Volume 33 — North Carolina Reports

<p>Appeal from the Superior Court of Law of Randolph County at a Special Term in July 1849, His Honor, Judge Battle, presiding.</p> <p>To establish the doctrine of concurrent acts and dependent conditions in contracts, see Smith’s leading cases, page 9, 13 division. 8 T. R. page 366, case of Glate-brook v. Woodrow, see whole opinion of Grose, J. 1 Saunders Rep. 320, William’s notes division 5, top page 320, and case of Pordage v. Cole. 1 Blackford’s Reports 175, the case of Leonard v. Bates, and note. 10 Johns. Rep. 266, the case of Jones v. Gardner. 2. John. Rep. 207, case of Green v. Reynolds, see whole opinion of the Court. 15 Massachusetts Rep. 500, Gardiner v. Corson, see Jack» son, J., on 474 top page. 2 Iredell 297, Gardiner v. King. 4 Dev. 283, Cowper v. Saunders. 1 Yentris, Large v. Cheshire. Salk. 112, Col. v. Briggs. Stephen. Nisi Prius. 1072. 58 E. C. L. Repts. 164, Sanders v. Opie, 2 Saund 350. 4 T. R. 763. 1 East. 203, Ransom v. Johnson, see Kenyon’s opinion 206 top. 4 Iredell 497, Clayton v, Blake. 2 Pickering 292. 1 Strange 569, Lock v. Wright,</p>

