on purpose and unlawfully, but without “ malice aforethought,” and it concludes contra formam statuti. After conviction, the prisoner’s counsel objected,, that sentence could not be passed under the statute, Rev. St. ch. 34, sec. 48, because the indictment is uncertain and insufficient, inasmuch as it does not state which ear was-bitten off.

The action is trespass quare clausum fregit, and was tried on the general issue. The plaintiffs are Jacob G. Walker, James Murray, and seven other persons, and they claim the premises under a deed made to them by Thomas White, and Mary P. White.

<p>The State can bring an action in the Superior Court on a bond payable to herself for a sum less than one hundred dollars.</p> <p>General statutes do not bind the sovoreign, unless expressly mentioned in them.</p>

The indictment is in the following words : “ The Jurors for the State, upon their oath present, that Nelin Hathcock, James Hathcock, and Green Hathcock, late of the County of Stanly, together with divers other evil disposed persons, to the number of ten or more, to the Jurors aforesaid unknown, on the twentieth day of August, in the year of our Lord one thousand eight hundred and forty-five, with force and arms, to-wit: with sticks, staves, and other offensive weapons, at…

The action is brought to recover from the defendant a sum of money, under the following circumstances. The Bank of Cape Fear is a banking corporation, having a branch in the town of Fayetteville, where it owns real estate. The defendant is the officer, duly appointed and authorised to collect the town taxes for the year 1845. He demanded those duly assessed upon the real property of the plaintiffs, in the town, which were paid, under a reservation of their rights.

The prisoner was indicted for murder, and when forming the jury, he challenged a person, tendered as a juror, because he was not indifferent for him.

<p>Where in an action against the Sheriff and his sureties for failing to collect; the County Taxes, it appeared from the record, that “ twenty-two Justices” were on the bench, when the taxes were assessed ; Held, that tho Court must intend that these were a majority or the whole of the Justices .of tho Copnty, and therefore tho taxes were properly imposed.</p> <p>This is different from tho cases, in which the law requires a certain numjier of Justices to be present, when a tax is imposed, and the record does nqt shew that the requisite number was present.</p> <p>The cases of Stale v. Wall, 2 Ired. 273, and Hadley ¶. Oliver, 5 Ired. 227, Icited and approved.</p>

This was an indictment, as above set forth, and the defendant, being convicted, moved in arrest of judgment, that the indictment contained no criminal charge. The Judge refused the motion, and the defendant appealed.

This was a petition in the name' of the plaintiff by Her Guardian', alleging that her late husband died, having made a last will and testament and therein made no provision Whatever for her — that at the term when the said will was admitted to probate, she, in open Court, entered' her dissent thereto, and praying that some suitable portion of her late husband’s' estate should be allotted to lier, according' to the Act of Assembly in such case made' and! provided.

County, at the Spring Term, 184S-, his Honor Judge-Caldwell, presiding.. The action is Trover for a horse and: mu-Ie, and was tried on the general issue. The case states these facts*. The plaintiff was a constable and received, several executions, which were issued on judgments of a Justice of the Peace against Hayesand, by virtue of them, he-went to the residence of Hayes and seized the horse and> mule, som,e corn in a crib, and- other chattels.

his Honor Judge Manly presiding. This was an action upon a constable’s bond. The defendant stipulated in the condition of the bond sued on, that Robert Johnson, the constable, “ should, from time to time, and at all times during his continuance in office, faithfully discharge his duty as constable, according to law.

1846, hi a Honor Judge Battlk,. presiding, The action is debt for the sum of $800, due as a penalty under the act against usury.

<p>A.had put into the possession oí his daughter B. a negro woman named P. ■While in her possession, she had two children. A. then resumed the possession and continued it to his death, during which time P. had another child.A. afterwards died and among other things bequeathed as follows: “ I give and bequeath to my daughter B. all the property I have heretofore possessed her with, except negro woman P. which 1 lend to her during her life, and after her death the negro woman P. and all her increase to be equally divided among my daughter B’s. children.” The executors assented to the legacy. Held, that, after the death of B. her childien could not recover by petition any of these negros ; First, because as to the negro woman P. the legal estate had vested in them' and they might recover by action at law. Secondly, because as to the issue of P. born before the testator’s death, they did not pass under the will to the children of B.</p> <p>« Increase” in- the bequest of a female slave means only the increase born after the testator’s death ; unless where upon an apparent intent to include issue born after the making of the will, or even that before, by any word® of reference to a period, from which the birth of the issue, that is to pass,shall be counted.</p> <p>The cases of Hurdle v. Elliott, 1 Ired. 177, Stultz v. Kizer, 1 Ired. Eq. 588, Howell v. Howell, 3 Ired. Eq. 528, and Acheson v. McCombs, lb. 554, cited and approved.</p>

The plaintiff proved that Patsey and Sally Liverman were formerly the owners of said slaves.

The prisoner was indicted for the murder of Frank De Silva. The homicide occurred in Wilmington, during the term of New Hanover Superior Court, and the grand jury then empannelled were engaged, in an-enquiry as to the circumstances, character, and perpetrator of the act. At the instance of the grand jury, Broughton was summoned and'sworn in Court and sent to them as a witness.

This was a special action on the case. The facts are as follows. One Stephen Elliott, being indebted to James C. Skinner by bond, proposed to pay it, by a bond or note which he held on the defendant. To this arrangement Skinner assented, so far as to agree to wait for his money, until Elliott could recover the amount due him, from Perry.

This is an action of debt for the penalty of $100. under the act of 1777, Rev. St. ch. 31, see. 43, against a Sheriff for not marking, on a writ of capias ad respondendum, the day on which he received it. It was proved on the trial that the. writ was delivered to the defendant in his County on the 23rd day of March, 1843; and that he failed to mark -it on the writ, but stated thereon, that it came to hand the 3rd of April, 1843.

The plaintiff’s declaration contained three counts; the first two in assumpsit and the last ia trover. No evi.~ dence was offered by them on the first and second, and on motion, he was permitted to entera nolle .'prosequi upon them, and confined his testimony to the third. His right to enter the nol. pros, was denied by the defendant, and the motion opposed.

This was an action of debt brought upon an administration bond, in the usual form, on the relation of Eliza J.Iloss. The breach assigned was in not paying to the relator her distributive share of the estate of William Ross the elder, to which the defendants pleaded general issue, payment and set-off, conditions performed and not broken.

The action is debt upon the act against usury. It is founded on a loan made by the defendant to one Mc-Nider. There are several counts'in the declaration, and they .vary in stating the days of the contract, the periods •of forbearance, and the days of payment of the usurious interest.

This is an action of assumpsit, commenced by warrant before a Justice of the Peace. It was tried in the Superior Court on the general issue; and upon the trial the facts appeared to be as follows. The plaintiff and the defendant resided in Person County until the year 1838, when the plaintiff removed to another State.

This was an action of trover, brought to recover slaves, Mercury or Mick, Ireland, Archey, and Anna Jane, which the plaintiff claimed as the children of Hesse, one of the slaves mentioned in the annexed deed of gift marked A. duly executed from Mary Baldwin to the plaintiff, (and duly proved and registered,) the said four slaves having been born, between the execution of the said deed and the death of Mary Baldwin, the maker of the said deed.

This was ail action of debt on the bond of which a copy marked A. is appended; pleas general issue, payment set off, and accord and satisfaction. • Upon the trial it was admitted that the plaintiffs acted as the attorneys and counsel for the defendant, and that all the suits and indictments against him were decided in his favour except one ; that upon that he was convicted in Burke Superior Court of law, and his counsel, Mr. Clingman, prayed an appeal to the Supreme Court…

This was an action of assumpsit. The plaintiff gave in evidence, that he was a commissioner of wrecks, for district No. 4, for the County of Currituck: That, thereupon, as commissioner, he required of the captain to be allowed to take in charge the goods wrecked and stranded.

