Volume 31 — North Carolina Reports

This was a petition to recover residuary legacies from the defendant as executor of William D. Tubbs, in which the following case agreed was submitted to the Court.

<p>A. hired a negro from E. and gave his sealed note as follows, “On the 1st day of January, 1848, I promise to pay to B. one hundred and thirty dollars, the slave is hired on the same terms as other slaves, for the hire of the boy Evarlsou.” Held, that this writing oniyjreferred to]lhe price of the negro, and was not a memorial of any other terms of the agreement, and that, as to these latter, parol evidence was admissible.</p> <p>And in such a case, in order to recover damages for a breach of the agreements, not mentioned in the note, an action on the case and not an aotion of covenant is the proper remedy.</p>

This was an action of assumpsit, in which the plaintiff declared in several counts. 1st. On a promise to indemnify the plaintiff on a note for 0600. 2nd. On a promise to indemnify the plaintiff on a note for -$479 43. ■3rd. On a promise to indemify the plaintiff on a judgment of the Banlr of Cape Fear against David Underwood, John Sellars and William C. Draughan. 4th.

<p>The courts have no authority to have the lands of the citizens taken for a cart way, without the consent of the owner, except in the instance provided for hy the Statute, “If any person shall be settled upon or cultivating any land, to which there is no public road leading or no way to get to or from the same, other than by crossing other persona’ land.”</p> <p>Therefore where there was a public road to which access might be had, though not so convenient for the petitioner, as the cart-way he prays for, the Court cannot grant the petition.</p>

This/is an action of debt on a constable’s bond, to recover the amount of a claim put in his hands for collection ; and the breaches assigned were — failing to collect, collecting and not paying over, and not returning the note. It was shown, that on the 16th day of April, 1839, one Sedbury, being appointed a constable for one year, executed Ijhe bond sued on, and the testator, Wall, was one of his sureties.

This is an action of assumpsit to recover damages for the breach of a contract, because of the non-delivery of a crop of tobacco, alleged to have been sold by the defendant to the plaintiff in the winter of 1845. Several witnesses testified that they heard the defendant say, he had sold his crop of tobacco to the plaintiff for four dollars per hundred, to be delivered at the Frank-linton depot.

This was a proceeding upon a ca. sa. returned originally to the County Court, where the proceedings were ordered to be dismissed upon the motion of the defendant, and from this judgment an appeal was taken to the Superior Court.

<p>Where A. contracted to deliver to B. one hundred fish stands of a certain description, and upon tendering them, B. received fifty, but refused to receive the other fifty, because they were not made according to the contract; Held, that this receipt of the fifty stands did not make B. responsible for the other fifty, which were not made according to the contract.</p>

<p>Appeal from the Superior Court of Law of Davie County, at the Fall Term, 1848, his Honor Judge Moore. presiding.</p> <p>Under the proceedings in this case, the plaintiff seeks to recover from the defendant, who is the Sheriff of Davie County, one hundred dollars, the penalty given by the Act of 1836, ch. 109, sec. 18, for not returning process. It appears that the plaintiff recovered a judgment in the County Court of Davie, at May Term, 1845, against Na«. than Hamlin, upon which a fieri facias issued, returna] ble to August Term following, which in due time came to the hands of the defendant’s deputy, who collected, the money. Early in the term of the Court, to which the writ was returnable, the plaintiff applied to the deputy,, in whose hands the process was, for his money ; which he refused to pay to him. On Wednesday evening of the-Term, the deputy, with the plaintiff, went to the Clerk of the Court, and the former offered to return the process and pay the money to him. The Clerk remarked he was-then busy and directed the plaintiff to call at his office the latter part of the week and he would then receive his money. At this time no return was endorsed on the execution. The Clerk was taken ill on Friday evening and died on Saturday — on both of which days, the plaintiff attended at the Court House, to get his money. On the Monday following, the deputy stated he had not returned the fi. fa. During the August Term, the plaintiff obtained a judgment nisi for the penalty given by the Act, against the defendant, for not making a due return of the writ. Upon that judgment, the sci. fa., in this case issued, On the execution was endorsed, “August Term,” &c. To the sci. fa. the defendant pleaded nul tiel record, tender to the Clerk and refusal, death of the Clerk during Term.</p> <p>The Court adjudged there was such a record and submitted the other issues to the jury, instructing them to ascertain from the evidence whether the defendant did return the execution in due time, as he was required by law. If they fopnd be bad done so, the plaintiff was not entitled to recover. The jury were further instructed that the offer by the deputy to return the execution to the Clerk, on the Wednesday evening of the Court, was not sufficient to discharge him from the penalty, unless the plaintiff had agreed to enlarge the time, within which the sheriff was required by law to make the return. If the plaintiff had so agreed, the defendant was entitled to their verdict. The jury found a verdict in favor of the plaintiff, and the defendant appealed from the judgment thereon.</p>

This was an indictment for a common nuisance. It appeared on the trial of this prosecution, that a quarrel took place in Madison, a village of Rockingham, between the defendant and another individual; that the defendant was drinking, and after the quarrel and separation of the parties, he cursed and swore in a loud tone of voice for some time — that he used very profane language, calling the name of Almighty God in vain — that his especial abuse was directed at the…

1848, his Honor Judge Dick presiding. This is an action of debt, commenced by original attachment. The case is this.

The case began by warrant before a Justice of the Peace for “the sum of twelve dollars due by assumpsit.” Upon non-assumpsit, the verdict was for the plaintiff» and the damages assessed to $12 for principal money, and for interest $1 50; and from a judgment accordingly the defendant appealed.

Case transmitted from Anson Superior Court of Law, at the Spring Term, 1839. This is an action of debt on an award made on the submission of the intestate Jennings, to which the defendant pleaded the general issue. He afterwards pleaded a special plea, since the last continuance, to which the plaintiff demurred.

This is an action of replevin brought to recover a slave. The plaintiff, in taking out his writ, did not make any affidavit, as required by the Act of 1836. Rev. Stat. Cft. 101, Sec. 1. For this cause, on the motion of the defendant, the presiding Judge ordered the cause to be dismissed, and the plaintiff appealed.

• In April, 1838, a warrant was brought in the name of Archibald Munroe, guardian of the infant children, &c., and to the use of Cornelius Dowd, trustee, &c., against-William Barrett and others, for $49 and interest, due by note. It was executed by one Hedgepeth, a deputy sheriff. and, on the 5th of May following, judgment was rendered against Barrett, and staid on the 14th of the same month.