<p>Appeal from the Superior Court of Law of Guilford County at the Spring Term 1850, His Honor, Judge Battle, presiding.</p> <p>The following is the case sent up from the Court below:</p> <p>This was an action of trespass quare clausumfregit, to which the defendants pleaded not guilty.</p> <p>The plaintiff relied upon both an actual and construe» tive possession of the locus in quo, at the time when the trespass was alleged to have been committed. To show a constructive possession, founded oil title, he produced a grant to John Talbot, dated in 1847, and a deed from Talbot to George Mendenhall, dated in 1793. He then produced the deed from one Robert Stewart, to Eli Thigh, dated Nov. 14th, 1830, a deed from the said Pngh to John Ilorney, dated Nov. 11th, 1834, a deed from said Ilorney to Jeffrey Ilorney, dated Sept. 1835, and a deed from said Ilorney to John Lamb, dated Sept. 1840, and then a deed from the said Lamb to the plaintiff, dated 25th April, 1843, all of which included the. locus in quo. It was testified that the land, included in the deed to Stewart,was open forest, no part of which was in cultivation, but he and the successive proprietors after him occasionally cut rails upon it for the use of other plantations. It was stated that Jeffrey' tlorney cut rails upon it every year, while he owned it, and hauled them off toa plantation, which he cultivated about three miles distant. It was stated, further, that Lamb built a house upon the land in April or May 1839, The deed from Lamb to the plaintiff conveyed a small half acre lot, situated in the town or hamlet of Florence, upon which was an unfinished house, built by William Patterson, a son of the plaintiff. It was then shown that the defendants moved this house from the lot in March 1S40 : and it was for this that the action was brought, the writ having been issued the 17th June 1S4G.</p> <p>To show an actual possession the plaintiff introduced a witness, who testified, that, immediately after the plaintiff’s purchase, he went and nailed boards across the space intended for a chimney and the windows, which were open, and put some empty boxes and barrels in the house.</p> <p>The defendants contended, that the plaintiff had shown no such title as gave him a constructive possession of the house and lot in question: and that, at the time when the house was removed, it was in the actual possession of them or one of them, and that therefore the action could not be sustained. To prove this possession, they called as a witness one Thomas Barnurn, who testified that the. defendant Bodonhammcy came to his residence in Westminster and requested him to go and see him take possession of the house in question; that he went and saw the said defendant tear off the boards, which the plaintiff had nailed aeross the windows and put out the plaintiff’s boxes and barrels, and agreed with the defendant Dillon, by parol, that he might have the house for twelve months at six pence per month, each party being at liberty to put an end to the lease by giving the other notice. This was in May 1844. Another witness testified, that the defendants Dillon and White had some tim- ■ focr and a wagon in the house, and that a man, named Beard, also kept a wagon in it, being kept open; and that it was used for no other purpose than as a reposito.ry for such things.</p> <p>The defendants offered in evidence a paper for the purpose of showing that William Patterson had an interest in the house and lot, which was liable to be sold for the payment of his debts, and also for the purpose of showing that upon William Patterson’s failing to comply with his contract, the defendant Dillon, who had bought from Lamb the residue of the tract of land, was entitled to take possession of the locus in quo, but it being admitted that William Patterson had failed to comply with the terms of his contract, and that the defendant Dillon had no deed covering the house and lot in question, the Court rejected it, holding that it was immaterial, as they had already been permitted to show themselves, as far as they could, to have been in the actual possession of the house at the time of its removal.</p> <p>The Court was of opinion and so charged the jury, that the plaintiffhad not shown a complete title, so as to give him a constructive possession, but that, if the evidence were believed, he had shown an actual possession, against which the defendants had proved nothing to prevent his recovering in this action. The plaintiff had a verdict, whereupon the defendants moved for a new trial for the rejection of testimony and for misdirection in the charge, which motion was overruled, and a judgment given, from which the defendants appealed.</p> <p>7 Comyns Digest 492 and ’3, to show actual possession is necessary to sustain trespass. 9 Johnsons Rep. 61, Stuyvesant v. Tompkins, see caption and first part of Court’s opinion as to lawful as well as actual possession necessary. 1 T. Rep. 426, Stotts v. Booth, Buller, J. top page 227. N. C. Term Rep. 10S, Sheppard v. Sheppard, this to show a possession short of 7 years, will not allow a plaintiff to recover in ejectment; see caption and Daniel’s opinion. 2 Car. L. Rep, 89, McMillan v. Haf'• fley, see whole of Cameron’s opinion as to actual possession necessary to sustain the action of trespass to land. 4 Dev. Rep. 232, Graham v. Houston, see caption and last page of Ruffin’s opinion, top 234, to show cutting trees is no disseisin. 4 Dev. & Bat. 164, Ring v. King, to shew plaintiff cannot sustain trespass without actual possession, and this must mean lawful possession — last half of Gaston’s opinion 168 top. 4 Dev. 158, Green v. Horman, seepage 161, nearly all this page to show cutting trees not good or cultivation necessary, see also bottom of page 162 to show every man should know his own boundary. 12 Johnson s Reports 193, Wick v. Freeman, to shew an actual re-entry is necessary or actual title in the plaintiff; read the whole case. 6 Bac, Abr. 566, (3 clauses left and 2 right.)</p>

<p>When a petition is filed to discontinue an old road between certain points and establish a new one between the same points, and the petition is op. posed, and the Court, upon the hearing, refuse to discontinue the old road and establish the new road as prayed for, but direct another road to be opened, passing over only a part of the route prayed for by the petitioners ; Held, that the defendants were entitled to recover their costs.</p>

