Volume 3 — North Carolina Reports

rjpHIS was a bill in equity for an injunction to stay the ó .' ju- -*- dant from proceeding at law, and a commission bad issued to Maryland to take the answer of the defendant, the reading of which was now opposed by Mr. Martin, because the commi'-sion for taking the answer had issued with a blank for the name oí the commissioner, and had been filledupby the defendant or his conn-selafter it went from the office of the clerk and ruaste.: — He ten-tended that the commissioner…

Hf'RQVER for a number of articles purchased by Boatwell in his life time at the sale of one Winburn deceased, whose widow had intermarried with Boatwell, having previously ob» tained letters of administration on the estate of Winborn.

/GENERAL DAVIE moved to prove the will of Major €e-rard, lately deceased ; saying the estate was under such circumstances as required immediate attention before the time of the sitting of the county court of .Edgecombe where the testator resided at the time of his death.

*1PHE cleric and master Mr.Iredell, had issued his execution for about the sum of four hundred pounds as due for the- costs of this suit, which Diekerson complained of. And the court in the beginning of this Term referred it to Mr. Blair to state to the Court the services which had been performed by Mr. Iredell. He accordingly made his report; whereupon several questions, arose and were debated at the bar.

A TRACT, of 640acres had been granted, then 320 acres sold ■ off by an uncertain description, then the remaining 300, “ running along a path to a branch, then down the branch to its “junction with another branch, then up the latter branch to the a path, and along the path to a corner on the opposite extremity “ of the tract, and so around to the beginning.”' The bargainee of this latter tract bargained and sold to another; beginning as in the former deed and running to the…

jpLAINTIFF exhibited her petition for dower under the act of 1724, ch. 22, sec. 9, and defendant pleaded. Baker, for plaintiff, insisted that the proper way for the defendant to make his defence was by way of answer on oath to the petition, whereupon the court will determine in a summary way, and the issue shall be tried by the court. Davie, for the defendant, argued strenuously that pleading the defence was .the only proper way.

VNDXCTMENT for a riot with others, and for beating and •*- imprisoning Edward I). Barry. The defendant pleaded that be had been heretofore indicted in the county court of Edgcombc for an assault and battery on the said Barr}’, ‘ 1 . ' nd thereon had been convicted and fiaed, which indictment and conviction bad been wounded on the same facts that this iad'ctiaent ras prc» 1 f r 1 •ierren ior.

npI-IIS was an action of trespass, and on not guilty pleaded upon trial, the case appeared to be, that Williamson was seized of the lands in which, See. and died seized in the year 17SO, and af-terwards his widow married, and her son the heir ef Williamson assigned dower by metes and bounds which were specified in a deed signed by the son and his mother.

i~'ASE upon a note of hand, and the act of limitation pleaded. T-' This action had fosen instituted against the testator in his life time; and after his death, was continued against his exeew-tors by scire facias, under the act of 1783, ch. 14, sec. 1. Ok the trial, the plaintiff proved an acknowledgment of the debt about a month after the assignment, the assignee then being in the country, and having gone off about a month after the acknowledgment, to Europe.

r-iASE upon a note of hand, and the act of limitation pleaded amongst oilier pleas. The note was executed and made payable before the war, and suit had not been commenced till long after three years of computable time had elapsed from the day of payment.

A'* ASE upon a note of hand and the act of limitation pleaded. The note was dated and made payable in the year VÍ7S — — This action was commenced in the year 1?82, hut the plaintiff proved the note was presented to Mosely not longer than a-month or two before the beginning of the action — who raid, “ ft was at the desire of ray mother I gave it; I will not pay it ; liosser ought to pay it; I will speak to him about it.

<p>HP HE land in question, was granted by the King to SolomcD -*• and James Ogden on the 20th of February, 1735 ; they conveyed to Clark in 1737, and he to Gabriel Johnston in 1738..— Johnstoa devised in 1751, that his executors should sell; his widow being his executrix., intermarryed with Rutherford, and they conveyed to Grme in 1754, who in the same year ie-con-veyed to Rutherford, who in 1763 conveyed to Duncan, and he iiuhe same yea;; re-conveved them. Rutherford ia li 73, pursuant to a o5' the court of Chancery, conveyed to Murray, and in 3774 Mmrfc)' conveyed to Young, who died, leaving the •plaintiff hio heir 5 Lin. before the decree, Rutherford contracted for a sum ef money to self to Irwin, and to convey when he should have paid the consideration money. — Irwin in 1757, made his will and died. He left Rutherford his executor, and it was proven that Rutherford wrote his will: he directed money to be raised out of his personal estate to discharge the debt due for the land, and then devised it to his sons John and James s he died in possession, which he took, pursuant to the contract. Soms time in the year 1753, Rutherford as executor, took the whole personal estate, to a much larger value than the debt in question, but said he had expended it in the payment of debts ; what was the precise amount either of the personal estate, or debts of the deceased, did not appear.</p> <p>rested his case here ; saying he had deduced the title from the original patentee to the lessor of the plaintiff, and should expect a verdict unless some material objection, more than he could at present forsee, should be stated against the plaintiff's title.</p> <p>that the lessor of the plaintiff should shew himself to have been in possession within seven years, otherwise he is not entitled to recover in ejectment. He cited Bull. N. P. 102, and other books, to establish the same doctrine. Secondly, he argued that an adverse possession in the defendant for the space of seven years, without any colorable title, will take away the plaintiff’s right of entry; and that here was such an adverse possession for forty-three years and upwards ; during all that time, the land in question has been occupied by the defendant and bis ancestor, who have claimed the same as their own, pursuant to their contract with Rutherford. Erwin the ancestor, did not, as suggested by the court, take possession as a tenant at will. 2. HI. Com. 145. An estate at will, is where lands and tenements are let by one man to another, to have and to hold at the will of the lessor. If the tenant by force of this lease obtain possession, the lessor may determine his will and put him out when he pleases- — Did Irwin eater under any such condition ? Was it.understood that he was to be turned out whenever Rutherford pleased! No! he took possession of the land, to be enjoyed as an inheritance never to be turned out of possession if he paid the purchase money; and this he did pay, for he charged his personal estate with it; and Rutherford, who was the debtee, in his capacity of executor received more than enough of the personal estate, and so by operation of law was paid; and then it is not only against all equity, but also against the express stipulation of Rutherford, under whom the plaintiff claims, that the defendant should be turned out of possession, Thirdly, if colour of title is necessary to accompany a seven years possession, in order to form a right of possession in the defendant and create a bar against the plaintiff’s claim, then, here is the will of the ancestor proven in the year 1760and made in the year i 757, and a possession under it in the devisees, from that time to the present.</p>

T^JECTMÉ'NT and not guilty pleaded ; and upon the trig! the evidence was — that the lands in question were included within marked lines, and were settled upwards of sixty years ago, by one S,.

OBLE has a judgment in Fayette superior court against the: — , executors of Howard, and they have a judgment in this court against' him, and this is a scire facias against them to shew cause why Noble’s judgment should not be set against theirs, and they to have execution for the balance, if any : and it is now stated in-court that the estate of Howard is insolvent, and if the executors, are permitted to levy their debt, Noble will probably not.be able to get the amount of…

TjLEA in abatement that they resided out of this state, and Ledbetter was an inhabitant of the district of Morgan : and' to this there was a demurrer, and assigned to be for want oi an affidavit of the facts stated in the plea.

HE executed a writ as sheriff, upon a defendant sued hy these plaintiffs, and returned the writ without a bail bond ; whereby he became answerable as bail himself.

npHIS was a sci.fa. against the defendants, to shew cause why the plaintiffs should not have execution de bonispropriis, to which they pleaded no assets; plene adminhtavit and in nisllo devastravit, to which there was a demurrer and joinder.

‘HpHIS was a sci.fa. to have judgment and execution against the defendants, as bail for Fleming, against whom the plaintiffs had recovered judgment and taken out a ca. sa. which had been returned non esi inventus s and to this sci.fa, the defend* tmu' nleac.?d mil del re< ord, the. paper supposed to be a bail bond, and relied on as such by the plaintiffs, when produced, appeared to have all the forms oí a bail bond, except the seal which it had not.

¿Ti ASE upon a warranty on the sale of negroes to. the intestate ; which negroes were gotten out of his possession bv the guardian of two orphan children, by the name of Scull, he claiming them as the property of the children ; — whereupon, an action of trover was brought by the intestate against the guardian, for the recovery of these negroes j and there was a verdict for the defendant, upon the plea of not guilty.

CjC/. fa. to shew cause why the plaintiff should not have execir» ^ tion against him opon a judgment formerly recovered in this court; to this sci.fa. the defendant pleaded that be had been, heretofore arrested by virtue of a capias ad satisfaciendum issued upon that judgment. The plaintiff demurred, and the defendant joined in demurrer: after argument by Jocelyn for the plaintiff, and Moore for th® defendant:

TT became a question in this case, whether an admlnisttator de bonis non, may sue upon a bond taken by the former administrator, for goods sold which were the deceased’s, in the name of himself as administrator.

|^<ASE. The defendant pleaded the act of limitations ; and there was at the last term a verdict for him and a motion for a new trial, being as the plaintiff’s counsel alledged, a verdict against evidence.

A NDERSON died, and the defendant applied to the county court of New-Hanover for administration, who ordered letters to be issued to him, he giving bond, See, lie never gave the bond, huí took possession of the effects of the intestate j some •of them he sold and took bonds for; the others he retained, having first exposed them to sale and bid them off himself: then letters of administration were granted to Hooper and two others, who gave bond and security, and Sled a bill…

<p>bill stated, that Craik in his life borrowed of Clark five hundred dollars, and mortgaged several negroes as a security for the repaj'ment of that sum with interest, and afterwards both died, and that Craik’s administrators since his death had tendered the principal sum and interest; the answer stated that Craik in his lifetime was further indebted to Clark in the sum of one hundred pounds, not secured by mortgage and that the plaintiffs ought not to be permitted to redeem without payment of that sum also: the plaintiffs replied, that they themselves were creditors of Craik, and entitled to be paid by retainer in preference-to any other creditor.</p>

was an action of debí upon a bond which one partner had signed with the names of himself and partner — -objected that one could not sign for the other:

CTION on the case, upon an account for goods, wares and merchandize sold and delivered ; the entries were made in the hand-writing of a clerk now in South-Carolina.

THE plaintiff in this action, had commenced the same by af> tachment, and the following circumstances were disclosed by the garnishee on his examination, to wit 1 that .one of the defendants was one of the partners of a company, who in Scotland had been declared bankrupts, and their estates put into the hands of sequestrators ; and the defendant, one of the partners here, ac the time of the sequestration in Scotland, had goods on hand here and debts due to a large amount;…

npHE bill stated, that the plaintiff’s testator borrowed of the -■*- defendant a sum of money, and gave an absolute bill oí sale for several negroes to the defendant, who engaged verbally to return the negroes on the re-payment of the money borrowed, with interest; the answer admitted the anvancement of the money, an'd stated the-biirof sale to be absolute, and.the negroes to have buen purchased ; and that he had promised the plaintiff’s testator, that if within twelve…

pOTTS, as agent to the defendant had rented a bouse in WiU mi tig ton to the complainant, who enjoyed it about nine months and the house was burnt down.

TTVEBT upon a-boml executed in Maryland, which had two ct-, testing witnesses, cue of them was dead, the other alive but residing in Maryland, and his deposición had not been taken. proved the hand writing of the obligor and claimed a verdict; he said there was no need of proving the Stand writing of the witness as he resided out of the state ; hie personal attendance cannot be compelled by any process of this court 1 and it has been d -• f did that the bond being ■ The…

<p>/“^ASE upon a promisory note to' pay at the expiration of se- ^ veu years from the date, without interest.; the seven years elapsed mor,e.than,two years ago. .... ■.</p> <p>contended that the plaintiff ought' not to recover interest nor be allowed.damages for it;, the party having expressly provided that he should not be liable.to interest.</p>

p*pHI3 ufas 3 5 action for a malicious prosecution, not guilty pleaded ; and the cause came on now to he tried ; to prove probable cause, the defendant’s counsel offered what the defendant had sworn on the trial of the indictment, which was for a felony ; it was objected to, on the ground that this would be to make a rr.ati a witness in his own cause.

HE bill stated several-settlements of account at different pe« -f riods,between the complainant and defendant, and balances^ struck, for which the complainant had given bonds and mortgages ; and that in each settlement there were many errors-ami-•unfair items', particularizing them, and that Simpson had obtaiiy-(d judgments, and prayed that the accounts might be opened: and the errors rectified. — Simpson pleaded the account stateef, and that there were not any such errors…

<p>TNDICTMENT for the murder of one Mason, not guilty *■ pleaded 5 and upon the trial the Attorney General offered in evidence, the examination of the deceased, taken upon oath and subscribed by him before a justice of the Peace on the day after he bad received the wounds: He died six or seven weeks af-terwards. It was offered as the declarations of the deceased.</p>

Tj'JECTMENT. Upon the trial the case appeared to be-—• that Lemuel Hatch, the father of the plaintiff and defendant, being seized of the premises in.question, devised to the defendant, a tract of land called the'Beaver Dam, held by patent of such a dace, and he devised to the plaintiff a piece of land purchased of Foy, containing- acres.

HpHIS was an action upon a promisoty note, and there was J1- judgment by default, and the jury being now sworn to assess damages. ' ■' stated to the court that~the facts of this cause were, that a race was made between the plaintiff and defendant and the notes of each placed in the hands of a third person to be delivered to the winner; that it was an article of the race, if either of the horses should be disabled so as to be incapable of running on the day appointed lor the…

TfJECTMENT for the one half of a Lot, No. 7, in the towp-of Washington, and upon not guilty pleaded, the evidence -was, that this lot belonged to three men by the names of Bonner, - add had been in their family from the year 174if till the 29th of July, 1790, when they sold it to Hatridge, who y/as born in Scotland and came to this country in the year 178?' or 1788, arc! died seized, after the purchase ; and that the trustees pf the University o.n the sijfth of May, 1795,…

f^ERTíORÁRI in re .-nove proceedings below,-on a caviat be-'-s twéen the parties, and the affidavit stated sufficient reason for ordering a new trial, which .was not contradicted by opposite riiEthmiSo

fT'ROVF«K fora ship and cargo; and not guilty pleaded. And upon the trial, it appeared this vessel sailed from Washing-tor, iu fui., state, and arrived at a British port in the West-Indie;', .cid was taken by a drop of war called rhe Btilona privateer, captain I’etretur, commander, as she wa; going from th;.t po:t to another Engli'.h port, having 1 h-r papers at the fir*.> wienúner'1. post.

Tj>JECTMENT for the same premises as demanded in the action, Blount vs. the same defendant ante, and the sauna evidence as in that case, upon which the doubt was, whether as the University being out of possession, conveyed to Blount by deed of bargain and sale, they could recover in the face of that deed, or whether thty were not estoped thereby to say they yet had title j and verdict \vas taken for the lessors of the plaintiff, subject to that doubt to be decided by the…

was an action to recover a sum of money, due as a ba- •*- lance for the sale of a house in Halifax. The declaration also stated another count, for a sum of money contained in a note of hand for the same amount as that balance was of, which Kelly had endorsed to Pons upon one Cox of Edenton, which Pons could not procure payment of from Cox.

THE plaintiff’s counsel produced an account, and proved t' at it had been presented to Kelly, who said, “ It is just, but I paid it by a man in Petersburg, and had I time I could prove it.” This was before bringing the present action.

TVRBT upon bond which had been brought up into this court ^ by appeal from the county court of Franklin j and now there being a verdict against the defendant, moved that judgment might be entered up upon the appeal bond against the sureties for the appeal.. — And he grounded this motion in Í78S, chap. 2, sect.

DEBT upon bond, with a penalty, conditioned to pay without any time mentioned ; and the question was, from what time interest was to be calculated.

<p>DEBT on a bond, with a penalty, for depreciated money, pay. able in 1778,. The bond was executed in July 1777, and when the scale, was.applied to it by the jury, the sum really due, with the interest thereupon, was for a less sum than £. SO — A motion was made t® nonsuit the plaintiff before the verdict was entered, but agreed to be subject to the opinion of the court, and a nonsuit to be entered if the court should be of opinion that the motion was proper: And now at this day the motion for a nonsuit being again made and argued by Baker in support oí it, and by Davie and Whyte against it.</p>

VNDICTMENT for the murder of a negro man named Lewis,. the property of Smith, not guilty pleaded; and the trial now came on.

nr'HIS was an indictment for a riot. Two of the defendants -®- were how tried, and one of. them found guilty, with the others named in the indictment, except the other defendant nor tried, whom they found not guilty: One of the remaining three not before the court, was dead, another in South-Carolina where he resided, arid one in this state, but not taken. The attorney-general moved for judgment.

JNDICTMENT for perjury in swearing to his attendance as 4- a witness in the county court or Martin, before a justice of the peace, and charging for eight days attendance, v/héreas he list! not attended eight days, &c.

'V'ROVER for a Negro named Casar; not guilty, and upon the evidence the case appeared to be thus: That the Negro formerly belonged to Murray, who in the county court of Edg-combe, at November term, in the year 1792, confessed judgment to Garner for the sum of forty pounds or thereabouts, upon which judgment and execution issued, tested 27th November, 1792. — .

npHIS case was again argued. — Old Quince died, young Quince administered, sold part of the estase, and took the bond in question; be died, and Miss Quince administered as administratrix de bonis non; and the question is, is she a creditor of the obligor and entitled to administration on his estate, by 1715, ch. 48, sec. 8, in preference to Cutlar, who is a creditor but for a smaller demand.

THIS case was again taken up ; and Haywood, justice, was opinion that equity should relieve in cases where the premises are burnt down without the default of the lessee, before the rent day or the expiration of the stipulated cime, upon the ground that when the consideration fails in whole or in part, the obligation built thereupon ceases in proportion.

yVEFENDANT had given a bill of sale for negroes, without an attesting witness. insisted that the instrument was void for want of attestation.

ADIES, leaving a widow and children, and his personal estate is divided amongst them ; then one of the children acquires some additional property and dies ; that part of his estate which come from the father was divided amongst the mother and children ; but as to the acquired part, the mother claimed the whole, as next of kin — and her counsel insisted that the act of 1766, ch. 3, sec. 1, (“And if after the death of the father, any of his children shall die intestate in the…

■npHE act of limitations had run about eighteen months, then ■*’ the plaintiff sues and his action is continued in court about 4 years, and then he is nonsuited, and upwards of 12 months after that he renews his action, and the defendant pleads the act of limitations»

<p>^pRQVER for a negro, and not guilty pleaded; whereupon the jury found a special verdict; the counsel on both sides agreeing thereto, and to be bound by the opinion Judge Haywood should deliver thereon, which verdict was to the effect following. That the defendant had the negro and converted him; that she formerly was the widow of one Ferguson, who was killed in the battle of the Alamance ; that the Legislature by a resolution, ordered one hundred pounds to be deposited in the hands of Richard Caswell, therewith to purchase negroes for the use of the widow and children — there were two children . — the purchase was made of two negroes, one died, and the other being the negro in question, survived. The widow alter the purchase, married one Williams, who died; after which she gave the negro in question to her son, who was the testator of the plaintiffs: and the doubt is, whether the plaintiffs have a right to recover and to what amount; if the testator was entitled to the whole negro, they then assess damages to one hundred and fifty pounds; if to two-thirds, to one hundred pounds } and if to one-third only, then to fifty pounds.</p> <p>The court took some time to form an opinion, and then delivered it.</p>

<p>HpRESPASS for entering upon his close and talcing and carry- *“• ing away a negro named Robin, the property of the plaintiff.</p> <p>The facts were, that Stanley obtained judgment against Blount for £. 444 ; a jl. fa. issued thereupon, and the sbeiiff returned, levied upon negroes, naming them, one of whom was the ne-gio in question : Blount then obtained an injunction upon the terms of paying f. ¡296 into the oflice of the clerk and master ; then the injunction was dissolved, and a venditioni exponas issued for the balance : The sheriff without making any new seizure, and without actually taking into his possession the negroes named in the return upon the f.fi. advertised them for sale, and on the day of sale, Blount tendered all the money mentioned in the venditioni, which the sheriff would not receive, claiming commissions on the f. 295 paid into the office, on the ground that he had been at the trouble of levying upon the n< groes for that sum also. The sheriff sold the negroes on the day prefixed by the advertisement, but they were not then present, nor in his actual possession at the time, but in the possession of Blount, anti Mitchell purchased the negro named in the declaration ; and afterwards in company with the three other defendants, went armed in. the night time to Blount’s plantation, and took and carried away that negro, and Blount has never regained possession of him since. Going upon the. plantation of the plaintiff with force and taking away the negro by violence, is a trespass, and will subject the defendant to such damages as a jury may think proper to assess, even if the property vested in Mitchell by the sale ; no man can he allowed tp assert his right by violence. If the property did not vest in Mitchell by the sale, the jury should-also assess damages to the value of the slave. It is immaterial, what passed between the sheriff and Blount; for if the sheriff refused the money when he ought to have received it, and sold, notwithstanding the vendee’s title may be good, he is to look no farther than to see that he is an officer who sells, and that he is empowered to do so by an execution; but then the sheriff' should have taken the property into his actual possession, and had it present at the time of the sale — first, because personal property passes by delivery — secondly, because he cannot sell a chose in action — thirdly, for the benefit of the defendant, and to prevent fraud, lest by keeping the property out of view, he might cause it to sell for less than the value, as a purchaser would not be likely to give the full value for an article he had not the opportunity of seeing ; but as upon this point, the defendant’s counsel says he is unprepared, having not expected the objection, I would recommend a verdict assessing damages, upon the supposition that the property did not pass to the ven-dee, and also upon the supposition that it did pass, leaving to the court to decide upon which assessment the judment shall be entered- The counsel on both sides agreed to this, and to be bound by the opinion Judge Haywood should give.</p>

^T'ROVER for a negro. Dawson was the owner; he gave — and delivered the negro to his daughter now married to Outen, in 1791, and afterwards swapped him to Lotham for another, and delivered him to Lotham also ; then Outen got the possession, and on demand refused to deliver to Lotham.

nnHE defendant had:pleaded several terms ago the general issue, covenants-performed &c. release 8? satisfaction, and nov? Slade moved for leav.e to, enter the plea o-f.A/cwe administravit, and after much argumentas the bar — » ' ' -

<p>Tj1 JE.CTM.ENT. .The plaintiff claimed under a- state grant issued in the year 1737, for the land in question ; being a tract bounded.by the river Cashoke, on one side, and then from, the river so as to include a tract supposed,to.have been left out of the patent hereafter mentioned..</p> <p>The defendant claimed under an old patent issued about fifty years ago,, beginning at a hickory standing, not far from the river,, thence- down the river a. certain course and- distance, which course ran obliquely from the river, and left between it and the river the triangular piece, of, land,, for which this action is brought.</p>

TTAMíLTQN, for Combs’ administrators, moved for leave to plead certain judgments obtained against the administrators since the pleadings in this action, which were no payment, plena administravit, no assets, no assets ultra and judgments. ■

<p>r]pHE premises in question were devised to the plaintiff by -**■ her father and grand-father; she mairied, and with her husband was possessed about 24 years; then the husband and wife by deed sold to ope, under whom the defendant claims, and then che husband died : There was no endorsement on the deed purporting that the wife had been privately examined with respect to her free consent, nor was any record to that effect to be found on the county court records ; And now.the defeudynt’s counsel offered to produce one of the Justices of the covrPv to prove that, he had privately examined her end that she acknov. - ledger] a free execution of' the deed without compulsion of the husband.</p>

<p>T'tEBT upon a bond given pursuant to the act of 1759, ch. 14, . for keeping the prison bounds.</p>

.T>RODIE had obtained a judgment against Finch, had tafeéis» out execution and caused it to be levied on his effects 0®, the day appointed for the sale, they conversed privately together; and the goods seised were sold by the cwnstable altogether at one bid ; namely, the standing corn, household) furniture and the tobacco, and Brodie became the purchaser», it was.; understood at the time by those present, that Brodie intended* to get satisfaction out of pan of the goods and…

HE was indicted at the last term for-murder, and be now ap-'•pea-red at the bar ; and the attorney-general moved that the sheniFmight be directed to’take him into custody, which the court directed. and urged as a circumstance in his favour, that he had voluntarily appeared and offered a number of affidavits taken before justices of peace to shew that he was not guilty of the charge ; and the court read these'affidavits.

VJ E was indicted for murder and found guilty of manslaughter; and when he was brought into court to be burnt in the hand, Judge Haywood enquired of the bar, if they knew of any instances where a man had been indicted of murder and ioimd guilty of manslaughter, when the circumstances were such as in the opinion of the court amounted to murder, where the court had required surety of the prisoner for his good behaviour, and whether the security had ever been required for a…

<p>^pHE plaintiff had taken a capias which was returned non est inventus, then an attachment upon which the sheriff return* ed levied on two negroes but net taken into custody, because there was no yawl of the county to keep them in. Upon this return the phlutiif took a judgment by default and afterwards cr-ecu’ted a writ of inquiry, and had judgment final; and now Hill, fur the defendant, moved to set it aside for irregularity, and he cited Blacksioue’s Commentaries ; and he pi educed an tSdavic of the defendant stating that he had not anj notice of these p.o-ce,-dings.</p> <p>The judgment was obtained a term or two ago, and cannot now be set aside unless by writ of error.</p>

QCIRE facias against an infant, who had no guardian, and it was taken out to subject his land to a debt of the ancestor.

jp IECTM ENT. Sirs. Stanley was the heiress of the devisor,, •*-* and entitled to the lands in question, provided the will were not legally executed. It had been proven in the county court, and admitted .to registration, upon the oaths of two subscribing witnesses ; one of whom was a legatee.

«TpHlS action was for the recovery of amale slave ; he had been left by the will of their father to the defendants, who were infants ; their elder brother brought the negro from South-Carolina and sold him to Hobdy, and then returned to South-Carolina, and lived near the defendants six or seven years after their arrival to full age, and they never questioned the sale nor inter-ruptedfhe plaintiff’s possession until soon after the death of th« elder, brother, when they got…

<p>rpHE plaintiff claimed under an execution and sale thereupon by the sheriff; and produced the the execution.</p>

/'•ÁSE against the defendant for a misbehavior in his office, in re-debvering the goods of one Walk, seized in execution, without levying the money—there were two other counts, but the cause rested upon this.

DETINUE for a negro slave, proven to have been given and delivered to the plaintiff in the presence of witnesses, and to have been kept and continued in possession of the plaintiff’s guardian for several years. Harris objected that there should have been a deed of gift recorded.

<p>‘jC'JECTMENT. The land in dispute was one hundred acres, **-i part of the lands, granted by an old patent to Thomas Stanton, who conveyed the said hundred acres to William Armour, who had a son, Theophilus, who had a son, William, the lessor of th* plaintiff, who left this country in the year 1763, and settled in Scnuh-Carolina, and never made any claim after going away till just before the commencement of this action. Stanton, In 1714. assigned the land, comprised in a certain plat to Guthrie, in order that he might obtain a patent {or the same, but the plat was not shewn to the court j and in 1716, a grant issued to Guthrie, for one hundred and ten acres; the lines of which grant included a part of the hundred acres in dispute ; and under this patent, the defendants claim the whole hundred acres. They, and those under wh'-un they claim, have possessed a part of the hundred acres.in Guthries patent, upwards of forty years.* that is to say, they cleared aqtl cultivated part of an adjoining tract, and extended a part of tbyt clearing, over a small part of the hundred acres lying "within.the'limits of Guthrie’s patent : And they proved by several old ¡deeds for lands adjoining that part of the hundred acres which wasnst included in Guthrie’s patent, that the lines of the hundred acre tract on that side, were reputed the lines of those under whom they claim.</p>

T¡*JECMENT. The lords proprietors granted four hundred and forty acres to John Worley in the month of March, 1717; and he in November, 1724, conveyed one hundred acres, part thereof, to one Jones ; and afterwards he conveyed the residue, being 340 acres, to his son Joshua, who died, leaving two sons, Joshua and William, and three daughters, Elizabeth, Louisa and Esther.

'C'JECTMENT. The laud was formerly'granted to a man who went away before the yTear 1771, and has never been since heard of.

D'JECTMENT. The land in dispute was a triangular piece and the question was, whether or not it was included within the bounds of Jeffries’- patent, under whom the plaintiff claimed : If it be, the plaintiff is entitled to recover ; if otherwise, not. Jeffries5- patent begun on Fishing Creek, then east 320 poles, along Pollock’s line to Pollock’s comer, thence north to Bryant’s, then along Bryant’s line 320 poles to the creek.

•p JECTMENT — ■ in which the plaintiff declared for foe whole tract, and set un his title ip the evidence to. an undivided half.