The following case agreed was submitted to the Court. Jesse Harper held a note on defendant’s intestate as principal, and plaintiff as securit}-, on which suit was brought against defendant and plaintiff; and the writ, executed on both, returned to Randolph County Court, at ¡May Term, 1843. The defendant, on return of said writ, had assets sufficient to pay said debt, but craved nine months before pleading.

1848, hi.s Honor Judge Dick. presiding. This was an action of ejectment, in which the plaintiffs claim under the Acts of Assembly granting the vacant swamp lands in the State, to the Literary Board, and the defendant under a grant to one Solomon Smith* issued in the year 1780. The question in this case is upon the construction of the grant to Smith, which is mentioned in the plead-' ings.

<p>The declarations of a slave, at any particular time, as to the state of his health, are, from necessity, admissible in evidence.</p> <p>Whenever the bodily or mental feelings of an individual, at a particular time, are material to he proved, the expression of such feelings,, made at or soon before that time, is evidence* of course subject to be weighed by the jury.</p> <p>The case of Clancy v. Overman, 1 Dev. 4* Bat. 402, cited and approved.</p>

<p>Appeal from the Superior Court of Law of Duplin County, at the Spring Term, 1848, his Honor Judge Dick presiding.</p> <p>The lessor of the plaintiff claimed the premises as a purchaser of them as the lands of Harold Blackmore, under a judgment rendered against him and a fieri facias bearing teste the 4th Monday of September, 1843. The execution was levied on the 20th of October, and the land was sold in March 1844, when the lessor of the plaintiff purchased and took the sheriff’s deed and then brought this action. The plaintiff further gave evidence, that Sarah A. Pasteur was seised in fee of the premises, and by her agent, Alexander Stanford, contracted to sell them in fee to Blackmore on the 27th of April, 1841; for the performance of which, Stanford executed his covenant to Blackmore, and that Blackmore immediately entered into possession, and afterwards paid the purchase money. The plaintiff' further proved, that in October, 1843, Blackmore contracted with Hill for the sale of the prf mises to him in discharge of a debt which he owed Hill, and assigned to Hill Stanford’s covenant, but dated the assignment as of the 1st of July, 1843, in order that it might appear to have been made before the judgment recovered against Blackmore ; and that thereupon Black, more went out and Hill went into possession of the premises.</p> <p>Upon the foregoing case the defendant’s counsel prayed the Court to instruct the jury, that the plaintiff had no title and could not recover. But the court refused so to do ; and instructed the jury, if they found that Hill went into possession under Blackmore, that then the plaintiff was entitled to recover. For, that it would only be necessary for the plaintiff to show the judgment and execution, sheriff’s sale and conveyance to the lessor of the plaintiff, to enable him to recover against Blackmore, were he in possession; and that the same was sufficient to entitle him to recover from any person who went into pessession under Blackmore. The jury found for the plaintiff, and the defendant appealed from the judgment.</p>

•• This was a case agreed, and the following are t.he facts. James Edwards was elected sheriff of the County of Wake, for two years, commencing at August Sessions, Í846, when he gave a bond in the penal sum of five thousand dollars, for the collection and payment of the County, Parish, and School Taxes.

This was an action on the case, to recover damages of the defendants for causing, one of the streets in the town of Wilmington to be cut down to the depth of four or five feet, by which the earth of a certain lot, lying on the said street, was caused to fall, bearing with it sundry brick walls on the said lot, and rendering it necessary to the plaintiff to be at great expense in reconstructing said walls, and either lo grade down the said lot to its former relative level…

The declaration of ejectment, in this case, was returnable to August Term, 1845, of Wake County Court, and contained but one demise and that in the name of Scott and wife. At that term the defendant appeared, and entered into the common rule and pleaded not guilty.

This is replevin for a slave, which the defendant avowed taking as sheriff of Duplin under a -fieri facias from the County Court, against the property of Edward A. Houston. At the time of the seisure the slave was in the possession of the plaintiff; and the only question at the trial was, whether the action would lie.

This was an application to reduce the valuation of a piece of land, assessed for taxation in Montgomery County, for the year 1847. Held: that the machinery for spinning was not subject to taxation ; and the order of the County Court was quashed and a procedendo awarded to that Court to reduce the valuation of the land and improvements, by deducting therefrom. the value of that part of the machinery.

The action is in trespass, to recover damages for injury to land. The circumstances of the case are as follows. In 1843, a man by the name of Lamb agreed, verbally, to convey the land in question, of which he was the owner, to William Patterson, upon condition that he would put a house upon it and finish it Before that was done, McConnell and Lindsay obtained a judgment against Wm.

This was an issue of devisavit vel non upon a paper writing, offered for probate by the plaintiffs, as the last will and testament of Joel Horne, deceased, in which paper writing, the said plaintiffs were named as executors and only legatees. Three objections were raised by the defendants, to-wit: 1st. That the supposed testator was not of sufficient capacity to make a will, for want of a sound disposing mind and memory. 2ndly.

<p>Appeal from the Superior Court of Law of Edgecombe County, at the Fall Term, 1848, his Honor Judge Dick presiding.</p> <p>This is an application to call in the probate of a script as the will of David G. Baker, deceased, which was granted to Moses Baker as the executor. The deceased died in September, 1S44, leaving a widow, Catharine, and their four infant children. There is no copy of the instrument in the proceedings ; but it appears from the all-legations, that it was executed in the last illness of the deceased, and shortly before his death, and that it was attested by two witnesses : that by it, the deceased gave his estate to his wife during her widowhood, and, at her death or marriage, to his children, with a provision, that as the children came of age they should have certain shares of the property allotted to them respectively : and that Moses Baker, the father of the deceased, was appointed executor and guardian of the children, [t was proved by the oath of the executor and the subscribing witnesses in the County Court at November term, 1844. Under it the widow remained in possession of the estate, consisting of land, slaves, and other chattels, until her intermarriage with Wm. J. Armstrong on the 3rd of February, 1846. They instituted the present proceedings on the 12th of the same month.</p> <p>The allegation states: that the probate was had without citing the party, Catharine, to be present at the propounding of the script; that for a considerable time alter the death of her husband, she was so overwhelmed with grief at her bereavement, that she took little interest in ascertaining her rights either under the instrument or in respect to its probate : that some months before her second marriage she was advised, that she might have the probat.e revoked, and that the script should he repro-pounded, in order that she might offer such objections to the same as she should be advised, or, in case she could not successfully oppose it, that she might be enabled to dissent from it after its proper probate : that she omitted, to institute proceedings immediately for that purpose by reason of an agreement of the executor and guardian, Moses Baker, to come to a compromise with her at November term, 1S45, of the County Court; with which he afterwards refused to comply.</p> <p>The allegation then insists, that, as widow, the party Catharine, had a right to a day in Court to show cause against the probate of the supposed will; and that, by reason that the probate passed without any citation to her, it was not binding on her, and she was entitled of common right, to have the same called in.</p> <p>Moses Baker put in a responsive allegation. It states, that the party deceased duly executed the instrumentas his last will and testament, when he had perfect disposing, mind and memory, and that it was duly attested by the witnesses : that the party Catharine had full knowledge of the contents of the instrument, and, indeed, that' it was made at her request and in her presence, and that the dispositions were adopted chiefly at her suggestion ; that alter the death of the deceased she expressed herself to be fully satisfied with the provision for her, and the desire that the instrument should be proved at the next Court, and that she knew it would then be propounded; and, in fact, one of the subscribing witnesses went to Court at her instance and by her assistance, that he might then prove it: that it was for those reasons, and those alone, that this party did not take out a citation for the said Catharine: that immediately after Court she was informed by the party, Moses, and several other persons, that the will had been proved, and also that she might dissent from it within six months after the probate : that during the whole period she rejected the advice with displeasure, and declared her determination not to dissent, as the will had been made in conformity with her wishes, expressed to her late husband, and she was satisfied \\i h it: that she continued so to express herself for some months after May term, aforesaid, and until she began to receive the attentions of suitors and conceived the purpose of marrying again : that the party, Moses, made no compromise nor any agreement for a compromise in the premises.</p> <p>Both in the County and Superior Courts there was an order to call in the probate, and the executor appealed to this Court.</p>