<p>Appeal from the Superior Court of Law of Chatham County, at the Spring Term 1850, His Honor, Judge Bat-tlb, presiding.</p> <p>The following is the case sent up from the Court below:</p> <p>This was an action of trover for a parcel of corn. — - Plea, not guilty.</p> <p>On the trial the plaintiff introduced a witness named Brown, who testified, that, during the year 1845, he worked with the defendant on a farm of the latter and was to have a fourth part of the corn made upon it for his services ; that, before the corn was gathered, he sold his interest in it to the plan tiff for $40 ; that wishing to leave the farm, the plaintiff sent some hands to assist in gath-cring the crop, but the defendant objected to the arrangement, whereupon it was agreed between the plaintiff and defendant, that the latter should gather the crop, for doing which he was to have five barrels of corn, and that he would notify the plaintiff at each division. Upon cross examination the witness stated, that he became indebted to the defendant for some articles furnished him during the year, and that he agreed to pay the defendant when he sold his corn. Another witness, Mr. Marks, was then called and stated, that, some time in the Fall of 1845, he was called upon to see the corn measured, that both the plaintiff and the defendant were present, when the latter measured the corn by putting three fourths of it in one heap and the remaining fourth in another, and that he then claimed to take five barrels and a sufficiency to pay Brown’s account from the smaller heap, to which the plaintiff objected, saying, that the five barrels ought to be taken from the whole quantity before division, and that there was no claim upon it for Brown’s account.— The parties disputed for some time about this matter, when the plaintiff went off, saying, he would have nothing more to do with it. The witness stated further, that, if all the defendant claimed had been allowed, there would have remained only a few bushels of corn for the plaintiff, and that there was no final delivery of any part of it to the plaintiff.</p> <p>The plaintiff having closed his case, the defendant moved that he should be non-suited upon the ground that the action of trover could not be maintained, because no part of the corn had ever vested in the plaintiff, and that there was no demand before suit brought.</p> <p>The motion was resisted upon the ground, that the defendant was estopped to deny that the plaintiff had acquired Brown’s share of the corn, for the reason that he had ratified the contract made by the plaintiff and Brown.</p> <p>The Court being of opinion that the action could not be maintained, the plaintiil'submitted to a judgment of non suit and appealed.</p>

This is an action on the case, in which the plaintiff claims damages for an injury to his slave named Green, which has greatly impaired the usefulness, and lessened the value of the said slave.

• Appeal from the Superior Court of Law of Robeson County, at the Spring Term 1850, his Honor Judge Set* tle presiding. This was a rule which had been served on the defen - dant to show cause why he should not be taxed with (ho costs of the plaintiff’s witnesses, in a case which had been tried between the same parties.

<p>Where A. sold to B. a tract of laud, conveyed by a deed containing a cove» nant for quiet enjoyment, and, upon discovery that a part of the land previously belonged to B., A. offered to pay to B. tho value of this part of the land, so as to avoid a suit on tho covenant, Held that an action of assumpsit would not lie on this proposition, because B. had not acceded to it.</p>

<p>Aa action of assumpsit for the use and occupation of land will not lie in this Stale, unless there be an express promise to pay rent.</p> <p>The ease of Hayes v. Acre, Conf. Rep. 19, cited and commented on.</p>

<p>A free person of color is chargeable with the support of a bastard child begotten by him on a white woman.</p>

This was an indictment for assault and battery on one John Penny. The defendant pleaded not guilty and former conviction for the same offence. The State proved that the defendant struck one John Penny with a stick in the County of Columbus, within two years before the finding of the bill.

<p>' Appeal from the Superior Court of Law of Hertford County, at the Spring Term 1850, his Honor Judge Ellis presiding.</p>

<p>On a separate judgment against one partner for a partnership debt, only the interest of that partner, in any portion of the partnership property, can be sold by execution.</p>

<p>In an action of ejectment, ■where the plaintiff declaros, in a single count, upon the joint and several demise of different persons, he must be non-suited,</p> <p>The cases of Hoyle v. Stowe, 2 Dev. 318, and Bronson v. Paynler, 4 Dev. §- Bat. 393, cited and approved.</p>

The defendant gave his bond to one Peebles for $31 34, payable September 21st 1841, which was endorsed after it fell due to James McNairy, the intestate of the plaintiff. In February 1846 the plaintiff gave the bond to a constable to collect, and on the 14th March 1846 a justice of the peace gave judgment for the defendant on a warrant on the bond, upon the allegation by the defendant and evidence, that it had been paid before the assignment.

A paper, purporting to be the will of Drury Teel deceased, was offered for probate by Benjamin, the executor, and its validity contested by the widow of the party deceased. The County Court ordered an issue, devisavitvel non, to be made up, and also a notice to issue to Jas. L. Teel and Mary Teel, the heirs and next of kin of the deceased, to come tn and see proceedings. Those persons were infants, and a guardian ad litem, was appointed for them.