<p>When a recordari, according to the common practice in oar State, is brought) with a view to have a new trial upon the facts, as it is a favor, in the nature of an extension of the power of- appeal, it must be applied for speedily,, and any delay, after, the earliest period in>the party’s power to apply, must be accounted for.</p> <p>But when the recordari is used as -the foundation for reviewing summary convictions, or other proceedings, before inferior tribunals in a case of false-judgment, it is in the nature of a w.rit of error, and in. faet always lies as, a matter of right.</p> <p>Where the recordari is to bring up the proceedings in a case of forcible entry and detainer, although the plaintiff may have entered no. traverse before the justice, yet he shall be permitted to assign as many errors- as he thinks-proper.</p> <p>The cases of Beaiherwood v. Moody, 3 Ired. 129, Brooks v. Morgan 5 Ired. 481, and Parker v. Gilreath, 6 Ired. 221, eited and approved.</p>

The lessor of the plaintiff claimed title to the land in dispute, under a grant from the State, which issued on the 10th of May, 1842, for twenty-eight acres.

This proceeding was for #10 penalty for hunting on land of the plaintiff. The plaintiff proved that the defendant had gone with a gun and killed geese at a blind in Currituck county, on a shoal at the head of the channel, which led to Currituck inlet, which is now closed. The blind was about one mile from the marshes on the banks. The plaintiff, to show title, read two grants, one for 496 acres, the other for 346 acres, dated in 1839.

<p>When the Attorney General, upon an appeal by the defendant on an indictment, informs the Court, that he has looked into the record and that he consents that the venire de novo prayed for should be granted, the Court will of course grant the venire de novo, without examining into the errors assigned.</p>

The facts, upon which 'the opinion of the Supreme Court is founded, are fully stated by the Judge, who delivered the opinion. It seems therefore unnecessary to recapitulate the case sent up by the Judge below. It was an appeal from the Superior Court of Hyde County, at the Fall Term, 1846, his Honor Judge Manly presiding.

<p>Appeal from the Superior Court of Law of Iredell County, at the Fall Term, 1846, his Honor Judge Dick presiding.</p> <p>The matters, upon which the opinion of the Supreme Court is founded, are sufficiently set forth in that opinion, and it is therefore deemed unnecessary to insert the case sent up by the Judge below.</p>

<p>Appeal from the Superior Court of Law of Rutherford County, at the Fall Term, 1846, his. Honor Judge Calcwei.l presiding.</p> <p>The plaintiff claimed title to the lands in dispute as a purchaser, at ' a sale made by the sheriff; and, on the trial of the case, he offered in evidence several judgments rendered against the defendant, in Rutherford Superior Court, in favor of third persons ; also executions issuing thereon, a sheriff’s deed covering the premises, and proved the defendant in possession of the same. The sheriff was examined, and testified, that said lands were sold by virtue of said executions. It was insisted for the defendant, that it ought to appear, that a levy on the land had been made by the Sheriff, and that he had acted under it. The Court charged the jury, that to entitle the plaintiff to their verdict, in a case of this kind, he must show a judgment against the defendant; an execution issuing thereon, and corresponding with said judgment, a Sheriff’s deed covering the premises, and that the defendant was in possession, when the suit was brought; and if he made out these facts, he was, prima facie, entitled to their verdict.</p> <p>The jury found for the plaintiff, and on a new trial being refused, the defendant appealed to the Supreme Court!</p>

Lindsay, the real plaintiff, purchased the land of the Commissioners for the sale of Cherokee lands, and received of them a certificate of purchase. Held: as purchaser, in the aforesaid tract of land, and ■ that the deed had been fradulently obtained and destroyed by Lindsay’s agent before it had been registered. The Court rejected the evidence, the plaintiff had judgment, and the defendant appealed.

Upon the trial of this ejectment, the plaintiff, in order to shew a title in his lessor, read in evidence a deed for the premises mentioned in the declaration, which was made by the… Held: that no power to sell had accrued to Jacob Troutman, because there had not been an appeal, nor costs incurred in Court, which the defendant failed to pay, as provided for in the deed to him ; and therefore, that said Jacob could not make a good title to the lessor of the plaintiff.

<p>To make specific articles payments, they must be received as payments, or by subsequent agreement they must be applied as payments.</p>

This is an action of detinue for a negro man named David, whom both parties claim under the will of Alexander Sherrill, deceased.

This was an action of debt, brought in 1844, upon a bond for §668, due 3d June, 1826, purporting to be executed by Noah Ward, William J. Ward, Elijah Ward and Henry JJoub., Pleas: Non est factum, and the Statute of 1826, raising a presumption of payment upon, bonds after ten years from tbe day of payment.

This was an action of ejectment to recover the possession of a small parcel of land, of which it was admitted that the defendant was in… Held: that the judgment of confiscation relied on, did not take away the title of the plaintiffs, because .at the time it was given, the title of Neil MePhaul had descended to his oldest son and heir at law, Daniel, and that Daniel was entitled under our constitution to a trial by jury before his title could be divested; and further, that…

This was an action of Trespass quare clausum fregit, to which the defendant pleaded the general issue and liberum tenementum. The plaintiff produced a grant, under which he claimed and which covered the locus in quo, dated in 1796, and then shewed a regular chain of conveyances to himself. The plaintiff’s grant included some small islands, rocks, shoals and the bed of Pedee river, where it is not navigable.

The defendant was indicted for publishing a libel of the prosecutor. It appeared, that the prosecutor had made a publication, in which the defendant was mentioned, and the defendant, in replying to it, published the ^writing containing the libellous words.

<p>If two grants lap and one of tho claimants be seated oil tho lapped part, and the other not, tho possession of tho whole interference is in the former exclusively — possession of part of tho lands included in both deeds being possession of all of it.</p> <p>‘I’lio cases of Green v. Harman, 4 Dev. 158, Dobbins v. Stephens, 1 Dev. & Bat. G, Carson v. Burnett, 1 Dev. & Bat. 546 and Williams v. Buchanan, 1. Irod. 535, cited and approved.</p>

This is an action of trespass, quare clausum,fregit, for-entering into-the premises and cutting down certain timber trees to make shingles, and was tried upon <s not guilty” pleaded.

The plaintiff when he commenced his action gave bond for the prosecution of the suit, as required by law. The writ was returned to Spring Term, 18'46, at which' ti-me the defendant appeared, and by his attorney entered his plea and the cause was put to issue. At the succeeding term of the Court, a rule was taken upon the plaintiff, to shew cause why he should not give other and better security or justify the present.

<p>Appeal from the Superior Court of Law of Guilford County, at the Spring Term, 1847, his Honor Judge Manly, presiding.</p> <p>Joel Sullivan by his last will devised as follows: “ I give and bequeath to my grandson Joel Sullivan, son of Samuel Sullivan, the tract of land I now live on, supposed to be one hundred and sixty-three acres, with the reserve and privilege of my' son Samuel Sullivan, the father of the said Joel, having the full privilege of said land, and all the profits arising therefrom during his natural life.” By a subsequent clause, he devises as follows, “ I further give and bequeath, all my lands, that 1 am seised and possessed of at this time, or the profits arising therefrom to my beloved wife Elizabeth during her natural life or widowhood, then for it to fall back to the said heir as above mentioned.” The lessor of the plaintiff is the devisee, Joel Sullivan, the grandson, and the defendants, the heirs at law. or a portion of them, of the testator. The lessor of the plaintiff claims the premises by virtue of the second, clause, as being the heir referred to in it. The defendants contend, that under that devise nothing passed, but the life estate of the widow, for the reason, that the individual,'who is to take after her, is so obscurely pointed out, that it is impossible to say who was meant, and Ihe devise, of course fails for uncertainty. The plaintiff offered to prove, by parol testimony, that his lessor was meant by the testator to take in remainder after his grandmother the widow. The widow is dead, and the testator left his son Samuel and several other children.</p>

The action is brought upon a note of hand, signed Coffin, Harvey and Co. The plaintiff' proved, that the defendant was a partner of the firm, Coffin, Harvey and Co. and that the signature to the note, was that of William Coffin, another member of the firm. In order to prove the existence of the debt, and that it was contracted in the due course of parnership business, the plaintiff offered in evidence the deposition of Samuel Harvey ; another member of the firm.