This was an action of assumpsit upon a promissory note. The pleas — general issue, statute of limitations, and specially that on the 15th of April, 1846, the defendants were garnisheed at the instance of one Pitt, and former judgment since the last continuance. The note, sued on, was dated New Yorlt, April 1st, 1846, and was payable to one Taylor, six months after date. The execution by the defendants as makers was admitted.

<p>A. declared against B. for the breach of an agreement in writing signed by B. in the following words, “R. H. Mosby has promised to procure for my mother a pension from the Government of the U. S. supposed to be due to her as the widow of Lieut. Charles Gerard, and in the event of his doing so, I promise and oblige myself to give the said R. B. Mosby one half of the money due her on account of the said pension. Given under my hand this 3rd day of December, 1838. Charles G. Hunter.” Held, that this agreement referred to a pension to which the widow was then entitled or supposed to be entitled, and not to a pension to which she became entitled under an Act of Congress subsequently passed. Held further, that although the sales of pensions are by law prohibited, yet the Court could not infer from this agreement, though a jury might, that the agreement was made by the son, as the agent of his mother, it did not transfer any title to any portion of the pension, and therefore was not, on that aceount, in itself invalid.</p> <p>Held, also, that upon a count for work and labor done, A. could not recover from B., because his services did not enure to the benefit of B., and therefore the law would not imply a promise.</p>

This is an action, of debt, commenced by warrant upon the following award : “We, the undersigned, have this day viewed the land belonging to Charles M. Cullifer, covered by the water of the mill, late the property of John R. Gilliam and Levin Butler, and do assess the damages, which the said Cullifer has sustained, for the year 1847, at $26 26 ; for the year ’48, at $23 ; for the year ’49, at $23 ; ior the year ’50, at $16, and for the year’51, at $16; and due, respectively,…

<p>Appeal from the Superior Court of Law of Craven County, at the Spring Term, 1848, his Honor Judge Dick presiding.</p> <p>This was an action in assumpsit, to recover for work and labor don© for the defendant’s intestate. The defendant pleaded the general issue, fully administered, and the Act for the protection of administrators'. The plaintiff having proved his cause of action, the defendant shewed that he took out letters of administration upon the estate of his intestate at May term, 1842, of Craven County Court, and also proved that within two months thereafter, he caused an advertisement for the creditors • to present their claims for payment to be posted ujr at the door of the Court House of Craven County, also at the County wharf in Newbern, Copies of these advertisements, properly proved, were produced to the Court, held for the County of Craven, at its August Sessions, 1842, and ordered to be filed. lie then offered in evidence, the copy of another advertisement, similar to the other two, upon which was the affidavit of one Green, made at the November term, 184?, of Craven County Court, and which had been ordered by the County Court to be filed with the records. This latter evidence was ruled out by the Court. The defendant then offered to prove by one Stephenson, that he had seen an advertisement, signed by the administrator of John Patrick, notifying the creditors to present their claims, but in what year or month he could not tell. This testimony was rejected. For the purpose of refreshing the memory of Stephenson as to the time, the defendant proposed, that he should look at the copy, certified by Green ; this the Court refused.</p> <p>' The cause had been referred to James G. Stanly, who made a report, which, not being excepted to by either party, had been confirmed by the Court. The commissioner, in stating the debit and credit side of the administrator’s account, strikes a balance of $<930, as the amount of assets in the defendants hand. He goes on however, and states that the defendant claims to retain that balance, to satisfiy the following sums &c., the 3rd of August 1S44 — namely, at “ May Term 1843, of Green County Court, by J. M. Patrick, by his guardian Willis Dixon, judgment quando against Ed. Patrick, adm’r. of John Patrick, $12S1 88 1-2.” The defendant’s counsel contended, that by the commissioner’s account and report, the defendant had fully administered, and that the balance of the assets, as stated in the body of the account was subject to the payment of the judgment quando against him, in preference to the plaintiff’s demand, and requested the Court so to charge the jury. The Court instructed the jury, that it appeared from the report, that there was a balance of assets in the hands of the defendant sufficient to satisfy the plaintiff’s demand: that it was incumbent on the defendant to show the existence of the judgment quando, by producing a copy of the record, and as he had failed to do so, they might find for the plaintiff if he had established his claim to their satisfaction.</p> <p>There was a verdict for the plaintiff and from the judgment on that verdict, the defendant appealed.</p>

The prisoner was indicted in eleven counts. The first charged, that he, “a certain male slave named Jim, of the value of ten dollars, and the property of Wm.

<p>Where an execution from a justice of the peace has been levied on land and returned to the County Court, where judgment is rendered for the plaintiff, he may either have an order of sale, under which he can only sell the land levied on, or he may taire an execution as in other cases of judgments.</p> <p>A special fieri facias may be added to a venditioni exponas, whenever a fi' fia. itself may be sued out.</p> <p>The cases of Amyett v. Backhouse, 3 Murp. 63, Burke v. Elliott, 4 Ire.355, and Borden v. Smith, 3 Dev. & Bat. 34, cited and approved.</p>

This is an application to call in the probate of a- nun-cupative will of William Rankin, who died in September 1829. leaving a widow, who is one of the defendants, and two daughters, who were infants. It was on the 22nd of September, reduced to writing in this form : “The nun-cupative will of William Rankin, deceased.