<p>T^HE plaintiffs were entitled by the will of Foster, deceased, to a considerable part of the property he left, upon the marriage of the defendant, Mary. The bill stated that she was married to the other defendant, which they in their answer denied.</p>

<p>ACTION for assault and battery.</p>

•y-OORE, Judge. This is an action brought by a British ere-ditor, under the treaty of peace, for a debt contracted in this state before the war, which debt was effectually confiscated by a sovereign power, having a right to make the confiscation_-A treaty has not the omnipotence attributed to it — that of taking a debt from the state which lawfully belongs to it; or that of re-charging a debcor who has actually paid into the treasury under the existing laws, and has procured…

■pjECTlSIENT. Walker had sold the father, and had given bond to execute and the father by deed declared that these land to the plaintiff’s a title at a future day, lands were purchased for the plaintiff, ike.

'jp'bllS was a collateral issue, made up by the direction of the court, between the heir and administrator- — in vvnich the question was, whether tin- administrator had fully administered. Amongst other things, he oifeted an account, stating a charge for ¡¡bis trouble and services, in doing the duties of an a dmini-strator.

<p>/"^NE of several partners drew a bill of exbange, subscribed with the name of the company ; which bill came by endorsement to the plaintiff, and he sued the administrator of one of the partners, there being another partner still alive. It was ob* jected that he ought to have sued the survivor; to which it was answered, that should have been pleaded in abatement: and for this was cited Rice vs. Shate, S Burr. 26ii.</p>

was indicted fer stealing a male slave, the property of the .9.4. prosecutor, against the form of the act of Assembly ; and be was found guilty as charged.--Whereupon, Badger and $ocelin moved an arrest of judgment; for that the indictment did not state the stealing to have been with an intention to sell os* dispose of to another, nor with an intention to appropriate to his own use.

f^HRISTMASS, about five years before the institution of this- ^ action, assigned a bond to Plununer, wherein Willis was the obligor. The debt secured by this bond, was further se - cured by a mortgage on a tract of-land.

O’E was indicted of passing counterfeit bills of credit, of the su likeness of the genuine bills of credit of cris cíate, in Virginia. — -The indictment was drawn upon the act of 1784, ch. 25, &ec. 4; and whereas there is reason to apprehend thin wicked and til disposed persons resident in the neighboring states, make a practice of cottuierfciting the current bilis of credit of this otate; and by themselves or emissaries, utter or vend die same with an intention to defraud…

Vy'BS.;i and his partner drew a note pavable to Whet - * * ion o> order, who endorsed to the plaintiffs. — -There was a verdict for dm plaintiffs, and a motion in arrest of judgment; and upon argument, Mr. Jocelyn insisted that while .he note was in the hands of Wheatbon, no action Could be maintained upon it; he being one of the payers as well as the pavtc, ho : oiild not fjit'í him -elf, nor could he sue another alone ; and as he bad no right of action himself, he could…

''jpH'fS was an action in the county court, for waste, and a ver-diet and judgment thereupon, and.a writ of error wherein general errors were assigned ; and amongst others, Slade relied upon the following: First — That the county court had not jurisdiction. Second-ly__An action of waste will not lie in this country: what is waste in England, cannot be so considered here, and there is no act of Assembly to define what waste is.

OCI.fa. to revive a judgment, to which the defendant pleaded-- ^ that lie had been formerly arrested for the same debt on &.■ ca. sa. cited 1 Show. T/4. 1 Salk. 271.-. Barnes, 5'/3. 4 Burr. 24, 83. 2 Mo. 136.

DEBT ; and upon oyer craved and had, the defendant pleaded nsn rstfactum^ and no award made. The plaintiff replied an award, setting it forth, and stating it to have been mad*; before the 8th of May, and assigned a breach in not paying, &c. issue was joined upon the breach, and as to the award itself, there was a demurrer and joinder, which now came on to be argued.

^JpHIS trac a 'Cavéáh It had been tried by a jury on the pre-raises, who had giveíi á verdict, which the county court had cor.fiyjuieíl. A writ of error was brought, and the error assigned was, that it had been tried by IS jurors. Cro. C. 414, and Trials Per Pais, 70, were cited.

TpHIS V7R3 an ejectment for 100 acres of land in the county of Tyrrell. The lords proprietors granted-44© acres to John, Worsley in 1724: he died in 1740, devising his lands to his son Joshua; he died, leaving two sons, Joshua and William, and three daughters, Esther, Elizabeth and Lavinia. Joshua, the grandson, died ; and then William died ; and the lands were divided amongst the three daughters. The part in question being 100 acres, was allotted to Easthers Jaauary» 1792.

EJEC FMEN F — -.¡nd a special case made for die 'opinion of ihe tourc,- which was in substance tills; That John Swann died seized in-foe of the lands in question, leaving an half sister on the mothet’s side, a son, and a widow, the now plaintiff the mother of that sun. The premises descended to the-son from the father ; and then the son died on the lith of April, 1796.

npHIS was a warrant upon an evidence ticket. The plaintiff was a married woman ; had been summoned on behalf of Robertson es a witness in the cause between Mm and Stewart, Robertson obtained judgment against Stewart 5 execution issued for the principal and costs, and was returned milla £5The plaintiff then warranted Robertson, who appealed to the county court, and front thence to the superior court. — The' general issue was pleaded.

HplIE plaintiff bad obtained judgment against three executors, — upon the plea. «1 jjlene administravlt., lov.nd. against them ; a ji.Ja. had issued and nulla bona returned ; and now Mr. iVrv-uoood moved that a special fi.fa. should issue, commanding- the sheriff to levy the goods oí the defendants if no goods oí the testator to be found. & fi.fa. as asked for has been issued ira our courts, and in some caaes it is not attended with any inconvenience.

nr'ME m-r-ter made up his report on the first equity day ; and the counsel ior Taylor moved for time to file excejti= ons, which the court g'-anted, ordering the exceptions to hr; filed within tiie term. On the next day, bting that on v,hkh the court was to rice, the exceptions cot being made out;, the counsel for Taylor stated that the)'had not had tinte to make out the exceptions.

THE plaintiff alledged, the negro in question had been given to him by his father and delivered ; the defendant alledged that the father (many years after this transaction was stated to have happened) by bill of sale conveyed the negro to him; and the wife of the lather was introduced by the plaintiff to prove the gift.

<p>TN this case the following points were held by the court upon argument:</p>

<p>/"'VNE of the points debated in tide cause, was, whether length ot possession and othci circumstances, may be used as evidence to prove that a grant once existed.</p>

ILMOUR sold some lots and a small piece of land in Halifax to Black,, and Black sold to Kay, who brought a bill for a specific performance, and had a decree for a conveyance from Gilmour — and then died before any conveyance, leaving his heirs aliens in the kingdom of Great Britain.

JC’JECTMENT. Osborn Jeffries devised as follows: “/ give to David Jeffries, his male heirs and assigns forever ; and for want of such, to the male heirs of Simon Jeffries, the lands in questionThere was a devise in the same will to Simon. — , David, at the date of this will, had daughters but no sod, and died without ever having had a son. insisted that David took nothing, and that his male heirs were intended to take as purchasers ; and that he dving without having had male…

npHE bill states that Thomas, a brother of both the parties, purchased in conjunction with the defendant, a tract of land, and paid half the purchase money 1 That title for the whole was made to the defendant, who promised to. convey to Thomas— and that afterwards Thomas died. The answer, denied these allegations.

TORDAN had given a note for payment of money, to Allen * ** which note was taken by the brother of Allen as his agent: he had been requested by Allen to subscribe his name as a witness to the note, but neglected to do so at the time of the execution : He did so afterwards and at another day.

immediately after the death of the intestate, ' J sued his administrator upon a simple contract debt; a specialty creditor also sued, and both writs were returned to the same term. The administrator pleaded to Woolford’s action, plene adminstvarit; and afterwards at a subsequent term, confessed judgment to the specialty creditor for £ 1000, and at a subsequent term, he moved for leave to add the plea .of the judgment, and no assets ultra.

-mECTMENT. The plaintiff purchased from one who hacf been absent-about thirty years or more in South-Carolina,, v/ho claimed as heir to his father, who had been absent forty years or more. Some years alter the departure of the father,,. the defendant took possession, and claimed the land to the present time 5 and in 1784 obtained a patent from the state. The-vender was on the land when the deed to the plaintiff was executed.

A FTER reading the bill by the plaintiff’s counsel, the counsel for the defendant remarked, that this was the proper time to bring forward a motion he intended to make ; which was, that the bill be dismissed for want of equity. It stated an award, whereby the defendant was ordered to pay money to the plaintiff, but no cause whatsoever for applying to this court.— The remedy at law is complete for aught that is stated in this bill.

<p>■R/TOTION to set aside an execution for irregularity, which j.vJL c.¡mtí fo (¡1)3 ¿ourt by appeal from the county court of Granville, judgment had been obtained more than a year before the issuing of the execution, and there was an entry that at the request of the defendant, execution should be stayed tillfurther order.</p>

TAEFENDANTS pleaded at the last term, that the property was delivered over to the legatees after the expiration of the term prescribed by the act of Assembly.

QNEAD had been a witness in a cause tried in this court. — ,* ^ His wages for attendance had not been taxed in the execution, and a year and more had elapsed. He had takén a sci.fa. in his own name, to shew- cause why he should not have execution for them against the party cast.

•P © 5 & a D-Cl o o x St. Ft* & et> o 3 M Cft er x * CL X 03 5 ’** © 3 Vías insufficient and had been protested by him, nul tiel record ; and that after the ca. sa. issued, the judgment had lain dormant ior more than a year and day before this sci.fa.

Tj'JECTMENT. The boundaries of the patent under which •*-* the defendant claimed, were, beginning at the mouth o>; Cape-Fear, thence along the sea coast t© Lockwood’s Folly Inlet, then up a creek within the inlet along the western branch of said creek to the head thereof, thence a north-east course ts> Elizabeth river, thence down the said river to the beginning:. It was contended that the other creek or eastern branch was the boundary to the head thereof.

A FTER argument, Taylor, Judge, delivered his opinion.- - . Hostler was in possession of the slave in question; Scull got the possession from him ; and after, this action and pleading thereto, obtained letters of administration of the estate of John Vernon, to whon\ the negro belonged — And I am of opinion that Scull’s proving the title of this negro to be in any th:r<i person, will disprove that the property was in Hostler, although, Scull himself has no property, and will…

<p>'fc'JECTMENT upon this devise, to wit: “ Jgive to my son William, half my lands in North-Carolina, and if William or fohn die without heirs of their body, the whole to William or 'John?' William died without issue, having first sold by a, deed of bargain and sale to Newsome, and John made an actual entry befare the passing of the act of 1784¡, ch. 2.2, but at tjac time of passing the act Newsome was in possession.</p> <p>Af the time of passing the act of 1784, ch, 22, there was no estate tail in being, los that had ceased by the death of William, without issue ; nor any remain-* tier, fo.r that had come into possession. If the plaintiff is not; entitled to recover it is because the act of 1784, ch. 22, has taken away his right of possession : He would certainly be entitled to recover had the act never been made. The words of the act are, “■ all sales and conveyances made bona fide and for valuable con-sicleratioii, sinc.e the first day of January, 1777, by any tenant v in tail in actual possession of any real estate, where suches-late hath been conveyed in fee simple, shall be good and ef-u fectnal in law to bar any tenant or tenants in tail., and tenants “ in remainder of and from all claim and claims, action and ae*. v lions and right of entry whatsoever, of, ir. and to such entail. 4‘ ed estate against any purchaser, his heirs or assigns now in w actual possession of such estate, in the same manner as if M such tenant in tail had possessed the same in fee simple.”</p> <p>First, if it was the intent of the legislature to take away the plaintiff’s right of possession, the act for that purpose is void. — - Secondly ; it was not the meaning of the legislature to take away the plaintiff’s right of entry. Thirdly ; the words of the act do not comprehend the case before us. First, the legislature were authorised by the Bill of Rights, sec. 43, “ to regulate entails in such a manner as to prevent perpetuities.” This gave them no power over estates not entailed ; and as to other estates every citizen is protected by the 12th and 14th sections — “ No freeman shall be disseized of his freehold or deprived of his freehold but by the law of the land;” which means, by due process of law, and by the judgment of a court of competent jurisdiction, proceeding, by the known and established course of law. In the year 1785, the Assembly passed an act taking from all persons the right of suing for propsrty sold by commissioners of confiscated eíttr.tos4 StkI of course the rights of possession which such persona had ; The Judges declared the act invalid, and in 1786 the Assembly altered it. On that occasion the legislature concurred at 'act with the judiciary in the position, that the legislature could not deprive any man of his right to property, or of his right to sue for it. One of the Judges illustrated his opinion in this manner; As God said to the waters, so far shall ye go and no further, so said the people to their legislature?’ Judge Ashe deserves for this the veneration of his country and ©f posterity. Secondlv, it was not the intention of the legislature to take sway the plaintiff’s right of entry the preamble of the act complains of estates •tail; the eivacing part complains of esta'es tail, and converts them soto foe simple. No design is intimated to meddle with any other estates. Estates tail were of two sorts; those where the tenant had not sold, which are converted into fee simphs, and those where he had sold, which were secured to the purchaser by barring the claim of tenant in tail and tenant in remaindtr-j the design was “ to do away entails.” Was it essential to the promotion of this design to take away an estate in fee as the plaintiff’s was when the act passed, anti to give it to another? 'I ho object was to free estates tail from the restrictions which rendered them unfit for a republic ; was it necessary to interfere with an .estate already free without the aid of the act? Was it necessary that the purchaser of an estate tail already at an end by the failure of issue should hold it preferably to him who, as tenant in re* snaindor had become legally entitled to the possession by his catering upon it ? Whether the one or the other held, it would not be a perpetuity 5 and it was of no moment to the public which of them held the lands. — Thirdly ; if this act be construed literally it will not ’embrace the case before the court; and every act ought to be construed which tends to divest estates legally vested, 2 Dallas 316» if it be. asked who are to be barred? the act answers, tenants in tail and tenants in remainder ; the plaintiff was neither 5 for he had a fee simple in possession by his entry. If it be again asked, of what are they to be barred ? the act answers, “ of a right of entry to such entailed estate.” John Moore’s was a right of entry to an estate in fee ; no estate tail existed which tould be record tin ued by entry. Again : against whom were they to be barred ? the answer is, against him who was “ in the actualpos-session of the estate tail?'’ Newsom yvas not in the actual pos'session of such estate ; it was extinct by the death of William without issue. The defeasible estate which Newsom hati was actually defeated by John’s entry; the possession which Newsonr afterwards had was tortious ; he was uoi a purchaser in actual possession of an estate tail when the act passed. The cases re* lied on on the other side, as determnu d in the courts of this state and in the circuit court, were cases where the estate tail actually existed when tbe act passed 3 in tbe present case it had actually Ceased and the estate in remainder bad become an estate in possession and bad been reduced into possession.by entry. -Let. it be remarked that the act in this clause does not give a fee expressly to. ths purchaser 5 it declares simply, fba!. the conveyance in fee shall bar tenants in tail and tenvots in remainder ; in,the former clause it expressly converts estates tail not conveyed Into fee simples: If it intended to legitimate the estate of' tbe purchaser -against all persons, why is it not said here also that he shall hold in fee simple ? Why is the phraseology varied and the bar confined to persons of a certain description ? Is it not because there might be persons of other descriptions who were not meant to be barred ?' Was it not because they did not mean to bar any others than tenants in tail and tenants in remainder ? persons who bad not a present right of entry ? but a right only in expectancy, dependant upon the death of tenant in tail in the one case, and upon his death without issue in the other. Such rights were subject to the power of the legislature derived from the 43d section of the Bill of Rights ; for they were connected with, and depended upon estates tail: .They had no power over estates and rights legally vested and independent of estates tail: accordingly they have been careful to use such words a* confine the operation of the act to cases within their power; to estates tail, and to rights expectant upon them : these words should not be extended to a case like the present, neither within the power of the legislature, nor within their contemplation, nor within the compass of the terms they have employed. Again: why was the person in whose favor the bar was to operate to be a person in.aciual possession at the time the act passed ? It was because they did not mean to confirm the lands to a purchaser whose possession was legally defeated before tbe act. If a recovery had.hecn effected by the issue in tail or tenant in remainder against the sale of the tenant in tail, these were legal acts which defeated the estate of the purchaser and were not to be invalidated. Will it be said that if the issue in tail had sued the purchaser from his father who made the purchase after 1777, and had recovered against him before 1734 and had been dispossessed by the purchaser before the act of 1734, that the esta'e so recovered would be barred by that act ? If not, Í would ask, is not the estate of the purchaser as completely overturned and defeated by an entiy given and allowed of by law as by a recover? at law ? They required to the purchaser to be possessed of the estate tail — why? because if that had ceased, a right of entry had accrued to the remainder man ; and as it was unjust and beyond their power to defeat a recovery or actual entry of the remainder man it was equally so to defeat his right of-entry to an estate in fee. If the estate tail continued and existed at the time of the act, the purchaser’s was a legal possession ¡ they intended therefore to confirm legal Sessions, not those gained by tortious dispossession, nor those maintained after the estate tail had ceased. Again: what difference is there between an estate defeated by a recovery or entry, and one liable to be defeated by a present right of entry but unjustly withheld from the true owner? What reason conld there be to enduce the legislature to favor him who was liable to be dispossessed by a present right of entry, more than him who had been really dispossessed ? What n ason for favoring the owner who had regained and then lost his possession, more than him who was equally entitled but who had not regained it?— They intended no such difference without a cause for making it. They have used terms pointedly calculated to exclude from the operation of the act as well rights of entry already accrued as .possession already taken by the remainder Etan at the time of passing the act, and therefore judgment should be for the plaintiff, John Moore.</p>

<p>was obliged therefore to produce an affidavit, shewing the necessity of it $ and upon that the cause was continued.</p>

T>LEA, the general issue, with leave to plead any other plea i and Wood moved after the jury sworn, to plead another plea, namely, delivered as an escrow; but the court said it is too late now to add another plea, as it will delay the plaintiff.Wood then offered to give evidence under the general issue, that thejpaper now declared on as a bond, was delivered as an escrow, which the court refused.

‘traJIS plaintiff's husband died, leaving a stock of cattle, which. A she took into possession s- the old stock is gone, anda nt-w-®ne arisen, and that new.one gone and another arisen ; .and lately the defendant having obtained administration, took them .from, her.. The possession of the original stock and of the increase, had been for forty years and more.. This case was-reserved by . Judge M/ICiy, in July, .1800, for consideration.

j^N this case the defendant could not produce a ueed or patent,, or other colourable title, but proved possession for 40 years under marked lines, with some other circumstances, such as the reputation of the neighborhood for a long time back, that the. ían da were the defendant’s ; and an acknowledgement cm did part of the plaintiff, that they were covered by patent.

Tj1 JECTMIJiC.T- An order of survey had been obtained at A-' the last term, and a survey made ; and now it was moved for the plaintiff that a new order be made, and the motion was opposed.

‘TpHE, defendant claimed the lands, described in a patent, to, ■l Smyth wick, beginning at the mouth of Bear Creek on Lit-, tie River, thence up the creek No. 5 W. 248 poles to a gum, then up the north prong of said creek, N°* 45 É. 2.64 poles to a hickory, thence a certain course to the river,, and down the r i-ver to the beginning. -The artificial course described as. the. two first lines, declined from the creek and north, prong,, and;, the second course struck, the river…

<p>Éill in Equity and Demurrer.</p>

s'pHIS action was brought to. recover damages for breach of' ak contract in writing, promising to pay money, dischargeable however in specific articles. . ....

TJ'JECTMENT. Defendant disclaimed part having been per-» mi tied to plead after a judgment by default set aside ; and having entered a disclaimer last term after plaintiff had left court. Stanley moved for a writ of possession, and that the defendant anight pay costs. ■ •

¡¡pASE for money due by two notes of hand payable January, ^ 1784. Payments were made in part by twa notes in 17S3, also there were several other payments, and in 1785 a payment was made to the amount of the balance of the principal, and an offer was then made to pay any balance which might be then due, if the plaintiff would agree to credit to the amount of the notes, which he refused.

Tj’JECTMENT. The plaintiff derived his title from the will' -*-J of Jonathan Evans^-who devised as follows: “ I give and “ bequeath to my two eldest sons, Reece and David, my* “ plantation, &c, — 320 acres on the river to Reece, and 320 acres il to David; and they to put to school my two youngest sons, and ** to schotl them at their charge.” The plaintiff’s counsel contended, that Reece and David took as joint tenants for life, and as David died first the whole life estate…

HpIlK deceased left a legacy to the feme, for which this action on the case was brought. The administrator had been applied to and he said he would pay it as soon as he could sell the Or tors plantation. cited Cowper 234, 289. 1 Vent. 120. 2 Cro.' 602. cited 5 T, 690. Iredell SCO.

npHIS was an action to recover a Negro named Peter, who bad been sent to the house of tbe defendant, in the year 1783 or 1784, some two or three years after the marriage of Devon© with the daughter of the intestate, where he has ever since continued.

<p>'"¡PROVER for Negroes which Spillar in 1794 gave by deed to his daughter for life, and by another deed, dated the 8th of February, 1794s to his daughter and her son, J. S. Cutlar, for their lives, and the life of the longest liver or survivor, remainder to the heirs of the survivor. Cutlar who had married the daughter, conveyed by deed, dated the 10th of February, 1794, to James Spillar, and covenanted never to claim any property which should come to his wife by purchase or descent.</p>

SPILL. ATEI by deed dated the 4th of February, 1791, conveyed to his daughter Elizabeth the Negroes in question, to hold for and during the term of her natural lfe„ She afterwards married futon, and he. by deed conveyed the same Negroes to Hay-an d Cutlur forever, in trust for hisavife for her natural, life, remainder to her heirs, A witness was called to be questioned whether or not Spillar consented to or encouraged the making of this latter deed.

<p>AfiKIS time 12 months, the bill was abated as to Estes, and ad order made by the master to lake on account.</p>

*TPHIS caus.e lied been heard and a decree made, ascertaining the debt and giving a credit to the amount of the assets, re* serving for further consideration the balance ol seventy-nine pounds, which it was supposed bad been improperly charged to defendant, and the costs. Arsd now a motion was piade to have leave to file a supplemental bill.

fjpHXS was a bill in Equity, against the administrators of Gilchrist, and the administrators of Toole, who were sureties of M’Eie for the costs. Jjnts’s death was suggested. It was insisted by Haywood that they should not proceed ’till the administrator o'; Jones, the other surety, should be brought

T'jEFEKfDANT was summoned, asa garnishee, to the county court, in a suit against one for whom he acted as agent.

TJ’JECTMENT. Francis Stringer devised thus : After tfi&, death of my mother, I giye (the lands, in question) to Ralph, Stringer in fee - provided, he or his representatives claims with-, in ten years after my mother’s death, fie cauie from Europe in. the life time of the mother andreturned and died before the war, leaving Thomas Stringer his heir at law. He died in 1795, leav-Francis Stringer, the lessor of the plaintiff, his heir at law ; Francis was then in this country.

<p>-1 o £3 tí H £ © 5 o. c ft # & ^ G-. C* O »-> e t\ s re £ W jy. re re pi ÍN & «•> © £ .© % °> ; „ Q S«g ‘ 2 c < S A3 S c !©* g o % . & H r XJ o y §•3 N G í-4 n w J-* P X c* H “ X O ft)</p>

EJECTMENT. He claimed under a patent to Nathan B Trent; beginning at a corner tree, theme S. 80, E. 40 poles to Walter Lane’s line. There was no actúa’ sm vey ; the 40 poles were completed before arriving at Louie’s line.

¶'«ESTATOR had devised a Negro to his wife and also lands •A for hfe ; and the executors of the testator sued for the NeEl'°

<p>upHIS cause came on again to be tried, and the same evidence given as before. See 1 vol. 502.</p>

JT'IIIS was an action of trespass for mesne profits, and a nsvf -*• trial was moved for, and on argument havingtakeh place,

<p>was indicted in the county court of Pitt, "or stealing a heifer, the property of Adams, and a bell of the value of ten pence ; and he was convicted as to the bell. He moved an arrest of judgment, beeause it was not set forth whose property the bell was. — The county court arrested the judgment, and the attorney for the state appealed; and after argument,</p>

ÍT was. objected- that the deposition offered by BlounCs counsel should, not be read, because the commission was directed to,, and taken in South. Carolina, by one person only. And by the rules of practice prescribed by the act of 1782, it should be directed to two Justices of the Peace».

<p>/COMPLAINANT died more than two terms ago.</p>

HIS, was the case of a will which had been offered to the'coun* -*• ty court for probate, and was contested, there by some of the next of kin ; an issue had been made up in the county court of Lenoir, between, some of the next of kin, and the executors who offered i.t, and the issue was found against the will.

HpIiE defendant had found the plaintifF in a barn, when the latter was about eight days of age.-She had kept and maintained him ever since, and claimed him aa her slave. She was about 12 years of age when this occurrence happened. The plaintiff was of a colour between yellow and black, and had a prominent nose. After argument,

The PXIS plaintiff had attached money of the defendant’s in the hands of the clerk of the court, which cam® into his hands upon the return of an execution, in which the defendant in this action was plaintiff. Upon that point the canos was removed to this court, and now came on to be argued. I know not of any decisions in this State upon the subject. We must argue upon the reason of the thing, and by analogy to other cases.

<p>’’TpIilS action was commenced by a warrant,issued by a Justice, -*• of the Peace. It stated the demand to be for an account.— Davis’s counsel now stated that the account had arisen thus That a special agreement had been entered into between the parties, whereby it Was agreed that defendant should repair and fit the waggon of the plaintiff for the'road, the iron to be found by the plaintiff; that the plaintiff delivered to him iron accordingly, and paid him the price of the work to be done oa the waggon ; that ike defendant did not comolete what he had undertaken! bits' slid part of it only, and used but part of the iron ? for the residue pf which plaintiff bad raised hio account, He had also included in the account, par-t of the sum paid being the overplus, above what was answerable to the work done, also for deficiencies ia the work.</p>

.v-jpHS plaintiff-proved the mother of the Negro slave in qustion -*■_ was entailed on Poindexter 5 that an execution issued against him ; that the sheriff sold the mother for the life of Poindexter; that Poindexter died ; and it was moved on the part of the defendant, that'the executors should be nonsuited; the issue in tail, and hot the executors being the persons who had the property.— And of this opinion was Judge Taylor.

HP HE master-reported-, and exceptions were taken to the re=. port: but the exceptant omitted an exception to the sum of;' ■f.96, with which.the defendant, an executor, was charged j arid with respect r,o which sum, he now offered a record of the county court of Franklin, to prove it bad been recovered by him 5 and, the defendant imprisoned by ca. *«. had broken gaol.

VN 15'Sj, an order had been made, that the coaipiainanto giv® »• security for costs, or shew cause at the next term. — -And no cause having been shewn, nor the security given, it was aovtr moved that the cause be dismissed, because at the next term after this order, a scirefacias had been granted to the plaintiffs, for the defendants to shew cause why this suit should not be. carried on by the executors of Wilcox ; and no return was taken of this rule ; whence it was to be…

r?~,HE master reported a balance against the defendant; and ex;-reptions were taken, and now came on to lie argued. The case appeared to he this Alston gave two notes to one Swia-ney, who endorsed to the plaintiff, who put them in the hands of Milner, an attorney, to bring suit on ; the master received the evidence -of Alston, to prove that he (Alston) had paid the money to Milner.

Bill in Equrnr. up HE defendant had died, and it was stated to the court that his heirs had been made parties by bill of revivor; that they were infants at the time of the revivor, and had answered ; that one of them had now come of age, and was desirous to make a new defence. This cause had been set for hearing some terms ago, and was now moved to be heard by the plaintiff’s counsel.

.*?, ÜTÍQN to recover money won on a race. It was proved 0» the part of the plaintiff, that the defendant agreed to run a certain horse, to carry weight for age,, to run at certain paths, on, 3 certain day- That then the plaintiff remarked something fu'-'.hvr was to be done 5 the plaintiff understanding film, said “ I will give bond and security for the money, in cace you xvin it.

<p>TkoveR for a Negro slave.</p>

T jETINU? for ?. negro, Old liir. Taylor, by deed, of gift, -*■' gave the negro to his daughter Sfrrnh, reserving '¡.he use '.o himself and his wife, and the survivoi, ;k-: Sr, ma-rted Nc-de. lie died, leaving a son, who raarr t ¿Cl .->c5 o --j.. Lavixg 9, and child: the child died* Old Mr. Taylor is dead, afcd hss wife also. Upon this evidence, insisted that Sarah, were she alive, would not be entitled to recover, and of course her administrator could not.

npRE5>P*$.S3. Square c/susam frugii and liberum tefiemettfam pleaded. The defendant produced in evidence tv/o deeds ; The third1, course of the latter deed called for 42 poles to a corner standing m. the other tract. Forty-two poles were completed before arriving at the first tract.