This was an action on the case. It was in evidence on the part of the plaintiff, that some years since, one Thomas Lister, deceased, became the guardian of Margaret, Richard, and Elizabeth Lister, infant heirs of John Lister, deceased, and as such received a considerable amount of funds belonging to his said wards.

The declaration is in debt on a single bill under seal for $ ICO, and non est factum, pleaded. On the trial the instrument appeared to be in these words: “On or before the 1st day of January next, I promise to pay to Robert S. Burney, or order, one hundred and sixty dollars, for the hire of a negro by the name of Abram and the use of two full crops of boxes on Moore’s Creek.

The action is for slanderous words spoken, imputing to the plaintiff the crime of stealing some watch guards and studs from the shop of the defendant in the town of Clinton ; and was tried on the pleas of not guilty and justification.

<p>Where, before a hiring commenced, a paper writing was read, purporting to contain the terms of the hiring, and also'before the hiring commenced, the crier in an audible voice announced other terms, Held, that the hirer or his agent had a right to make such alteration;</p>

The plaintiff declared in several counts in assumpsit, but the only question made in the bill of exceptions arises on a count, charging the defendant as endorser of a bond for @652,22, executed by Littlejohn Topping and William Holland, on the 22 nd. of January 1837, andpayable twelve months after date to Blount. The pleas were non as*’ sumpsit and the statute of limitations.

The defendant administered on the estate of the intestate at December term 1848 of the County Court; and on the second of January 1849 the present warrant was brought in debt on a bond of the intestate for @81 13 and returned before a justice of the peace.

The suit is for an account and distribution of the personal estate oí Isaac Hutchins, who died intestate in 1844, leaving four children ; of whom the feme plaintiff is one.

This is an indictment for petit larceny in stealing twa barrels of turpentine, of the goods and chattels of Frederick Grist: and on not guilty pleaded there was a special verdict to the effect following : Grist owned a piece of land, on which some pine trees were boxed for making turpentine in the year 1S46, and he cultivated them during the months of March and April and a part of May in that year, and he then discontinued the working of them (for that season.

The action is trespass de bonis asporlatis for taking £8 barrels of corn belonging to the plantiff, and was tried on the general issue. The evidence on the part of the plaintiff was, that one Wheeler leased a piece of land from the plaintiff for the year 1848, and agreed to give as rent therefor one-fifth part of all the crops raised on the land that year, or the sum of $25, at the option of the plaintiff.

This was an action of assumpsit, brought to recover the sum of @61 19, with interest on the same from the 15th of March, 1842. The plaintiffs proved by their agent that on the 15th of March 1S42, the defendant received from them a note to collect as their agent: that the note was the property of the plaintiffs and was originally drawn payable to one.

<p>In an action of trover, except for a mere temporary conversion, the plaintiff recovers the value of the property recovered, and, therefore, to entitle him to recover, he must show title and a possession, or a present right of possession.</p> <p>The cases of Hostler v. Scull, 2 Hay. 139, Tay. 153, Laspere v. McFarland, N. C. T. Rep: 1S7, and Andrews v. Shaw, 4 Dev. 76, cited and approved.</p>

<p>In order to raise the presumption of the grant of an easement, two things are necessary: there must be a thing capable of being granted, and there must be an adverse possession or assertion of right* so as to expose the party to an action; unless he had a gránt.</p>

The action is assumpsit for money paid for the defendant, and was brought in October 1839. Pleas, non-as-sumpsit, and statute of limitations.