The case is as follows: Joseph Watson, by his will, gave his son, Jno. A. B. Watson, after the death of his wife, a negro slave named Reuben, and a negro woman, named Sylva. By a subsequent clause, he directs, that at her death, all the property he had lent her, should be equally divided between his son, John and his daughters, Teresa and Susan, with survivor-ship, upon either dying without leaving issue.

Appeal' from the Superior Court of Law of Craven County, at the Fall Term, 1848, bis Honor Judge Settle ■presiding. This was an action of trespass vi ej, minis, for false imprisonment. The defendant pleaded that the plaintiff was a slave,upon which issue was joined.

This is a proceeding to obtain the probate of a paper as the testament of Sarah B. Hurst, a married woman; which is opposed by the administ2’ator of the husband who died since the death of his wife.

This is an action on the case in assumpsit. The declaration had three counts. 1st. A special agreement for the rent of land 2nd. For use and occupation oí land. 3rd. For money had and received.

This was an action of ejeetment for lot No. 30, in the town of Wilmington. The lessors of the plaintiff claimed under a grant to John Whatson made in 1735, and a deed from John Watson to Joshua Grainger, executed in 1737.

The plaintiff claimed the premises under a purchase by his lessors in 1S45, under two judgments and executions against Wm. R. Skinner : one, at the instance of Mather and Lecompte for $232 51 cents, and the other at the instance of the lessors of the plaintiff for $13SS 66. The defendant also claimed the premises under a deed to him from Wm. R. Skinner, made April 20, 1S41. Tt reciter, that the maker was indebted to Jas.

The plaintiff sued the defendant by attachment. The sum demanded was four hundred and fifty'' dollars. The writ was issued by a single magistrate, and made returnable before him or some other justice of the peace. The attachment was directed to a constable, who had levied it on property belonging to the defendant.

This was a suit to recover damages for harboring a slave. It appeared in evidence, that the said slave had belonged to the defendant, Asael Farmer, and had been sold under execution in 1835, and purchased by the plaintiff ; that he took the said slave into possession, and, immediately thereafter, he absconded and remained out until January, 1845.

Debt on a constable's bond. The breach, assigned in the declaration, was want of diligence in the collection of a judgment. On the 3rd of March, 1842, the plaintiff put into the hands of the defendant, a judgment rendered by a magistrate against Thomas D. Crane. The execution was taken out by the defendant on the 16th of the same month, but he proceeded no farther on it, until the month of June succeeding, when he levied on the land of the defendant in the execution.

<p>Appeal from the Superior Court of Law of Bladen County, at Spring Term, 184S, bis Honor Judge Bailey presiding.</p> <p>This is an action of ejectment to recover the land men* tioned in the plaintiff’s declaration. Both parties claim under John Anders, Jr., who died in 1814, leaving sever* al children, among them the defendant and James An-ders, who died in the year- leaving the plaintiffs and several other children. In the year-- a petition was filed by the heirs of John Anders, for a division of his real estate, in the County Court of Bladen County where the land lay. At-term, by the Court, five commissioners were appointed to make partition, who made their report to February term 1835, and at the same term, it was confirmed and ordered to be recorded and registered. The present defendant, at the May term succeeding, filed his petition to rehear the decree so made, and at August term succeeding, it was, by an order of the Court, dismissed, and the petitioner appealed to the Superior Court, where the case was"continued from term t term, until October term 1839, when it was referred to the arbitrament of Robert Strange and Owen Holmes, Esqrs., who made their award, under their hands and seals, to Spring term, 1840, when it was confirmed by the Court and ordered to be certified, enrolled and registered, which was accordingly done. The arbitrators incorporated into their award, the report made by the commissioners to the County Court in 1835, It appeared from the award, that the submission was made by the parties, and under a rule of Court. It recites, “this cause, by consent of parties and under a rule of Court, being referred to Robert Strange and Owen Holmes, with power, &c., and their award to be a judgment of the Court, and that the parties, agreeable to said award, and if so required, are to execute new title deeds, so as to pass and vest the title to the disputed premises, agreeable to said award.” The arbitrators then award “that the lands of John Anders, Jr, be, and they are hereby divided among the said parties, as they were heretofore divided by Wm„ H. Beatty,” &c. Mr. Beatty, and the other persons mentioned in the award, were the commissioners appointed by the County Court of Bladen to make partition. By that partition, lot No. 2, the land in dispute, was allotted to the heirs of James Anders. Before this action was commenced, the plaintiffs had demanded the possession of the land from the defendant, who refused to deliver it up — the demand was made at the town of Elizabeth, which is twenty miles from the premises.</p> <p>The plaintiff claims the lot in question, as one of the heirs and as a purchase from the other heirs. The defendant claimed to have been in the adverse possession of the lot when those deeds were executed, and that they conveyed nothing to the plaintiff, and denied that the arbitrators had any right, under the submission to divide the land of John Anders, Jr ,. and that the demand, as proved, was not sufficient.</p> <p>His Honor instructed the jury, that the demand was sufficient, and that, if at the time the lessor of the plaintiff purchased from the other heirs, the defendant was in possession of the land, claiming it adversely, the deeds passed no title, and the plaintiff could not recover but one sixth of the lot in question, but if the defendant did not hold adversely, at the date of the deeds, then, if they were satisfied that lot No. 3 had been allotted to the heirs of James Anders by the commissioners, and the defendant was in possession and refused to give it up on the demand, which was made, the plaintiff was entitled to recover the whole of said lot, and they should find the de> fendant guilty.</p> <p>The jury found a verdict for the plaintiff and judgment being rendered, the defendant appealed to the Supreme Court.</p>

<p>Appeal from the Superior Court of Law of Randolph County, at the Fall Term, 1848, his Honor Judge Cax.d-well presiding.</p> <p>This is an action of debt on a bond of one Hamlin and the defendant’s testator, and was tried on non est factum pleaded. To establish the execution of the bond by the testator, his daughter was called'as a witness and she deposed, that a servant of Hamlin brought a letter to her father, the testator, at his house, inclosing]the paper now sued on, which was then signed and sealed by Hamlin, and had a seal for another name, and requesting the testator to sign it, with a view to receive money on it: that her father, by reason of age and infirmity, could not write, and directed her to sign the paper for him ; and that for that purpose he laid the paper down on a table in the house, and turned away and went out into the yard, and she then signed his name and delivered it to the servant, who took it away : that at the time she signed the paper, she heard her father conversing with his wife in the yard, and that sheMid not then see him, nor believe that he could see her; and that no objection was afterwards made by her father to what she had done. The witness further stated, that she had been in the habit of signing her father’s name by his directions to Hamlin’s notes, and those of other persons.</p> <p>The Court instructed the jury, that there was such a presence of the testator as would make the signing by the daughter binding on him ; and that if the paper was left on the table with the intent that the daughter should hand it to the servant when signed, then her delivering it, as stated by her, was a good delivery, though the testator was in the yard at the time. There was a verdict for the plaintiff, and the defendant appealed from the judgment.</p>

The action is trespass for mesne profits, brought in the name of the plaintifF in ejectment, after his lessors were put into possession under a habere facias possessionem from this Court in the case reported 6 Ired. 361. The judgment was there given on the first count, which was-on the demise of two persons, who were with others the heirs at law of Jeremiah M. 'King, from whom the land descended.