T^ETINUE for a Negro. A. devised to B. several Negroes■ ^ for his life, and after his death, to his, B’s daughters. One of the daughters married, and B. sent the Negro in. question to live with her» His other daughters als® married, and he sea» 'Mmc the Negroes to live with each, a he husband of the datsgh-Ecr first married died ; then B. died, and a division took place tinder the will, leaving out She Nc-gro in question.

<p>Tp^ETINUE. Qa a motion on the part of the defendant for a a new trial,.</p>

A BILL in Equity had been filled, stating that a lease had -*■ been made of certain premises, by the guardian of Pasteur to Jones ; in which it was covenanted, that the premises should be left in repair; that the lease had been assigned to Eilis, the intestate, and the houses burnt down whilst in his posession, and had not been re-erected.

<p>1, that the administrators have assets-} In support of the pica was cited 2 He. Com. 340.</p>

‘T'TIE plaintiff stated, that he was distressed in mind, and whilst •*- in that situation, Hamilton’s agent presented him with aa ■estimate of an old debt, which he signed, and upon which Hamilton sued him and obtained execution ; and that Hamilton had charged a large sum for interest, which should not have been charged, and omitted to give credit for a considerable sum he had received.

'jpHIS cause came on to be heard, on bill, answer, and áeposh •*- tions, without a jury, which was dispensed with by con» sent. offered the evidence of a witness then present, and prayed that he might be sworn; this was objected to, and it was said that Judge Johnston at last Wilmington court, would not receive such testimony offered by Haywood, in the case of Walker and Ashe, It was answered, it was true judge Johnston would not receive St, nor recognise the practice us…

<p>A CTION of debt on a bond ;. and amongst other things,, the, defendant plead, d,. Iully administered, and the act of 171 á» Replication and issue.</p> <p>The plaintiff proved- on the first plea, that after the debt contracted, Jordan gave Negroes to his daughter, married to Farrel, and that- Farrel sold them before his death: and as to the second plea, the plaintiffs, counsel insisted that the act was not in force, or if it was, that it, did not run on, until plaintiffs had it in their power to.sue; which in fact they had not till 1796 : for in that year was the first recovery effected by persons who, like them, had been attached to the British nation during the late war.</p> <p>E. contra it was said, that the replication as here entered, without the word, special, preceding it,, was to betaken according to the practice of our courts as a general replication, denying tbe truth of the plea under tbe act of 1715, and that ho evidence could be given of any special fact to avoid the act, such as.disability to sue, &c.</p>

<p>HPIIIS was an action of detinue for negroes, belonging to the estate of the father of the defendant. He left his widow executrix. He died in Virginia, leaving a will and his personal estate, part in Virginia and part in this state. The widow after qualifying and giving security, as required by the laws of Virginia, inter-married with Cheatham, who becoming insolvent, the estate of the testator was ordered into the hands of the sureties, pursuant to the laws of Virginia: and the plaintiff, one of them, having obtained a short possession of the negroes in question, who were in this state at the time of the death of the testator, sued the defendant, who afterwards got the possession.</p> <p>It was argued for the defendant, first — That the probate in Virginia, enabled the executor to intermeddle only with the property there, and the sureties were only bound for the property which the probate enabled him to receive into his possession, which was only the property in Virginia: Consequently, the sureties had no right to interfere with the property in this state. For this were cited 1 Vern. 39’/. ll Viner 58. 1 H. Bl. Re. 153, 154. Toller, 47. Secondly---!! he had no authority here, then the possession he took was a tortious one, and could not make a special properly in him. 7 Term, 397,393,</p>

ipHE plaintiff claimed one undivided ninth part of the tract of' -*• land in question, and proved title to, one eighteenth part; only. objected that he cannot recover 3 part only of that which he has claimed in his declaration ;-ar>d' relied upon the case of Young and Drew, decided in this court; by Judge Moore.

<p>*T*HXS was an action for words ; and the defendant pleaded the general issue and justification.</p>

ry-HIS was a petition for a part of the distributive share of Mary Duke, widow of the deceased : she having conveyed one half to the plaintiff. The defendant was the administrator of the deceased husband. A reference had been made to several persons, to state the amount of the estate, and the credits to which the administrator was entitled, so as to ascertain the share of each distributee.

plLL to compel the defendant to deliver up a paper, purporting to be a deed given by their testator the father of the defendant to him for lands, directed by his will to be sold by his executors : For that the said paper was not the deed of the father.

[This was an action by Ogden, administrator of Cornell, against Witherspoon, administrator of Nash.] The defendant pleaded the act of 1715, c. 48, § 9: “Creditors of any person deceased shall make their claim within seven years after the death of such debtor, otherwise such creditor shall be forever barred.” Divers other actions were in court pending upon the same pleadings; and the court appointed a day for the argument respecting the validity and effect of the plea.

<p>(TMITIFs father-in-law had given him the Negroes in ques- ^ rion ; and Smith being afterwards sued by two creditors, and apprehending that his debts would exhaust all his property, f ive back the ...'.me Negroes to his father-in-law, who promised to re-convey to Smith when bis embarrassments should be over» Smith reclaimed the Negroes by tnis bill.</p>

<p>‘TpHl'S was an action to recover back monies, notes and ©the? artloies of property paid and delivered to the defendant br the plaintiff, as being won of him by gaming at cards. The facte were proved, and</p> <p>insisted, that money Won, cannoe be recovered by the winner, yet if the loser pay it he cannot recover it back ; sic potior est conditio possidentis.</p> <p>admitted this to be the common, law, but urged the act of 1763, ch. 5. which makes -"oíd, among other things “ every transfer of slaves, or oilier persona! estate ie “ satisfy monea won. Money, he said, was within the descrip, lion of personal estate, and the payment of it within that oi Stic transfer of personal estate ¡ and such transfer or jm inset being-void by tV express words of the act, no property rested thereby in the defendant, the winners and he was a holder of goody, notes and money, which belonged to the plaintiff. As to the articles of property and notes delivered to the defendant, they seem io be within the express words of the act, w or other transfer op s* slaves or other personal estate, to am¡ person or jo r his use, to set-l-1 tisfy or secure money won f etc. Was here at: usfer oi persona! estate ¡ and was it to satisfy money won ? If so the act declarer it void. And for rvhat purpose sn ill it be so, if not for the be-, r.efit of the plaintiff, and to enable him to re-vindicate ? In cases', depending on the English acts against gaming, the loser having paid Cannotrecover back, because those laws allow the "loser to pay if he will; they only afford him a defence against the action oí thv winner, which he, the winner, may also renounce if he will, and which he does renounce by electing to pat the money. Thepav* :ncnt is a valid one. because r.u? prohibited nor made void. Bv our law, the payment itself is void. The English eases, decided on the ground of no re-petition against a valid payment, cannot govern this case, which is of a re-petition against avoid payment or transfer.</p>

A PAPER, purporting to be the last will of Henry Eeibeek, deceased, was offered for probate, to the county court of Chowan, and oppossed, and an issue made up under the direction of the court of devisavit vel non., pursuant to the act for that purpose, A verdict was found in the affirmative, and an appeal taken to this court, and now came on to be heard in this court.

<p>T EACH had purchased lands of Campbell, and in part of the price, had given him a note on Ellison % with an endorsement, purporting that he, Leach, would be liable for the amount, in case EUison should prove insolvent. Campbell sued him and-had judgment, and issued a ca. sa. and he was committed to gaol, and gave security for the prison bounds and forfeited his bond.</p>

<p>TJ' JECTMENT. In this cause the following points were ruled by</p>

npHE plaintiff’s deed covered a piece of laud including that in dispute ; and of the whole of this piece, the defendant had been more than seven years in possession, and the plaintiff has had no possession of any7 part during that time : but the defendant enten a into the common rule, not only for this piece, but for another piece adjoining, which bad- been in the possession of the plaintiff; so that taking the piece defended for altogether, plaintiff had possessed one part,…

■p'ILL and answer. The object of the bill was for an account of the personal estate of Jesse Atherton, deceased; Alston bes ng the adasi nistrator. It stated that the defendant pretended a release, ana the plaintiff admitted that be signed the same, fees says he was ignorant of his right, and also underage. The defendant answered he had received property, part of the said estate, and disposed of part thereof after being of age.

TM JUNCTION •** junction. The Mr. Harris moved to continue the in* junction. Tins counsel on the other side suggested the death of Allen, on the record.

THERE were two actions of debt depending upon two bonds^ written upon the same piece of paper, and taken at the same time. The jury tried one, and found for the defendant. The. plaintiff’s counsel then moved that the other cause might be sub^ xnitted to the other jury attending the court.

TNDTCTMENT for perjury. On the trial, after part of tii<% -*■ evidence delivered, the Judge retired for a few minutes. — ». Two of the jurors also retired, without leave and without an of-, peer, and returned again.- — The jury found him guilty. And it xyas now moved that the verdict should be set aside and the defendant’s counsel cited Jacob L. D. verbo jury, who cites it from Tilley ; and also 2 H. H. P. C. 295.

HE now plaintiffs were surties on an appeal bond, drawn differently from what is prescribed by the act of Assembly. The Court of Conference had condemned such bonds in other cases, and discharged the defendants. Upon this bond, however, being with condition “ to pay all costs and charges in case the appellant should he cast ,3’ this court l;#u entes ed up judgment against them imtanter on motion, for the principal and costs.

^JpHIS is the action spoken of before in. the other case of the -'*• same name. It was an action of debt on a bond, dated in 1775, payable in iff4. Within IS or 16 years, the plaintiff and the defendant had been at variance, and agreed to be reconciled, Mid the plaintiff invited him to his house. Cook said within she same time, that the bond was given for the lands he had in his possession, but that the obligee had not made him a title, and he would not pay.

pHE plaintiff charged for services performed in the year 1792, and from thence till the death of the intestate, in 1600. The statute of limitations was pleaded. He gave credit for a plantation within three years 5 and defendants counsel examined as to the value of this plantation, endeavoring to bring out that it was of more value than credited at.

EARBON had entered and paid for a tract of vacant land, and his grant was suspended by Guy. This suspension was tried in the county court of Duplin, and a certiorari was obtained by Reardon. And now Jocelyn objected, that the act of Assembly liad de» tiled an appeal; and this court cannot issue a certiorari, for mat is to exercise appellate jurisdiction as substantially as if it had coma up by appeal.