In the year 1839, Thomas E. Davis, one of the defendants, was duly appointed a constable in Surry County, and entered into bond, with the other defen« dants as his sureties for the faithful discharge of his duties. At the expiration of that official year, he was re-appointed and gave another bond for the year 1840.

This action was commenced by warrant. The magistrate gave judgment for the plaintiff and the defendant appealed to the County Court. After this, and before the suit was returned, the defendant tendered the amount claimed, with the costs then due, to the constable, who served the process, and who was the agent of the plaintiff for the collection of the money.

This action is debt against Joel Harrell, and Marsh, executor of Thomas Watts, on a bond given to the plaintiff by David Watts and the said Joel and Thomas. The defendant, Marsh, pleaded non cst factum, and the Act of 1789, limiting the time for bringing suits against executors; and the controversy, as between the plaintiff and that defendant, turned at the trial on the latter plea.

The prisoner was indicted1 for forgery. The indictment contained two counts, but omflic second the Solicitor for the State entered a nolle prosequi. Held: that the false instrument was not a forgery, because it lacked a main ingredient of forgery, viz: the capacity to “ defraud it could not “ defraud or prejudice” the right of the plaintiff’s testator, or the plaintiff himself, because the debt to lohich the receipt was applicable had been actually paid.

The defendant was indicted for stealing “ a hog.” The evidence showed that tho animal was a boar shoat, between five and six months old. The owner is described in the indictment as “ Elizabeth Moore,” and it was shown in evidence that she was called Betsey Moore. For these variances the Court was requested to direct the jury to acquit the prisoner, which was refused, and the prisoner convicted. The indictment was at common law.

This is an action for use and occupation of a wharf in the town of Wilmington. The ease is — the wharf in question together with an adjoining lot, on' which was a ware-house belonged to one Parsley, who hired them to the defendant for tho year 1844. The defendant was engaged in erecting a public building for the United States on a lot adjacent to the wharf and hired the premises for the convenience of carrying on his work.

The plaintiff recovered a judgment in the County Court against Wood, who appealed and entered into bond with Waddell as his surety. In the Superior Court the plaintiff again recovered, and then moved for judgment against Waddell on the appeal bond ; which the latter opposed on the ground, that there was but one surety, whereas the statute requires “ two sufficient sureties.” But the Court gave judgment for the plaintiff, and Waddell appealed to this Court.

This is an action of replevin to recover possession of a negro girl, slave named Rachel. This girl is the child of Riah, a negro woman bequeathed in the will of Joseph Richards in the following words, viz : “ I give and bequeath unto my daughter Elizabeth Coon, during her natural life, at the end of which to the only heirs of her body, one negro girl named Riah, this to the aforementioned to them and their heirs forever.” The testator, Richards, died in the year 1823.

, • Joseph Amis by his will, dated July 20th, 1840, directed all his estate to be kept together under the control of his executors, and gave them discretionary power to soli any part of his real or personal property, as they might think most advantageous for his wife and children.

The prisoner is indicted for murder. On the trial, the deposition of one Jacob Cotton, an accomplice, was offered in evidence by the prosecuting officer on behalf of the State, and objected to by the prisoner’s counsel. It was taken by his Honor Judge Pbahson, under the Act of 1712, Rev. Stat. c. 35, s. 1, and in the presence of the prisoner.

<p>Appeal from the Superior Court of Law of Beaufort County, at the Spring Term, 1847, his Honor Judge Pearson, presiding.</p> <p>The prisoner was indicted for stealing two barrels oí turpentine, the property of Frederick Grist. The record states bis plea of not guilty, and his trial by a Jury who1 found him not guilty, and judgment given thereon for him; and then sets forth an appeal therefrom by the Solicitor, for the State. In an exception annexed to the record, however, it is stated, that the jury found a special verdict to the effect, that Grist owned a tract of land on which certain pine trees were boxed, and worked for turpentine by him in the year 1846, until the month of May, and that he then discontinued the working for that season : and that in August of that year, the prisoner secretly, during two days, dipped out of the boxes which had been made by Grist, as much in quantity as two barrels of turpentine,, which had run after Grist had discontinued the cultivation in May, and the prisoner put the' same into two barrels, which he had provided and kept concealed in the woods, and then he carried it away secretly and sold; it. And upon the facts thus found, the jury prayed the advice of the Court, whether the said turpentine was the subject of larceny, and, if so, whether-the allegation, that the prisoner stole “ two barrels of turpentine,”’ was thereby sustained; and if the Court-should be of opinion in the affirmative upon both of those-questions, then the jury found the prisoner guilty in manner and form, as charged in the indictment; but if the Court should be of a contrary opinion, upon either of the* said questions, then the jury found' the prisoner not guilty. The exception further states, that the Court was--afterwards of opinion with the prisoner upon the matters thus referred to it, and thereupon entered the verdict, “not guilty,” and gave judgment for the prisoner, thereon ; and then the-Solicitor appealed.</p>

This is an action of debt on an administrator’s bond by a creditor of the intestate, suggesting a devastavit. Held: that the judgment was entitled to the preference ; and from a judgment against them, the defendants appealed.

The prisoner is a slave of Kinchen Powell, and was indicted with a free woman, for robbing- Joseph Britt, in the public high-way, of one dollar and other things. When forming a jury for the separate trial of the prisoner, three of the persons drawn and tendered were challenged by the Attorney General, because they wore related to the owner of the prisoner; and, that appearing, the challenges were allowed, notwithstanding an objection by the prisoner’s counsel.

<p>When nothing but course and distance is called for in a deed, parol evidence is not admissible, to shew that a line of marked trees not called for in the deed is the true boundary.</p> <p>When one corner is established and the course and distance only given, and the next corner called for in the deed is also established, the line must run direct!}' from the one corner to the other, although there may be a line of marked trees between the corners, but varying in some plaees from the direct line.</p> <p>Nor is it sufficient to make an exception to this rule, that the trees were marked as the line by the parties, at the time when the deed was executed from one to the other.</p> <p>The case of Hough v. Horn, 4 Dev. & Bat. 228, cited and approved.</p>

The defendant was indicted for - high-way robbery. On the trial, a witness, named tlall,, was introduced to-prove a conversation, which he heard between Cowan- and Price, who were confined in jail for the same offence. The prisoners were in different cells', but could converse through a sink, which passed under-both cells.

Bailey presiding. The prisoner is indicted for altering the mark of a cow, belonging to Martha Benson. The words in the indictment, describing the offence, are “ unlawfully, knowingly and wilfully did alter the mark of a certain cow, the property of Martha Benson,” charging the intent. No evidence was offered by the defendant of his. good character.

<p>The plaintiff commenced his action of assumpsit on the 3rd of July, 1846?. On the I3th when the Court, to which the action was returnable sat, the. defendant pleaded as set-offs certain bonds of the plaintiff’s due the 3rd of July. On these bonds the defendant had sued out warrants against the plaintiff on the 7th of July and recovered judgments on the 10th of July 1846. Held, that these bonds could not be introduced as set-offs, because they were merged in judgments before the plea pleaded.</p> <p>A set-off must not only be due at the commencement of the suit, but must continue to be due in the same form, when pleaded.</p> <p>The ease of Haughton v. Leary, 2 Dev. & Bat. 21, cited and approved.</p>

This action was assumpsit with three counts. 1st, upon a promissory note, (a copy of which is annexed,) 2d, upon oral promises to pay the sums therein mentioned ; and 3d, upon a quantum valebat for a house and lot in the town of Greensborough. Pleas — the general issue and infancy, to which there were general replications, and to the latter the special replication, that defendant’s intestate had promised since arriving at fall age.