The declaration is entitled of September Term 1S48, and was served on Long, as the tenant in possession, t.be 24th of August of that year. The demise is laid as of the 10th of February, 1844. At September Term, Long applied to be admitted as defendant, offering to give bail and enter into the common rule, and plead not guilty.

In this action of ejectment, the following bill of exceptions was sent up by the Judge of the Superior Court.

well presiding. This was an issue of devisavit vel non, as to an instrument dated November 28th, 1843, and propounded as the will of Elijah Bell. It had two subscribing witnesses, and they were both examined.

This was in case for erecting stables so near the dwelling house of the plaintiff, as, by the noise of the horses and the smell of the litter, &c., to render the plaintiff’s house uncomfortable to live in, and thereby much impair its value.

This was an action of debt, upon the following bond : STATE OF NORTH CAROLINA, Orange County. Know alt, nen by these presents, That we, Nathaniel King, William Barbee and David B. Alsobrook, all of Orange County, in the State aforesaid, are held and firmly-bound unto James Iredell.

This is an application to set aside the probate of an unattested script, as a will of John Kea deceased, disposing of his personal estate. It is made by three of his neices, who are the children of a sister of the party deceased, who died before him. Their names, were Lydia, Elizabeth, and Sarah King, and they and their husbands bring this suit.

This is an action of debt on the bond of the defendant as sheriff of Beaufort, and the breach assigned is the voluntary escape of one Davis, a debtor to the relator. The case is this.

over County, at the Fall Term 1848, his Honor Judge Manly presiding. The petitioners allege, that they are the “heirs at law’’ and “distributees” of Hezelriah Bonham, who died intestate ; that the defendants are the administrators of the said Bonham, and, as such, took iuto their possession ne-groes, bonds, money, and other personal property to a large amount. The prayer is for an account and distribution.

<p>A. made his will in 1837, in his own hand-writing, but unattesled, and it was placed among his valuable papers. Afterwards, in 1847, being about to leave this country, he deposited this will, together with other papers, with a friend for safe keeping. Held, that this did not of itself amount to a republication of the will, and that therefore land acquired after 1837, did not pass under it.</p> <p>The Act of 1844, eh. 83, making devises to operate upon such real or personal estate as the testator may own at the time of his death, does not apply to wills executed before the passage of that Act.</p>

Joseph Dail died intestate in January 1817, leaving a widow, Celia an only daughter and child, then the wife of Wilson Mardree, and also leaving a number of slaves, stocks of various kinds, which were on two plantations in Pcrquimons, where he had resided and died. One trnct of the land belonged to him, Dail, in fee ; and the other belonged to his wife in fee. Administration of his estate was taken in May 1847 by the son in law, Wilson Mardree.

This is an action of debt, brought on the bond of the defendant, McIntosh, and his sureties, executed on the 16th of August, 1836, as sheriff of Moore County.

This was an action of ejectment. The plaintiff offered in evidence a deed from John D. Cook and Lydia Cook to Joseph Cowell, also a deed from Joseph Cowell to Alfred Perkins, and from Perkins to the defendant James M. Ferebee.

The plaintiff's intestate, Jeremiah Brown, was Clerk of the United States District Court, for the District of Pamlico, and the defendant, Collector of the customs at Washington. On the 4th of November, 1845, the defendant addressed to the intestate a letter, of which the following is a copy: “Sir.

The defendant and one Meredith were tenants in common of the tract of land, where the trespass was committed. The plaintiff was in possession of a part of the land, as the tenant of Meredith. While so in possession, the defendant, together with others, who were aiding and assisting him, entered the house, in which the plaintiff lived, and forcibly turned him out. Iu doing so, they committed an assault upon his person.

The lessor-of the plaintiff claims under the will of Elizabeth Locke.

A ca. sa issued against the defendant, Benjamin, by a justice of the peace, on the 1st day of December, 1848. At January Term of the County Court of Martin, the constable returned the ca. sa., and a bond in the usual form for the appearance of the said Benjamin, to take the benefit of the insolvent law.

<p>The passage of the several Acts of Assemby, enlarging the time, within which grants shall be registered, makes them good and available by relation back, from the time when they are dated, as much so as if they had been registered within two years.</p> <p>The ease of Scales v. Fewell, 3 Hawks 16, cited and approved.</p>

This was debt upon a bond, executed by the defendants?, for the sum of five hundred dollars, and payable to the plaintiffs, dated 30th of November, 1847, with a condition,, that “William H. Bayley, having this day received of Charles G. Haughton and Joseph G. Godfrey a stock of goods, to peddle with ; now, if the said Bailey shall well and truly pay unto Charles G, Haughton and Joseph G. Godfrey the just and full amount of the stock of goods 014, the 1st day of April next,…

This was an action of assumpsit. The questions were presented to the Court upon the following case agreed. Elizabeth Rogers, the wife of Stephen Rogers, the plaintiff’s testator, in 1837 was divorced from bed and board, and allowed, as alimony, one third of the annual rent of a tract of land and the service of three negroes. Her part of the rent amounted to $60 per annum, which she regularly received.

The prisoner was indicted for murder, in killing Penny Anderson. The State proved, that the prisoner and Penny Anderson had lived together for several years, as man and wife, although not married: That in October 1848, Penny Anderson was, on Monday night, at home with the prisoner. Daring the night, blows were heard and much lamentation, as of a person suffering under a violent beat» ing and begging for mercy.

This is an action on the case, under the Act of 180S, for a charge of incontinence. The first count alleges, that the defendant Judith, who is the wife of the other, defendant, made the charge by using the words: “she had lost a little one.” The second count by using the words ; “Zilphy Sims is a credit to her,” Zilphy Sims being a woman, whose general character was that of a base, lewd and incontinent person.