<p>rpHE plaintiff claimed under the will of Jane Corbin, all lhaS she was entitled to under the marriage settlement between Iter and Thomas Corbin, prior to the marriage: particularly, they chimed all the increase of the Nügroes mentioned in the deed whereby the marriage settlement was made, and a widow’s soar'-, under the act of distributions, of the one half of the original stoik of Negroes, secured by that deed to Corbin, who C' d before her, intestate. They made other claims besides, bat these were the claims upon which lay the stress of the argu-</p> <p>The deed recited, that on that day, 28th of October, 1761, ths said Jane Innis and Francis Corbin, as well for and in consideration of a marriage, by God’s permission, intended shortly to bs had and solemnised between the said Francis Corbin and Jans Innis ; and if the sum of twenty shillings sterling money of Great Britain, by Samuel Swann and John Swann, to the said Jane Innis in hand paid, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged $ and for and towards settling and assuring the several plantations, tracts or parcels of lands, tenements and hereditaments, and Negro skives(f) andtkeiryncrease, plate, houshold goods, and stock of horses, cattle, hogs and sheep ; the estate of her, (2) the said fane Innis, hereinafter mentioned to be granted in trust, to and for the several uses, intents and purposes, and subject to the powers, provisos, limitations and agreements hereinafter limited, declared and expressed; and for divers other good causes and consi-dt rations hereunto especially moving, she, the said Jane Innis, by and with the consent, direction and appointment of the said Francis Corbin, testified by his being party to, and signing and e. king these presents, hath granted, bargained, sold, aliened, routa; d and confirmed, sad by «hese present'? doth folly, cleat» ly and abso’ntf’y grant, sell, Kisers, release amt confirm nnio the add Samuel Swann and John Swann, in tbeir actual pos'setisioBj now being by virtue oí a bargain and sale to them thereof made fur one year, in consideration of ten shillings, sterling is7.Qae.ycf Great Britain, by indestaTe bearing date the day nest before the day of the date of these presents, and by force and vhtue oí the statute for transferring uses into possession, and to their heirs and assigns, all those the three plantations, tracts or parcels of land of her, the said Jane, lying and being ok the casret snosc branch of long creek, in New Hanover county, containing in the whole, twelve hundred and sixty acres ; also all that other plantation, tract or parcel of land oi her, the said june, h lr,¡s .-.yd t>t--iag on the north east side of the north west branch of Cap.- I?. re river, joining the upper side of the kte Htnrjt Simons’ land ic, Bladen county, containing three hundred and twenty acres ; also all that other plantation, tract or parcel oí land of her, the re/d, Jane, containing one hundred and eighty acres, lying and being in. Bladen county, on the west side of the north west branch ot Cape Fear river, joining M'Nightk land, together with ail the houses, out houses, edifices, buildings, orchards, gardens, lanes, sseadows, trsea, woods, ways, paths, waters, water courses, easements, profits, commodities, advantages, emoluments and here-ditament's whatsoever, to the said several plantations, tracts parcels of land or either of them, belonging or any wise appertaining 5 and the reversion or reversion's, remainder or remaii:. dors, rents, issues and profits thereof, cad oftvery part or pin-cel thereof; and all ths estate, right, title, interest, use, trust, possession, property, claim sad dei*r-«ad of her, the said jfan-s Znnis, of, into ©r out of, the said v-verstl plantations, tracts or parcel of lands, tenements a:rel he-re--Ist.'.ment3, ar.d premises and every of them 5 to have and to hoM the said several plantation-.,, tracts or parcels of lands, tenements and hereditaments, anda:- and singular other the premises, unto the said ítamnel Swatv.-. and John Swann, their heirs and asvvns, in trusw: nevertheksi to and for the several uocs, intents and purposes, ?<d subject to and under the several powers, provisos, limitations and agreements hereinafter and by these presents limited, dc-fkrc-d and. expressed. And ibis indenture further witoesc-.eth, dret ior dm consideration aforesaid, a-id ire consideration of five sum nf ten shillings, like sterling money, <«. the said Jane Innis, in hand paid by the said Samuel Swann aud John Swann, at or before the en-sealing and delivery of these pr, cents, the rt-re'ptv-hereof is hev< - by ackuov. Lulled, che, the :*¡J Jan,.** Snnic, i.7 ant! with the cosí-•lent, direction and apimintm^nt of tl.o re ¡d Francis Corbin, alón» testified by his beinr pasty 10 and ¡-.-t/nln'i and “sealing these pre • a -tit.-j, hjt’n granted, bargained, sold, alie tied re;;! 1 creí-nn..'*!, and Ly thiss-e prcaems doth grant,, httryaiu, :rh-.A and ;.a mi1.-.-the said Samuel Swann and John Swann, their heirs and assigns, ®U that tract or parcel of land, situate, lying and being in New-Hanover county, containing three hundred and twenty acres, being the plantation whereon the said Jane Innis now dwells, and called or known by the name of Point Pleasant; and also all that other tract or parcel of mar3h land, containing one hundred a-eres, lying and being i,n the county aforesaid, across the river, opposite to the plantation aforesaid ; and also all the houses, out bouses, tenements, gardens, orchards, trees, woods, underwoods., profits, commodities, advantages, hereditaments, ways, waters and appurtenances whatsoevsr, to the said plantation, tracts or parcels of land abovernentioned, belonging or in any wise appertaining; and also the reversion and reversions, remainder and remainders, rents and services of the said premises, and of every part thereof, and all the estate, right, title, interest, claim and demand whatsoever, of her, the said Jane Innis, of, in and to the aforesaid two several tracts or parcels of land and premises, and every part thereof; to have and to hold the said two tracts or parcels of land and tenements, and all arad singular the said premises with the appurtenances above mentioned, and every part or parcel thereof unto the said Samuel Swann and John Swann,' their heirs and assigns for, and during the natural lité of the said Jane Innis, in trust; nevertheless to and for the several uses®, mtents and purposes, and subject to, and under the several powers, provisoes and limitations and agreements hereinafter by these presents limited, declared and expressed. And this indenture further witnesseth, that for the consideration aforesaid, and in consideration of the sum of ten shillings like sterling ¡mos<ev, to the said Jane Innis in hand paid by the said Samuel Swann and John Swann, at or before the ensealing and delivery: of these presents, the receipt whereof is hereby acknowledged, r>h*>, the said Jane Innis, by and with the consent, direction and appointment of the said Francis Corbin also testified by his being party to and signing and sealing these presents, hath granted, bargained, sold, assigned, set over, transferred, and by these presents doth fully, freely and absolutely grant, bargain, sell, assign, .«et over and transfer unto the said Samuel Swann and John ‘Vann, their executors, administrators and assigns, all and singular her Negro slaves (3) followings by name, Peter, Johnny, Peer, V-.. Rutherford, Mingo, March, Ben, Sinclair, jun. Exeter, 11 ib, George, Qjiomino, Cato, Monrow, Murray, Jemmy, Cyrus, Canisby, Sinclair, Cufie, Jamaica, Torn, David, Mundingo, Chaiks, Charles, Betty, Murry, Cesar, Southerland, Ross, Solomon, Anthony, Carthness, Cain, Cudjo, Douglass, London, Sentry, jirr.boy, George, jun. Shields, Sandy, Cesar, Nancy, P; oshe, Lucretia, jun. Uphamh, Victoria, Jenny, Rarharv, Vio-kt, Lucí oda, Doha, Celia, Carolina Jenny, Dinah, Mary, Jen? tty Murray, Nanny, Guy, Jenny Po’I.-rd, }>•;!, Sara’?, Mihsib.j Patient, Pcgrjy, Folly, Nancy, £K’l;a,ja >. BJhidUh, Dinah, ja»» Gi.i>ira, Sr.ck.y, D;uah, Betty íiiaar-, Naany, Ei.se, together whh their [4]ji/fóreincrease{also -ü the píate, hen-a hold goods, stocks of hovs'-s, hlic't. cattli», sheep, sad hog®, and all other tbs pipona! estate cf her, the aaid Jane louts, V. acre?•:>'.a/;, r to be ff-unci in the province of Noub-Carolina or elsewhere; to have an I to hold, all and siagukir the sad! Negro slaves* together vjiift their [9\future increase* plate, house-held goods, sunk* oi horses,, black cattle, cheep and hog-,, an*! every oí them, and all the other personal estate aforesaid, of her, the aaid Jane Innis, by th-tse, presents granted, bargained, sold* assigned, sot over and transfer» •red, mentioned or intended to be granted, bar.g-dm d,sold, assign» ed, set over and transferred unto ¡belaid Samuel Swann and Johra Swann* their executors* admink-tr-itors and aas.-igus intrust; ¡nevertheless, to and for the several uses, intents ami purpose-, and subject to and under the several powers, provisoes, limitations, conditions and agreements hereinafter by these presents limited* declared and espre: ced. And this indenture futthe\“ wiinesseth, that in conskkmioa of the said intended marriag-: . and of the great love and affection the said Francis Corbia batir and bearet’n to the said Jane fnnis, and of the sum of twenty shillings sterling money of Great-Bri&in, to the said Franci-s Corbia, ia baud paid by the said Samuel Swann and John Swans,, at or before the ensealing and ddiveiy of these presents, the receipt whereof is hereby acknowledged, he, the said Francis bath granted,, bargained, sold, aliened, released and confirmed,, and by these presents doth fully, dearly and absolutely, grant, bargain, sell, alien, release and c©< Sna unto the said Samuel, birann cad John Swann, in their actual possession, uow beling by virtue of a bargain and sals te them tbeioof made for one year,, ia consideration ten chitlings st.esIsitg money of Great-3ritair-s by indenture bearing date the day next before the day of tbs date of iheae presents, and by force and virtue of the statute for transferring uses into possession, and to their heirs and assigns, all that [£] lot or half acre sj'land, and \wharf of him, Che said Francis, lying and being in the town of Edenton, in Chorran county* purchased bv the said Francis, of Thomas Barker, Esq. also all chai island and the marsh thereunto belonging, purchased by the said Francis, of the executors of Jmiaa Craven, Esquire, deceased, lying and being near Edenton, in Chowan county aforesaid, called and known by the name oí 3imvfecrry Island, together with the houses,- out houses, improvements, and all oth^r die appurtenances to the said lot and wharf and island belonging or any wise appertaining 5 and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and of evesy part and parcel thereof and alt the «state, 1 igh£j, title, istere.'.^j re;, itx f.\z Ctebv: i J’O i". J ;s)d, v.b”, £, bf’Di ; ;jd pr-iT''r'< e, s>1 ” d -ini ;<í-A tUtnsn-1 of hist, the eaid ‘Err.:*.. •r\ to oí oyt oí the. sit'd if t or bal! arre of ?Csnd 'ind u Ss.&üooíl;, hen db ámente £ ■■•y oí" "bu as; L> ¡•■oveard to hold the sad1) !.»; or bcH r.’iv of luid, vlvrf, s .land m-xsdi, hn"ws, toiu-ruenis, arid r.br.ad ungí .kr odsei ¡hr puiíriiñ.s last an niton d, aod jiirC’J thereof, with the apj urixsv r-r., unto the paid Sfsmudl >- ••••! a-cd Jobe tini»- hub 3 .mi) assigns, intrust; ne-veriboi.-g"., 'X? ami fr»i the severa! urn r, uy>en<í! and purposes, and ^object to, .uid under the r-evt rsl power a, provisos, limitations mid agrr.-c'iuciits hereinafter by thes<* presents limited, declared and etqirjssod s And h is hereby d. clared arid agreed by ai d bet*.T'Ksn all the add parties to ther.e presents, that the said S<mm-í-I i’want» and John Swaun, their ¡vir.;, vxtatum and adminis-maiors, shall hold asid be seised uf sU and singular (he said lands, l -.lands, lot, v/harC messuages, bourse.», tenements and heredita-z and have, bold and possess all the Mgro slaves and their fuifitre [7] hicrcense, plate, t-.oust.hold goods, stocks ot horses, black c.'iDle, sheep rustí, hogo, and all and singular other the prim hi. a th&m herein before and hereby g«anud and sold as aforesaid, V. .die several uves follovwng; that r. to say; as to ali and sirs-guf.ir thrt "1 »nd3, tenements and heriditaments, in the sivf.al counties of New -llano ver and IVnden, and the Negro [if] cheer:,, jlute, household goods, sto'.kn of hovi-es,black cattle, bliec.p and Sc every of than, tlic r>-d md personal ta.l.iu oi’ihe arid Jan's 7x is, to the tr..c and behoof of d e md Jane lank, and her bf’ru -'.kl atr.igos, i:"ti? h- said ini-ended m rriajy* sh;*U be bad and 'jo-líi-.iisizefí; and from aivl alter the said intended aitarrii'gfc siiv.il h-‘ bad a;id '•olemoijz'. J, to the ot.u- u of th<- sv..d Srnmel Swam ■anrl John Swr.nn, their U<-hr;i->:- ,.uti>rr.. ar.rnir..supers and as-sj./'n:-:, in truct; net-crfhsiens, ■(•£' ike said Sama.-1 Swann and J-s. <a •! .vi>n:i, and íhe survivo" o ti.i-m, and ihe hfiri-., ercer.ut.oii .usd adottíninii (i atoro and rv-^igor. of su- h sundvor shall receive' ,-„d p?,v the ch-ar rea'*, mti [,n,pt\ oj the [9] oforewld Í u,*..', fxnenaen'.r. and heredtwm nit. m the eiumiesot Niw« finisover rr.d Biidsn, all re.isi>u-.bl> dec’ucfions bru<g first ruado Nora time to time, yearly a> d ev- >y ven. or (1 toser if conreni* ¿ntfy may be ; and 4hall aL~o permit and At ffet the ,;.rd ‘Jans Z-2--Ttis [10] to receive idi tin prt-jia or king by the ugt o s&tves afay¿* said, eitherfnen their i/f/w, inc. ea■ e or hire; and also shat Liirdi: or owv hi any mnnr» r ^viai' boat 'll and even orbes part of tho personal estate cf the sir’ Jane li afonsaid^ for anti durin-j, the term N her r' hr.-ai fll] lije ;o> h< r mi arate use and benefit, fisclusive of the rovd Francis Cotbiu, ht-r inter.dt d huatand, aiv! so thatth-: cam<?, or g»y part thereof, -shall not b< subject to th*« controul, dhposition, debtf, forfeitores, incuisdnantes or con-' tráete oí tUs said Fiznrh Corbin, bet* iutendou husband j and tba;; *11 su-di aaaa or «sums of as s'-nll be paid ur-Vo h*.r doting h>_*r coven uve ¿h olí bep.»<.: us’, - L »• -on L- índc or s;>u k veru.is. or paeons as site, the t>aA Jim-- InAr:, did! by whiny vigíe-'? vñ h her name, < f her ou n Ivov1, a; rua y, d rivet or anaakv 3 wk! tís it her oví/s; receipt shall be a suid-í-u: bk'.dpygv f-r fa- wmi'-, u.vo Sjisris-i C;«: ‘.ira and John G.vtmy or am oh.,- "abac ■¿O' vr-v, liov.vki’Sianiling Ar co</i i-;««v» AnJfnr’ ,<_r:d f'-er the f ■ V mu jane lanis., then dny, tbs east1 Ntgu; :V *-o» avA J ,ha Swan and the survivor of then!, an:! th-* h'-ivc, íiv-cm S,.-ía, and ¡¡e-i^no of such - ursm'r-, shall staav! n d tie seised of those, the said drive plniiaiions, tnwm prr< eh of Ivad, lyia<» and being on the «¡tatemóse brands oí jLr-njj Creel:, in Notv H 'novel- county, containing in the. who!iw.lie hum ilivd said sixty sms; and also of tln-ss other two plantatioa:^ tracts or p<>m.!s of LtaJ in Bladen county, the one joining t hr upper aide of Henry Simons* Land-, and -he ocher joining NA IJight’s lands ¡ and siii.ll have, hold and possess the Negro jCdl (■laces and other the personal t-stats aforesaid, of her, the irate Jane Innis, i» trust, for th'-' uses, intent; and purposes ibllovnro ; that is to say, so much of the said [!3] land., Negi 0 ska jo stv-l filler the personal estan. oí die naid jane liuiia aBnsaid, t>*e éxvee-Jing the one half rlituof, or ¡ho sum of two thou: pud \ ounda prod•¡m.ui-in aicuev, to be raised and mdd by the raid u uitec 0, and the survivor of th-. m, and the heirs, executors, a<!-irár>(SH’iiíori an.1 aecig-us of sue!, survivor, out of the whole iw’3 fend cvis-niai estate aforesaid of the said Jaw Iranis, (whichever ti»e said J.v.scshall be minded to give and di-pose of,) to the vug ‘v.N feels .-ci of such person or pc-rs -ns, his c» their heirs arid ac-cégv3 fwrev»T, to whom the said Jane, whether covcit or no!- ,, and if coveiv, notwithstanding her coverture shall, by any deed or writing, hit wil1 and testament, or other writing, ¡nirpoatipr;: lies List will and testament, a'te3ied by two or more creditable-tvitncsfaeS, give, d'vhs, [14] dhset or appoint ike t.?:djcr the zvatii of such direction and appointment, to the use of the spied Francis Coráin, his heirs or assigns Jar ever, an? the :.i/r.y heifer remaining pa> t cf the said lands.¡ Negrees, andofothe; the y. w sorad estate of (he said fane linio, to the use and behoof tf the raid Francis Cos bin, his heirs end assigns forever s And as ior too*!*. !ijr- and concerning the said lot or haif acre of land asid tv! wi h *h-i tenenH-n's am! appurtenances there to belonging ami peri.-noirg, lying and being in the town of Edenton, in Chov;."~’ &f.-.*STiv, cud the said island ceded S:rawberry Idand, and mar-l ilh'-r’o I. .5 saging, lying and l.e'n-g near Edenton, in Chow,-r wjui.:'/aSirenasd, the otate oí the said Fjaiicis Corbin to the usee and behoof of the said J'Vancis Corbin and bis heirs, «ni i?. eolermniaatior. of the said intended marriage, and from raid An -• the, arM uidvAd Sitarrian:? ¡dish b* had ?.ud solejanjaed te-tlie use ane behoof of the said Franc's Corbin and his assigns, for and during the terna of his natural life, without impeachment of or for any manner of waste, and from and after the determination of that estate, to the use and h« bool of the said Samuel Swann and J.ha Swann, and ti.tir lit irs, during the natural life of the said Francis C-*rbin, in • • v:<u, to preserve the contingent uses her.-i-; ■ r liuved from being haired and destioyed, and for that, impose- . o nuke entilen and bring actions a» the case shall * r,qiir¿, yet so as to perms;, snd stdLr i.u said Francis Cor-b‘.u to •.eftivt the rents and pr< hts ol the said last mentioned premia: s fo,' during his r.«,tu[al I'iV, cmdjrom and after his decease^ ['-5] ,'hen to the use a id ithorf of the said fane Jitnis, hiv intended w.,e.. and her a; *■ m\, jor and during the term of her natural lije without impeachment if or jor any v, antier of zvastc? and from anri atur tíre decease oi the said i ,,¡í Corbin and Jane, his intended wifi, and uu longest 1» k r oí them, to the tsse and behoof of the said Francis Cm bin, his heirs and assigns ior ever: Provider! always, and it h declared and agreed by and between the said parties to these presents, that it shall be lawful to and for the stud Francis Corbin, during the tea rn cl his natural life, and from and aftt r his decease, to and tor ¡he said Jane, during the term of her natural lile, as when the said Francis Cor-bin and J.uie shall be ir the actual possession of the said last mentioned premises limited to tire said Francis Corbin and the said Jane I unis during ’their several and ro'-jH c’dve lives, by any deed or deeds attested by two or more creditable witnesses, to demise, lease or grant the said or half acre of land and wharf, with the tent merits, hereditaments and appurtenances thereto belonging, and the aforesaid island and marsh, with, the appurtenances thereto belonging, to any person or persons-, for and during the term of the respective life of the said Francis or Jane, and no longer, for and upon such- rents as to the said Fraud# er Jane shall seem meet and convenient, so as every such lease contain a condition for re-entry for non-payment of the rent thereby to be reserved, and so ,as every such lessee do execute a counter part oí such lease §■ any thing herein to the contrary notwithstanding. Provided also, and it is hereby further declared and agreed by and between the said parties to thtr® presents, that it shall and may be lawful to and for the said Jane, notwitstanding her coverture, and as if she were sole and unmarried by any deeds, writing or writing?,, signed by her, with her name, of her own hand writing, sealed and delivered in the presence of two or more creditable witnesses, with the consent ©f the said Samuel Swann and John Swann, and the survivor of them, and the heirs of such survivor, testified by their being par-tiest wsticb deed or deeds, to. make any kasc orinases, dtraise» er rousts, of t:il or my of the lands limited to the said Samuel Sr'-iM and Join Svrzaa r.»:d their heirs, in ¿rust for the solo and 0 ro.uKte Uoe a'id behoof of ¿he sAd June lanía as aforesaid, to an’-* person or pr.tion*, fur tbs tern of ihe natural iiie of the salts J we longer, for and upon su¿h ron to as ¿he sai'.! Jit»*! ch-i rgree for or shell think tnoec ai:d convenient: And abo £01 the raid Jsne írnap W.K to time, and ail times hereafter, during her uní! j! hie, xA «¡ken sbesu-fU h*' so m!ad-':d,uoi-v;tksf.csnd.:ig her [; 5] c/A a if ¿ :j were ::-b- and unwarned,. o ir-.¿ a: A lake uf'>n htr iAiAs vA ¿Pe care, erdering, direction end vaan.'igeint.ni of thet N<grn slave-!, and nil oilier the perianal eslule herein before limited to ihe sad ‘¡¡le.vel Seoann arid j/chn dtcamz., ¿heir executors, cA;A,ii\traior.- a¡.d c ?/> inns, in trust for the yds and separate ties of Vic .said feme <:-■ ujore-'-aid; and to receive, have, take and dispose of ihe f>r j, v (iriinigjrom ike same and every pari thereof either by the lac ,¡¡ \ aire u/ulincrease of the Negro sLvas, increase of the ¡nock. of hurts b, black obit , sheep and. hog;, or mhsrvrisi', at her wife no 1 ¡>1< asure, Mid f.isuck raennsr [if'j at she Audi plots or riiip-fv vAhoi-. the < • ¡-.'¡¡rou!, inter-uv tiling, t-i'o ™i;p‘;os-:, kt o; biisdr.oice ol ike said I’uuvAs Co;1tin, ner iiiV'nded ’ tsbar-d, any Untig heiviu helote contained to the eoa'rary1 i-HWJtnstasiding. Provi-Jud also, sad it is hereby furthtfr declared and agreed by all the said patties tu diese pr-;« sente, that is shall ars1 i s;s.i; be lav/íul to asid for the* ¿rl;l Fiaiicis Govbin and the said J-m>, his mteud-.d wise, ac uv time during be;- natural lit.-, nelwiuisiaadmg het coverture, with the conaein of the said Samuel S^ann arid J .hn Citan a or the survivor of i besa, firu had in writing, atiesto' by three or avirc-. creditable witnesses, and if the said Samuel Swann and John Swann shall feodi of them he dead, then fur ¿be said French Corbin and jane jlcais, imhoui such consent, by aay writing or writings by mein to be signed and sealed in ihe pretence of ¿bree t-r more uvclkable witnesses, and proved, the said Jane being first privately examined, touching her cons,-sre and ..grtt-ateni thereto, in dje form of law (tod &m cure/vAiv) to revoke, all or any of th*.- tec and uses, trusts, estates and limitations herein before limited and declared of or concerning the said ¿ande., Negro [IS] >.!ut:o • <snd their increase, plate, hoatehoid goods, stocks of L»rs*-s, t'Ack cattle, shesp and hogs, herein bifoiv mentioned, and by t&e same ws king or writings, or by any other deed or deeds wgn*\l, sealed, iseccted, attested aud proved as aforesaid, ( he said J«nt- being first privately examined as aforesaid,] ab-.olnlchj to sell[\9] and dispose of the said lands, Negro slaves ¡ plate lioid goods, stocks of horses, black cattle, slieip and l:cgs, cr tny of them, to such person or persons, to such uses, weens and purposes as they, the said Franck Corbin anti ihe said J -nc,, ibis intended wifr, shall lirail, íktlare'or appoint; any ¡Fug bsr '"ii b.fwo contained to the contrary notwithstanding : And l\e vitd Fi nd;' Corbin and Jane I >n;3 do hereby severally covenant, prcffiii,;; and agree to and with th<" ¡>úd Samuel Swarm fci’d John Sw.'iiU, their h i , x rutors and administrators, that the ->rd hod-, snd every of tu m r h their and every of their s ¡/hi it nance?, and Negro [-0] tluVr-% plate, Iv u sehold goods, erode? of horses, bhuk cattle, -ii. • p mí h.-gs and prt smses, and cil a-i l every of diem, s ¡all and m y he a si tun a 1.0.11 hen. e-7:h p'-acoahly and qu.v.iy hi Id md eijineu b\ (in- raid S.m.-u-e] Swann and John bwana, and tv.-k- bens, ts-. cutois, and ad-rúmt;; .r: a*, '.ording to ilse ocvti í u¡c,> s and .';r>and upon a .d trad -r the ce'-’: ral lrut.re, and subject to the several provisos b before mentioned, limited, t rpi^ssed or dirt cted, touching and concerning the same; and tanher, thr.t they, the said F ; net 5 Corbin and Jane Innis, shall and will at all i.’.ovr- here af-ta 7, upon the reasonable request oí the said Samuel Swarm and John Swann, trek”, do or execute, or cause or procure to be rvdr, done arel executed, ail and every such further ar.d other lawful reasonable grants, acts and avia mocee In law whatso-e’er lor the further, better and more pm feet fynoting and assar-:r.q of all and singular the said leads rdda *he uppmleaances and ■Jit [21J Negro Naves, plate, Ljxsehf'ld íyoods, stocks of horses, ’iUik rank, sheep and hogs and prenv-; and every of theta dove t-i — tí i, to a.;d for the several uses, intents and t.sr-m/h nod unu vr the t.usts and subject to die provisos herein ' ..-urc con aim ;1, according to tVte true intent and raeatm's-' of these pi-octnic, as by the said Samuel Swann and Joint Swann 0? rhe survivor of th-.m, the heirs, exatutora and ajlmkiiatiatoj-;; of such ,i)i vivor, fir their or ary 0? their counsel learned in th i Í3W, chalí be reasonably devised or advised and required. And • ’’n i: !•'. agrt ed b\ and be ■ wren the said Francis Coibhi 3rd Are. Innú». thu in ras»> the a dd intended marriage shall taka cft'-ci, a.'.d (hat the said Jane shall run vivo the said Francis Cor-bin, tív.í citen ana in that ca r, the htbc, < xccutors, administrate, .v r.vul ¿«.igi s of the said F-anc¡s Cotí.in shall out ot the other r ríete r.dta'seever of the sata F .men, foot m these presents before tr-cr.tioaedj or out of pm Rid uihing tbettfrom pay to the tr.'d i¡'r.;hj [:td"j at d every year, die yearNy sum of one Jr -v \ :r »■ \l i\zr:iiy pounds proa 'nir.y, being the yearly ■¡r'..r.•, six pci'cent, of the oenra 01 iv:o thousand pounds like v - v i-Tow Crie ir.ucature í- i'iítev ' •'Lner.eth, that the said 3J, lor at!*'! in conciaa'; id ib j said inti-cckd j ; , b: If;...*:.• :eir?. executoii; cud mi ir ,:i.r.sto- , . . , . f‘dj fi oré. i. ond grant >0 and vAN, the ¿aid Suvai~ . ’ j . i ' JJ.’ri ¿’v,.iL,.lr hen;, 1 recvlcre-ved<;<r, rdi.lr.y :■ i ■>- -,j -e diet, .-1 intend”!' s¿\ovií-y' stv.H í:.,! e effect, .. vi J.;:ve chail uindv” hiiu, 'he t-a.'l I’ahk: Coi!..«ñ, i°>- it aid ra {list ewe th« heirs, ewe cutara, sdrA-Aii ...a-;, ?<v] aír.n-yw o( i‘is !',?'t..l Frinric Corbin ohrll out f>j x¡te [_■;] olU ¡ e..totc vjk::t,"i;:vcr of tvm-., th¿mid Ftam:h Cotmt,m/d h <:c ■sh'di cr ri'iv, d>c fo&wied* or m vny dine of Ida ti<:t:e<iae bo eu! ’Hr;, y, in f.neíis piunmo oe«o>-r mrnuosud) orad cj'lhefrof'-f oil-id">" ¡jot ro t!>.; said Jane, vtasiy cm) .‘re’" v. ;>r , Wv.: yewrh . u a ■/ ese hundred and twenty pound*., pn'>.VEW.;: raonsfy : Provided always and lastly, and ii is ht-i « xy.-ers •*’, dec» '¡red mn i*vT*sftd to be the true intent and re>i.?.r.hi;? oí tb<»E ■ •p\*,i-.nt8 and of tb< said parties, that the said ÍV*ro» 1 Garrea • ¶. ¡ John iawanfi, thci? heirr, orsecutors and admir.'.ou-iuor.. revi ■ » Cifran shat; net, noi shall any oí there by virtue o- »!»» :•* ' r->-: .aor snail they or either of them he chírgtd u¡ ••hup.r ¡le T"¡ the ree-ipir,, payments or acts cf the other -¡vY:» re, L;¿. ■ re i Slietu íor «red with his own receipt: ;5 payment-' A .rev ,or-S'.- . r - sur? othtrti,:se; ir.or i.haH they or cithci o';-i- ,- ,v ■ chaty-eable ttiili ;u,y loss or L.sbls ih'-.v rret-y l-t-pr.c n > , insulvetaey Y or bj the said Funds Ccr'/m ere rev, , hi ' : : V «. J o;líe, oi i. Ywr of ¡hem, or of or by cry cYrer pc; ; . s rere \slv,;si.':t es-; And that- they the said Gsru.Y -ote... , JVv.s Gwanra, ih, Y heirs, executors aad adiAuA-nucu ¡Y - . • jyül hvKA time to time out of die trust estates afores'f-i, -¡ t; h ic is, chri'V.'- y damages and espenr.es which there or . ■ ; 1 tile?», their or either of their executors or adramiair.itors Y.Y |.‘-ay. bear c” be put unto by virtue or vt&soa of the taw h-wbre in them re y o ¡reel, or the execution thereof or otherwise w. 'rel ■, tarretij ; any (hiojc; heroin before cc:v-tisú, d to the conn ary ibrere ei r.j any wiso n^twUhsrmtyttng.</p> <p>In witness v;l. rcoi, lA: said parties within mentioned, Y .• io these pr>’Sentj. imwciisaa^i^ily seílhtir ha"dr. and s-.y'. .. ,■’ .» day and year first above writieu.</p> <p>Upon v-bi-i deed, this defvnd%nt*s count;ti f~¡i, drvi »m the oh’iiiii of Mr. Corbin, intestate-, his widow vcjc; not eut;-slod so tke increase of the negro slaves, bom íiX'.e ihe-doí; «C dccdj for by part 2, 3 and 4, the nt-yrots and ¡f.Ar hw «r«‘% axe vested in the trasievs % part 3, io be hdd with thri; Acrwve, aud part aicoto these use?, vis. as to thr irecy-w riavc s, to |.'eniut her, part 10, to roccr.e ail the puifí s w-hr.r,, fcp fr.c negra sis.vus ticrisa'd; which, tv reiert-rr.-, ir.rird the negro slaves and their increase, either Irons tArr hl'cr, .• «'.uw.j or hire; and their profits bj íncr-as-, Etcare.-. prciS c d--rived from or by means oí the labor or hire of tbs ¡raxuw-co tjouli be inconsistent to vest the increase In the trusses,; '-f i sublet of trust, and direct them to hold the iucK-L.-e ist tvu t> and. av tice s--mn time to make thitn a pan of her separate e.-.iax, and to give her power, by part 16, to take c-«d dispe-e ri duns at h-tr will and pteasnr.-. Mcieavtf, she c r-o wear fonU-ré* ’ey part 19, may sell and dispose under restrictions there nseníiofe» ed, of the said negro slaves ; which, by reference, are the ne-groes' vested in the trustees — that is to say, both negroes and their increase. And how could it be necessary to give them jointly this power, if as to the increase, they are intended by the deed to be absolutely heirs i And here the term, said negroes, relates to the last antecedent, in part IS, where the wordj increase, and their power to revoke the uses concerning the said negroes and their increase, is expressly mentioned, and immediately afterwards it is added, and they may sell the said ne-groes.</p> <p>Secondly s They argued that this marriage settlement was to be considered as a bar to her claim of a distributive share of the estate ©f F. Corbin, which belonged to him by this deed » and they cited 1 Fonb. 92. 2 Vern. 58. 4 Viner, 40. 2 Vern. 709. 1 P. W. 324. 3 Atk. 419. 1 Vez. 1. 1 P. W. 324. 2 Bro. Ch. 95, 394, and many other cases.</p> <p>Thirdly : They argued, that she had under this deed, a provision made for her out ef his estate. In part Í iv a lot, wharf, and island, are to be to her use after his death, for the term of h-r life; and that this made him a purchaser in tquity, of all the í -tate secured to him by the deed of a settlement j and he has also provided her with £. 120 per ann. to be paid to her for life, in case of her surviving turn, in part 22 s and they doubted whether his estate, being a trust estate, was subject to the act of distributions.</p> <p>She is entitled under this deed to the increase, aS a part of her separate estate ; for the negroes1 and increase are mentioned in parts 1, 3 & 4, where the purposes of the deed and the passing of the property to the uustets, is provided for ; and in part 7, where the trustees are to hold the property ; yet ia part 10, the word, increase, is dropped as an antecedent, and made use of as a relative, she is to receive the profits of the negro slaves, by labor, hire or increase. And whj is the omission so carefully observed? Is it not btcause otherwise, profits by Increase, would have meant profits by increase of the negroes and increase ? Whereas the writer meant the increase themselves to go to her ? In part 12, where the trusts of the property, and particularly of the negroes vested in the trustees are stated, the term, ¿aerease, is also carefully omitted. They are to hold the negroes in trust, that so much of the saicl negroes, &c. Why is the term, increase, dropped here ? The answer is, because the increase were appropriated to her by part 10. in part 16, she is to take the direction and management of the negro slaves, and to take the profits arising from the same, by the labor, hire and increase of the negro slaves. Wbv is the term, increase, here omitted as the antecedent? And why is she directed to take and .repose c; thtfc prrñt?, by increase in such man!i*y as sise shsñl p ease and think fir í Here the exoression is, Lí'rea&e oí’ útv ‘iL'igrv '-laves. lí’ íhe-teríu, proS g by increase, eoiílcl be consíra---.cl :n par;-: 10, to be some other increase than that of .-Wres,, is is i ;;re o"-.i dired c.reacts vocally what is meant. It vcunoC be u~> Jc.'j-I otherwise than drat she is to dispose at her pieastue re rév n.-^i children boro cfcrr t}iede<*dc</p> <p>impart 1?, the trustees, aiuor her death, are to possess and :; .5J. tha negrn Awes for th- uses, &c« — -Why i» the word, ia-ererere r-ot Lire used? in u because by park JO ati-I Id, the 5b-rerere js given to the ferae.</p> <p>N J3, wiser? power is ¡rives: to her to dbno-.e by rdu, fh'-. tows, * -re-re r, is omitsed . p,>d j.; was properly sredtred, be» '.jlt.w a. i,.v tV. ire re-re, the rseded ¡rt? cue!*-Mi’er, tiiai beiry dn-a *y --vetod in Let ly psrt 1<?«</p> <p>The .'vovsbi. winds the ingenuity of coarse! have thrown upon this ns-*:doR, is produced byreffening the words, /.-reíts by in* crere, f>■* i.V ”,7Crds, negroes and increase, menuc-ned iu 1,0, re-i re /í should be lesnembtsx’d, that the last aatecedct.t is in psit 5:0, imisi.JLtt.Sy precedes the sNailse words,pnjsts b?j ¿¡¡ctreec, Tkeru is no irele better established tfcsm this j than .ve/ic rclf¡<¿ adprexi¡m:m mtecedeTis refucení. if this míe be sp« .piled to the deed in queaskm, which seems to have beep, draw a with íjacom-rtoa accuracy, it will dispel all the áoübts which Lave ;• c-'-'r-' ?»k-d by referring the tosas to a remote «tna-ecdf o' ; ior then, a« rl:;?iiy -as can be spoken in our language, she vuit Le KHiirifd to profit", by increase of she negroes, and no one i.n.’ore cistcsii-.v -will he.found in the whole deed j and every feat of the d/'C'J, resort: the word, increase, is used or omtfmd, will be fresre jdcie’y reqNréored and accounted for.</p> <p>As to icbt yiu-sEJon, whether she is barred of her distributive tihi-rv of tro property he acquire Í under this deed, it is to be ic-w'srl'ed, tl-xt «ontcpcts in prospect of marriage, ase of various .drees: sornas estilo specific property! others, covenam \a> yr •; money, or setde property or money. With respect to those; which settle property specifically, some of them are in bat* of the fis.'nr.a claims of the wife ; and some of them operate as a purchaser .her fortune and future acquisitions. Such as operate in bar f£ her future claim."-, have ‘¡hat quality, not merely because ire y see -re! dements of property in p* aspect of marriage 3 nor indeed río they derive any part of this quality from the consideration ti’ ¡-I they are seH-sments of property between tfee husband wtl vp’fi; 3 bu* solely and only from the consideras ion that tb" p&nb.s Lave nrer-rer! dtsy shall be in bar oi heir future cLiras» And such .■'tircemfut must be evidenced either by the express terms oft ¡e 4-'01 that they shall be in bar, and of what fmure ch-imc psr-i-f* wthiog will bs barred unless Included widon tfce í xtent of the terms made use of: For instance, dower will uot be bane<l by a inarrir.ge settlement, when it ixcraes by the death •-.f the husband, unless it be mentioned in the deed that the set-dement is to be its bar of her dourer, or unkss that meaning and raíeoí is to be fairly inferred from she terms nrw.de use of in the deed* In G. Do 2 yoL Chancery Dower, 3 E. it is laid down it em Equity Cases, 152, that a woman shall not be restrained fjo;a having her dower, v/hi-re the husband makes a setthment up- • « her in consideration cf die marriage portion, if it is not ex-¡ti • r.ed to be in bar oi dower, and it does not appear to be < i-ptwcly intended. If a settlement by him oi Ids estate, in coiuN der.ilU'.ii of her portion, will not bar her, how much less will she A; barred when he settles nothing of hia own upon h-r, and gets !?y the settlement, half of her estate? & Atkins,' 3. 2 Verano,' 3S5, E. Ca. 213, 219, support the pilnciple, that she is not barred cf her dower, unless by an agreement cleatly expressed, ov plainly to be implied from the deed. The same principle cp-plies with equal force, and is equally well supported in regard to hsr claims upon the personal estate- — her distributive share lor instance ; it is not barred by a settlement unless agreed to be so, and that agreement sufficiently expressed. In 3 Bro. Ch. C. 3G2, h lease-hold' estate was settled previous to marriage upon the wife, in recompense and bar oi dower ; and jar a provision fer the wife, the husband had no real estate ; and the question was, whether this was a bar to the wife’s claim of thuds; and L. Chancellor held it was not. Though mentioned to We for a prevision for the wife, yet not being expressed to be in lar of her thirds, the necessary agreement to render it a bar, did net appear. 2 Vernon, 725, 1 Aik. 439, 1 Vernon, 15, ‘ate to this came effect. Another circumstance very material in the píesete oase, is, that there is no case to shew that a settlement of the wife’s estate on her, or of part of her escale on her, has ever W-cut by construction, made to be a bar where there are not 'X-ptess words: 3 P« W. 199. P, Ch. S3. 2Vera. 53. 1 E. C. yO. There is no agreement expressed nor to be implied, from whet is expressed in the deed now before ns, for the purpose oi' hairing any claim of the wife, whatsoever: There is no s-ith thing hinted at i And if it be a true rule that she cannot be A'r-ted of her thirds, unless there be tin agreement for the puipcse, Ara we may conclude that she is not barred of bar third.-, a< moiety of his dying intestate.</p> <p>Then the next question will be, can he be considered as a y utchaser of her fortune and future Requisitions, under ihb «Ned ? A man by making- settlement on his wife, may placa himself in a situation to be considered in equity, as a purchaser of her property ; — but the» in the first place he must male the purchase by a settlement on her, of his property, not her own.-SrcoatHy; It must be agreed that «<? shall be conshseml as a, purcliMc-rt Thirdly ; tnertt must be such words isseii ?3 ¡;■(. H'ifS'-'uíú- to shew it. Fur tmotjort of the first polar, hi? died $. p. ff, 19S. la support of the second, he eked 3 Fonb» 62£, Ana bier, 692. 4 Viner, 40, P. Ch, 209. 1 Fonb. 310. 2 Verr*. CA 3 C. B. £90 j a A husband ssulss, a jAdiwre suitable so the pshtlos yf his wife, which consists of enrosan ir» action, and the in-?’'irifstnc.T sv>i tied,theUusbamd«lies,híe szeculcr shall nothsve tho«« doble, or tí».? Imherkancc, without a special Eigrceraeaf for that pur • ¡toss, th-ru ph th.e husband left not etlierabe assets for bis debts, ’5 A-:i In supporc of the third point, mmrúy% that such words ur<ia¿ be used in the deed as imply the property settled to be for her fortune, he cited 2 V«z. $77. í E. C. A. 1/0,70, zs to say, thus ha mnlres it in considero,iicn of her fortune, or in lieu thereof, t Vernon,“ Vernon, 68, £01. 3 P, W. -3;", 3 P. Wo 6G5, 2 Atk„ 443. 3 Atk. 20. There is uo such, agreement here, ci-ther expressed os Implied ; and therefore he cannot bn eonHcJeirt o4 as a parchasen The settlement is not expressed to Le raude «? his estate, in consideration of her fortune, but fur anü az cost* 'i'd.eratien of a marriage, he. and for settling land, negree?, Etce : A estate of the said fane Innis»</p> <p>"Wkh suspect to comxmaats to pay money; ks they he cotí-ríante to pay after tbs death of the husband, sad as he leavso her t?s mush by will, os- to devolve upon her as her share, 5tl& a pet „ jbrmance or s-ifisfaction cs’fhe conversant s S Atk..419o 3 Vc?u, '109. 1 Vezey, A 1 Ves. £20. Shut if die convenient be perfore:.. dels In his life time, \k 0 debt; and debts are to be paid first, and, ihs Gurplut; divided — -sad thaw she is to be paid, ssd to divide the surplus also ; 1 P. W. 324. 51 Juro. C. Ch. 63o S 3ro. Ch Gh, 384» 3 Him. C. Ch. 8£. Here is eo coves*snS for paysaeA of ruouay in she lifetime o£ the husband ; and the orij consider», siten roscaiidaw, is whether there beany thing gives to hería ua= fiisftrticm of her claims. lie has covenanted indeed, after his deads, this his. executors shall pay her ÍSO per sesione, for her life. Is will not be pretended that this covenant vtss to bt: ?t.z a pinchase of or in bu? of her future claims. Et vas covenant» ed for the reasons sad considerations expressed as ths causee of tiizZ deed 5 and it has never been performed, for It is Ahaltted by the phrad'ngss to be in arrear; and it is hardly denied, that lie had nothing wherewith to pay >r %• and for one thing to be m «. tisTcdon of another, It mast be of equal value s 2 V. SF, 40®. .2-Verm. 4FS. 3 Bro. C- Ch.,íC0. 2 Fonb. 883. é V. jun. hi 1. It must be of the same mature ”, t V. £21.. 1 P. C. S9é, 2 Foot. 32/. A.ndi It must be rouaiSy certain; 1 Y. £31. 2 V. CS6. P. Cíí. 384. 1 P. W. 403. *5 P. W. £53, 616. t V. Í26. 2/>t=„ 300. 3 P. W. 22'/., 1 P. W. 410,14th ed. The lot, wharf sud. do not answer this ¿cscripdoa; her iater^sS tfcsreia b*1 contingent, depending upon bus death before he A : .ft ;s a Izo for her life only ; whereas her moiety is fore - (t ; They are of thfferent are* ives; tor one; is realty, and the o.Iier personally ¿ and tiu-y are oi very differ-:ot valuer» — -How a. t property to ibe vsiue f>f one hundred pounds, ever be p/s.-un-.-i to bo iu satis* iaetion of claims to uioperty for ten thousand ? She 5". c.mitkd to the annuity, berau-e be has m itUer given sor kit bes j>.i\ pto-perry equival-m rhej eto ; and she is es-TAd to he; dure h.u: ;,v.i share, bsrause there is nothing oves;., resting aside *.tv-. .v. ssr.r ibr an agreementthat the settlement should S'e its bar winch be has given oi his, in exchange for her cb-im*. Sls<* uevei h.vl any interest in the lot, wharf and island, because dUe sutviv*.d the husband.</p> <p>As to tfce objection, that the hnobandV trust csitte i; not subject to the act oi limitations, a truot estate in personalties is as much subject to distribution on the death of the intestate o«n.~ 4-í, as a legal estate in personalties is; 2 Fonb. 15. 2 Aik. 2GG, 299. 1 Vernon, 204. 1 P. W. 109. 1 Vez. 23A</p> <p>The ca-.es cited on the other side, belong to distinct classes 2 Some of them are cases where the husband has been ccmbdered as f. purchaser, by making an equivalent settlement. Such are í Fonb. 92. 2 Vernon, 53. 4 Vine;*, 40. Pre. Ch. 209, 33, 312. 3 F. W. 199. These respect his claim oi that which ivas her’s ; cot her claim as in the present case of that which was his ;' and are therefore inapplicable. Some are cures of satisfaction, where the question is, whether the wife’s share shall be a discharge cf that which was covenanted? Gush are 2 Vern. v"09. 1 P. V/. 324. 3 Aik. 419. 1 Vezey, 1. 2 Bro. C. Ch. 95, 394. Here it is contended that she is barred of her share ; not that it is a bar of any covenants he has made ; they are therefore equally map* ipiicable. Others again are cases of performance of covenants tor th-i payment of money to be made after the huab-su’s death, xnd which are deemed to bepestomed by a share of tq*r-’ value coming to the wife, ouch as Vezey, ¿20; but here they cc.mend that no share comes to her. Every case of purchase of her pet-t.on, s?.‘isiacflon or performance of covinamo most kc laid strict-} they are arranged 2 €. B. 2 IfL 10, 3 D. 2, The car.es r. Such oars be properly cited are those only which tend to | rove that a to; dement on the wife is of itself a bar of her claim to a d-isui-hutive share of her husband’s estate : And «-.very ceae of that class will be found to stand upon this priocipie — *thaí tbe wiie has agreed to accept of the settlement in bar oí her t-l>are; and that such agreement is expressed u. sufilcleniiy implied in ihü deed of settlement. — -A settlement alone well re the hush-iiidV. ertaté will not tar her. The case in 1 Atkins, 4-39, is ured ■to be in bar; and the Lord Chancellor relied upqn line, .uhich. he ire?d not have dona, if the tclgL&isX of s»seli .z «, i. -=. The cunte vem-’s-b" rpply to 2 Tornos, 72&~-=4 Yerso'i, 15 — ¿ 7'v„ 55» The Lord foancrifor thought k wvfol be is No «fo 7í 77- o'j ltd doiat ao vn km,y if the dtvd Iia.i .cid ifos.-i" ,; v...; :v.w ;’k i join-ar>"„ r]:ne>uHsc principie prvu’s in c; ws oí ■cj'I &.i«. cenaos bo. bated, although there be a settlement iu-: tv’ C'í'-I to be «a !>¡t — 3 T* '.aow. 335 — E. €•» A» fo»S — -3 Atfo 0-3.".. r. E. C. Vfo.</p> <p>jwlge 'Lock seem*:J to í.hív_ it tvas needless r.o co?ifoi;>v vfo<v td,¿ v rwfo. .'e-ííe y'as OT.tb.ku roíbe Í£str¡’e«.M ot’xhj ib,.o;•<•*.».% £7; ib'* deed Jíwcis, íbaf: rt hv d-vtls ahe may dispose o" Lriy, &n ao.l the other half or remu,.m>ig pe.fi of the ■•/aid knee, Ne groa: and ether ihe pcruyml e:¡c:e cfeiic said j-'he Isifo, to for iwí-1 and belief of the szid fowfo, foe. par? 14; r»<J :v»..-v fore fo she w*s eiiti:£'-c‘- to foe ina’¿?ee, bvfoat-s foe half winch a",;.-. jfogfo; fiifaji. .s... oh by folk Src. tuat was a part of her personal estate, and Sxdotv-etl vaiv? ibh ckuse to ¿he husband. lie z: cíate. .cvfoifo ató-- w r/«s vOTeu of her distributive share by the s-cvilfeancnh</p>

'’fpHE GFi.se was IVIkllfoEisle deposited money with ’Bt!> A day, and applied to bine for part of it, who trnswr. ? t5 for the residue.— He did this, and i'iidt.cBsle gave an order on Ik tccUy for one thousand dollars; but it was understood between k .Yiitías and ICrSetsie, that 2krclsy was to deliver a bill for is on Mew-Yorie.