<p>Appeal from the Superior Court of Law of Chatham County, at the Spring Term 1850, His Honor, Judge Battle, presiding.</p> <p>Joseph J. Rives was seised of a tract of land, containing about 170 acres, and, on the 6th day of December 1847, he conveyed it by a deed of trust to Samuel H. Crutchfield, to secure certain sums ofmoney therein mentioned, as due from Rives to sundry persons. The deed recited that Rives was indebted to James Perry in the sum of $302 S5, due upon three bonds dated December 3rd. 1847: also to John McPherson in the sum of $44 13 upon a bond given May 28th, 1847: also to Marsh & Co. in the sum of $38 and interest, on a judgment rendered by a Justice of the Peace : and to Robert Love in the sum of $16, on a judgment of aJustice of the Peace: and that he was desirous to secure the payment of those debts. The deed then purports, in consideration of the premises and of the sum of one dollar paid to Rives by Crutchfield, to convey the land in full to Crutchfield, upon trust, that, if the several debts should not be paid and satisfied on or before the 1st day of January 1848, the trustee should sell the premises at auction to the highest bidder for ready money, and out of the proceeds pay the debts or such sums as might then be due thereon. The deed was executed by Rives and Crutchfield, and was proved on the 6tb and registered on the 7itk of December, 1847.</p> <p>On the 13th of December 1847, Rives sold and conveyed to Harris, the lessor of the plaintiff, one hundred acres of land, parcel of the above tract, at the price of $200, which,Harris then paid. Evidence was given that the same was worth at the time from @300) to $400-.</p> <p>On the 3ilst of January 1848, Crutchfield, in pursuance of the terms of the deed, exposed the whole tract of land for sale to the highest bidder, and the defendant became the purchaser at the. price of $4S0 50, then paid down, and took a deed from the trustee-. Evidence was given that the value thereof was $500 or $600„</p> <p>The plaintiff alleged that the deed of trust was made with the fraudulent intent to delay and hinder the creditors of Rives,and was therefore void as against the cred-tors and the lessor ©f the plaintiff. In support thereof the plaintiff examined the said Rives as a witness : and he deposed* that a large portion ©f the debt to. Perry, mentioned in the deed, was- not owing by him and was inserted by an arrangement between him and Perry, with a view to save his land or a part of it for the benefit of' his family: that the other debts, mentioned in the deed, were j.ust, and that Crutchfield, the trustee, was not aware of the fraudulent arrangement between the witness and Perry, and was told by themthat everything was fair. The-plaintiff gave further evidence, that just before the sale- by the trustee, a person stated tó. the defendant,, that the plaintiff had purchased a part of the land, but that he did not think he intended to claim it.</p> <p>The counsel for the plaintiff thereupon moved the Court to instruct the jury, that the deed of trust was fraudulent and void, and that, if the jury believed the witness, the defendant had, at the time of the purchase from the trustee, such notice of the claim of the lessor of the plaintiff, as prevented the defendant from acquiring the title by the sale and deed from the trustee.— But the Court refused the instruction as prayed for ; and told the jury, that, supposing the deed of trust to have been executed with the fraudulent intent imputed to it, yet, if the defendant purchased for a fair price and without notice of such fraudulent intent, the title was good; and that there was no evidence, that the defendant had notice of the alleged fraudulent intent in the execution of the deed. The jury found for the defendant, and after judgment the plaintiff appealed.</p>

<p>An overseer of a public road has no right, at his discretion, to widen the road. This can only be done by a jury under the direction of the County County.</p>

<p>A vendee, by contract for the sale of a tract of land, oan maintain att action upon the bond for title, without having made a payment or tender of the whole of the purchase money, when, by a sale.of the property, it is put out of the power of the vendor to make the conveyance, at the time the vendee has a right to call for it..</p> <p>And it makes no differene, whether the vendor himself has made the conveyance, or whether it has been made by a sheriff under process of law.</p> <p>In such a case, the measure of damage is the difference between the real value of the property at the time of the breach, and the amount of the purchase money, remaining unpaid.</p>

<p>Appeal from the Superior Court of Law of Granville County, at the Fall Term 1848, his Honor Judge Caldwell presiding.</p>

This was an action of debt on a bond executed by William Britton, with the defendants as his sureties, upon his obtaining letters of administration upon the estate of one Hodges Harrel. The breach assigned was, that Britton wrongfully delivered the slaves to the widow, instead of making distribution of them among the next of kin of the intestate.