The declaration in this action of ejectment had many counts. Among others, there were counts on the several demises of John and Thomas Carson, and William Moore, laid in the year 1796. At the return term, Spring of 1848, the defendant, upon affidavit, that the said John, Thomas, and William, were dead, and had died as far' back as the year 1810, obtained a rule to show cause, why the counts, upon their demises, should not be struck out of the declaration.

Both parties claim under Lydia Cook, the wife of John Cook. It is admitted, that if a deed from Cook and wife to William C. Etheridge is valid to pass the title of Lydia Cook, then the plaintiff is not entitled to recover. If the deed be not valid, then the,plaintiff is entitled to recover. The deed is in the usual form, signed and sealed by both Cook and Lydia Cook, attested by John L. Scurr.

The defendant was tried and convicted upon the fol. lowing indictment, to-wit; “State of Noetii Carolina, ) Superior Court of Law, Edgecombe County, y Fall Term, 1848. 1 “The jurors for the State, upon their oath, present, that Edwin Robbins, a licensed retailer of spirituous liquor, by a measure less than a quart, late of the County aforesaid, at and in said County, on the first day of September in the year eighteen hundred and forty-eight, and in the night time of said…

<p>Appeal from the Superior Court of Law of Gates County, at the Spring Term 1849, his Honor Judge Manly presiding.</p> <p>This was an action of debt on a guardian bond. Sarah Ann Hunter, the intestate of the plaintiff, and the ward of the defendant, in 1S47, before her marriage, executed a deed, conveying all her estate, among other things the proceeds of the sale of a tract of land, sold under the decree of the Court of Equity for partition, which was in the hands of the defendant, her guardian, to a trustee for her separate use, and if she died without a child living at her death, then to the use of her contemplated husband, one Willis F. Riddick.</p> <p>The intestate intermarried with the said Riddick, and had a child born alive, but it died before the intestate. At the date of the deed and at the time of her marriage, the intestate was about sixteen years of age. She died at the age of eighteen.</p> <p>The breach assigned was a refusal to pay the amount of about $1000, the sum received by the defendant, as guardian, together with interest thereon from the 19th of May, 1840; at which time, the defendant, as guardian, 'had received the said amount, being his ward’s share of the land, sold under the decree of the Court of Equity, for partition.</p> <p>His Honor was of opinion, that the plaintiff could only recover the interest upon the sum received by the defendant, as guardian ; and a verdict and judgment were en' tered for the plaintiff for the penalty of the bond, to be discharged by the payment of the sum of $549, which was the interest upon the sum received by the defendant.</p> <p>No counsel for the defendant.</p>

The defendants were indicted for a forcible trespass in entering the yard of the prosecutor, and there shooting his dog. The prosecutor and his family, and a man by the name of Crothers, were present, and the latter was a witness for the State and examined before the jury.

The action is for an undivided moiety of the premises described in the declaration. On the trial the case was agreed as fallows. The land descended in fee from John Williams to his two daughters Martha and Sally. Aaron Johnson purchased the share of Martha, and took a deed to, himself in fee.

This is an action of debt brought June ISth, 1844, against the defendant, as executor of Isham Davis de« ceased, on a bond given by him and Edmund McLindon for $100, dated March 13th, 1839, and… Held: that it did not appear, that there had been a former judgment between the present parties on this bond.

This is an action of assumpsit. In 1839, the plaintiff purchased of the defendant a tract of land, and the de» fendant executed a deed with a covenant of general warranty. Upon a survey, afterwards made, it was found that twenty-two and a half acres of the land were covered b}' the plaintiff’s title, and sixteen acres by the title of one Parlcer. All the -promises are barred by the statute of limitations, except that proven by the testimony of one Turner.

<p>Appeal from the Superior Court of Law of Pasquotank County, at the Spring Term 1849, his Honor Judge Manly presiding.</p> <p>This was a petition filed originally in the County Court and carried by appeal to the Superior Court, in which the facts were alleged as follows.</p> <p>Richard Wadkins bequeathed to his daughter, Mrs. Snowden, a negro woman, named Ary ; and then, in his life time, he sold her for the sum of $325. This is a suit brought by the daughter against the executor for the $325; and the petition states, that the testator sold the negro “for some good and sufficient cause, and not for the purpose of defeating the interest of the plaintiff in the same, and that he kept the said sum of $325 in his possession and did not dispose thereof, but intended it should be given to the plaintiff under his will, in the place of the woman Ary.” Upon demurrer, the petition was dismissed, and the plaintiff appealed.</p>

The indictment contains two counts ; one, for a forcible trespass into the house of the prosecutor; the other for an assault aftd battery* In March 1847, the prosecutor let the house and field to one Mitchell to make a crop. Mitchell transferred his interest in the premises to Mrs. Mitchell,his mother, who took possession and lived in the house until November 1847, when she let the premises to the defendant Mc-Canless, for the balance of the year.

Pleasant Blaok and four others were indicted for playing at cards together and betting money thereon, in a house situate on premises occupied by Marshall S. Black, in which he retailed spirituous liquors.

This is an action of debt on a former judgment, brought against the executor of Henry Robeson, deceased, Plea, payment by the testator. On the trial, the defendant gave evidence, tending to prove that the testator had paid the judgment.

The defendant was indicted as a free man of color for carrying arms without a license.

Hugh J. Harper made his will and therein bequeathed $300 to Samuel W. Scarbrough, and then disposed as follows : “I give unto my son Benjamin D. Harper all my estate after settling my debts, except the $300 above mentioned.

This was an indictment for murder in the words and figures following, to-wit: State of North Carolina, } Superior Court of Law, Martin… Held: him the said Kenneth Mizell, then and there feloniously, wilfully and of his malice aforethought, did strike and beat, giving to him the said Kenneth Mizell, then and there, by striking and beating him as aforesaid, with the stick aforesaid, in and upon the left jaw and the left side of the neck of him the said Kenneth Mizell, one…