<p>off HS war, a bill in equity. S’ed in Haiifar. court, to whkh íbera ,« drtnui'rw. J - ..o'- Whitehead, the b'isbaixd of the :.r a:-pN'iunt, a^-ld a tract of land to Clinch in 1T3G xud died in 1783» The complainant filed a pc. Hi on far dower, in Us ' sepuior roar? oí bw in ‘1786 or 1787. — .The petition woe heard a&dihe pray-'v-¿t »>nt j'i in or about rGi.v. was put into cr her dower C-fos by a she? iff sod jury, and Las ever since coti-sia.u-c h nosss.-sskso s C’iacli died while this petition was ptnei-t-TIN b-ll is brought to compel bis heirs and executors to a -t lor the nttsne pro tils front the ¿cali, of Jacob Whi:--hr?-5</p> <p>First; without come cquitA:. cid unisone;.*, ss defender, to dcialring tide deeds, their loss, or i/h-rc a die.'-os cry hoes the defor.dar.t is necessary, courts will rot eruertuir; bills to account for mesne profit's, but will kav-j vtiOTM to tbeir remedy el law ; 2 Vera. 519. 3 Aík. 34C. 1 Aik, >24. No such equitable circumstances exist in this caca, r.cr ,»re set forth in the bill. Secondly j this being a case which or;. .„'r»s>ted before our acts of Afeeirnilj’- had made any alterations in-che English common 8? statute W- respecting dower,.it rmistjbe decided entirely by the English law ; therefore, if the defendant 3 writ or petition for dower at law, dies, pending the snii, the druKrues are lest, sail judgment will be given for the dower-2 3-i-. AJ>. late edition, 3u4>, etpassim 592. — And though; thí"c..;¡e‘j n'o vesy numerous, -«hen the plaintiff or de.fench.ai in a suit at l,i >v for damages fos died before its determination, it. !m -always been conceded that the damages, at law were lost, and orpiny heir never given relief. The cace iiom 2 Bro. C. Cha C-20 is entirely different i out the present • there die biU was. first bnught for dower and mesuo profits, io a court Os equity and rot, in a court of lav;. Thirdly : no naesao profits u-vi dh-. nv,;'r; were recoverable si common law in real actions of dov/er k one. on the raiste”;de that they were necessasy to enable the taunt ir. possession io anrwer the ?r«is of the iord.-^ — • Tb-* ou’y 1 aw which altered this pri>; ip le as to writs of dower, it. íh.- ¡.tamil- of Mania, 20 s L S ; and that only gives damages, er rn-nne profits win re the iu.iba.ad died seized of the land. Co. fo;' .53- ¿ L. Ray. 1334, 2 33a. A b. Tide liowar passim. No i a..:- c-ik be produced, whose the widows. whose husbands did a jt Cas *t«3wr* í*r t,L.t‘ Janu of which ski proyvd í!ow?:*, ’•¡•c'.ver -l sacase- profits, cccccot when they are revcm-t» .%«• m Jist very particular. Í3 3 Bro. £h. C. £04, no cArr-ages c. pr^yvjí agaiast a parthae*? ja the haabaná’» life tíme. ¿uubtin,. 3V, n b:il in every osií,:cali? like the presen?, was reveist;.l by dies whole court.</p> <p>JLn to tbs remecí y, 2. Yctaon SiS„ 3 Atfco 810, 1 Atk. 534, relate to ráeme proiis ia eoüuaoa caser-s of •.'j.jcíiaení', there equity will not It-aerpcrje unless the case fa. Wte oh equity which the pmíy csrool nu>kc available stkti. Food. 12. it Is sevurthekes tree that clotru- sod aur-oro .-dower s.re pectiSfatly subject of equity ¿«viadicfan, w’ubf-ci, au/ Alegad 3*1 ;■£ equitable ciu-cuííf*;U:LC<.-:-. X For.b. 1¿‘f, fj Vi.c. fa: , 123. Motfoed, 109. 1. Ves. 262. As to the tight, v-í cosii-:1.' sot for a legal one ; fat is he admitted íh".c iLrac.yoi ore gom ; .lew by She death of the deforceor, ¿-.id with cbm i he kval right-. The right ia couesienee remains, and c-qfaty vril recograce it,:■ - noil as in the fonder case. Where";-*- the law is slLw.c L therefore inadequaie to the attahuueut of justice, smúly will ir-oc-rpcse. 1 Foab. 20. Why will equity usbjeci ífc¿ cj-veuior (.:: tin executor to a dnasiar-il committed by the Isj-bi ero cu tur? 3 At!:. ‘¡37, Because the law is defective in rendering justice Uj the party. Why will equity subject i be nipreaepicrivts of a ¿fa-íwuáaaí, deforceor or waster, or decree io.* the eciweccntsumg cí o (fa A plasat'nT? Because law is iaecfaqaie. 'Way give com pousatir.u to the widow, for the detention of be;,- cower, although sfcs has act demanded it ? 2 Fro. Ch. 682. Because it is fast, sad the law has net provided Sorb. Why give account for w:.-2£se profits when the pfaiíuiü: fa.'. ncc uttered? Because ¡.ho low will not. 3. Alb. 226. it were enditas ¡-r» cite cases which are the ¡feveit of íiás principle. I? ocir cuvaafas to asi: if she be sr«it ia cucissiesice entitled ? She fa etui Ad it*;* the satne ro:is¡ ■-., .vid «pon. the same grounds, that a iH.-jiatsi? 1» In cojaenon cane., of ejecw.c;"1:; hecaute he has recovered tísat which Aloagud c ., far, The case cited iVom Buafary, A, c-c.-'-Y: i.ca to Le r-AA: ppou ; it it a chert, ioobe notf, CF.r--lessiy '--h. ijoirt dev, :•«. :-i*r eis'cwBsianees or argumestíi, s*nd b-, cr-ron7y «meorrect l-.i po-are píticular», and therefore there is reason to drubs it In Th Is is certainly incorrect in aayinfr tse widow errsue r nave r.wrsn yrofits but from the time of »!:•- dentad, v.i--.-, C. CK6:A It. is ai so incorrect in sayinsq that as she ha* ’-U" and js pi/csc.sa'.O'.-i, she mav recover the mesar orr-íus. ñr«-, Uaríiay-fc:, in dower are accessorii! and an sop tr.d.ige of the princip; i j Jjgraeni’, like damages in debt, and cantíos b“ recovered in a. Eííqjeiate action. Co. Litt 33. Wo iastanc--. cun be adduced of ? recovciy of damages in a sepa, use : h he cine theu incoaoet i.i these points,- the re*..A. —w •e’x? «■ equally so, lor tUmagre or mesne profits are tv cover?ble in eqooty, though thtj husband did not div seised. 5 i.vii, 403. ?. E. C Ah. 388. it is mor síícu. to say to a disoiue-rr, resist'the just claim of the widow as long as you can, ami irk-' the proñ-s which belong to k~.'} neither hw nor equity wí‘,1 tnr.be you refund them. It dúo be k,AT ?nd equity, it is not very good sense 5 common sense v’hy, the profits equally beiony to her, bum toe death of the li • 1. baud, whether he did not or did die seis.-d, audit is equally a wrong to her to take them iron l-er. Sp/vas of jurisprudence are systems of principies, nc . of cases, anti we oLcíuld try cases by taenu ©?« horet in l'tern., hout in artice. SYír.ciplo íj the magnetic needle which conducts to i!.-, diccovery of L-1 rae forget the temerity of a ncctlisg, and guided by principle gear npon • the wings of the eagle. Why l?r the t'cfoice&r I:v.v> the profits, when the husbacd did not die seV.-d ? Because, say they, these are to answer the demands of the lord. And, I say, when there is no lord, let the poor widow have them rJL he deforceor ought not to return them, to answer demands which cannot h. made.</p>

This was a scire facias [against the heir of Williams] to subject him to the payment of a debt recovered against the executor of Wm. Williams, his ancestor. He pleaded that he had nothing by devise, and as to what he had by descent, that he had in 1796 mortgaged the lands descended, to certain creditors of his ancestor for eighteen hundred dollars, and had paid bond debts besides to the value of the lands.

<p>tep til'd -ir.\% a cci.fa so subject him to the payment of a debt rs~ covered .igain&t. she executor of Win. Williams, his ancestor., píeate-d diV; bbad nothing by devise, and as to what bs had hy docc'íüíy tlut lie had in 1 ‘¡'Mñ mortgaged ths lairds, descended to certain creditors of his ancestor for eighteen unasked dollars,! •.‘.rid hid paid bond deh;s besides, to the valúe of the lands. It appeared he had in 1S0Í sold >:he equity of redemption, and these questions arose as to the value above the debts paid for bis aii--cestn-— -First 5 shall he pay interest for the surplus ? and it war; held by Marshall and Fetter,, Judges, that lie should not. Secondly; as to the value shall it be estimated, as worth «t sha death of ’.ha ancestor, or at the time of the mortgage, or at th& P.::s of cr.e in ISO*. ?</p>

<p>■plliS cause being called for tria:. Woods moved to add a pilen, and abated that since the defendant pleaded, judgments ate beer; ontained against liíái to the amount of the assets m hC ii.'.nn' a.</p>

Plea, the act of limitations; replication, that the intestate assumed, and the evidence offered was that the administrator promised within three years. It was objected that such evidence was not that which the replication offered, and therefore should not be received. To this it was answered that an admission of the debt by the administrator takes the case out of the act; and there is no other way of giving the evidence to the jury but under a replication such as this.

fr-pHE declaration stated, that Hamilton's agent bad sold a Ne- -*• gro for Hamilton to Sanders, who was sued, for the increase ? in consideration whereof, and that Sanders had promised he' would defend the suit; Hamilton promised that if judgment should be obtained against Sanders, he, Hamilton, would make good the damages ; that Sanders did defend the suit, and had judgment against him.

'TpHIS, was an ss.ction of waste ; for waste alledged to be com. mitted in the dower lands of the’ widow. The plea was, a© %raste committed.

PJECTMENT. The defendant, under a deed from ids father, toot possession twenty-five years ago, of lands then included in Pollock’s patent, and has continued that possession t wy since.

rT'HIS was an action of the case upon promisoiy notes, and -1®- ple ie adminiatravil vas pleaded. Upon evidence, it appeared the property was sold by older of court, by an auctioneer in the town of Newborn, and for Jess than its value, but not under any other circumstances of unfairness. It was purchased in by the widow, who vas the executrix.

TTPON the bill, answers and evidence, the case ¡appeared to be — -that the testator by his will, charged his real estate wuh the payment of his debts, and authorised a sale by Lis crecutojc, !b case it should be necessaiy. Smith obtained judgment at law in this court, in September ierra, 3 792, for about seven hundred pounds, with Ely of execution for six months. At that time the executor bad F.;-'ois to the amount of eight thousand, or nine thousand dollars.

<p>[This was a proceeding by.Murray & Murray against Marsh & Marsh.]</p>

<p>Case 3STo. 8,656.</p> <p>Equity —Fraud as Ground por Setting Aside Conveyance — Allowanoe for Improvements.</p> <p>Misrepresentations and obtaining a bargain, in consequence thereof, disadvantageous to the party complaining, is a ground in equity for setting aside a conveyance, although the party imposed on were of sound understanding, and had time enough to detect the falsehood before he made the contract. But the grantee shall be allowed for improvements made on the estate.</p>

<p>Case Wo. 6,990.</p> <p>Hejii — Liability fob Debts of Ancestor.</p> <p>If the heir, in an action against him on the bond of his ancestor, plead nothing by descent or devise, and it be found against him, judgment shall be de bonis propriis.</p>

Scike Facias against Heiii — Rights or Innocent Vendee. A scire facias issued against an heir to have execution of the lands of the deceased, but before the scire facias issued the heir sold the lands, and it was held that the purchaser from the heir might, in the name of the heir, be permitted to plead to the scire facias that the executor had assets.

<p>Ty TENT-MS NT.</p>

<p>*yTlOYKit for v:-” .--rr'.y ñ'IrtJyd tetero hc¡i Ny 7" ite-- ‘, is; Irv', '.-iío tbií r>I=!u!;77 To.: '.v\ ' v-,-, „ t.’.v. A .'t . v >te. h’ate.-.te, n;.!Í 't!i 7 . > w > 7. ',■■•. ! I V X '”.7 at ■•*••> t : ; anace of :7c V Mitetec ¡te-. r, .. ,i : ■. 7 ro l ‘ ■ irte ’ s - .. :t•; i tef irtei V. ;:tn r’f.■•, v.y ^ :<:‘r-c ij«tea, ..:,S ¿7. ;/o te-vite, 17»re t."’•-■e of the eo!,»> Í II ,'.<vs «¡iwi» ; -■;) '.vns I'.joo' ; '..n. 7»! ■: '.i'-i'..' uutute t'.a;vj;. '. ; no g1.'-. ■_/■•. a- ■ ’hi-nGna, Ufaría „i;ry'-7 i a ,,te ; ',te;?s- — e.ai if... ' : : aa tr.i íieitee-y tters ni'r. titee y' eft, ¡tete mus1: te‘ a.art-, vak-i't «’ it; .v> y’---'>7; Ve h>.y í..i ,1 ¡-í'-.t:'.!:, or of a a á . ti e. ry>o<l ■ *»•«* o1, ¿.he waste. hlli oí -, of a rtei.. r, a. .a tel ¡i- -‘j'j ate is ev- ry other t 1% jRodu.a..-, ite te: • 1 1. utente v.o’'f.&;e-ssL'i or»uy pm ; rve cr.ny teteym; c.utetem</p> <p>te:n ;> ¡ yete-teca] dalir-ny,, i? .«■ -r lateen te s ] 0 i .v • t 7 ,»ny sn'.‘'i ia í!u. cva.- ui of p, •. ; j :/yi ■ ^ t 7'bty ck •«': S 75L C. 4 n, To:l 7 7;'-c ñ jü;.i 11 i. i ?, 7..,.'.;-i-ii, ■N'.-’j í 7 S Aik. fjt'í. Í3 Ves y, A.;o.</p>

<p>TpJECTMEHT. The defendant was in possession on the first of July, 1784, under a grant and deed of mesne conveyances. The person under wnom the plaintiff claims, came of age in the month of September, in the year 1790. He sold to the plain off in the month of October, in the year 1793. la the mouth oi April, in the year 1793, he went to the house of one of the many terretenanis who had settled upon the different spots included in this large tract of six thousand acres. And it is inferred bn-- the plaintiff’s counsel from the evidence, that the. defendant, with the other terretenants, appointed an agent to pur-rlnsc for them, the several spots on which they respectively resided : and that in October., he was at another meeting, where, was the defendant ;■ — and there all the terretenants admitted the. title of Pollock.</p> <p>I am oi opinion» that if reven years be completed at a period of lime, occurring after arrival to full age, when part of the seven years elapsed during infancy, that the part/ has three yearn from his arrival to age, to make his entry or claim, aud no more.. As to the second point made in the argument, the act requires entry or claim within the prescribed time; but it is urged that such entry or claim is dispensed with, if the party in possession admits >he title of the claimant: for why enter or claim, to ■ l"*-f'3t or present a title, when the possessor admits it to he in bis adversary ? lam of opinion, that a deliberate avowal on the part of the possessor, oí title in the claimant, or a serious assent to the validity of his title, will render an entry or claim 'unnecessary, and is equivalent in its effects to an entry or claim.</p> <p>There was a verdict for the defendant; and upon a motiar ("m a rule to shew cause why thye should not be a new trial, die counsel for the plaintiff argued as follows :</p>

<p>r|PRQVEK for goods, and notes for money won by gaming. And for the plaintiff it was argued, that though under the British act, and according to the cases which put a construction 0» it, the plaintiff cannot recover, because in pari delicto potior <tui conditio possidentis; yet that rule will not apply to our act, which goeth further than the Bsitish act. in this, that by our see sot only the security but the contract is void : And by our act. also, the transfer of any personal chattel, to satisfy or fay money or other thing xvon by gaming. ?3 void. By the British act, the payment of money won is kit at the option of the plaintiff; and if he makes it he cansar, complain s But by our act, the payment ss ravaereii void. If so, it passes no property to the receiver, and he gcicr. a oaired possession o-Jfy by the transfer, leaving the property in the lot* v. And why leave the property in him, u». ie.-.c F,.y cm recover it? Of trbts* ese will it b«, to say that the wwwdw bb»U be ”cvi„ if the plaintiff cannot hiere an action to as» *wt Sri:? right of pny-^ty | 7 fee transaction will be void ia ■words, but k? se»iky nnavnldiibk, for want of die means necessary to its í'vrcí.'-ECí!.</p> <p>that winning a thing staked up at the S;me, was not within the prohibition of the act} and it it was, at the j’cAitNF, who is a violator of the law, shall not be fiewd So comp?-..* nd s:.i„' enees of bis misconduct.</p>

f jnHIS was a bill to compel the defendants, the. executors of * Thomas Hdl, deceased, to ¿Atribute the residuum oí his estate undisposed of by his wills aad iriso a legacy which had beea; kyw-d r«?; the death of the legatee in the life time of the testator. To* ó^femb'.ms demurred,. end insisted ia argument that the. ■ vou-r-q/ sought to be distributed, belonged to them as executors.

YliQICTMENT for passing counterfeit money. Amongst other things, evidence was given of his having in his possession five or out years ago, stamps for making impressions to the similitude of dollars sed guineas. Having been convirtió, a new trial was moved, lx cause one of the jurors was not z freeholder ^ and this not known to the dmendant till after the trial.

!T'*HI5 was aa action of trespass quote clausum, fregit, and tine . -*• defendant pleaded that a common way used by the neighborhood and leading to a landing and public road ran through th® lauds of the plaintiff 5 and that it had been usual to repair it by cutting tsmGbey foy the purpose near to its That the trespass «rorsp'fósieá of was for cutting needful timber for the repair of thin common v.-cy, and near to it, Per..

’O ARC?» AT made a note payable oo demand, the 10th of Be- - cetnber, 1801, to Howard ; be endorsed immediately to. I.ondon ; JWclary faded, the 2*th of January, 1802, and had not in that time been applied to by Lomba; ier payment of ibis note, ubpugh in the interim ho had received rouaukvahle sums of B ‘cloy on oih'T demands, an.d had viven him credit on oth-5 u.voants to a .•onnid'Tdble amount. iTth lived in V/iimhjgtoi:..

rr,H?i deffEidint pleaded, that after &e espjtraü&n of oee yrv,, he cidrrn rd. over the estate to the IfgsKe**»; and. that rAo , w-*tei ’!Si?gin''ntJ nere oh Aistil against the execute r 5 aid A« srcr«*-t/ co (I< livrred o\. r. was tak~a tf< aatisiy them t^í í bu ih-? sserjri'is, &■ B< marres sheteío»

XLLTSON is the administrator of Howell, who was said t® -‘•VJL be a lunatic. Howell, in his lifetime, conveyed the ne-groes in qurstion to his sister, who married Millison after her brother’s death; but before his death, had conveyed the negree» by bill of sale, to Nicholson, in which was a clause of warranty..

<p>Ejectment.</p> <p>THE question here was, whether a naked possession for seven years in the defendant, unaccompanied with any color-able title, would bar this action of ejectment.</p> <p>I have understood from old and yc"y respectable practises, that in ancient times, and until with-la this few years, a naked possession for seven years had al= W-- been deemed a good title sti ejectment, either to bar the ph'iuifF, if the possession had been against him, or to recove" upon, if it bad been with him. The second clause in the wefi of limitations, has a prospective view, and regards cases arising» af-er the act, as well as before» I. was not by that clause {!.< s naked possession required an entrv to defeat it. After the coa» Srmation of imperfect titles, the next thing considered is a ciass. v>F cases in which there ;s no colorable title $ and there the entry ©fitina who Uas title, is required to ue made within seven years. If it were intended to make it unnecessary to enter upon a linked possession, the legislature having just before spoken oí co-lorable titles, world have introduced the same idea here. Taeir omission is a proof thai they did not mu nd it. Tet it lie admitted that the second clause respected ‘-.listing or past cases ¿ then as to future ones, this act is to be construed as if the se-nnd clause «rere not in it — And then what becomes of the idea of colorable title that is not spoken of or hinted at in any part of the third or fourth clauses 2 The third clause is that which ¡requires aa entry to be made. It respects the titles of those persons, who are out of possession. The one clause is for con* inning tides ; the other is for defeating the m by possession. Will it follow, that because an imperfect title, with seven years pcs-cescsion, is rendered valid — .-that thcrefoie an entry need not fog *n«de against any other possession than one accompanied wit'"» ti color of title ? T his third cLu'.e of an act, is word for word j the same as the English statute of James, except that in our's fee word claim is added to that of entry : the objects of both were the siae for quieting metis estates. Ho colour of title is necessary under that act; and if it be under cures, it must b¡ fos-eóme verj cogesti; reason to warrant such a difference .ii awn ü.. r:t tite act itself. And as colorable title is not spoken of in the third and fourth clauses of cur act, I cannot perceive how it cat?, be inferred from either of the cl.au.ses that colour of title Is necessary.</p> <p>-The reasoning employed its the appendix to Judge Taylor’s Keports, is not answered nor obviated by what has just fallen from the gentlemen for thr defendant: and in addition to that reasoning, other arguments of considerable! weight are to be drawn from the title and preamble of the act,. If we ask what were the objects cf th¡v: act, the title answers, ^ old tides of lands and the body of the act gives preference to that old title which has possession in its favor. The poss-'s-siom therefore inrroducí d, by the set, is that which is intended to establish an c!d title. How could disputes tbout these «.¡d titles, exist, concerning which the act was made ? Ho otherwise than by aaeans of opposite dados derived frota sarnie sovirss ÍMepcntltr.t-o£ •p'T’.-*. ron í — -ir. oihor vcyo-c, ¿y rr-c. ^í. of ,t, o- or romane con-vny»n¡vs muí* • titees* 'XI f wnV <.», d»Ht ihe oíd tutes «pniu« ot in the titie <ú tV.ft ací, »•«? vt»»*e 4i«A;n oí and cntUnd ’.a «,'t second cianea oí the ¿.el which respected them only ; bm if o'u* opponents wil! ín>;,$U'po» t» íuntre u-i,.ra-ica for the second clause* tí*».. ’• wf insir.; by way of a: i.-uiarnr, tb.t if the second cían» e baa su-u operation, the poasoe* ion ro Le c.’oidrd by entry, musí be a possersioa connected with some of dic.se old Htk-e : for v/iiy mention them at ail, if the purnosea of the act Led not a coai-cK-ion with them 1</p> <p>Another argument may be drawn from the terms of the pie— ambls: It expresses that tita act is it:..tie,for quieting otera's ec* taies. Mowt-~By possession. There an estate which ñecos confirmation, is n, ueconfirmed by possession.- — And Low could that estate arise at the period of passing this at.» ? L * * «uleí nofc he an «state acquir. d ¡jy pi-sressi'-a j for then these was r.o need oí í.he act* it bcíoi e n, an estate could be acquired by possession., It must have been as. tziJts then, acquired by some colorable itioaris. It is very tras our third Ha use is nenaod like the act ot James, except «. ••It the difference pointtd out?. but in tbs fourth ciau-te, i’i.ur n, something which baa ¿to ;U;r.;,s an úit &w, of Jumes ; hut that all possessions held without seeing such Csdíaa as aforesaid shall be a perpetua! bar against :.!1 and al* man» rer of persons whatsoever 5 that the 4t expectation of heirs romp a not in a short time ¡¡save much hind unfjcs&ci.sed, andtmes coper-44 flexed that nd one tj ill know of whom to tale or buy lands. £i:i 41 that all possessions ¡Uld,m See. joV — is an immediate ami u ide ¿ii. ference between tbs two nets. Under the act oí james there is no enquiry made respecúng1 the possession of the dsfetsdixt, but on ir.e contrary it is, whether the pkúnx:'fjfhas possess» ccl within the dire required; Bulb K. F 102. But by these words of our act, he need not enter at all unless an actual posses» sior. ia held against hita. Ayairs, the act supposes that nnltsa po.Ev-usSiOEi were allowed to oredure the effects intended, the crept-» «tuon of heirs would leave nr-tvcS:knd unpossessed, and sms* midi pet picx-sd. How cculc mis pi rplexity arise i Could it arise at the period wh*a the ac> .'peebs, but by mean;, «f di’ks for the SK.ie lauda int-iffej em y~-i sons. Ii tide v. as f L,; pe;pies» iiy te be shaani.iL mm if pcstussiou is the mean *doi>icda than i; a title supp.u ccd by possei-sion was meant to be rendered suptnor 10 a ¿rile wiíbout su These semuncts issstrted in out act tat-ut notbiag ii dr. legislature intended after were added, UírS the .«ct sbculd have the same í.t.xiStJiutíon. as if would without than; that is to say, tl.-r asme conrtrucUoa as was given to the act w‘ j.'jmus vdiich hsd. thesis nt>t« i>'s h aqaimsg the rules oí cspoaiúo.? to they meant nodiing. ,hty w*v„.i eoritethii.g, and that diSisren*- <r’m what the Kitacic^ v.v.u.'« iwvc b«*'?4 widitut tbetisj o«»f act seáli) docs difict toc¿ •J'.t sc* of í ?a :wir'd znú nseasáng, rad it onbr "c~ j'fr- to £ isuvc: wL.V, L :r cvu* if they c.i<5; ure ■■••. ,!>'-„•».•7S a r/r1'' f'-j;'. wvw c^-muísk b«s«; ib^fi vif>c>> ve heve * 'r'í» ZC-:t tb-iFili H < „• s ífj, thií M'.r pSrj.V'Ni.y ..?> ilusó 'wiUcu Í.S diD gr.'c J t fya oí ;La a-:, w ,CsV‘a:, w.; clvvl] ;o ario-; by ;•■ ';ac* :y\.rz' 2ES*ir tiiaij by cbifersuv titles ¿cr rh .■ c .&:e Srit-Jí ¿a (. fferwr. ptiifaou;,that ¡.oaeecsiun mízi icrcelea 151 cs.rs v/.-voe '> i v-ach gcy.-Crby .v¿ tide Cfiiikl ss-ke, f>3 bo 1. '¿¿5’x-y couidi m’-.j vh,,\ o flv.r. via. ca" oac grcFt. zaú hoi’ sei ».» m sw ccr > vayas ■«..to So* rh. ...me ¡ml ou ride, aad ü„MÜr£ fever, wtked yxs -is ;.m c;:\. -ho y>ji-</p>