A. by will in 1786, devised to his son R. a tract of land and then proceeded as follows: “ And my desire is, if my son R die without heir lawfully begotten of bis body, for it to be sold, and equally… Held: that the limitation over was too remote, and that estates tail having by the Act of 1784 been converted into fee simple estate, the son R. took an absolute estate in fee simple in the land devised. The case of Saunders v. Hyatt, 1 Hawks 247, cited and approved.

The defendant was arrested upon a charge of Bastardy. A warrant was duly issued by a couple of Magistrates against Catharine Curtis, a single woman, who upon her examination, charged the defendant with'being the father of her child. The defendant was bound to the County Court. Upon the return of the proceedings, the issue was made up, to try the fact, whether the defendant was the father of the child.

The action is trespass and false imprisonment, and the plea not guilty. On the trial the defendant showed, that he was Sheriff of Pasquotank, and he offered in evidence a precept from a Justice of the Peace, which is set forth in the exception, and was directed to any lawful officer, and delivered to one of his deputies, who arrested the plaintiff thereon, and committed him to jail.

<p>Appeal from the Superior Court of Law, of Chowan County, at the Spring Term, 1847, his Honor Judge Caldwell presiding.</p> <p>This is an indictment for trading with a slave, and has two counts. The first charges, that the defendant in &c. on &c. “unlawfully did sell and deliver to a certain slave, whose name to the jurors is unknown and the property of some person to the jurors unknown, a pint of spirituous liquor, not being delivered for the use of the master, manager, or person having the control of said slave, contrary to the form, &c.” The second count charges, that the defendant, “ afterwards, to-wit, on tho first day, &c. in the night, between the setting of tho sun and the rising thereof, unlawfully did sell and deliver unto a certain negro slave, whose name to the jurors is unknown, and the property of some person to the jurors unknown, a pint of spirituous liquor, the said spirituous liquor not being delivered for the use of the master, overseer, or person having the management of said slave, contrary” &c.</p> <p>On not guilty pleaded, the evidence was, that the prisoner, in the night time, sold and delivered spirituous liquor to a negro, but the witness did not know him, and could not say whether he was a slave or not. The counsel for the prisoner objected to the evidence being received, and insisted that it did not legally authorise a conviction. But the Court received it, and charged the jury, that it was evidence, on which they might find the defendant guilty. After a verdict for the State, the defendant moved for a venire de novo, for error in receiving the evidence and in the instructions to the jury; and, that being denied, he moved in arrest of judgment, because the indictment does not aver, that the liquor was not sold to the slave “ by the order of the owner or person having the management” of the slave. The motion in arrest was over-ruled and the defendant appealed.</p>

Appeal- from the Superior Court of Law of Chatham County, at the Spring Term, 1847, his Honor Judge Manly presiding. The plaintiff sued the defendants for having maliciously and falsely sued out a warrant, and prosecuted him, with two other persons, before a Justice of the Peace, for a felonious assault and robbery of the defendant Roberson on the high-way. Upon not guilty pleaded, the evidence was, that on a certain day,.

This was an action to recover the price of certain goods, sold at auction in the town of Wilmington, in pursuance of the annexed advertisement. AUCTION. On Thursday morning at 9 o’clock, I will sell at the’Store of Mr. Robert Simpson, his stock in trade, consisting of Molassos, Coffee, Sugar, Soap, Crockery, and a general assortment of Groceries. R. G. RANKIN, Auctioneer. June 24th, 1844. PLEA — A SET OFF.

This is an action of debt, upon the official bond of the defendant, Watson, brought against him and his sureties. The case is as follows: At the February term, 1833, of Johnston County Court, Nathan T. Allen was appointed guardian of the relators, and so continued until February term, 1841, of said Court, when he was removed, and William R. Lee was appointed. The guardian bond of Allen never was renewed, nor did any notice ever issue to compel him to do so.

<p>A Sheriff, to whom a writ has been delivered, but who goes out of office be* fore the return day of the writ, has no power to make the return on it, and therefore is not liable to amercement for not doing so.</p> <p>It is the duty of the Sheriff, going out of office, to deliver all the process remaining in. his hands, to his successor.</p> <p>A judgment of an amercement against a sheriff is not conclusive against the sureties on his bond. They may show that the judgment was either fraudulently or improperly obtained against their principal.</p> <p>The ease of McLin v. Hardie, 3 Ired. 467, cited and approved.</p>

The prisoner was indicted for the murder of Alfred Flowers. In opening the case for the State, the Solicitor stated, that he expected to prove from antecedent threats, as well as from the circumstances attendant upon the killing, that it was done with malice express, or, if' he failed in that proof, he expected to show that the homicide was committed under circumstances, from which the law would imply malice.

<p>The plea of liberum lenementum in an action of trespass, q. c. f. admits the fact, that the plaintiff was in possession of the close described in the declaration, and that the defendant did the acts complained of, raising only the question whether the close mentioned was the defendant’s freehold or not.</p> <p>In a controversy about boundary, the plaintiff may give in evidence a recovery in an ejectment suit, twenty-live years ago, by one under whom the plaintiff claims against the defendant and the subsequent abandonment by the defendant of the land now claimed by the plaintiff.</p> <p>A plaintiff may recover damages for a wrongful entry upon his land by a disseisor, although he may not have regained possession of his land at the time of the action brought.</p> <p>Where a tenant claims by a disseisin, ripened into a good title by lapse of time, he must ¿hew an actual, open and exclusive possession and use of the land as his own, adversely to the title of the demandant. It must be known to the adverse claimant or be accompanied by circumstances of notoriety.</p> <p>Where a person intends to place his fence on a particular line, but accidentally places a small part of it on land claimed by another, this will not be a possession adverse to such claimant.</p> <p>Where, in running a line, another known line is called for, and the distance gives out before reaching the line called for, the distance is to bo disregarded.</p> <p>The case of Green v. Harman, 4 Dev. 158, cited and approved.</p>

This is an action against the Sheriff of Bertie for $500 for making a false return of, “too late to hand to execute in time,” on a capias ad respondendum, sued out from the Superior Court of Chowan by James Lemit to the use of Burton W. Hathaway against William H. Capehart, and George W. Capehart; and was tried on nil debet pleaded.

at the Spring Term, 1847, his Honor Judge Manly presiding. The prisoner was separately tried upon an indictment, in which he was charged as principal, and Mary Meadows as accessary before the fact, with the murder of James Meadows.

<p>The plaintiffs sued out a writ against James Bewles, which was returned “ non est inventus the plaintiffs in their joint names may sustain an action fora false return, both as informers or as the parties grieved.</p> <p>The ignorance of a sheriff’s deputy, who makes a false return, if in fact it was false, does not excuse the sheriff from the penalty.</p> <p>When a defendant in a writ is openly and at large in a County, non est inventus is a false return; and, if he cannot be taken elsewhere, the statute requires, that the sheriff shall go to his place of residence, before he makes that return.</p> <p>If a sheriff, who has mesne process in his hands, finds the defendant and really endeavors to arrest him, and is prevented by any sufficient cause, or if, after arrest, the defendant is rescued, he should return the facts in excuse for not taking the body, and not return generally non est inventus, contrary to the fact.</p> <p>Rescue is a good return in excuse, and the sheriff may return, that he did not take the body, because he was kept off by force of arms.</p> <p>The sheriff is not obliged to summon, the powej of the County upon mesne process.</p> <p>What is an excuse to the sheriff for not making an arrest is matter of law, after the facts are ascertained.</p> <p>The case of Crumpler v. Glissom, No. Ca. Term Rep. 79, cited and approved.</p>

MEMORANDUM. — By an A’ct of the General Assembly, passed' at the Session of 1846-7, the Judges of the Supreme Court were directed to hold an annual term'of the said Court at the Town of Morganton, on the first Monday of August. Jameb' R. Dodge, Esquire, of Surry County, was appointed by the Judges Clerk of the said Court in May 1847. The'Attorney General and the Reporter both attended at this Term.