<p>A person, who, on the day of, or previous to, an election, furnishes liquor, cither at the request of a candidate or any other person, with a belief that such furnishing of liquor is for the purpose of influencing the electors, cannot recover his account against the person ordering the supplies, because the contract is against good morals, and the purity of elections, and because such oonduct is prohibited by our Statute law.</p>

This was an action of assumpsit brought to recover money, paid by the plaintiff, as surety for the defendants’ testator. On the part of the plaintifF it was proved, that his intestate executed a bond with the defendants’ testator to one Morphis, for one hundred dollars. He then produced the record of a recovery against them in Chatham Superior Court of Law, in a suit on the said bond, and proved that he had paid and satisfied in full the judgment and costs.

<p>Appeal from the Superior Court of Law of Beaufort County, at the Special Term in January 1850, his Honor Judge Battle, presiding,</p>

This is a petition in the County Court against Murray, Watson, and three others, for leave to drain flat lands, belonging to the plaintiffs, by means of a canal through the lands of the defendants to a certain creek, according to the statute.

<p>Appeal from the Superior Court of Law of Pasquotank County, at the Spring Term 1850, His Honor, Judge Ei** lis, presiding.</p>

<p>Appeal from the Superior Court of Law of Craven County,’ at the Spring Term 1850, his Honor Judge Bailey presiding.</p>

<p>Constables are not general collecting agents, except so far as relates to claims 'within the jurisdiction of a magistrate. Therefore, where an order of the County Court was put into a constable’s hands for collection, Held, that though he received the money, his sureties were not liable.</p> <p>The cases of the Stale v. Mangum, 6 Ired. 369, and State v. Long, 7 Ired. 379, cited and approved.</p>

<p>When a criminal is case removed for trial from one County to another, in which the prisoner is convicted, the expense of guarding the jail in the County, in which the conviction takes place, must he defrayed by the . County from which the ease was removed.</p>

<p>A surety to an appeal by a party, who dies pending the suit, has no lien on his assets until after he has paid what, by the judgment, he was ascertained to be liable for as surety.</p> <p>The case of Miller v. Spencer, 2 Murphy 281 and 2 Car. Law Rep. 281, cl-' ted and approved.</p>

. This was an action of debt against the defendant, a surety-on the official bond of R. W. Long, sheriff of the County of Rowan, for the year 1843. The breaches assigned were, that Richard W. Long, sheriff, in the month of October, 1843, under the 10th see. 102nd eh.

The defendant gave to the plaintiff his bond for fifty dollars, dated March 24th, 1846, and payable on or before July 24th, 1846, and this suit was brought thereon by way of warrant. Pleas, non est factum, payment, and accord and satisfaction.

Edward Meadows died intestate in 1846, and the present suit was instituted by petition by some of his children against the administratrix and widow and other children for distribution of his estate. A question was made at the hearing, whether one of the children, John A. Meadows, was fully advanced, or not; and as to that the parties argued on the following facts : Edward Meadows was a mechanic, and worked at his trade.

This is an action of debt on the bond, given by Jones, as the administrator of the will annexed by Henry Britt deceased. Pleas, conditions performed, and no breach. The relator is the administrator of the testator’s widow, who dissented from her husband's will. The breach assigned is, in not distributing a negro slave named Mary Ann and the sum of #200, left by the testator and not effectually disposed of in his will.

<p>Appeal from the Superior Court of Law of Richmond County, at the Spring Term 1850, his Honor Judge Settle presiding.</p>

Samuel Spencer died intestate in Hyde County, in May 1840, and in November following administration of his estate was granted to Thomas B. Gibbs, who entered in* to the usual bond, for $2500, with the defendants as his sureties. The intestate left no issue, and Gibbs married his aunt and claimed to be entitled in her right, as sole next of kin, to the personal estate.