<p>'rpITs.S was an ejectment brought for the recovery of lands tin. ~ dur the acts ior endowing the University of this state. After the passing of the act oí 1800, for repealing the said acts, it became a question, whether the action could be sustained, notwithstanding the said repealing acts. The determination of that question, because of its importance and difficulty, was. referred to this court. In December Term, 1803, Mr. Jocelyn and Mr. Duffy, for the defendants, stated to the court their -u asons in support of the position, that the action could not be supported.. — And now at this term, Haywood, for the Ttustees, delivered his argument against that position. The reasons offered by the defendant’s counsel, are not detailed separately, because they are for the most part mentioned in the arguments o/hieh answer them.</p> <p>In 1789, the Legislature, by set of Assembly then passed, granted to the Trustees “ all the 44 property that has heretofore, or shall hereafter escheat to the “ state.’’ By another act passed in 1794, the Assembly granted to the Trustees the confiscated property then unsold; and by another act passed in 1800, it is enacted, “ That from and after 44 the passing of this act, all acts or clauses of acts, which havu heretofore granted power to the Trustees of the University 44 of North-C.-roIina, to seise and possess any escheated or con- “ fi seated property, real or personal, shall be and the same is (L hereby repealed and made void.</p> <p>41 And be it further enacted, That all escheated or confiscated u property, which the said Trustees, their agents or attornies M have not legally sold by virtue of the said laws, shall from 44 hence revert to the state, and henceforth be considered as tbe u property of the. same, as tho’ such laws had never been passed.”</p> <p>In consequence of these provisions, it is imagined the Trust-cs have no title to the lands in question, because they are of the description mentioned in the act; and it is a question for the consideration of this court, how far the Trustees have title under the funner of these laws, and how far they are divested of tiiat title by the latter.</p> <p>It is supposed by some, that the public property cannot be disposed of but by grant, because in líu 36ih section of the constitution, it is directed that all commissions and grants shall tun in the name of the state of North-Carolina, and bear test ? ha signed by the Governor, Ste. It does not say all proper* iy shall be conveyed by graat, cad not otncrwisr ; but when c>.n= wyed by jraat, it prescñK' tbs form; otherwise :í wooJá t ave been uncertain, who should authenticate the instrument, and the form would have beets as different and discordant, as the • n>h;i cus of successive officers were varióos, upon the subj.-ciof the saost convenient and proper form. If the legislature is « liberty to direct the officer:; of state to issue grants for certain property, surely the}' are at liberty to grant it themselves in a more solemn wry by act of Assembly, which is am instrument subj.'ci to more scrutiny and solemnity in its passage, than ary; otheu instmraent huown in oar law. it cannot be thought that ibero la líame danger of imposition upon the General Assembly, in the disposing of public property by act of AsamUy, thaa «.here iu upon individual officers conveying by grant.</p> <p>En trods, the passing of public propeity by &ct of AssemMv, hath beets practised nlcaost ever si ■ -s the formation ui ous oiir .¡litution, and has never been tpxeeúo&id» Some of our nnr-c Seamed Sawyers of former tim< s, who had a principal share ia ¿timing the constitution, approved -'.non afterwards of the mode of passing the public property in this, %7»y0</p> <p>Oaths 18tr: of October, !??£>, cfe, if, a crecí of land wr-n treated by act of Assembly, in Thomas Person, h’s Letra iu¡¿ resigns i oa the same day, another £ry;.¿ h dtdared to be and remain to Tfc.j»aaa But It, hi& heirs and assigns j II tb ei.' April, 2720, a tract is vested in William Houston, bis heirs and fssigu ¿ mother’ hr Hannah Need. Similar circumstances occur in 1; fcO, f.h. 40; 1783, c!i. 33; 1783, ch. 38 & 42; 1734, ch. 71 3 1ÍQ0, eh. 72 A SSÍ787, ch. 33 ; 2789, ch. £6; end divers other ace; passed since 17£3. These several acts, demonstrate an tinny c5 •¿tJiiiment on ibis subject; not only of the profession, and of thes Assembly, which has from time to time proceeded ia this iv¿y .: ¿at of the public, who hi;re never questioned the validity A aach conveyances. A more important qu> si ion is, v/be-.b .. i:. .is true as argued on the other side, that a repeal of the vesting icto, divests the Trustees of ail the property acquked imdct the former laws, which had net been disposed u! when the repealing act passed ? And if we consider either the nature of conveyances, oi of repealing acts of the legislature ; and il we a the same time admit the unttue position, that the Assembly >.;u: power at pleasure, t© re-afcsume the property widen they mvi parted with by their grants % still we shall be oblige d to ccltncw* Üsdge, that they have not divested the Trustees of ibis property»</p> <p>Ir. is inconurovertibly true in regard to the conveyances of In-dividuáis, that if the tide be transferred hy deed or ofáts; k.vru-snout; and that be afterwards lost, cancelled, or otherwise de« r.troysd; that the title does not revert to the grantor. G' rarH Spiral Ávkl-ace, 107, sities precisely.ft ib?. Ifc co-me- anee ,.r-4" by 5í-»í-* anc j-c'-ej.st*, the tases were©r<co <t¡r,ecated hv t?¡í¡ r'b s'c,i.u*e, and tlv.’ > o oí re'urn fo?,cfc ar-b" bv tvrcvdu-g the “• ce:'í 4'' ¿í;rf :n :¡ú? '■viy.y.p'■ y¡ fi, ir- yecyd :;y * Xrírr. ÍOr-ñ at!■-Xa K. P„ SrA I- !•< »>'•.>, ibis /»<«’ y-A* v!s*¿ y. ^wuit rzüUOt.i’- C¡‘ •,'•■ •b,f ’,*'••» i:.„. -i),• . if; ('.OI,-:-’» ' •' í c;<r party. iv!u-. la et -<•}&.’. 'lí-.-bv'-- ín í>i v-~~¡’t•p.rmotbai'úis-?>i;í;úEr A- .c.-hi-ccy *ic." y ' -¡u- ;v ' "> ■<, .vt. o :h« 4» r.r.c *-v . cr, i'*) co'* i [ -- o ’•>- r'-'-o-y1?; ,"T"s> l-v .u1 ?rt, ->':y :h r* -cu asv-'i'-. > »■<-> ’■ > (¡> t fc ib >be íc» ".‘Uifs'-d ñ« r- •> .1.-1, , c< u ;a ps-¡r? ?.•>!', i ÍN. : ■'. 'c Lacovpuia.íi.ii ;n.o : ;• w ryor.-ri jv;>.¡ec ; ctí uo pG'.iuT up''* errth ran rsy-ilitviy ©t •: s <> u, iícrr cct£ií'« ic toen, that a d<- c’anuios» oí ibe bvlUty j A-- ve-s-mg, acts, meda \<-8ís ¿frer the p>haa coknj ; :\k t t-MA«i íun> ti.**. "•-.y;":->a;usvuliont c.<.©"■_-£ oí'che Tvuíhs cht..1! r."T,m restrtp to tV «ate i Sti/pose such a eibesar rd.on es u n" pl*";dj' to ba1 o o* thn'is ©roer ;;- oí cow?v. se- tr-<y; bao bet-E , -o: c'••. .-tih c.« or ‘vnursed íVor-* 0-^ >í?ib¡te rccottls ,> * till ene tule has already passed.- mí tí:;. í'iriht: act was rt~ iqu'ved í.'i i-evest 'th<:.- titles — anac>. \y;. r-d.-h v'sc; eyejy s.-.c, J-it bet o¡«S íb<2 pa•.-«•!# of •L>e l ^«statut'e vo ¡,csrí'-.". re. It t-se cnocs •<:. -r-loi.-; «ívsíi'ucfion o', .be ,tjS''.tíe¡cí eorra:p'>ysi;c, wib not •■c /. .ví-. the propiny. can such a ■c-ín&rsj'c.rtsce be deii-red ;.c::x i'-V; nature a reof s;i:e~ zzí í This questio.j ir eolr'ed by cv;>?i-*hc eítn ct oí ;> tei:í:‘Iv¡uj lift, In coins-w-i other acts, it l -as- not Hnj rofí.-spf.-cííve rior,’ wnb.--; givrti it by espies» words. F «lo n'; <' (.'¥ hat tfüv •;«!« legislature h.OTti powcv b> ¿«sos retrosnectit e i.-ivs, on snHjc- u, lirblr- t-: :Vw;;r ; l ot such an exercise qi power is aUvrys th*. diente oí isnpotioas ;.'.-<v:.sitv ;■ — is in í!í-tU’oJi</H3 ; because k intcricres xtith per» thr.íts v.t o i\< \ n(!j crpecS i'., and is tbtrs fere not acb r,, .c'l, out win :> t-i” words of tbs act an* quivot ally give it such j ■iiranirg : 4 Bu.r. 3-.-61. S Lío. ‘S<0. % Just- 29:2. The ro-yr hpjr'i'ct torn \a ih-' case he lore us. h.v. og n.*< rt trespr cúre r-. commences its operation precistly -«v that point oí time it passed.</p> <p>then b“rmt oí a’? the prf.jrriy vL.itb bad he Tore that Cni." vested in tb« t«? It ro o« t in the 'tas* d'-gree af-ir t»c<’. by Üre re¡>> a'.;.;g act.-, Our opyoai-nia tuy, hoewver, that v-iio avoids oí the icnr X.iny reaum** i-n the u«" o^’ the suit-, all confiscated and ei':h>*'--,tsd iandr. -ic-1 *:*cn «.oitl, ikhottefi yar-rd v/kh before, and .-i'/endr ^T.prr-':¡!/ t'1 ail i'.ntner acqnicttion.' — — and that tho rrpei-.’iiniy act is teX.iy i-rtrcf.ni-1 ..k- *% For a tnr ir-t ct L>- ¡t so .tbvti W'S are to sr.-.nN: rtt obí> w^*t they Ivve tk-re, but ale > (which is dar mors r.ik. ;ita») what tbev had a rigbs H. <!<», And in order to make a lair exper :n-(>t d (hr sxter.'j oi !cv,uia- . jiovk-c v»a tr-t,; úr »‘. e írunsl»:i;rí c*-*intsrlcrs with í>ts rights private property j bow fax with tac- y^cpeityfeeio? - ing t0 corporations 3 and «seo more particularly Isot? fe ñ '-y Inve a cQdtrcci over the property oí the UBivefeíy oí’ Lót?t-ía-C.o*s*.iiifsw The Intangibility oí private' property, Is to fji&if s erennuwity, a principle oí rile highest consideration s the lacfc.-k»yof j<s ¡ahrtbluat9 «lepc-Rda upon it, and the ncctoaaríws i*> " the coi&brto ofSfí, which are results of industry, arc produc»*.; bj a balisfin every citizen, that what bis industry procures, r-FI be p'/culidriy Isis owe. In despotic governments, isoec labor, beraaoci the earning* of labor are not free from i&vaeioa 5 an i idleness ac.'l poverty, unci the* destitution of those ifokigs which ruinler rgroerble, ’eriditerire'i®,.</p> <p>rfos'ih-C.',iod.rs^ will fed by fatal experience, the oftener her kgisfeusc; breaks ift upon this great pafelple, the íutiíz v.'ill eke approach to the repre. ••nUfciow of ik-n;>r<tiam. iofery exam-pís oí innovation which oh% g-vee, will lessen the assurance of individuals ia its sanctity; because every new !«*»»*.€*• givea euw strength to the practicability oí luvcsnri, expos k>g ».o public view the Íutility of the w’úca proiv03<¿& to render prí-vete property inviolable. Deliberate but ors® ks.es. sí, mi fu; consequence of this príaüpl\ anti its veer sangmtudo will tush '¡ipoj the senses, we uhaii bs convinced of the rcecons, why ,ri! wise givernmenrs ' -ve- mecí© it a far.drJiCEE'al Li.jrim oí fere-' political HvJtmious ; &j«5 wfcv in aü irse oeko, it outlet to h.3 die nrcct sacred. Those who argue for this power, can only derive it, either from the inherent rights of covoxidgaty, ©cme ciausc in the constitution of líOitfe-CarosiEsi» Ilf it be a right of sovereignty, it is bernis? Scdus popuB e ,i ct:pres7;a fee; •rad can reriy be resorted to where the marine appl¡ü!~ — ia cares of < EiviYjfeíy 3 rad whin an abstinence frotK tile irec. of ferrete property, wooM eadaeger the public safety. Unries svefe «1. annsiaoces, h is belter tlw.t orre shoníd sraíiFer thansSl he irtriv ri, rite here, the ifeivídual who anñero, so serve the pubí.ré t, - . he eoropeiwied lor his Iocs, because is Is just shaft ask t..-srireeci doe ife benefit of al*, should be borne equally by • - Tiiiis compensation becomes a duty of the sovereign, wííLoua which he cannot rightfully practise the seisur® of private property s Cr- sw that he will do it without necessity Sr without compensation, w-.-julvj bo called tyranny in sis individual sovereign 1 end how la St the. less so where the same thing is doae by a collective body s' Certainly there is no difference as to the individual who suffer. V a Well iri I, C. SO, 244, decides that the right of eminent t!o= svife is in certain eases necessary for him who governs, sad «oaur^ot-ady is a part of the empire or sovereign power i but when fed-? \ iv-3 ¿a 3 cace of neef ssity oí the possession of 3 eommusliy o-; d’rrsi.aXi, tas alienation will be v*15d lor the came reason 5 * w fe, demands that this cessna-jv cxy or Isis iadivkhml, Lo í.-iv'.oiapeassd en? ok" the piuLk íwct.ey ; ím’ ií tfo s«?y <■• í*l a!ik, yet túl the cit;R«:s t.x -ibiigcó to co» smut'- t>.: n ;-fer •«‘i; exj»ac«s of the sisí'* ©eghs to be supported ftp ally < r in a j-itt proportion ; It is in this s» in the case oí tht owing of nur« icb'uniiz- overheard to rnvc the vessel. The assembly of Noah Csfohv.'i, circumscribed in its capacity by the. fundamental law -¡fibs Constitution, cannot pretend to greater pmogstiivts ih-Si tee parliament of Gr^st-BCtak, wliov-’ po^e?1 is Ú us cLscribed' by the most leaturd Brush authors, t lil. C. 160 — The pow-- »a¿ jurisdiction c: {uiliameat, ts .-.u transcendent find abso- '• ivt-r, chit it etBUJi be eoauacd cither for «tures or perron-? - ihhi ary Lou ■&. I it bath sovereign and focoviruvcrubk '• r.u'h.'.i-y, in ra.tfoug, *-or firming, 'tilttgmg, restraiulog, absc-g.uing, sepfeah/pt;, jwiewir.g ¿nd er-pouncing Jaws., concerning 6* m.»ti.crs of alí poiLble do;'.0!E.in<íT¡aii3 — ecck-sTr ic&i or ieúi-“paral, cirtl, tüUWuy, nwiitiuie or criminal: This being the u ukoo where l .is absolute despotic power which must in al?, levcrnmciits reside somewhere, is entrusted by the ccastitu-1.0.1 oí these kingdoms, it tan in short, do every thing tk’t L uot iuusm ly iiapoí'íib’e ; and therefore; seme have not scrupled to cal! its pcive" by a figuse rat her too hold, the ota» ^ UTpotcace of piiilkiricM.” Z.Ü yow;‘dliI however as it is, ?ik« •-j Gods who, arc b«t’ :d í.v Lr; dec w; of fate, it bows _• ! aim c die sac red iiV> >g 1 cl Y’ukh f am «fang, ; ro vt. v<.rci:'.' r t holy íl^hif c»' j '.’ivi.c ; •, h., 1 Lb Cora. SiT.. shews £ i-giid paso io rionot «i5> cays ii.v, ‘‘ 'S c •; ivgcrd of lite Lvv í-a p jtoj eriy, that k wit) not rvLan-!®s the ¡east vfoLr.fou os its do, not cica ios- tie gcncial gou-i of the whole cuiiur.unity. if a s;ew toad, fc»r ircUst'r.e, weit-s to be mad-s throcyh Ü c ground of a {.-luarc -,/.rso.n, u might •'■«'baps be u-ociaTy LsurdsdcL ?o: the j ubíic ; Lo* ¿he Iw ••• . •-1.no raiz or set e>j r.< .n, to do this u Li ouí 0:; •• ooísíc; ol ih'j ’raid, fa vain may it be a-.g'iec, tl;K the " y jo.’ of the luditiduai 0!',t'v. to yield to that or >V. cummuttU *•■ s,v j for it would he dangerous to allow f.ny ¡ • L •! c sacs, oc t: ct'ca any public ttitsunai, to be judge of this conmsoir rood, acá c-decide whether It be t-xpcdlcnt or siou--Beai'!< s, ? ■. fi'u’L1: « good is it;, noshing more t..seut:aliy iati.rewc.1, thí» va the • f rotection of every individual’s private rights, as modelíed by tr-r municpcl law. In this and similar cases, the legislators 5:,ua.; hare, and indeed frequently does into.foie, »>id compel lS the Südiví.Qual to asquicrce. — -But aov/ Gees it hiicritre sod compelí Not by absolutely stripping the subject of his pre- -* -pftiy la an arbitrary manner, bat Ly giving him a full kvlunni-íi .atioa, and equiyaleiit for the injury thereby suslsintd. The c: isfflow considered as an mámduaí, treating with ?n inc' ¿SJw.l íw *a ezilianj*'. All tV bjiskt'Aie dots, is t* nM'igv tú* ©waisr *0 *Kena»c bis pvsaeocíooa for n vcssssn&ki ** price 5 feud even tí»*» is su exertion of po £@r r/íjs.vh tías k-g’s-* "6 teíor» in^nlge» with caution, and which aoshky hiv: »h.» 2> «fc« u fcíitre crus perforad* Tuq dsspotic kr-iahiisu: ;;f Gevus-Io ; » txia cí,aao’i Intcracddle with the rights c£ pi ivas e propf-ny, bv: in cuses of urgent necessity, and not. without t» &it|gjyat c-sr*-perac;;"ÍQ¡n.-~=A»id chdil the assembly of North-C wiljas enervat'd aoon those lights, when not required by public necessity, sad vt Jioik m ihi.ig any voanp^rv: atioa as all l 1 would w >e hue v, in a ecracera c¡¡ each moment, whence is is that ihvy are Its:-; Lout. * 80 respect the rights of private property t!m the &g!ch rwr. - Jiaaaent s’ nnJ upon ardas occasion it wst«, that tl e people cl or? - *- ••. shrill vhúii a ‘jNsredora uo fetal So their dearest iaferesw? 'ho »p«.i!£ in conuiendatícw of che ISvkrvh constitution, is HBp’evsaró to an American car, V'crrrvc of she idea whkh A "■OBüeeccdl wish che abaohifeffCEo of: b:, pcwrr. Whas theE are se to sat s when we lx- ¿X a serened, i!.at the •"«•sabiy of liortb-Caw-ilua surpass tbeisi in uowe.,%. a«d can do v, h*\ they camtoU is ruiy be said shas the thread'!** *-e fibe only judy.-s of the existence of the neceser--/ whici-juaddea the assumption of p»iv?’e ptr-puty fee public ucs*. It úíh; be trae, then the prerequisite oí public necessity I; m resudetka of their power; for ia their judginenii it may exist, wo?.s ia on opinion of all others It does p.«? % sndi thus a wrong cotraít-.d agnb.-st the rights of an iuéivióe*?* wnaL-l be sinieiioced bj die wrong judgment of ífie oppress* ■Wherever respects die power of the legislature, saui.t fes j*.¡dgeá ef by PK’se rabo are to determine of the consornasiy of da sc.c., to dvj power» delegated by the people 5 and wisest it it grid tbav per he access!.y must precede their power to Al>.cil the rights of private propn-ty, va l that they have áoaeco tv. V xrxer--e Wf tdier it did exist of aot, sew?, Le detoTSMu.v.: v sore., other perros,:? than iJivEisdsTs, before í/v cri h Nov, vid by the intervention of a jury, ®g is thv esse «1 ¡-ahíle yendas, by aoroo other known mode recoguisetí fey the law» «n4 ccsísu cation of this country 5 an«l after is is dons, by foe opinion ol tht-fo judges who are appointeu to v,s\'-h ovsr the corostítntíon, &r.é are sworn to reject all ooeoiM'itttüotd acts: — »’* bun ca;»po;.úíg this to be the case of on mdivVu.*l»-&mr dc-*s It apf>fpsr that, the padjif; necessity slereasids that selrinr- o‘~ property v.hh.U tL.- ,.v¿ us question contempktm ? Sins net to H, fouatS, in the fucile: rraurde, nor in the public Itistore of tiie country f — tH» vc-»¿í„k *'Sí4*b!lshe» it ¡«4»cr :s it *,ven mirdgvd ;n tho pt’ccaiLIe oí she sci; but above ?d5, aot a worci c*f ¿ úTíf’zxvihj::. Is ray where sn-ju-ticned in it. It appears to be a s^isurt withost'. vecíssiíjvtii: ■- i?u-. caai'e, sad wlditnif. coitipeossíid», size is r,n jccdSad hj £l o s eminesii domain bcJosig’rey 't* rwrrírir./úy, Sv.r>”'5 x vrs «^4. .-«Iwcrved the ncivlcsioa to whi*± tl at right is svij- zaN</p> <p>Is k then justified by any thing wo find in the constitution r-i this state? And it sétima to me th,.t there is no pari of the constitution of one state, which allows to the legislature a right u» divest the citizen, or any corporation or set of citizens., of the rights of private property. There in a clause in our constitution, part»culasly applicable to ches subject. — Bill of rights, sec. 2 % 44 No freeman ought to be taken, Imprisontd, or disnized of his freehold, liberties or privileges, or outlawed or exiled., or 44 in any manner deprived of his life, liberty or property, hut by the RvW of the lana.” I will presently proceed to rexw.rk upon all the material parts of this section; bet before doing go, Lt us ■íietíee die effects of a similar, but much ies3 explicit provisiou, in the constitution of a sister state. It is contained in the 1st, 3th & 11th articles of the declaration of rights of Pennsylvania, and in the 9th and 46th sections of the constitution of that slate. The legislature of Pennsylvania had passed an act to divest certain persons of titles acquired under the existing law, and to* place titles in others: and this brought o.n the question, whether the law was agreeable to the constitution — and if not, what was the consequence of its disagreement therewith. And after defining what'is a constitution, the learned Judge who presided, discussed the question now under our consideration. He defined a constitution thus; “It is tbs form of government delineated by the mighty head of the people, in which cutáis ‘ fixed principles of fundamental hws are established. The ‘constitution is certain and fixed: It contains the permanent ‘ will of the people, and is the supreme lav? of the land ; A ix * paramount to ths power of the legislature, and can be revoked 4 or altered only by the authority that made it. What arc 4 legislatures! Creatures of the constitution s they owe their 4 existence to the constitution 3 they derive their power from 4 the constitution.- It is their cotnmisaon and therefore all 4 their acts must be conformable to if, or else they will be void, 4 The constitution is the work or will of the people themselves, 4 in their original, sovereign and unlimited capacity. Law is * the work or will of the legislature in their derivative or cub-4 ordinate capacity s the oas is ths work of the Creator, asid the 4 other of the creature. The constitution fees limits to the 4 exercise of the legislative authority, and prescribes the oibit 4 within which it must move. Whatever maybe the case in other 4 cr.nnirifc'’, yet in this there can be no doubt that every act of 4 the Ivrj- hours, repugnant to ;the constitution, is absolutely. 4 void. The late constitution of Pennsylvania declares the 4 rights of conscience, and that elections be by ballot. Could 4 the legislature annul these articles respecting rein-ion, the f: rights of conscience, and eiectious hy ballot 3 Surely no. As <’ - :l\ese points, there, qrao no devolution of ¡power. The tag. 8 ■>. 6 !’, >3':-y EfibiL' /’NT lb to'J ixcsrv: ■i: s. 4 H; ÉcUwe 'iteM choT 6 ob'i:,yrw£y ? Hca — fe 4 died re or rorwtkiitio gchtwo LH or o cl r,n w i-J *.'i ' .dll !"• i".’»’}, Vr 1 ii'idd h-iVi ’ .11 Void ? ■ i wcte/w id /. ■ T; J Villf ■1 idv " 1 r T J. : ¡rip! : t-i ■' C'-O -i';.■ ’Vi <"J -■ c:,t / :Lo ie.:Bv 4 by joey,, L- a ii-Eadfftevwd ivr, mac1. rnwb 4 and v.Miaoí bo ifegbl .ted T7r-y. The corn 4 wtekd wa.i wer&te.raerw,, roí lo be acted upen fe * He times, Eav to rise. rnd TU otiL few ¡L ,!s of eivn' w i Lob 4 be * dear poix<rlvr.7 r: :t i; a legislative r.r.t oppu.ync r am:- fe.u-8 sionrl pFÍRC'ph'.. dv? formes? wtet give wry tod he ad rrteb -te 4 the score of repugna»**®. 2 held íí. be a poditioo eya-Tfe te V id it »*: 4 lev íis fh a:, coir: « and tmiuá, that ia such a e?us, it wi" be the * to adherí to the constitution, and 'to declara t:,e re: null unfe * void. The judiciary ot this country is ste a sube; «Unate, i>«'. 4 a coordinate bmnch of tko government.* He dj?t> com's to die ¡saint more imsstedfetely the subject of riw yrewte cocci-’ dteStion. ‘‘Those passages/’ nsyr. be, 'ted e?E!«;p tv tee b‘-4 ihre mentioned els uses cl'the constitution of renn:¡/'A'r:’:i, da 6 claws that the right of acquiring and pasee.--dag props* :y, rafe ft having it protected, is one of the osturs!, :ahcr.i'\t me uucScb 4 able rights of man. Meo have a sewu ofpreperrrj y;;o<te« w 4 is necessary to their subsistences and co:.;:s'c?:dr:‘ ic .’.•. n° ft psstursl víante snddi-áesj in security \«w car of thev-e ob-4 j rate which induced die* to unite m sodeiy. Ho m?.n vra fed 4 baeorae a member of a community ia which Le ecuLi riot ww 4 joy die fruits of his labor and industry. The preservation of 6 propel ty them is a prijmrry object of the social compact, and by 4 die fete constitution of Pennsylvania, was made a fúndame ¡r 4 fc irate Every person ought to contribute his portion Hr pwbife; 6 purposes and public eripcncies j but a© one c;.n be called ay ,« ft to surrender or sacrifice bis whole property, real cr ppisc:v.: -, ‘-for the good of the whole community, without rcccHiagc. r- - f coEipcnc? sa value. This would be laying a buíden up-ju c: c c Lwliridsir.S, which ought to be saeSssaed by the aoci.wy ati'wgw ‘'■The: lingdirh history áefis not farrhs'i owe iwwvwce of thw 8 L:c.i t. the pc.vliasneat,, wfeb all ire bo-acted oEiHpoteave, ■■ ?• r ‘ 3 omwiKed jiwlt ra ontwye upon pcivwtc property ; -.nd If '.few; i aac, Él would have served only i:o ciisplay the ¿lkc.w-oa - ; a - •- of ualiroited íiutboriíy; ‘t would Lave beca :.n c .a- ■“ n s power aad not of right. Ouch an act would le .» wiciiátev :>a I-.-gi'.la&esT, rwd would shoclt s!l maKnd. -be w ' íUcí'.Jbríj bad go audioivy to make ua act dfewwing e-i,^ . 8 i-ai cl fss hot, obi voci vei-iw;;" it ia v/ithom. • . 8 j-.wec.'.Uon. it it iriwor.'jite'ini i>*ith the principles of.i .w t c ' i..;oc end morel wi:;:;odc| it is iucompatíbíe with '«L. • .: - ,v.d bv-y'vow (if raov’d'4 ; it :c corstevv - * prlr*c?p¡*3 o? social alisare ¡o every free gov.ríssicnt; anís * íasJ)', seis scsKTArjr «•© the tener and fjpsn; oí úie renstimúce." * —T short, ;,r. is wh rs every ene think aarcs-.soseble and A arjmt in his own aae*</p> <p>4 Tiis next step ;r?> the line of progression is, whether the '• Legfr'ctsirs had authority to make ga act ¿¡Lusting one citizen --¡Í »;« freshcH and vesting it in »no„her, even with compensad» * on ? That the Legislature, in certain, emergencies, bad sutho-r-t'ay to exercise this power, has been urged from the natme of * the social compact, and from she words of the constitution ; * «vhich says, that the Louse oí represe uta lives shall have ail o-4 thcr powers necessary for tbs' Legislature of a free state . ■' or cotvisvs'jnvrealth ; but they shall Ja^tve no power to add to, 4 .titer, «ooiish or infringe any part of this constitution. Tha 4 course oí reasoning on the part of the defendant, may be com-1 prised in very few words. The despotic power, as i.t is aptly 4 called by some writers, of taking private prope; ty, when state £ necessty requires, exists in every government; she existence e of power is n ecessary ; government could not subsist 1 -without u; and if this be the case it cannot be lodged imy 4 .vh-re with so much safety as with the Legislature. The pre- » r-.iwpcion is that they will not call it into exercise except in ur-4 gent cases, or cases of the first necessity. There is ¡force irs 4 shir» taasouing. It is, however, difficult to form a case, in 4 winch the necessity of state can be of such a nature, as to eutlicrbe cr excuse the seizing of landed propesiy belonging 4 to one citizen and giving it P< a'untfeer citizen, At is -iromate-4 rial io the state in which of its wti_»ns the land io vested ; but It jg of primary importance, that when vested it should be se-f-cured, avid the ptoprietor protected in the enjoyment of it. 4 The cor.-.i ;>.!ho.: encircles and renders it an holy thing. The 1 present e..v a rise of landed property vested by law in oas ' set of ci;. zt:~, and attempted to be divested for the purpose 1 of vesting the isme property in another set of citizens. St cau- ' not be cf.ñmiin&d io the case of personal property taken and 4 used in tiros oí , cr famine, or other extreme nectca’ty j it 4 cannot be nsslssaiLteJ to the tetriporsry possession of land itself, '■.ia a pressiny public, eiv.ei'gf'^-'y on the spur of the occasion. * In the tatíev c¡s3e, tí era is v.o change of property, sa dives- • - naent of right; tíre titír remains, and the proprietor, «.hough cue 4 of pom • '-non fry * v;l „!e, w still proprietor and lord of die soil. >. The grew oi.t of the occasion and ceases with it. « Thfe» tl.e rif-zt «•» rsnenrty is satisfied and at at» end ; it does <■ >v »t effect the tide, is temporary in its nature, and cannot csr- ‘ 1st forever. The coasdxjU.ion expressly declares that the right 4 o? acquiring pe'swn»» aed of protecting property, in natuvaE, t;»Vttn% anc ’«p..i.:,rlah!r. It is a ri§,iit, not ex gratia fresa tLo ' iARiabtore, tin ex debits ivev:> shr rotaíhsjíAn, It Is sac:-?-’’,, * tor it is further tíeclsrsó ih&s the.LcgLksir * shall leave w.* y v* a er to "her, abolish oí iu.a is>g'i aw yn :ú ;Lc ventAiH A —- « The constitution is the o¡rÍg*u *nc« measure oí sir L^-ialcaw « authority. £t eayc to the Legislature* thus far ek.1 \ u. pr„ 8 f;nd ms Afber 5 iqo£ a pártiuc of it iAE be nAAt, s.c-i ? ; A-*bk shall be mnove©. Inncratict* are ¿ssiguoaej oar crw s CTOó’.chEitiJí’, loads to another 5 precedent give!» ittrth aw pte® • 6 dent; wfoafc Isas Ae» done Essay be done sgA;; tAs ,:AcA * pricei^ lea are jrotiCiaMy brokcu in upon, inti the coni/dívíSí.'* c destroy ed. Where is the security ? Where btlu hjvioV.'ilfcy c,-' 1 property, if the Legislature by a positive a<.i, e&ectis,- p.stt-..w.* <• kr prisons cnlv, ca-a take land írcia one «. sjen, v,!>o $.« i t .« 8 s£ kga’.iy, «A vest it in auoíKut \ '1 be rights ok pA.-w. y:>, - po»t./ are svgulsriy projected and governed In gerr&A, *.;»{*,-i a aad este!AiA<A lews $ and decided uper. by genres* !::■ .¡r.s L u»d eeisbliohed tribunals Laws Had AAíA üc eoí a>, L iT:d nested «i-'s sx\ Itsstsnt exigency, or as ESgea» .■t:sNj[;',i>ey to 8 i.xve a ¡•vee-i.t or the instant of dials-. ir. s '¿heir opere» 8 ilonc, r.rd rriAeüce are ?'■ d aa«? kidversA — -T'.ity pit ss tqa.iV 4 k ok ;-iíU Aeuere, se-,uit„y red Absre ¡.¡re.cpAky &sd pear: . *■ cree atrffi h ECS ah «:d of asiotlxYj asid. eo rerei Arre vi ¿A I •' Alaftmre</p> <p>*u It is íi’üiúiclf vAre arsd safer to Aeye sore,. tosháe reA 5 chiefs, than to teat ki lie Legístatnre so u-j;&ecesí;«5'y, de'v..n"=. « c»>iS sad eMoriiiiCLti a ¡.'¡ewer as that wh«e.h has beers <ti,' ’arel 4 03 the present oceatlcu 5 * pom s* trass aeeurdrg to the v.:- * ?*at of ¡¿e argument* is Loiit»dln,o onti cmaipoteat; lor úm ),» ' glslatere ttoigi-d of the necessity of the c.aae, sad also of the »sure and v.das of the c^uivsWnt» Such s c*ne of necessity, 0 raid ¿"¿dying toe of dr: corapensaúiiQ, can never c.esEr 2,3 ng-l-aasiou» LN'ryh-r inaee.J, z.,¿ iia;ows;v! nauss be she sU?e c 4 sitiogs that vjofhd inf/Et-s the Lagishttue, s^eppaaing they h-, 4 Itrs pot/cr to divetE one ir.dhvidaai of f,;s landed estate, rsjever; 4 her the pwnoae oí vgziin- i; in paothtr, tveE up on foil iade-th 6 s;j£c fi-r.-D* ijt'iecs that iaderEnifcadtE he ¿er¿s:v-j^s¿ in the, * ETd'o ■ .■ : : ‘‘v ’’ ;jri.;shoa SiereiiVcr,</p> <p>6 Sue r ".Eit'h''? that the Legitiniase ett 'jJ„s : th { * of A i'tsd giet" ú sp rj on njahing; coTpeu^ytif. 1 . ■- teics-ay.fc. s and reasoning' upon it go so fhrthcr tk. ;:! so .3;,; „ra L^girt a laíuse ;,:s tise &o!e and er-xíusiiw judges of tho a'■■,■• ..tfav of hr * case In which chic power should fcs ■ «hce. *v toA * It. cannot* on the principie» oí >he sonialaiEan&e <., et A<t •• -;.. 8 futiot!, be (“Zieuded Lsyoad the power oiyjtdgii ;- t t'.n r ■ t.; j c;i- * iotin.er case ct necessity» The J.egibk».: ••*' '.c. arcs sac euatfa 4 t;v»s tE'h ;.'3í vita pisLii-c exigencits or n:;t:-:«rdr- j 51 f*uü.Q*isi :.,Vcu sv take tile'and ciAr.tc. ^vt; it ■/. .1, fih-e 4 dictates of reason nná the eternal principles of justice mw3 as 4 the sacred principles of dw social co«Er?.ct and the coustitudun, * direct, and they aetmsdíoi/iy fiedsro and ordain, that A s'nsdi «■ receive compensate» Soe the land. But here the ¡Legislature «r,',u:-t '¡top ¡ they have vm the itul length of their authority end « w,n go no further. They > ■•ut constif utionally d&termiiae up«on t,he amwunt of the coicnenaatlou c»’ value oí the laud; pub» < lie < x'yendes do not require, rcct&siiy tiota not acnmad9 t¿.-.. ; * the Legisbn uro should 0.1 tlicmoAvec, without the participation 11 of the p-vj,. or '-)v.;.'Uon cd a jury, Lzstss ike- value of 4 the thing, or abcs-rUiu due amount oí the compensation to L-s » paid ibr it.’</p> <p>.cícre I will stop, though the Judge rontltiutn tc jnake many ether remarks of great importance. ¡Leí as puse now a liiúfí and ca the sftuuuierAS L-ve cklsvei.-d. They art the genuine effusions oí a mind d ¿voted to liberty, end arcLniJy r;,r.» i<nis to proclaim its true pd.uiples to ,l:c uoiirb It seeks to recommend inoro by .shewing these print wit3 in d-Lr mn ¡ve sim-pUciiy ; and are they not worthy in the mn» tío i»c¿ tVgtee of tha sil mi rati on of every cidsen l Would &• Goes I could exhibit ihem m tlndr most engaging foja»! Jtiow s.„j,r rhotiid i succeed in tvpe iling the atte-sopto tlmt are made to totví thus» in i,i scorey 1 Now soon would they be ecshmu.-'. in w.«. temple of b-r.-'cs and guarded by the ¡.Lectio"^ of the- ¡.ni.pl; í«^¡rn tr. ;-y ch'n-x.T l</p> <p>ido freeman ongti lo os deprived of lit* property lui l y the ver-■i:ci of a jury or ike hr. > of the hr.if is a jy-it <A cV,; clsnEe Us be remarked «ns, it irmncJducH re.-.pctvs the pKv:,io r oí ir.a> ••;/(..'js. Other pine oí ir, ÍÍ shah i'ttscswrf -¡eir, ttvyectu she -i'osmy of coronations ;■« w.!! as t':.t perao:,;d Íd-c-iíy or the ci-ad;,'.,!, There h- no doubt Luí the ce;r,’.: ,'tioa iníwuAd this ciscos iciioA up.>n suias o» the i.-iof the government,, r. L i a might otherwise wo? the nove; s V.'.rñ.Nu And what; hi o."‘chc qoroJ nnn’rit v:..; so rom >; to i e íT.r.ckd as ih< Le» y.s; atore? 'The ausLcrUy o’’ dm t-v. wire is too confined to ..Jn-'e A •: CT\ O.iV ; Sor ’.p] v.rctj, ; -.ut! ¡ thy of the Jud-i<, Itere í.'ist "red, m t sill p; ...:t rt-y p.rive. in a. ;t,ciiii';nedc? í bed. The ii.ingt, Iwc prohibited ím-.jGu be ut/im Luí in ■ . ••'o-.i:;, y¡ ytdarly coi'Mituted, and proceeding ate, orbk.'g . .. ij'own and steady rnot'e-i of tría!, ui-ed a:.ii pr .t.trc^d iu u -.-áes. I have ínv.rJ is argued, that ;:a the LegLtr.it.re can it, ;s.e the law oí th.. land i-y passing an r.e. for that p'jij'0»o, that * -%.?rcf..r-- dots clause of the bill of rifbti, if taken as restricli7» , 1 ti’dr pew; r, is oí Utile or no iLecs. Ask! cm tSs.-re be u -.■'irtinijcr argurnein. to ptove thaí. drr te.jn law of ¿he Lind, ¡.as •• . -ei..>irg? Would thr Conven!ion, tba¿ wire Li.J.y . > v, • ; y. j drt láO»í íiXpO'i’í&Eit ína'1’B.i k.»A t'/sr iii'.-Ní” -'bí1 consideration of a deíib<-s clivc &od.yv h?.ve intended f:a rtfMi •'• m the future Lep/rilatute ;*i >•;?»',f-rs oí «iie moct i;’.c->5r¡*i»«' concern, by a ptovinioti v/tikh *h<y ívsls.-hí n-rider ¡iu.'P’ioíy ?t pioesure? Is it in any vj¡'"/ consistent with the dignity ch that body «ni' that noble love of Sib?5 ij wisicSieliatacctr-i«sd ibt.trt, to suri but:: s¡v K language as ‘.Lis ? 'I bese are powers too dm,* erotic to be entrusted ■with the Xifej^isb*'>¿« and they shall net cx-rrhe iVm, but -il they pvss an act lor the porp-jse, they may case them ? ‘J he word:; bra of the land, therefuic. mean something other than an act oí the .Legislature. If w® resort fos its meaning to she history of the times in which it WAvf »t. nr:vt used in national instruments, we shall discover its gen/a-kie signification. It wa? ikst used in the 39th atiicVe of me meg-m charts of England, extorted by force from tbA/ King, asd explicitly declaring the rights of the people in Instances in which he had formerly violated them. It declared not that these lights conk! not be forfeited at all, but that they could not be forfeited a; the will and pleasure of the executive, nor in other manner than by a fair trial in a court of justice by jury, where the facts were disputed, or where the facts were not disputed by such Giber modes as vrere agreeable to the law of the land, or recog-nised by it. In either of which cases, the judgrm nt of the re-*y:!ar tribunals of the country roust be pronounced before the party could lose his rights. This was what was then and is now meant by the term law of the land. Sir Edward Cuke, in his 2d Institute, page SO, expounds this sentence to mean due proceso tf law. In Shower’s Parliament Cases, and Hargrave’s preface te C. Littleton, it is expounded to refer to such cas^s as are ncs (triable by the judgment of one’s peers : And Sullivan, page 49 i and page 493, explains it to mean inodes of proceeding to judg* meat in a court of justice legally constituted j which modes are preaevibed by law, and take place in cases tvhere the trial by jury cannot be used; for instance, if the party plead guilty, or v.¡ ;l »ot appear, or suffer judgment by default, or if there be a demurrer upon the pleadings oí the parties where all matters of fact: are trulv stated and admitted by both parties, or where the court passes judgment km a contempt committed in the face of the court. In page Sis, Mr. Sullivan says, no freeholder shall be disseised of his freehold but by the verdict of a jury or the law »f the land, os upon default, not pleading, or being outlawed. The meaning then of the teim we are considering, was, that a man should not be deprived of his freehold, &c. but by the judgment of a cturt of justice, regularly constituted and authorised to decide what the law is, and Co pronounce it in cases coming before them: which court shall ascertain facts by the verdict of a jury, where proper j or where that would be improper, by such other’ means as the law has appointed. How different fe this fro5(i the: jd2a «mkb «sskciJ emy net of the Lrqp&lature a law of the land, -->nd vests in then; the «.ihitraty r¿a cc- pode power of prostrating sil those rights so dear to mankind tvbent ver they pitase i 5 be term, of the land, had r. precise 1« "a! meaning when used by •the Convention, and signified lite lawLul proceedings oí íhtepro* fer írihunah oí the country. Htnv much more for the advantage cl she citiEcti is it that this should be tin* meaning oi the constitution than the other before adverted to ? If a court of justice injures an individua! from unju .tifiadle motives, the Judge wb» injures him may be impeached and removed from ( Sice ; or be ‘iv-y carry íiis case bulóte a superior tribunal; but who slid pro-cvXc him redress against, the Legislature ? The experience of ages'?"' luces this truth, that the judiciary generally acts with coolness and toaron ; but it is known to all persons of political experience, that tut* best and most enlightened men, when placed in large assembles, will so far partake of the heats of the moment as frequently to concur m measures which in their c»lm and retired moments they £ id much cause to tvgret. Kad the Assembly the powers which are expressly denied them'by this clause of the Constitution; there is rea: on to fear that many would be the victims of the exercise of them 5 whose property would be ¡itu'e, ot hose life, if an Assembly míuCtUed by the opposition of parly, a 1 rn the times of Caesar and Potnpvy, or inflamed by artíul accuiu-tíoRS, or otherwise roused to ?\ct against Individuals obnoxious to the public, could deprive the rat of either without further ccrernonv than that of passing an act icr the purpose, and whhout more respon.'-ibilitv than tu the tribursa! of their ou n cup/iutenccs. Cuch times c.f trouble may «torne upo a uc as tu^y hate come upon other nations, and it is. the kite;, cat as w.'h duty ‘4 c\,.:y good man to chut up zt far as pucsiol.: ivory ‘«.venue to cruelty, «¡justice and persecution, for we know uot upon whom the t\ il i: to ihli. In such asU've or things, wit’ll no bridle upon the malignant passions, how oficia should we see the mash of p«isi iotism assumed as the ptekid-e •to sacrifices how often should we see oui best ciihcers eiphiog ■under the vtig of unprincipled peise.cui.ior- i Who L there ia the least acquainted with the excesses into which numerous bodies aie apt 10 tun, that would be willing to see the dangerous power I ara contending against, vested in the Legislature May I never see it yielded to them ; for then will my conn try be covered with íhe mande of mourning, and the spirit of con-bisection, Lite that which appeared to Brutus, will follow on the footsteps of her patriots ! Thank God, no man in North-Carolina ea« be deprived of his life or propet ty but by the regular judgment of a lawful court, who cannot oppress because they cannot iriginyfe any law of themselves, but act upon those made by •&i»« 1: i* sometime* erguid that the Constitution did ao¿ tturaa to hmfiev the L^ishitari*, but ail oilier pet con» spti hodkss «f meo from m.-dtilihg *s7t«,h the individual rights cyec’fed ir. tfeia IG.h article, hut that unlimited powers taw bs s-.>ie:y s:\trtac* rd with tiro X. gisiatute,. r'.nswer. The Cocvepticsi fterir'ir $honf/t cdiurt'i ice; for the £ ith. section oí the B«H I íigh!,'* prohibits the pw.ing of t,ny ex pe*» jacto law, r.tuí uhy? doobr-Sk« tvísm m «’'••ifheus.úci, Uju ii not prohibited lo liri'jlsn peeb. a it w.mbí be ured to the injury. of indm.feik, It ira» <tq ut.Oy t'.ecüscary Sk et-semia) to liberty, that the propel v: oí indivi* dua s rtiji «¿ieir personal liberty ¡>houl¿ be gaardvd against .he es>» «r. m .bineaí-j of the Lcgi'*;!,?. ture, Thk 10th section £ui ui&ho-. ¡isas gu¿rd, or it is not furnished stall ; 'and this is a coroides atiera waidi gives additional au-engih to die argurarn; ch ra chi'? nods *e :foa acts as a Sireiitadost upon she powers oi the Legist'ture» A-: to private propeu? therefore I mnay venture to aiihnr h :a beyond the r-tach of the Assembly, and cannot he ijitaicoca lli« owner by any set they can pass for the purpose.</p> <p>Neither can they take Away the property of a. ryporafr-n* 5» 5s i era ¡u ¡cable that in the 10th section of the LiU oi ri’.ghis, the vr m( liberty tvtke occurs, c-.«es in the pH» .4 and again in the «¡(¿guiar; nofreem-vi outfit io> be dh;seized cf id., liberties, &?&, »r cby-ijs l f h's úc¿r:y bit by íkt verd'et cj a jury §r ike ivw of iks kind, ' A disseisin of libe.fes h ,s a It-gal and technic/- «y/inlng-, well known to lawyers to be allege* ther distinct fstru the rfcpifvHtion of personal. freedom or the poire S' of g- S‘jg '’ievri' v/e ¡d: k regw.ir pi ,,p and it* possessor, vshÜe »he other phrase, deprived of rth liberty, st-£»rds feic ire-.-tiorn froit. unjust co.iíksMcíH ¡ disaeíáht oí !¡b< roes, líiusí in the opi<;.« a ■ -f ;.hc convencosí, mean somk thing differentirons, éfrkii’M-j.'í, of liberty Othewisc it would not have beets «sed ia (the s.aas,'’ eWivr ; 5-: Is a t‘:rna which pitcRb.-ly 3h.-3iii.-s thoscs prsvlteg-s -•«<! j’Oa.'.ef "io.‘¿<¡ which eorporaiiors hnve L\ viruse end 5»t co «.secpcniot td-fbu 'nistvunst'jTts which socorponifr thim. It is d.fi'itcl m S A, C..nu ST, a-.vd. Sullivau, page SIC, commcn* tary urm¡ th“. v'crtS Iba ids ir,r;l in the 2'¿?h ¡‘rtick oi the a beg» m Cu«rU» (mm vohence it boa aetr. tiauslsted into «.ur B'l. of R? ;tmr, yarh it Re ; : I t’.iegfs which sc-y e «>!’ the uab= Ejects, w.irther siai’le j; n *■ <?::• or L*oí1scü i orporr-tt „ !'„ve abor# 44 others by the lawb I graaru cf die King, eo the chattel,5 of R-So.n* or i'iid.ús.-, Girl dm iai.ih a j • m jvii gus oí co: pf’r::dcns.9S Ift, E’cssss th« rrloiw, ín oui Coe s‘i «'¡.ii-.jj th«-possess,en» endprinile^ ge» of corporations, ond ;n ccjs<jia»cuoi> wiih the «'.her words oi urAr ajíieR, ainooir. to d.f that t \ csícskIOr.e, oí a coiroration, Eke ihooe of an indivicc.*»!, «Isr-íi mí be token away hoi by the verdict of m jury or the 'y dgrtH-ot of r. cour*. oi justice. Ifthen th* Tni^íícs, of ike U'fivci-tl'y <>; 'e.'f'Rdfi-ec. in ihe Sight of indsvi*» *4¡kr or of a comssa.n«i Lrr.oc\m7¡, 'A: ps<.\;s:\.'7 uhich they acquired wb] not he. affected by any act oí the LrylcLture ; rare cock’ It betaken from them, but by the judgment cf Burnt proper court, having sufficient jurisdiction, ami pronceding^accordi. ing to the known and established law of the land.</p> <p>And if so, I would ask, is the University distinguished to its disadvantage from other corporations ? Oris there any circum-•lance which renders its property less sacred than that of an individual or common coi poivtion ? It 5m certainly a co> reel idea, that where the Assembly ara dut-cd-.d by the people in their constitution, to do any special act, and they do it accordingly, the Assembly arc to be considered, in relation to that act, as the at-tornies of the people, appointed to do it, and consequently, that the act itsell is to he cousideied as the act of the pet/pie : I11 lib® manner as a deed executed by my atrornej in my name, is my act and detd, and not Ids. Tims if a Judge or Attorney General is tobe appointed, the Legislating, aa the anomies or agents of the people, elect him ; Lut v hen he is elected, hs is the officer of the people, not of the Assembly, and cannot be turned out of office by them. How Is the cace of die linivesaity different in principle iroso the case here put ? 'The 40th section of the Constitution, directs that 46 A school or schools shall be estab- “ lished by the Legislature, for the convenient instruction of “youth, with such salaries to the masteis, to be paid by the “ public, as may enable theta to instruct at low prices ; and all “ useful learning shall be promoted in one or more Universi- “ ties.’* Now., when the Legislature have, pursuant to this direction, erected and established an Uuiversisy, have they any more power over it than they have over the Judges 1 Is it net as much the work of the people as if they had established it themselves by the Constitution, without the agency or Intervention of the Assembly ? Surely it stands upon' the same basis as the Legislature itself does. It is as much the will of the people, that there should be an University, and that it, should continue, as it is that there should be a Legislature. When i *•- Legislature endowed it, they did so as the organs of the pecp-.c.^ and they cannot avoid the gift, before they have received an authority from the people, as express for its dissolution as they had for its establishment. It may be said, the Assembly are direct? ed to establish schools, and one pr more Universities, but, not-to endow them ; and that therefore they alone and not the people have given the escheated and confiscated lands to the Uni-versiiy. I ar rwer, whenever a principal thing is directed to be dour, all the necessary means of doing it are given to the agent, An Unlvercii-y cannot be established without funds, and therefore it ic necessarily implied they are to provide funds for it. as well as pass. a law for bringing it i»>a existence. "When tbes A.ssf.^r.l'iy scco.’dir:;?'"'pc’sted otp. the escheated, and cpnfseatr$ fropoity for this purpose, if- from that moment became a gift of the people, ratified through the medium of, their ¡prgen, the Legislature ; which non?; bus the* people*, assembled in convention, can resume; It has been said, this is a public institution» for public purposes, and therefore is subject to the power of the Legislature, which is intrusted with the superiutendaoce cf all ci-ther public concerns within this state:</p>