<p>Under the Statutes of Elizabeth, voluntary conveyances to children, as such, are not absolutely void as to creditors. To make them void, it must be shewn that the maker of the deed was indebted at the time, or so soon afterwards, as to connect the purpose of making the deed with that of contracting the debt and defeating it.</p> <p>By indebtedness in such a case is not meant a debt of a trifling amount, in comparison to the donor’s estate, but he must be “greatly indebted,” or at least he must owe some debt, that remains unpaid and will be unpaid, if the conveyance be sustained.</p> <p>If a father, who conveys land to a son, be indebted at the time, that does not avoid the deed, provided the father pay that debt, or if he retain property sufficient to pay the debt and out of which the creditor can raise the money, when he seizes the land conveyed to the child.</p> <p>This deed was made before the Act of 1840-1, ch. 28.</p> <p>The case of O’Daniel v. Crawford, 4 Dev. 197, cited and approved.</p>

This was an action of debt on the bond of MeMinn, one of the defendants, as a constable in the County of Henderson. Plea, non est factum.

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

This suit was commenced on the 3d of April, 1839, by Warrant before a Justice of the Peace. It is debt on a bond for $60, dated April 8th, 1817, and payable immediately to Robert Henry and Joseph Wilson, two attor-nies, and expressed to be for a fee, for appearing for the obligors in an action of ejectment, then pending. It came on for trial in the Superior Court, upon the pleas of accord and satisfaction, and payment ad diem and post diem.

<p>Appeal from the Superior Court of Law of Burke County, at the Spring Term, 1846, his Honor Judge Pearson presiding.</p> <p>The action is assumpsit for money had and received’, and the pleas non assumpsit, statute of limitations,, accord and satisfaction and release.</p> <p>On the trial the plaintiff gave evidence, that, about six years before the death of his intestate, Ann Donaho, the defendant, collected from one C. Howard the sum of #300, which he owed to her on hi's promissory note; and that the defendant said at the time, that he was collecting the debt for her, who then lived with him and had sundry articles of personal property there. The plaintiff further gave evidence, that, after he administered, he applied to the defendant for the property in his hands belonging to the intestate, and, after receiving the specific chattels, that he asked the defendant, if there was no money or any note for money belonging to her, and he said there was not. Thereupon, the present suit was instituted.</p> <p>On the part of the defendant, evidence was then given, that, for seven years before the intestate died, she lived with the family of the defendant, on a tract of land belonging to her, the intestate — and that she was so old and infirm, as to be unable to attend to her business ; and he offered to prove, that the maintenance of the intestate, during that period, exceeded in value the sum of $300, so received by the defendant. The plaintiff then offered to give evidence to shew, that, admitting the $300 was not sufficient to defray the charges of the intestate, yet the profits or annual value of her plantation, on which the defendant lived, was more than equivalent to that expense. But the Court was of the opinion, that the action was misconceived ; for that the facts made a fit case for a bill in the Court of Equity for an account of monies collected, or that the defendant ought to have collected, for the intestate, of the profits of the land — and that in this action; where the defendant showed that the $300 he had received had been expended for board and clothes-, the plaintiff could not introduce as a new item, the - use of the land as an equivalent. In submission to the opinion, the plaintiff was non-suited and appealed,</p>

This was an action on the case, brought to recover money, paid by the plaintiff to the use of the defendant. The plaintiff was an endorser of the defendant’s note, discounted at the branch of the bank of the State at Morganton, for the defendant’s accommodation. The defendant failing to pay, judgment was taken by the Bank.

<p>Appeal from the Superior Court of Law of Cherokee County, at the Fall Term, 1845, his Honor Judge Bailey presiding.</p> <p>The defendant, as an officer, received from the plaintiff, through one II. Barnard, certain promissory notes for collection. The action is on his official bond, and the breaches assigned were for collecting and not paying over, and for negligence in not collecting. To sustain the plaintiff’s claim, H. Barnard was tendered as a witness ; and the sole question presented was, as to his competence. On his examination he stated, that, when he took the notes to hand to the defendant, there was no contract between him and the plaintiff, that ho. should receive any thing, by way of compensation for his trouble ; that he should not ask any compensation, nor was the plaintiff bound to pay any; that if he received any, it would be a mere gratuity on the part of the plaintiff. He was then asked by the defendant’s counsel, if a recovery was effected in the case, would he not expect some remuneration from the plaintiff for his trouble. He answered, “ yes, he did, he thought it was likely the plaintiff would give him something, but not because he was under any obligation to do so, for what he had done was a mere- act of friendship for the plaintiff” In another part of his examination he stated, that he had before done the same thing for the plaintiff, who had given him some money for his services. The objection was over-ruled by the Court, and there being a verdict and judgment for the plaintiff, the defendants appealed.</p>

<p>Appeal from the Superior Court of Law of Buncombe County, at the Special Term, in June 1845, his Honor Judge Caldwell presiding.</p> <p>This was a suit on the bond of the defendant, executed in October 1838, as sheriff of Buncombe. It appeared from the record of the County Court, that, when it was taken,-there were but three Justices of the Peace on the bench, and the bond appears to be in the penal sum of four thousand dollars,instead often thousand,as required bylaw. The defendant’s counsel, moved that the plaintiff be non-suited, on the ground that there were but three justices, who received the bond, and because it did not contain the penalty required by statute. The question was reserved, and the relator, on the breaches assigned, had a verdict. The Court, on consideration, refused to-non-suit, on tbe ground that the defects were cured by the Act of 1844-5. and on the ground, that, if not cured, the bond was a good bond at common law. Judgment for the plaintiff and appeal by the defendant.</p>

<p>Whors a return of a levy on land by a constable conforms, in its description, to the directions of the Act of Assembly, Rev. St. ch. 62, sec. 16, setting forth among other things that the land lies on a creek, naming it, and it appears that there are several creeks in the county of that name, it is competent for a party to an ejectment suit, brought to recover the land sold under that levy, to shew which creek was intended, when the levy was made.</p> <p>The case of Smith v. Low, 2 Ired. 457, cited and approved.</p>

This is an action of trespass quare clausumfregit,brought to recover damages, for throwing down the fences of the plaintiff, whereby he lost several hogs and other property. The defendant pleaded in justification, that he was appointed by the County Court of Cherokee County, to open a public road, at the place where the fences were thrown down.

Dicic presiding. This was trover for a bed and furniture, tried on not guilty. The case was, that Morris was found to be indebted to Jones, on a settlement, in the sum of $60; and they agreed that the former should give the latter his note for $32, (which he did,) and also should give him a bed and furniture at the price of $28, being the residue of the debt, when Jones should apply for it at the house of Morris.

<p>Appeal from the Superior Court of Law of Henderson County, at a Special Term in June 1S46, his Honor Judge Bailey-presiding.</p> <p>This was an action of assumpsit on quantum, valebat, for cattle sold and delivered to the defendant. Plea, the general issue. The plaintiff introduced a witness, who testified, that the defendant stated to him, that he had bought the plaintiff’s cattle for the sum of fifty dollars, and that, in payment therefor he gave his due bill for thirty dollars, on which the plaintiff agreed to wait until the 1st of January following, and the balance he paid in a bank note, which the plaintiff at first hesitated to accept ; upon which he told him, that if it were not good, or did not answer his purpose, he would take it back and give him another — that, sometime afterwards he met the plaintiff, who told him the bank note was worthless and handed it back, and also handed back the due bill, which had been written with a pencil, and which, on that account, the plaintiff alleged was • not good — that the defendant then offered to give the plaintiff ten dollars and secure the balance of the debt, which was disagreed to by the plaintiff and nothing further was done. Another witness for the plaintiff testified, that he was present when the plaintiff returned the bank note, and he gave substantially the same account of what then happened between the parties, as had been stated by the defendant to the first witness, adding only that when the due bill was handed back, the defendant tore it up.</p> <p>The defendant then introduced a witness, who testified, that the sale of the cattle was made upon the following conditions: First, that the defendant was to give his due bill, payable to the plaintiff the 1st of January thereafter, with the witness as surety, which he did and the same was accepted by the plaintiff; Secondly, that the defendant was to pay twenty dollars, which he then had, and, if it did not answer the purposes of the plaintiff, he was to re.turn it to the defendant, and wait till the 1st of January for the said sum.</p> <p>The Court instructed the jury, that, according to the original terms of the contract, if they had been complied with by the defendant, the plaintiff could not have recovered in this case, because he had commenced his action before the 1st day of January, upon a quantum valebat; but that, if the jury believed the account given by the witnesses, of what took place between the parties, upon the offer of the plaintiff to return the bank note, the special contract was done away with, and the plaintiff then had the right to sue immediately and declare upon a quantum valebat. The plaintiff had a verdict and judgment, and the defendant appealed,</p> <p>cited Thompson v. Morris, 2 Murph. 248, and the authorities there cited.</p>