<p>Appeal from the Superior Court of Law of Richmond County, at the Fall Term 1S48, his Honor Judge Caldwell presiding.</p> <p>The prisoner was indicted in Anson for the murder of William Taylor ; and Havid Hildreth was charged in the same indictment, as being present, aiding and abetting. At the instance of the prisoner, his trial was removed to Richmond ; and in Richmond the prisoner prayed for a second removal of the trial, upon his affidavit, which is set out in the bill of exceptions, stating various acts of sundry persons and other circumstances, which had induced him to believe, that he could not have a fair trial in Richmond. The Court refused the motion. The prisoner then moved for a continuance, upon his affidavit, which is also set out in the bill of exceptions, stating the absence of divers witnesses, who had been summoned for him, by whom he expected to prove several material facts therein stated. The Court refused that motion also. It is stated in the bill of exceptions, that about 100 pel-' sons were summoned as jurors in the case, and that the prisoner challenged a large majority of them for cause, before the jury was formed; and that the prisoner examined those, thus challenged, as to their indifference, and that more than 15 of them had formed and expressed an opinion unfavorable to the prisoner.</p> <p>Upon the trial, one Edmund Taylor, a son of the deceased, and of the age of2I or thereabouts, gave evidence on the part of the State: That, after sunset on the 5th of September, 1S48, he was in his father’s corn field engaged in stacking fodder with his father, a negro man, and a younger brother — who had not age and capacity to be examined as a witness : That he, Edmund, was on a stack, which they were near finishing, and his father and the negro were throwing up fodder to him ; when he saw the prisoner, riding about in the field of his uncle. John Taylor, to the north of them, and reeling as if drunk. At that time David Hildreth rode up to the fence on the South side of the field and asked, if they knew where Robert was ; and upon being told where he was, David called Robert, who answered him ; and David then rode around the field into a lane between the fields of William Taylor and John: That the prisoner soon afterwards pulled down the fence and rode up towards the stack, so as to have the deceased between him and the stack : that then David came in a different direction, and stopped on the other side of the stack, and about six or eight steps off: that the prisoner did not then appear to be drunk, and he asked,if they had not done stacking fodder: to which no reply was made, as the witness and the deceased were displeased with him on account of a State’s warrant he had taken out against them not long before: that the prisoner then used very obscene and insulting language to them, and turned his horse as if he were going to ride off; and the deceased then told him, he would indict him for pulling down his fence and coming into his field, and ordered him out: upon which the prisoner got off his horse and made towards the deceased, who gave back and passed the stack ; that as he passed he told the witness to him give his knife, which the witness refused ; that David then said, “ take notice, 1 do not get off my horse That the prisoner continued'to advance on the deceased and the latter to retreat, when he said to the prisoner, “ I’ll kill you, if you don’t go out of my field but that the prisoner still advanced and the witness said to his father, “ I would not let a man rush, on me in my own field in that way” — whereupon David said, “ hush, or I’ll whip both of you,” and the deceased picked up a doted chump and after giving back eight or ten steps, and while still giving back, he struck the prisoner about the head, when the witness saw the prisoner’s hand strike the deceased in the breast, and then the deceased struck the prisoner again, and immediately exclaimed, “ Bob Hildreth has killed me — he has cut my heart open” — and the deceased, bleeding very much, walked off about twenty steps and fell dead. The witness farther stated, that the fight occurred between sunset and dark, and that the moon was shining,-so that it was daylight and moon-light; that, when the prisoner got off his horse, he did not think he would hurt his father, as he noticed particularly to see, if he had a knife or stick in his hand, and that he did not discover either, though he was on the stack ; that he did not see the prisoner raise his hand, while he was advancing on the deceased,- and that he saw him strike but one blow', though there were two wounds ; and that immediately afterwards he saw a bloody knife in the hand of the prisoner, with a blade four inches long.</p> <p>Other witnesses gave evidence for the State, that the deceased was a small and infirm man, about sixty years old; that there were two wounds on the dead bod}'— one, on the breast, about one inch deep and penetrating the breast bone, and appeared to be a stab with a knife? the other, on the left side, about three quarters of an inch wide and six inches deep, which was mortal.</p> <p>Further evidence was given, that the prisoner leased a house from the deceased, situate about a quarter of a mile from that in which the deceased resided ; and that, about four or five weeks before the homicide, the prison* er told a witness, the deceased was in the habit of watching his house to catch him trading with slaves, and he asked, if he would not be justified in whipping him — to which the witness replied he had better not do so, but appeal to the law. Other witnesses gave evidence, that, on the 13th of August 1S44, the prisoner applied to a magistrate for a peace warrant against the deceased and his son Edmund, upon the ground, that they threatened to burn his house and also to do him personal injury: That the magistrate endeavored to put him off, and the prisoner said, if he did not grant him a warrant, he would take the law into his own hands: That, thereupon, the warrant was issued on the prisoner’s affidavit, and the defendants therein were arrested and on examination discharged. Another witness deposed, that, about five weeks before the homicide, the prisoner asked him several times, if the deceased had not applied to him to watch the prisoner’s house for the purpose of detecting him in trading with slaves ; to which inquiries the witness replied, that Taylor talked a great deal, and that it was not worth while to mind him — and that, during the conversation, the prisoner said two or three times, “I will kill the old rascaland, the last time, he said, “ I will kill him and you may see it.” Another witness gave evidence, that, in the afternoon of the 5th of September, the prisoner and his brother David came on horse-back to John Taylor’s and drank some cider; but .neither was drunk: That the prisoner asked the witness, if he had not heard William Taylor say, that he intended to burn down his, the prisoner’s, house, and the witness replied, that he had not; and then the prisoner said, he would have him summoned, any how : That David then asked him, if he ever heard Taylor say, that a negro saw him, David, and his father lying in the road drunk : to which the witness replied, that he had heard the deceased say something like it — upon which David said, •* I will go over and beat old Bill Taylor nearly to death That the prisoner and David then left John Taylor’s, about an hour and a half before sunset, and rode over to James Hildreth’s, which was to the North and in'sight of John Taylor’s and about a quarter of a mile ofF. Another witness gave evidence, that the two brothers got to James Hildreth’s about an hour by sun ; and that, after being there some time, the prisoner borrowed David’s knife, saying he wanted to mend his bridle : that he opened and shut the knife twice and looked at it each time, and then put it into his pocket, and without mending his bridle, rode off North, in a direction from the deceased’s house and field; but that after going some distance, he turned towards the deceased’s plantation; and that in order to get there, he would have to pull down three fences. Further evidence was given, that the prisoner was arrested on a warrant the third day after the homicide, and was found in a thicket of briers in an old field, and that he had a slight wound on the forehead, and said that the deceased struck him there..</p> <p>Upon this evidence, the counsel for the prisoner moved the Court to instruct the jury, that it was a case of mutual combat, in which the offence was extenuated from murder to manslaughter. But the presiding Judge refused to give that instruction, and told the jury, that the rule was, that, if two persons engage in a sudden combat, and, after they become heated by the combat, one of them seizes a deadly weapon, or uses one in his hands, having no intent to use it when the combat commenced, and slay his adversary, it is but manslaughter. And after summing up the evidence, the Court instructed the jury, that, if the witnesses in this case were to be believed, the prisoner was all the time advancing on the deceased and the deceased all the while giving back; and that.the killing, according to the testimony, if true, was not manslaughter, but murder.</p> <p>The jury convicted the prisoner of murder, and from the sentence he appealed.</p>

The prisoner was indicted for the murder of William Taylor, as being present, aiding and abetting Robert Hil-dreth ; whose case has been before the Court at this term. As far as the evidence was stated in Robert’s case, it is much the same with that, which was given in this case.