YffTSRITAGF. had sold land--. to the plaintiff, í;ncl coveatmieel AJ. j0;. t’u g .odness of the title. He had in his deed, d- scribed the lands by a line of a certain coarse and disianc»- to A £ffe line» — Jienre a certain coarte and distance 'with his iiise to, She. The course aoci distance of these two linea included Und which belong- <1 1.0 another, but not if A B’s line; be uir&idei'cd as the boundary.

TVSIST rpcn a bond, and u«n estfactum pleaded. The plain» tiff proved the delivery of the bond, and was proceeding to state che conditions on which it tras delivered, to be dele vi» cd over. Mr. Drew insisted, that as there was no plea of delivered as mn escrow, no such proof could be offered , and relied upon iha case decided by Judge TayAr at Ncwbern, and afterwaids fey the Court of Conference j the case of Smallwood vs. Clark.

DETINUE for the recovery of a negro slave, sold by Sher-rod, a constable, to satisly execution's against the estate of Cobb, to whom the plaintiff’s wife was an executor, and also a legatee.

<p>TVEBT on a bond. John Short was the attesting witness, and James Short the obligee : He assigned to John Short, and be again to the plaintiff. The band-writing of John Short was proven, and mso that of the obligor. And Brown objected t» its being read to the jury. And after argument.</p>

npHE plaintiffs had obtained a decree in a county court in -*■ Virginia, on the Chancery side, to be levied cle bonis testa-toris si, et si non de bonis propriis. Ami tow Plummer objected that this action, which was an action of debt, suggesting a devastavit, should have been against Hayes as administrator.-— Secondly i that as a devastavit was suggested, it should be proved to the jury.

ON the 10th November, 1801, John Barclay gave to the defendant a promisory note, which on the same day was endorsed. by the defendant to the plaintiff. The note being payable demand, the plaintiff in the presence of the defendant, ashed Barclay when it should be paid, and was answered, in a day or two.

«T'HE defendant owned a vessel, which he had contracted with A Noble to leave to his management and custodythat Noble should victual and man htr, and take in freight when and where he thought proper, and should account for one third of the pro-fi s to the defendant. He took in a load, on freight, at NeW R ver, for Howard, to be cairifcd to Wilmington, pui into an intermediate port, took in more lading, and thereby the Vessel and cargo was lost.

rr'*HIS action was instituted by process of attachment; and Mrs. Stead, as the administratrix of her disceased husband, was summoned as a garnishee, to discover whether her intestate did not owe a debt to Gurley, the defendant.

'THE plaintiff offered a witness, who was surety in the appeal bond ; and an objection being made to his competency on this account, the plaintiff’s counsel offered to give another surety in his place;

(T'HI5 action was brought for, that the intestate of the defend- ■ ant enticed and persuaded a Negro man of the plaintiff to attempt to transport him in a fiat across, the Neuse river, with a, load which rendered the attempt dangerous, when the river was swelled and rapid : In consequence whereof, the flat sunk', and the Negro, as well ?s the intestate himself, were drowned.

<p>rpHE, witness, offered, had said that h.e was to haye a part of;the recovery ; and this being proved by witness, in support of the objection to his competence — Wood Jot the plaintiff, drew a release, which he executed, and then offered the witness.</p>

^PHE plaintiff had sued the defendant in an action of trespass, Square clausum fregit, and died during the pendency of the action.' Aa abatement was entered, and execution issued against his representatives for costs.

'T'HXS Bill in Equity stated that Fish discovered an error in the patent under which he held; by which error all the land be claimed was left out of his boundaries, It stated, that Lane represented to Fish that the law would not admit of a correction of the error; and advised Fish to employ him, Lane, to cover it with a warrant he had, to obtain a grant in his name, and to convey to Fish with warranty.

■pJECTMENT. The defendant offered in evidence, a survey made in the year 1728, as he said, upon a complaint made, that the land oi Wilkinson, adjoining that of Blount, and bounded in part by a partof the third line of Blount’s land, contained more than the patent called for. The survey, he said, was made, in consequence of such complaint to the Governor and Council, by a Mr. Moseley, the then Surveyor-General of the province of North-Carolina.

’’T'HIS was an action of debt upon a bond given on the 28th of <*- September, 1772, and payable on demand.

hPHE defendant's fence included about a quarter of an rere oE the laud in question ; the rest of the field enclosed by the fence, belonged to another tract.

BRADY was- sued by Worsley, and was'apprehensive of a-, recovery: EUison represented to him that the plaintiff was likely to recover — and that Brady and Ellison agreed that Brady shouid convey to Ellison his land* rvhich Ellison should re-convey, if Worsley should! not obtain judgment;-but if he-should, that then he should convey- to, Erady’s children. — ■. Worsley was non-suited, and Ellison refused to recover the land..

VpHE defendant was owner of a vessel, bound to NVw-Yerk-,. — and took in freight, part of a load belonging to'the complain., ants, for which they gave him the full price. The captain stow, ad part in, the hold, and part on deck, as was contended. The cargo, as. well in the hold aa on deck, was injured by a surx.

<p>cited Haywood’s Reports, 215. 1 B. Ah. 529. £ Mo. 36. Cro. j. 281. C. Digest, Ferio Covenant, A 3. Salk. 326. Sh. Touch. 158, 159.</p> <p>cited 3 C. Digest. 257., 258, A 2.</p>

HODEc took an attachment against Frazier for a debt due from him, and delivered the same to Gregory, the sheriff, who seized a Negro, and returned upon the attachment, that hé escaped.

•T'NIS bill, answer ar.d deposition®, to cave time, were left by consent to be determined by the court ; and on opening the bid and answer.it appeared the plaintiff claimed certain Negroes under a late conveyance by his father, who, about 20 years ago.) conveyed them to the defendant’s father, as he alledges, upon trust, who always afterwards kept them.

THIS was an indictment for passing counterfeit dollars, knowing them to be such. It was found in January term, 1805* The defendant pleaded to it, and it now stood for trial. The defendants counsel moved that it might be quashed, because there \vas no day stated on which the offence is supposed to have been committed, though the year is stated : there is a blank left in the indictment for the day and month.