<p>Appeal from the Superior Court of Law of Wilkes County, at the Spring Term, 1847, his Honor Judge Settle presiding.</p> <p>The writ in this case was returned to August Term, 1839, of Wilkes County Court. At February Term, 1844, the case was referred, by a rule of Court, to L. Q. Sharp and his award was returned to April Term, 1844. On the motion of the defendant the award was set aside at the same term, and the cause was ordered to stand for trial. At May Term 1846, the issues were tried on the' pleas of the general issue, covenants performed, no. breach ; and a verdict was rendered for the defendant. An appeal was taken to the Superior Court, and, on mo-, tion of the plaintiff’s counsel, judgment was by the Court rendered according tO' the award in the' County Court-From this judgment the defendant appealed.</p>

This is an action of debt, on the sheriff’s bond, against him and his sureties, and was tried on the plea of conditions performed. The breach assigned was, the failure to collect a justice’s judgment, which the relator placed in the hands of one of the sheriff’s deputies • for collection.

The case was as follows. Long, one of the defendants, while Sheriff of Rowan County, gave his receipt to the relator for a note against one Cowan, for $250, “to bring suit on.” This action is against Long and his sureties in his official bond, and the breach assigned is, the receipt of the money by Long and his failure to pay it over to the relator. Pleas, non est factum, conditions performed and no breach.

This was an action of debt upon the bond of the defendant, Thomas, as Sheriff of Henderson County, in which the breaches assigned were, that one Clayton had, as the deputy of Thomas, failed to collect a claim against one Hunter, which he had in his hands and might, by due diligence, have collected, and for failing to make a due return of a ca. sa. which he had taken against the said Hunter. Pleas, conditions performed ' and not broken.

<p>In an action of debt on a covenant, proof of the hand-writing of the obligors, together with possession by the obligee, is evidence from which the jury may presume a delivery, in the absence of proof to the contrary.</p> <p>The circumstance of there being three seals affixed, without any names before them, is not sufficient to rebut the presumption of delivery, or to shew that those who did sign did not intend, that the covenant should not be delivered, until the other persons signed it.</p> <p>A covenant was executed by B. and C. reciting that whereas A. had loaned to D. $1,600 and D. was desirous of securing the same, they, B. and C. bound themselves to A. that if D. did not pay the debt before the 30th day of February, 1844, they would pay it at the time stipulated and waive notice. This is not a mere guaranty, but an absolute promise to pay the money, if D. did not pay it at the time stipulated, and no notice was necessary.</p> <p>The cases of Vanhooh v. Barnett, 4 Dev. 268, Blume v. Bowman, 2 Ired. 338, and Gardner v. King, 2 Ired. 300, cited and approved.</p>

This action is debt on the official bond of the defendant, as a constable, and the breach is a false return of nulla bona on a -fieri facias, issued by a Justice of the Peace on a judgment in favor… Held: that the defendant was bound diligently to serve it.

The action is for a malicious prosecution for a larceny and was tried on not guilty pleaded. The plaintiff gave in evidence a State’s Warrant issued against him and two other persons, upon the application of Ponder, for stealing certain hogs belonging to Ponder, in Yancy County, on which the plaintiff was arrested, and, after examination before a Magistrate, was bound over to the County Court, at February term 1842, to answer the charge.

The defendant, Butler, issued a warrant against Hugh McElrath and several others, in a plea of debt for the sum of One Hundred Dollars, due by note; and the constable returned the warrant, “ executed,” but did not sign his name thereto, and afterwards he died. On the 15th of October, 1838, R. C. Pearson, a Justice of the Peace, entered judgment against the said Hugh for #100 principal, interest and costs.

This was a writ of false judgment, brought to reverse a judgment obtained before a Justice of the Peace by the present defendant against the present plaintiff, who had been summoned as a garnishee in an attachment at the instance of the defendant against one Leonard Cagle. The errors assigned are set forth in the opinion delivered in this Court. The Judge below reversed the judgment and the defendant appealed.

<p>Appeal from the Superior Court of Law of Macon County, at the Fall Term, 1844, his Honor Judge Battle presiding.</p> <p>This was an action on the case for slander. The words charged in the declaration and proved were, that the defendant, in speaking of the testimony given by the plaintiff, on the trial of a warrant before a magistrate against the defendant and two others, Davidson and Enloe, in which they were charged with a forcible trespass in taking a horse, said “he had sworn falsely.” The defendant relied upon the plea of justification, and introduced testimony, tending to establish the truth of the charge, which was met by testimony on the part of the plaintiff, tending to prove, that the evidence, which he gave before the magistrate, was true. It appeared on the investigation of the charge against the defendants for the forcible trespass, that the defendant, Potts, was an officer and as such had levied an execution on a horse, as the property of one Wikle, and taken him into possession and delivered him to Davidson to keep ; that he was secretly taken from Davidson’s stable and was afterwards found in the stable of the plaintiff’s father, with a chain locked round his neck and fastened to one of the logs of the stable; that Potts, Davidson and Enloe went there to get him, but were forbidden by the plaintiff's mother to take him; and that Davidson and Enloe, notwithstanding such prohibition, prized up the logs of the stable and took him out, the plaintiff and his mother both being present and objecting to it. The plaintiff swore, that Potts assisted in getting the horse from the stable, and in that it was that the defendant, Potts, said he committed the perjury. In his argument to the jury, the defendant’s counsel contended, that neither Potts, Davidson nor Enloe had committed any forcible trespass, for that in law they were justified in taking the horse in the manner they did, but no point of law was raised to the Court, that the plaintiff could not have committed perjury on the trial of the warrant, and that therefore the words were not actionable. So far from it, the whole argument of the counsel was addressed to the jury, insisting that the evidence sustained the plea of j ustification. The j ury returned a verdict for the plaintiff. The defendant moved to set it aside, upon an affidavit, the substance of which was, that, in making up their verdict, each juror put down what he thought should be the amount of damages, that these several sums were added up, and the aggregate was divided by twelve and the quotient determined upon as the verdict. The Court refused the motion. The defendant then moved for a new trial, because the Court had not told the jury, that the words were not actionable ; but the Court held, that, as the objection had not been taken before, it could not be raised for the first time on a motion for a new trial. The motion was accordingly refused and judgment given for the plaintiff, from which the defendant appealed.</p>

June 1846, his Honor Judge Battle presiding. This was an action, commenced by a warrant before a single magistrate, to recover the sum of twenty-five dollars, which the Board of Commissioners for the town of Asheville had imposed, as a tax upon the defendant as a retailer of ardent spirits.

This was an action on the case for the seduction of the plaintiff’s servant and daughter, Mary. Plea, not guilty.

<p>A Bheriff has no right to return nulla Iona on an execution, without making an effort to find property at the residence of the defendant in the execution, or making any demand of payment or enquiry for property..</p> <p>A mere general report that the debtor has no property will not justify such a return, if the debtor in fact has property, subject to be levied on.</p>

. This was an action of trespass quare clausum fregit. The writ issued in March 1841. . The plaintiff produced and read in evidence a conveyance made to him by one Dobson, in the year 1836, which covered the locus in quo, and proved that he took immediate possession under it, and that he is still in possession.