This is an action of debt, commenced January 27th 1844, on a bond to the plaintiff for $111, dated January 11th 1838, and payable one day after date. Plea, «ore est factum. On the trial the plaintiff produced the instrument, which purported to be executed by the testator by making his mark, and to be attested by John Wall, junior, a son of the testator; and he proved the death of the subscribing witness and his handwriting.

The prisoner was convicted of arson, in feloniously, unlawfully, wilfully and maliciously burning a saw milN house, the property of Malthus I). Freeman 5 and, when brought up for sentence, his counsel insisted, that no sentence could be passed on him, because, since the act of 1846, the offence was but a misdemeanor; and because the indictment charged it to be a felony, and, therefore, there could not be judgment on it as for a misdemeanor.

The prisoner is indicted in this ease for burglary, in entering the dwelling house of James McNatt, on a certain night in January, 1849. The said McNatt and his wife were the only witnesses examined for the State, as to the breaking, entering, robbery, and hour of the night.

In the Fall of 1845, the intestate of the plaintiff, and the defendant agreed, as follows : The defendant leased to the intestate a tract of land for the year 1846, and was to find two horses, and food for them. He was also to. supply the intestate with provisions for himself and family during crop time.

The prisoner is indicted for the murder of one Henderson Floyd. The casé is, the prisoner and the deceased, both men of color, lived with their families in the same house. A quarrel took place between them, the deceased being in the house and the prisoner in the yard.

<p>One, who appears at Court to answer the charge of being the father of a child about to be born a bastard, may, before an issue is made up, move to quash the proceedings, on the ground that the mother is a woman of color within the fourth degree.</p> <p>If, upon such motion, the proceedings are quashed by the Court, a subsequent warrant, charging the same person with being the father, issued afte the birth of the child, cannot be supported.</p> <p>The proper relief against the order to quash, if it was deemed erroneous, was by appeal or certiorari.</p> <p>The cases of the State v. Ledbetter, 4 Ire. 242, and State v. Patton, 5 Ire. 180, cited and approved.</p>

County, at the Spring Term 1849, his Honor Judge Dick presiding. The action was commenced on the 16th of August 1845. The plaintiff gave in evidence a grant for the premises to Thomas Monroe, dated on the 27th of November 1792, and that he died many years ago, and that the lessor of the plaintiff was his only child and heir at law, and intermarried with Mark Crump.

This is a suit against the defendants on the sheriff’s bond of said Woodside, executed in September 1S43, and the breaches assigned are, that he collected and failed to pay over the County taxes, assessed in March 1844, for the year 1843 ; and that he failed to collect and pay over the said taxes.

<p>Appeal from the Superior Court of Law of Montgomery County, at the Spring Term 1849, his Honor Judge Caldwell presiding.</p> <p>This is an action on the case brought to recover damages, because a certain quantity of corn, bought by the plaintiff of the defendant, was infected with arsenic, whereby the plaintiff lost three horses, which had been fed on said corn.</p> <p>The declaration contains several counts, but the one mainly relied upon is the count in deceit.</p> <p>On the trial, it appeared, that the plaintiff went to the house of the defendant, and, after some chaffering, agreed to buy of him six bushels of corn, and'the price fixed on was eighty two and a half cents per bushel: that it was kept in boxes in the back room of a store house, and was measured out to the plaintiff and put into his bags. By the testimony of a witness, introduced by the plaintiff, it appeared, that after the price had been agreed on, and after the six bushels had been measured and put into the bags, the clerk of the defendant observed, that arsenic had been put in two plates of meal in the said back room for the purpose of killing rats; upon which the plaintiff said, that he did not like to take the corn, if it had been exposed to arsenic ; that the defendant said, there was no danger, that he had sent a part of the said corn to. mill: that he would be responsible for all damages, but that the plaintiff had better not tell his wife of it, as wo* 'men were timid: that the plaintiff took the corn home, fed it in small quantities to his horses : that they became suddenly sick, and in a short time died. By the testimony of the clerk, who was examined by the defendant, it appeared, that, after the price had been agreed on, and about half the corn had been measured, he remarked, that arsenic had been about: that some had been put in two plates of meal in the said room to kill rats: that the plaintiff said, if that were the case, he did not like to take the corn: that the defendant then remarked, there was no danger, but, if he did not like it, to put it back in the box : that the balance of the corn was then measured and put into bags and taken off by the plaintiff. And the said clerk also testified, that not more than ten grains of arsenic had been put into small plates of meal.</p> <p>Sundry witnesses were examined in relation to the arsenic and the corn, and how it affected the defendant’s hogs, and as to the defendant’s knowledge of their being sick, and how and what quantity wmuld affect a horse, and how the horses in question were affected.</p> <p>The Court charged the jury, to entitle the plaintiff to recover, he must make it appear, that the corn was infected with arsenic ; that the defendant knew, and con. cealed it; and that the plaintiff’s horses died, by reason of their eating the said corn. And the Court also charged, that, if the defendant, or his clerk, told the plaintiff that the corn had been exposed to arsenic, so as to put him on enquiry before the contract was completed, the plaintiff would not be entitled to recover’; but, if such information were given after the property in the corn vested in the plaintiff, it would not avail, and left it to the jury to decide, which of the witnesses was most to be relied on, as to the time the subject of the arsenic was mentioned, and as to other matters, in relation to which they deposed. And the Court further charged, that, if what the defendant said to the plaintiff about the arsenic was calculated to put him off his guard, rather than excite him to enquiry, then the talk about the arsenic would not avail' the defendant.</p> <p>The jury rendered a verdict in favor of the plaintiff for the value of the horses. A new trial was moved for, because of misdirection on the part of the Court, and because the Court omitted to charge the jury, that the defendant was sued for a fraud, and not upon a contract.</p> <p>The new trial, moved for, was refused, judgment rendered for the plaintiff and the defendant appealed, and gave bond.</p>

This is an action of debt on a bond, given by the defendants to indemnify the sheriff, against any damage he might sustain, by reason of his appointment of one of the defendants as his deputy, to-wit: one Hedgpeth. The bond was duly proved and read in evidence.