<p>uT’HE plaintiff offered a copy of a grant from the Secretary’s office : it was not signed by the Governor.</p>

A TTACHMENT fora debt, and Mr. Hamlin was summotn-ag a garnishee. It was now objected that he ought not to be asked whether he owed as the executor of his father or grandfather.

npHE plaintiff, sued fqr two Negroes, and called upon a wk^ - ■ ness .to prove the. detainer, who said he owned one of the Negroes descended from the wench, the defendant was sued, for; and that,if. the. defendant lost her, he, the witness, would,. Ipse his also. Seawell insisted the witness .could not' be sworn if he conceived himself interested,, and cited Stra. IS9..

HpKIS was an action to recover money won on a race. The ay- • • tides were produced and proved, and the bond also; and that it was delivered as an escrow, to be delivered over to the winner.

‘HpHE bill stated that Byrd was the administrator of his brother, 4 and they his sureties in the administration bond. That he was afterwards appointed, their guardian, and of course became entitled to receive whatever he. owed as administrator, which by Operation of law was a payment as administrator. That the defendant had sued for the children of the intestate, on the administration bond and recovered. The bill prayed an injunction.

jPNOKOCK5s father purchased a tract of land from the de« fendani.’o father, upwards of thirty years ago, and paid for it, and continued in possession of the land till his death 5 and that possession has been continued by the plaintiff till the present time, but no deed was ever obtained from the vendor. This bill was for a deed to be made by Edwards, who was the devisee of all his father's lands. Edwards answered that he did not know of the contract, nor of the payment.

A CTION'for money won upon a race. — -And on the trial it appeared that Farrell was to run with some horse in the county of Franklin, and owned by persons in Franklin ; the race was to be run on the seventh day of the month, and on that day the writ issued, as appeared by its endorsement. The horse which he ran over the ground was one in the county, of Franklin, but one of his owners, there being two, resided in Franklin, the other in Warren»

A CERTIORARI was obtained, and an issue directed ct 3 former term, to try whether the deed under which the defendant claimed the judgment obtained by Ann Jones, deceased, against the plaintiff, was bona fide. Jones, on the trial of ibis issue, now offered to give in evidence, a deed of a prior date to himself.

<p>TJ^UNTER repaired the lighters of the defendant, and defeat —“ d.ut drew an oider lor the amount on Gibbs and Barclay, who became bankrupts the day it was drawn. M‘Auslan says he employed Gibbs & Barclay, and that they employed Hunter $ that Hunter was their agent or servant, and that they were liable ’ to him ; and that this order- was only to ascertain the amount,, which they were to pay ; and that there was no consideration, as between Hunter and defendant. Gibbs’s deposition was offered to, prove this statement • audit was objected that he is inadmissible because if Hunter, in consequence of such evidence, should fad, in this action, then Gibbs establishes a right in himself, to claim:, the money from M‘Ansian; for the latter-admits, it was since due to some one ; and if not due to Hunter, it is so to Gibbs 8fc. Jiarclav. If paid by M'Auslan to Gibbs & Barclay already, then, if Hunter recovers, MvAuslan will claim from Gibbs & Bar-, clay what he has paid ; and therefore, it is for the interest of Gibbs that Hunter should not recover.. Suppose A and B make, a race, and C is the stake holder, who admits the money is due-to one of them; and A sues C ; B i.s not admissible, because as. the money is admitted to be due to A or B, it is due to B'if A. should be defeated-. Such a-verdict between A and C could not. be given, in evidence against B,jet B is rejected ; which proves, that a witness may be rejected, although the verdict to be pro-, cured by his evidence, could not be given in evidence for hin&, in another suii. 5- T. SYS is another instance; there the money was due from the acceptor, either to the endorsee or endorser y and the eudorser was not adir»tted to prove the right-to therriQ-r.ty cu!; of the endorsee.</p> <p>Gibbs proves be and Barclay owed and paid the. money to Hunter. If Hunter should not recover against M' Ans-ian, then he will site Gibbs and Barclay, and put"Gibbs to prove as well as he can the payment which he speaks of in his deposition ; and possibly, nay probably, Gibbs will not be able to prove it: Then Gibbs is interested that Hunter should recover in this action | for then he, Gibbs, will not be sued by Hunter. Should Hunter recover against M'Auslan, then it is said, he will sue Gibbs; then if Hunter fails, Gibbs will be sued ; or if he succeed, Gibbs will be sued for the money now in controversy. — It h therefore immaterial to Gibbs whether he fail or succeed. Hut it is not true that Hunter’s recovery will give M'Auslau an action against Gibbs; for if Hunter recovers, and M*Ansian then sues Gibbs, the latter may still say I had a right to receive the money, and am not bound by the verdict and judgment between Hunter and yourself. Gibbs therefore need not fear Hunter’s recoven : he is interested that he should recover. For if l»s then Gibbs will be liable to his action: Gibbs therefore when he swears to prevent Hunter’s recovery, swears against his own interest. Also it is to be further considered, that Gibbs became a bankrupt, and has obtained his certificate; and there is no dividend, nor likely to ba any: the whole of his effects have been taken to pay debts due to the United. States, which have a preference, and there remains not a farthing for other creditors. Neither Hunter nor M‘Auslan can cue Gi'obs, because of his certificate: and if either of them sues the assignee, it canrioi produce a diminution of the funds, because there are no funds s And besides, the assignees supposing they had z fund, would be: liable exactly as Gibbs would be, laying the fcrmkruptcv aside s namely, to Hunter if he fails in this action ; and as they say to she action of M‘Auslan, if he should recover. In either case a diminution to the same amount will take pW.-y and t-e-viore Gibbs is as much interested that Hunter should recover, ss mat lie should not; arid therefore is an admissible y, iir.ess.</p>

rip HIS was a bill in Equity for an injunction ; and one questi- •*- on arising upon the bill and answer, was, whether as Smith, the executor of Rowan, whose daughter M’Kinzie married, had delivered over his share of the estate to M‘Kir>zie and had been, since sued for debts of Rowan, which were recovered against him, was entitled to charge M’Kinzie with interest upon the value of the property so delivered over.

¡fljA.5TGN presented the affidavit of defendant, stating, fust 'twJ soon after he was served with the writ, he wrote to LIr. Jones, an attorney of this court, to plead for him ; and nse-ed under a belief that he had done so, until the present trrn ; when looking upon the docket, be found a default entered : that he then went out of the court to employ Mr. Jocelyn; a-.dbe-fore he returned, a jury had been sworn, and the damages assessed.

<p>ftyl'ORELAND, the testator, bequeathed the Negroes in question to liis son Thomas for lije, and after his death, to Francis, the son of Thomas, and his heirs ; and if he died without issue, to Lis brothers and sisters then living. Alter several arguments at former terms of this court, the court now delivered their opinions</p>

There was a verdict against the administrator upon the plea of fully administered— judgments, etc. Execution issued, and was returned nulla bona. This scire facias issued to show cause why the plaintiff should not have judgment to be levied de bonis propriis. The defendant pleaded nul tiel record, no devastavit returned or found-judgments. Replication to the plea of nul tiel record, and demurrer to the other pleas.

T^EBT upon a bond, with condition, stating that defendant bad sold several warrants to the plaintiff; ard ihat if any of them were bad, that the defendant, on request, would give ere® dit on the note which Pearse had given fca the considi ration money, to the amount of the value, &c. The pleas were conditions performed and non est factum.

Tj*JECTMENT. On the trial the plaintiff offered to give in •*-* evidence the registered copy of a deed to the person under whom he claimed. The dispute depended upon a line being either N. 5 £. or 45 E. If the former, the land in controversy belonged to the plaintiff; if the latter, to the defendant.

CATEELE claimed the disputed part, under an old grant made to his father, who had sold all of it but the disputed part. The defendant claimed first under a grant of a latter deed, for 8 5 acres, including the whole of the disputed part; — also under a grant of 200 acres, including part of the disputed tract.

<p>^TPHIS was an action of trespass to recover mesne profits.— Murphy had sued in ejectment and recovered; but at the time of the judgment, the demise laid in the declaration, had been for some time expired. Murphy had gotten possession, and brought this action. The defendant pleaded liberum tene-mentum¡ and the plaintiff replied, the action of ejectment and the recovery therein ; and the defendant demurred.</p>

TN May, 1795, Auldridge purchased a tract of land from Tur» ner, running to a corner, and from thence south 50, E. down the cret k to a white oak, at the mouth of a branch: thence, &c. Turner afterwards sold to Smith the land bttween the creek and the said line, south 50, E. not sayir.g down thecrcck.

<p>*T'HE plaintiffs, as heirs at law of their ancestor, sued the de-iendant as tenant in dower, for waste done on about 40 acres, part of her dower lands. And the jury found that waste was done as they had declared, and assessed damages to sife pence. Whereupon it was moved in arrest of judgment, that where such small damages were assessed, the court could not consider it as such waste for which an action would lie. And the defendant’s counsel stated the law to be, that the court cculd not adjudge any destruction to be legally a waste, unless it amounted to something considerable : and he cited 2 Bos. & Pull. 86, and the cases there cited, viz. Fitz. Ab. Waste, p. Ill, 123. Co, Idtt. 54 a. 2 Inst. 306. Cro. C. 414» 452. Finch Law, Lib. 19 ch. 3, sec. 34» 3 Bl. C. 22§. Viner Ab. Title Waste n. Bull, N. P. 120.</p>

<p>TOOLY sued his father in law J. Tooly, for certain Negroes alledged to have been given by the defendant, to his daughter, the plain.-ffT wife, and afterwards detained by the father. "Whilst this sun. depended, Jtsper entered into a written agreement to pay ail the c.^ts of n, should it prove Unsuccess ul s and Tooly, the plaintiff at law, gave a bond in the penal sum of jT.óOO, with condition to deliyer to him one half of the Negroes recovered, should a recovery be effected. The Negroes were recovered, and the half of them were estimated at upwards of ■£.700. Jasper’s administrators brought an action of covenant on the condi ion of the bond j which action, by the opinion of Judge Taylor, was held to be miintainable, notwithstanding ah objection taken thereto, that covenant would not lie on the condition of a bond. Si consequence of this opinion, the cause remained on the docket, and went to trial at an after terns — and the jury assessed danages for the value of one half oí the Ne-groes as before stated. W.iereupon, the executors of Tooly filed this bill in equity, stating that the said Jasper had netbrea at any expence ; that be had given no consideration, as:d that he had not given an adequate consideration; that the bargain was unconscionable, and that it was founded in maintenance and champerty. The answer stated, that he liad expended k; ge sums of money, but did not particularise any. After a lengthy argumenten both sides,</p>

npIIE Assembly laid a tax for two years, to be collected, each -®- tax they tar following that in which it was laid. Holliday was appointed sheriff in the first collection year, and received part of the taxes : he was appointed also for the second; but the time of payment of the lax had not arrived.

THIS was an issue of devisavit velnon, made up under the direction of the court j and these points were determined by the court. Mr. Browne stated, that a will dated the 12th of February, 1784, was proved in the county court; and that the paper now offered was dated on the 14th; and he wished to exhibit a copy of the one proved, to shew some sentences that were contained therein, and how different the dispositions were from those pretended to have been made two days after.

IP ATOM owned a ship, and took on board, to be carried to New-York; 640 bushels of pease, for the plaintiff, some for R. Armstead, and some for John Armstead. The vessel ran aground and was in danger of perishing, when all the pease but 176 bushels were thrown over board to lighten the vessel. This action at law being an action on the case, was brought against Tatom by the plaintiff, to recover from Tatom his proportinn of the loss.

<p>Tj'JECTMENT. In the year 1751, John Harrell conveyed -*-i to his four sons, Esaias, Ezekiel, David and Josiah, 640 acres of land, called the Runnery Marshes, in the county of Benie; 160 to each by a deed in the following words, to wit: 4 Know all men by these presents, that I, John Harrell, senior, 1 of Bertie county, for the love and good will I have unto my 4 four sons, David Harrell, and Esias Harrell, and Josiah Har-4 rel, and Ezekiel Harrell, do give, grant, and confirm unto 4 them my four sons above mentioned, one certain tract of land 4 and plantation, situate, lying and being in Bertie county, and ? in aplace commonly known and called by the name of Runne-c Xy Marshes, containing by estimation, six hundred and forty 4 acres of land, and plantation ; which land and plantation Í give 4 and grant unto them my four sons above mentioned, unto them 1 and unto their lawful heirs lutvfully begotten of their body or 4 bodies : and I lend unto all these my sons’ wives, that now is 4 my sons’ wives above mentioned, or hereafter is these my 4 sons’ wives above named, that is, David, Esias, Josiah and * Ezekiel, each woman the use of what land I gave her husband ; * to have and to hold, possess and enjoy peaceably and quietly 4 without any interruption by or from any of my family ; that 4 they may peaceably enjoy what part of the land belonged to 4 their own husband during their natural life or widowhood ; 1 and after her or their deceases or marriage, for want of such 4 heirs as above mentioned, that part of the land to be sold to them, 4 one or more of my sons that is then living, or their ¡awful heirs 4 of their own body or bodies, as shall give most for the piece of 4 land and plantation ; and they that are then living, of these my 4 sons above mentioned, or for want of them, any one or more of s ibñr lawful heirs of their bodies,, may execute a deed of sale for * the land and plantation in some court of record held for tbs 4 county j the sale shall be deemed good inlaw. And like-4 wise, if any one or more of my sons above mentioned is wil-4 ling to seil their part of the land that I gave them, and will sell 4 their part of the land so given by me, to any one or more of their 1 brother or brothers, his conveyance recorded iu court, shall be 4 deemed good and sufficient in law, as if it had been their own. 4 purchase ; which land, already laid off by lines of marked trees 4 to every and each of my sons as above named í And I do by 4 force and virtue of these presents, give, grant and possess them 4 my four sons and their wives with the above said land and 4 premises ; to have and to hold the said land and plantations, 4 with ail privileges therein or thereto belonging, or any wise 4 appertaining therenuio, excepting of oar privileges, that is, 4 me myself and their own mother, to either land range or tim-4 her, for our own use, during our natural lives % and as to what 4 cypress timber there is on er upon the said tract of land, they 4 four have and také and malte use of each and every one as they 4 have occasion, for their own houses, or other house ware, or 4 ñats or canoes, or what other use they may or shall have occaei-4 on-thereof:- and Ido hereby force and virtue of these prescnís¡> 4 give, grant, alien and convey all and singular my right and title 4 of the above demised land and premises unto the said David 4 Karrel, and Esias Harrel, and Josiah Harrell^ and Ezekiel 6 Harrell, unto them and their heirs above mentioned- forever, 4 observing the rights and privileges above mentioned to myself 4 and their mother and their wives during their natural lives or 4- widowhood as above said; One hundred and sixty acres ofc 4 land and plantation, be the same more or according unto the 4 bounds already marked- by me, each of them my sons, one 4 hundred and sixty acres land and plantation as above said ; and 4 if any one or more of them should die without such heirs as above 4 said, their part of the land to be sold to any one or more of (hem. 4 my jour sons here above mentioned; and the money to be equ■ Uy 4 divided amongst them that are living, of them four above wienti-4 onedt-=And I likewise give and grant unto my con Israel Har-4 dy Harrell, the plantation whereon I now live, and all the land 4 adjoining thereunto, after my decease and. the decease of his 4 mother; and unto him and his heirs forever, three hundred acras 4 of land and plantation, be the same more or less, according to 4 the bounds already made hy me. In witness wheseoí, I have 4 hereunto set- my hand &- fir.ed my seal, this 13th of May, 1751»</p> <p>4 JOHN HARRELL. (Seal,)</p> <p>4 Signed, sealed'and delivered T in presence of J</p> <p>*1 likewise give unto my two sons> Eaelriel Harrell and Israel ‘ Hardy Harrell, one hundred* acres of land nigh the head of ‘ Jumping Run : fifty acres a piece after our decease, to them ‘ and their heirs forever. ' J. Harrkix.”</p> <p>At May term of the county court of Bertie, 1751, John Har-rel, in open court, acknowledged this deed ; and it was ordered to be registered, and it was registered.</p> <p>Esias died before the year 1758, leaving a son, Esias, who died an infant and without issue ; and also a daughter, Sarah, who married the defendant, and died without issue in the year 1772 ; at which time, Esekiel and David were also dead, and none of the grantees were alive except Josiah, who died in 1773. He commenced an action of ejectment in 1772, in the month of October, which abated by his death, He left femal issue married at the time of his death, who died married, leaving some of the plaintiffs infants of tender years, who did not arrive at the age of twenty-one years till within three years next before the commencement of this action. Noah, a son of David, one of the grantees, commenced an action of ejectment for the same lands, or some part thereof, in 1782, and was non-suited not long af-terwards.</p> <p>The intention of this deed is to give the land to those of the grantees who should be surviving on the failure of the issue of any of the four sons ; and Josiah answers that description. *A grant of the profits of lands, vests the lands themselves in the grantee: So does a grant of the monies to be produced by a sale of lands where the monies are to belong to one person.</p> <p>The act of limitations will not bar his issue, because he commenced an action immediately after the death of Sarah j and tho’ it abated and was not revived, yet we have a good excuse for not reviving. Those on whom the title descended, on the death of Josiah, were under disabilities from the time of his death, till lately. And moreover, the defendant, House, purchased of George, the heir at law of the grantor, who had not any title j and the defendant knew when he purchased from him that he had not; and such a purchase with a deed under it, cannot make a colour of title. It is like Farmer’s case in 3 Coke’s Rep. 77.</p> <p>There is no estate tail created by this deed: the words empowering each of the sons to sell, are incompatible with an estate tail; and they are not to be rejected for repugnance, because they do not diminish the quantum of estate given before to the grantee, but enlarge it. Like an estate for life to the grantee, habendum to his heirs. If it were to his heirs hobendum for life, the latter would be rejectable, because against the estate before granted, and to the prejudice of grantee; whereas those words are to be adhered to which are most fevorable to the grantee. If the words in question be not reject-able, then those which make the estate inheritable are to be preserved, and those which would create an estate unknown to the law, rejected j like a limitation to one and his heirs male, an estate cannot by the rules of law descend to heirs male j but here it was meant that the estate should be inheritable ; and as it cannot be inherited as the grantor has mentioned, the part repugnant to law shall be rejected, which is the word males ; and the rest shall stand, which makes a fee. So here the estate is intended to be an inheritable one, and alienable ; and it cannot be both, if the words of the body be retained; therefore they shall be rejected, and then the estate will be a fee. The consequence is, there can be no such remainder as the plaintiffs claim. But if this be an estate tail, then what is the limitation over? It is either a povoer to sell or a remainder„ Consider the limitation over as a remainder, it must be a contingent one ; for in the contemplation of the grantor, the grantee might sell and destroy it ; the estate tail might last till after the death of all the grantees ; all or some, or one only, might be alive at the determination of the estate tail; it could not be known till that period arrived, which of the sons, if any, would be entitled ; the land is to go to him or them who would give most. If it was a contingent and not a vested remainder, then it was not connected with the estate tail, so as to take effect eo instanti ; that it determined for that one of his sons who would give most could not be known till the sale took place, after the determination of the estate tail; and that point time, if separated for one day or one week from the instant of the determination of the estate tail, might be separated for twenty years; for so long the sale might be delayed. And shall the freehold be so long in abeyance ? when the law will not allow it to be in abeyance at all ? They say events have happened which do connect it; for that Josiah was the person entitled, and was ready to take on the determination of the estate tail. Admit this for argument sake: can a subsequent event make good a limitation void in its creation ? If the fee was to vest in the purchaser, then he could not be known till after the determination of the precedent estate. If it was to vest in such of the sons as were to be entitled to the money raised by a sale of the lands, then Josiah was the surviving son entitled to the money, and of course, according to this position, to the land ; and so the fee vested in him eo instanti, that Sarah’s estate tail ended. How is it proved that those who were by the deed entitled to the money the land was to be sold for, were entitled to the land itself? It is proved, say our opponents, by this, that a grant of 'she profits of land, is a grant of the land. I admit it; but why is it so ? Because if A is to take the profits he must have the land to take them from. This forbids the idea of the lands going into ether hands; but if he is to take the money produced by a sale, the lands must go from him, must be alienated to produce the money: the foundation of the cases is not the tame, but dissimilar in every thing. Admit however, that Josiah, because he was entitled to tne money, was also entitled to the land, which was to be sold to raise the money. Then the act of limitations began to run upon him, from the dav of death of Sarah, in 1772-, and it is a rule too well established to need my giving the reasons for it, that if the act once begins to run, it shall run on notwithstanding any subsequent disability. This has been considered as settled law ever since the time of Plowden, who reports this point to have been decided in the case of Stow-ell vs. Louch, 1 vol. 355. Then taking this rule for our guide, the act of limitations will bar the title of Josiah and of those claiming under him, unless an entry were made within seven j’ears from the death of Sarah. It is said an action was commenced by Josiah, in October, 1772, and abated by his death ; that, they say, is equal to a claim, and that a claim is equal to an entry.— An action however is only tantamount to a claim, when it is proceeded on to jundgment without any neglect on the part of the plaintiff, C. Litt, 163, a. If an action be commenced,and determine by the death of the plaintiff, and be again re-continued, it shall, as-to the act of limitations, be considered as commenced from the-time of the first action; but if the second action be commenced above a year from the determination of the first, then the computation as to the act of limitations, shall be suspended only from the commencement of the latter action ; and the act shall run on, and be computed up to that time, and the first action shall be considered as a mere nullity. They say, however, they hav.e-an excuse for not re-commencing the action in time ; they were under coverture and infancy. I answer, if an entry is not dispensed with in favor of an infant and feme covert, when the act once begins to run on the ancestor, neither can the re-c@mmence« jnent of the action in due time, which is in lieu of an entry, be dispensed with in their favor. He cited 2 Str. 907. Fitzgibbon, 170,171, 279, and Willis’s Reports, 257, note a. 1 Lutw. 260. 15 Viner Ab. 102, notis. Consider the limitation as a power, then that power expired or was revoked by the death of the grantor, 1 Ba. Ab. 204, Co. Litt, 52, and can never be executed af-terwards. The fee simple which was in the grantor, and was to be disposed of by virtue of this power, descended, on the death of the grantor, to his heir, or by his will was disposed of *o Esias or his children. As a power it also ceased when the object of it was no longer attainable ; the sale is to be made for the purpose of dividing the money amongst those that are living of them four above mentioned: and but one was living when the event happened upon which the sale was to take place. As a power also, it is void because in that part of the d'eed where the the sale io mentioned last, -no person is appointed to odt; and where it is first mentioned, they that <ue the*?, lining of hk four sons, or for want of them, (nuj one or more of their lawful heirs of their own bodies may «-secute a deed. Thd tatter have no power unless for want of the ibimcv. some of his sons then living. Josiah, one of the son:, v/.is then l.ving; che power vested, in him and espirad with him, and the tee remained where it was, ia the heir of the grantor, who conveyed to the defendant. Also as a power, st is now hi-capable of execution for another resma ; the Lends ;n the latter ciau.e in the deed respecting a sale, are to be sold to anr r rri or ¿sore of the grantoPs four sons &c. — by the former dan:..., “o any one or more of his sons then living when the issue ef cue fails, or to the heirs of their body or bodies j that h, ? r, i understand it, to the heirs of the body or bodies of such of his Guns as shall be living when the issue fails. Then, not only Jocuh tra-to sell, he being one of the four sons then living, wbic., he crua smt now do, being dead; but he was also to sell to i'.i.mWíí or t>> She heirs of his own fcotlyi which was impossible,,</p>

¡V'HE defendant, master of a vessel offered in evidence a protest to shew that he was not chargeable with the cargo, having lost it in a storm. The plaintiff’s counsel argued that such evidence was not admissible, for the reasons stated in Taylor’s Reports, 30S. 7 T. Í59. Whereupon Hamilton, for the defendant cited 1 Dallas, 16. Gel. 116. 2 Dallas, 196. 1 Dallas 317. Weskett, 232. 1 Dallas, 318, 6, 9, 10. Weskett, 433, 430. 2 V alins, 222.

IpvEBT on a bond for delivery of Tobacco, on the 24th of Fe» bruary, 1781. Payment in tobacco had been made at divers times up to the year 17S9; and the tobacco thus delivered, though a smaller quantity than was to be delivered, was of more value in money, estimating it by the prices it bore at the several times of delivery, than the whole that was due by the bond was worth on the 24;h of February, 1781, with the interest thereon.

/^¡.ILMOUR and Pasteur were partners in trade, though the fact was denied both now and upon the trial at law. Gil-mour purchased goods of the plaintiffs, and gave a bond signed Gilmour, & Co. An action at law was instituted on the bond, after the death of Gilmour and Pasteur, against Pasteur’s executors, and judgment was upon the merits in that suit for the defendant.

'T\£BT upon a bund commenced in the county court, and a» appeal taken to this court; and the plaintiff now proposed to prove by the subscribing witness, that a bond was given to the plaintiff the time when it was given, and that it was lost at or since the trial in the county court. rats, for the defendant, saiJ, that as a declaration had noi been drawn since the loss of the bond, and that as the first declaration made a profcrt of the bondj,; the bond so preferred to the…

HPHIS was an action to recover from Jenkins on the following facts. The plaintiff had advertís id a sale of his intesv ’s effects, and the ttnns of the sale were, that the purchasers siieu’d give bond with approved sureties before tilt propel ty should be delivered. A mare was exposed to sale, and a bid of £.50 was made for her.

'T'HIS was an action of debt brought upon an instrument in -*■ the form of a bond, with a penalty and with a condition to be void on payment of a less sum, but it had not a seal. It was objected by Mr. Daniel that debt would not lie on such an instrument, but that an action on the case was the proper one. It was lately decided in England in the case of Bishop vs. Young, 2 Bos.

*TpHE plaintiff produced a witness and examined her, the ele-, fendant then offered a deposition, and the certificate of the commissioners stated that the person who gave notice of t.-Idr,g the deposition, had appeared before them and proved that legal notice had been given j and the court decided that the certificate was insufficient, for it should have stated when the notice was given, that the court might be able to determine whether it were legal notice or not.

TTACHMEN'f. Ciaikhad been summoned as a garnishee, and declared that a bond had been given by hint to the defendants thirty one years ago : he stated the sum and the time it was payable: an issue had been made up under the direction of the court j which was, whether this bond had been paid or not, and it now came on to be tried.

^T^HIS was an action for a nuisance, by ©veiflowing the plain- **■ tiff’s lands 5 a form r action bad bet a brought, and damages assessed, and a judemt-ni given against the defendant.

N the trial of this cause at the last term, some of the plaintiff’s witnesses being absent, and his cause being ruled to trial, lie resorted to depositions lodged in the office by the defendant, and he was allowed to read them against the defendant without proof of notice. A juror was then withdrawn.

npHE defendant appealed from the county court and gave but one surety in the appeal bond. It was moved that the appeal be dismissed, because there were not two sureties.

HE plaintiff deduced title to himself to the lands in question. The defendant offered a deed from one of the mesne owners, through whom the plaintiff claimed; which owner was a feme covert. The deed had no endorsement of a probate in court, or an acknowledgment by the Baron ; but in the minute docket of the county court, there was an entry, purporting that the deed was acknowledged ; not saying by whom or in what court.

<p>'T'HIS was debt on a bond- — and one Andrew Adie had subscribed as a witness ; he had been summoned, and did not attend:: a commission was issued, and when.before the commissioners, he refused to, depose, alledging that his papers were not in his possession \ at the next court be did not attend, and the iourt issued an attachment against him : hearing of this, he removed into another county. It was proved that Blount, before giving this bond, had left money with a company, of whom thia Adie was one, or had lent them money under such circumstances as raised, a presumption that they were to pay this debt when recovered. The truth now coming in, all these circumstances Were proved to the court •, and Baker moved to be at liberty to. prove his hand 'Triting in the same manner as if he resided out; of the state, being only an r.nstrumentary witness^ — and after much argument,</p>

'tpIKS bill in equity stated that sometime prior to the 25th -*■ cember, l'/89, the complainant borrowed of the defendant’s testator, £ 25, Virginia money, and gave him a bill of sale Cor a* Negro man, with an endorsement stating that if the £ 25, with interest should be repaid on the 25th ol'Deceinber, 1789, the bill of sale should be void; but if not paid with interest on that day, then Williams should be entitled to the Negro and a further bill of sale, and should pay £…

T3 ILL in equity for an injunction against an execution at law. JJ* The cause being now called in course, Mr. Gaston, for the plaintiff, moved the court that the answer might be referred to the master for impertinence ; saying he had perused the answer, aad a great part of it was irrelevant to the matter in controversy.

yPHIS was an action for misconduct of toe master of plaintiff51® -*■ vessel. A trial was had at this term, aad a verdict given for the plaintiff, and £ 70 damages assessed ; and the defendant’s counsel moved ait arrest of judgment; for that the writ had been issued and signed by the deputy clerk in. his own name. though it bore test in the name of the principal clerk.