This is an action of trover, for a slave named Willis, in which, the defendant pleaded, not guilty. It came before the Court upon the following case agreed. On the 24th of February, 1842, William Fullenwider, of Lincoln County, then the owner, conveyed the said Willis and a woman named Eliza, by deed of trust, to the plaintiff, in trust to sell, and, out of the proceeds, pay certain debts,, in the deed mentioned; and the deed was proven and registered on the same day.

1846. his Honor Judge Dick presiding. The plaintiffs had obtained a judgment against the defendant, Adeline, before her intermarriage with the other defendant. Held: that the defence could not avail the defendants in this action. A verdict being rendered for the plaintiff and judgment rendered thereon, the defendants appealed.

This was an action of debt, brought on a promissory note, executed by William T. and George S. Coleman, as principals, and William Coleman and J. F. E. Hardy, as sureties, payable to the plaintiff. The defendants pleaded the general issue, payment, statute of limitations, and statute against usury. The note bears date the 25th of November, 1836. The facts agreed on by the parties were as follows.

The only question in this case was, as fo the sufficiency of the return, by a constable, of a levy made on the land in dispute.

<p>When land has been sold by a sheriff under an execution and he dies before malting a convéyance, the succeeding sheriff cannot make the conveyance, unless the purchase money has been paid to the sheriff who sold.</p>

This was an action of debt upon ah award and the case was this. The plaintiff and defendant, having mutual claims, by bond, bearing date the 4th of February, 1846, submitted the matters in dispute to the arbitrament of L. E. Thompson and W. Williamson, who made their award on the 7th of the same month, and duly notified the parties thereof. In the award the arbitrators decide that the defendant owes to the plaintiff the sum of $1732 52 and adjudge that he pay It.

<p>An attachment, served in the hands of a garnishee as a debtor, is substantially an action at Jaw by the defendant in the attachment, and, therefore, the plaintiff in the attachment cannot recover against the garnishee, in a case in which the defendant in the attachment could not have recovered the same debt.</p> <p>The case of Gillis v. McKay, 4 Dev. 112, cited and approved.</p>

<p>Appeal from the Superior Court of Law of Buncombe County, at the Spring Term, 1847, his-Honor Judge Dick presiding.</p> <p>This was an action of troVter, brought to recover damages for the conversion of two barrels of brandy to the use of the defendant. The plaintiff first introduced a witness, by the name of Patton, who stated, that about the 1st of April, 1844, the plaintiff informed him, that he, the plaintiff, had understood, that one Bates, then residing in Hendersonville, was offering forty cents cash per gallon for brandy, and it was agreed between the witness and. the plaintiff, that each of them should send two barrels of brandy to Bates. The brandy was sent accordingly by one Byers., Patton further stated, that he expected, to get the money for his two barrels of brandy on the return, of Byers, but did not receive it. He further, stated, that neither Williams nor himself had seen Bates or made any contract with him before the brandy was sent by Byers. Byers was then examined. He stated that he was employed by Williams (the plaintiff) to take the brandy to Bates. He also, took a paper from Williams to Bates, which he understood was an order for the money due for the brandy. When he got to Hendersonville, he did not find Bates at'his grocery, but was informed that he was at the court-house. He found Bates at the courthouse,. who- stated he was much engaged, and. could not attend to receiving the brandy then, and directed the witness-to. have the brandy placed in his (Bates’) yard. and he would attend to it when at leisure. The brandy was placed according to the direction. The witness then presented to Bates the paper sent by Williams. Bates said he could not then attend to it, but he would see Williams and Patton the next week at Buncombe Court. The defendant then introduced one Gilreath, who stated, that the plaintiff was indebted to him on a justices’ judgment, and, for the purpose of discharging the same, the plaintiff drew an order on Bates, in the words and figures following, to-wit: “ Mr. J. J. Bates, Sir, Pay Penil Gilreath sixty five dollars for the brandy I sold to you. Jesse Williams.” This order Gilreath presented to Bates, but it was not paid and was returned to Williams. The defendant then proved, that, after the return of the above order to Williams, Bates, being much indebted to various persons, on the day of 1844, by deed conveyed in trust to the defendant, for the benefit of his creditors, the four barrels of brandy above mentioned and all his other effects, and delivered the brandy to the defendant. The plaintiff then proposed to prove the declarations of Bates, made, in the presence of the defendant, after the execution and delivery of the deed in trust and after the delivery of the brandy to the defendant, for the purpose, as he alleged, of shewing, that there was no sale in fact of the brandy by the plaintiff1 to Bates. The Court rejected the evidence. The plaintiff’s counsel prayed the Court to charge the jury, that the facts sworn to by Patton and Byers did not in law constitute a sale and delivery of the brandy to Bates. The Court refused to give the instructions prayed for, but charged the jury, that, if they believed from all the evidence submitted to them, there was a sale and delivery of the two barrels of brandy to Bates by the plaintiff, the property vested in Bates, and he had a right to convey it to the defendant, and the plaintiff was not entitled to recover.</p> <p>The jury found for the defendant, and a new trial being moved for and refused, and judgment rendered according to the verdict, the plaintiff appealed.</p>

' This suit was commenced, June 7th, 1843, by warrant against the defendant, as the endorser of a note, made by Singleton Rhea to William Cunningham, for $45 60, and endorsed by Cunningham to the defendant and by the latter'to the plaintiff, Thomas.

<p>Appeal from tbe Superior Court of Law of Buncombe County, at the Special Term in June 1846, his Honor Judge Battle presiding.</p> <p>This was an action on the case for a malicious prosecution. Pleas, general issue and justification. The plaintiff, in support of his action, introduced a State’s Warrant, taken out against him by the defendant, and charging him with publishing a libel against the defendant, under which he was arrested and detained in “custody about thirty-five hours, when he was taken before a magistrate, and, upon examination, was discharged. The defendant then in his defence proved, that the plaintiff published the paper writing, of which the following is a copy, “notice. To all not only the people fif this State and County but to the whole Union if there is any yet in the dark, though I dont even think that there is any in these regions but nows as much about the gentleman as I do but for the benefit of others I hereby certify that one Jo Lance one of the beings of that State and County is a Iyer and if the boy wants it I can do as I have done before I can prove it I dont apprehend that this will hurt the gentleman’s feelings for I heard Mr. W. H. F. tell him to his face that he had swore a lye and stole a hog and he could prove it from which the said Lance had like to rode Ball to death for a writ which he obtained and Mr. W. H. F. was bound to cort and I am told since that one glass of apple jack cured the wound and I recon that it is true for I saw the gentlemen drink friends soil'this should tech the feelings and the gentlemen and he wants to reach me he can ride ball again and look below and find my name S. P. Johnston Look for a shoat from Bets at a broken leg but dont forget |o mind seling milk and watter to J. R. S. at ten cents per lb.”</p> <p>The plaintiff then undertook to prove that the charges-eontained in the alleged libel were true ; and for this-purpose he called upon several witnesses, who testified that the defendant had the character of being a common liar. He then called .William H. Fu-lton (the person, whom he alleged to be alluded to in the paper writing under the initials W. H. F.) who testified that he had, sometime before the publication of the paper, charged the defendant to his face with having sworn to a lie and stolen a hog, that the defendant had sued him therefor, and that, while the suit was pending, he and the defendant had agreed to settle the matter and be friends, and that they, at the instance of a mutual friend, took a drink together and parted, as he supposed, friendly ; but the defendant afterwards refused to stand to the agreement ;• but how their suit was ultimately disposed of was not shewn. The plaintiff then called upon Mr. Shuford (whom he alleged was alluded to also in the publication by tbe initials- of bis name,) who testified* that the defendant brought some butter to his Store for sale, that he-proposed to buy it, and, in looking at it with that view, found that it had a large quantity of milk and water in it. He however told the defendant he would take it, after he could have the milk and water separated from-the butter, to which the defendant assented, and he then bought upon those terms. The plaintiff insisted, that he had proved the truth of all the charges contained in the alleged libel; that the defendant, therefore, had no probable cause for the prosecution^ that it was malicious, and he had a right of action against him.</p> <p>The defendant contended, that the plaintiff was bound to prove, not only that he, the defendant,.had been charged. with swearing to a lie and with stealing, a hog, but that he was actually guilty of those offences. He contended further, that the evidence introduced, if believed^did not establish the charges of his having compromised his suit with Fulton aver a drink of liquor, and of having sold milk and water for butter.</p> <p>The Court instructed the jury, that it was not necessary for the plaintiff to prove the truth of the charges, that the defendant had sworn to a lie and stolen a hog, but only that, he had been charged, to. his face with those offences by W. H. F. and that, if the plaintiff’s testimony were believed, he had proved substantially all the allegations contained in his publication. The jury returned a verdict for the plaintiff', upon which he had a judgment,, and the defendant appealed..</p>

<p>Appeal from the Superior Court of Law of Burke County, at tbe Spring Term 1846, his-Honor Judge Peak-son presiding.</p> <p>This was an action of covenantthe breach assigned was the non-payment of $450.</p> <p>The execution of the covenant was not denied and it was read in evidence. The defendant’s counsel moved to-non-suit the plaintiff, upon the ground that the covenant amounted to an article of copartnership, and that the $450-, for the non-payment of which, the covenant was alleged to have been broken, was to be allowed out of the funds of the copartnership, and did not constitute such a demand as would support this action. The question was reserved. It was proven that the plaintiff had ceased to act as manager, some short time before the end of the year, by mutual consent; in consequence of which the jury, in assessing the damages upon the breach assigned, made a deduction from the $450- which was the amount of damages claimed. There was a verdict for the plaintiff subject to be set aside and a non-suit to be entered upon the question reserved.</p> <p>The Court being of opinion with the defendant upon the question reserved, the verdict was set aside and a non-suit entered, from which the plaintiff appealed.</p> <p>The following is the covenant referred to :■</p> <p>« STATE OF NORTH CAROLINA — Burke County — December 27th, 1841. James B. Upton and H. G. Weaver hereby enter into an article of agreement for the next year (1842.) James B. Upton, of the first part, hao the privilege of working twenty hands on “ the McKenzie mine,” paying. the fifth part.of the gold that is made, for toll. H. G. Weaver, of the second part, has the privilege of putting in four hands at valuation, bearing a propor-tionable part of the expense attached thereto; the said Upton, of the first part, bargains and agrees to give me the said Weaver of the second part four hundred and fifty dollars to manage the business, which I agree to manage according to the best of my judgment, making true returns of all the gold made by me ; the mine is to be worked 'according to the lease. We make our Beals,” &c. Signed aad sealed by James B. Upton and H. G. Weaver.</p>

This was trover for a filly, and the plea, not guilty. It was admitted on the trial, that the filly had formerly belonged to the plaintiff; and the controversy turned upon the question, whether he had sold her and parted from the title to one Edward Teague and ,then taken a mortgage of the filly from the said Edward, or whether he had made only a conditional sale to Teague, keeping the title in himself.

This is a proceeding under the act for processioning land. The report of the processioner states, “ that I, at the instance of Jacob Hoyle, attended on the premises on Beaver-dam branch of Knob Creek, for the purpose of processioning the land of said Hoyle, and, it appearing that said Hoyle had given due notice to the adjoining proprietors, I proceeded as follows, to-wit: Commencing at a Spanish oak on south side of said branch, and, I was proceeding to procession, when I…

, his Honor Judge Peabsoít presiding. This was an action of ejectment. The declaration was served on David G. Flannagan, who was then in possession. He did not appear to the- actionand, by consent of the plaintiff, Mary Flannagan was made a defendant in his stead, and admitted herself to be in possession, and entered into, the common rule, and pleadedi, not guilty. ' Both parties claim under David G. Flannagan as follows.

This was an action for a verbal slander ; the pleas, the general issue and justification.

This was a petition by the wife for a divorce a mensa et thoro, and for alimony.

<p>Appeal from the Superior Court of Law of Haywood County, at the Spring Term, 1846, his Honor Judge Peaeson presiding.</p> <p>This is an action of trover for a mare, negro Jack, and several horses, cattle, and other goods, and was tried on the general issue.</p> <p>The defendant, Henry Howell, owned all the articles, and on the 1st day of July, 1843, in consideration of natural love and affection, and of the sum of §300, he conveyed them, and also a tract of land, by two deeds, to his three sons, who are plaintiffs in this action.. At the same time the plaintiffs gave their father an obligation in the penal sum of §1,000, with conditions as follows: “The conditions of the above obligation are such, that whereas the said Henry Howell hath sold all his property — see deed for land, and bill of sale for negro, stock, and property — and now we, N. G. Howell, &c. for the love we have for our father, do put into his possession a certain negro, named Jack, one grey horse,” [and sundry other horses, cattle, sheep, hogs, crops of wheat, corn, rye, oats . — as conveyed to them] “ that is on the plantation, where the said Henry lives ; and he the said Henry is to continue in possession of all the aforesaid property during his natural life by taking good care of the same, or as long as he may remain on the same place, for him to make the necessary support of life: Nevertheless, it is expressly understood, that the said Henry is not to remove any part of this property off the premises, that the said Henry now lives on, without consent of the said N. G. Howell áre. neither to hire nor lease said property without consent of the said N. G. Howell &c.: and it is further understood, that, when the said Henry is so unable by any infirmity to support himself and property, the said property is to be surrendered up to the said N. G. Howell áre. and we are to support our father in sustenance during his natural life, provided the said Henry will live with his children: and none of the property is to be removed more than eight miles from the premises the said Henry now lives on, then all the said property together with the said land and negro, to be surrendered to the said N. G. Howell &c. at the instant the said property is removed — ■ then this obligation, áre.”</p> <p>Also at the same time the father, Henry Howell, gave to the plaintiffs his obligation in the sum of $1,000 with conditions, “ that the said Henry do well and truly take care of the farm and all the premises that he now lives on, áre. take good care of a negro named Jack, and all the stock and property that I, Henry Howell sold to N. G. Howell, &c.: and I do bind myself that I will not remove said property, nor hire nor lease the same to any person, without the consent of said N. G. Howell áre. and, if I should, the aforesaid property is to go into possession of said N. G. Howell &c. and I am to be dispossessed of any benefit of said property.”</p> <p>On the 28th of September, 1843, Henry Howell conveyed to the defendant, Battle, the land, and all the personal property, now sued for, by deeds, purporting to convey the land in fee, and personalty absolutely. The plaintiffs thereupon demanded possession from the defendants, and after a refusal, brought this suit.</p> <p>The Court instructed the jury, that the legal effect of the deed, executed by the plaintiffs, taken in connexion with the other deeds which were executed at the same time, was to give Henry Howell an estate for life in the negro and other chattels: and that the life estate amounted to the absolute property in all except the negro, and therefore, that as to them this action could not lie : And as to the negro the Court charged, that by the deed Henry Howell had but a life estate, and that the reversion was in the plaintiffs; but that, nevertheless, they could not recover for him, because the condition, that said Henry should not remove, nor hire- him without the consent of the plaintiffs, was repugnant to his estate and void, and also because the performance, of that stipulation was secured by the obligation of the father for $1,000, instead of a provision for the re-vesting of the property in the plaintiff.</p>

<p>Appeal from the Superior Court of Law of Haywood County, at the Spring Term 1846, his Honor Judge Pearson presiding.</p>

<p>In the construction of covenants, technical rules are not to be so much consulted, as the real meaning of the parties, where it can be gathered from the instrument itself.</p> <p>To arrive at the intention, sentences may be transposed-and insensible words, or such as have no distinct meaning, may be rejected.</p> <p>The whole instrument must be taRen together, and one part may be explained, by another.</p> <p>The case of Foster v. Frost, 4 Dev. 4ÜG, cited and approved.'</p>