<p>Appeal from the Superior Court of Law of Randolph County, at the Spring Term 1850, his Honor, Judge Bat-tue, presiding.</p> <p>This was an action of assumpsit for money paid by the plaintiff, as defendant’s surety.</p> <p>On the part of the plaintiff it was proved, that the. defendant was indebted to Abel Cox and several other persons, and being about to leave the State, and not being able at the time to pay the debts, an arrangement was made between him and his son, John R. Lambert, and the plaintiff, that the said John R. and the plaintiff should as> sume his debts, or should become security for them, upon-his conveying to them a certain tract of laud and certain articles of personal property to be applied to the payment of them. The defendant therefore executed to the plaintiff and John R. Lambert, absolute deeds for two tracts of land, and made a verbal assignment of the personal property, and they took up and cancelled the notes held by the defendant’s creditors, and gave their own notes for the debts, which the plaintiff subsequently paid, the other surety, John R. Lambert, having become insolvent.</p> <p>The defendant insisted, that the agreement between him and the plaintiff and John R. Lambert, was, that the two latter were to pay the debts of the defendant upon his conveying to them his land and other property i and consequently, the notes which they gave to the defendant’s creditors, were given as their own in discharge of the defendant’s liability — and that when they were paid by the plaintiff, it was a payment of his own debts and not as surety for the defendant. He gave in evidence a letter. The defendant contended further, that if this were not the true agreement between the parties, but his property was conveyed to the plaintiff and John R. Lambert as collateral security only, that then the plaintiff and John R. Lambert had sold this land and the plaintiff had received more than enough to pay the amount of the debt, which he now seeks to recover. And to prove this, he offered in evidence a copy of a deed for the land, alleged to have been executed by the plaintiff and John R. Lambert to John Lambert, Sen., the father of both the plaintiff and defendant. This was objected to, because the original was not produced, and because, though it had been acknowledged by John R. Lambert and registered, it had never been proved or acknowledged as the deed of the plaintiff, and consequently had not been registered as to him. The defendant then showed a notice to the plaintiff to produce the original: that John Lambert, Sen,» was dead: and that the plaintiff and another were his executors: and that at the time of his death, the testator had property amply sufficient to pay $400, the consideration recited in the deed. He then stated that the deed was offered only for the purpose of showing an acknowledgment by the plaintiff, that he had received the amount or at least half of the amount of the consideration money recited in the deed, and for this purpose and this alone it was received by the Court, it was then proved, that John R. Lambert had received $50 only of the purchase money, and it appeared that the proceeds of the personal property had been applied to the payment of debts not claimed in this action.</p> <p>The Court instructed the jury, that if they inferred from the letter offered in evidence by the defendant, that the agreement between the parties was as the defendant first contended, then the plaintiff could not recover; but, if they found that the land and other property were conveyed to the plaintiff and John R. Lambert as collateral security, then the plaintiff was entitled to recover; unless they were satisfied by the evidence, that he had actually received from the proceeds of the land sufficient to pay the amount now claimed by him.</p> <p>The jury returned a verdict for the defendant; and the plaintiff moved for a new trial, because the presiding Judge had left the construction of the letter to the jury, instead of deciding upon its meaning himself; and because of the admission of improper testimony, in suffering the defendant to read the deed from the plaintiff and John R. Lambert to John Lambert, Sen., for any purpose_ The Court thought there was nothing in either of these objections, of which the plaintiff had a right to complain, and therefore x’efused the motion for a new trial and gave a judgment for the defendant, from which the plaintiff appealed.</p>

<p>No warranty of quality is implied in the sale of goods.</p> <p>If a vendor sells articles, apparently of the kind ordered by the vendee,, though the vendee has no opportunity of testing the quality, until after he has used them, yet, if there bo no fraud on the part of the vendor, the purchaser must boar the loss, if it turns out that there is a defect in the articles.</p>

<p>Appeal from the Superior Court of Law of Beaufort County, at the Special Term in January lS'H), his Honor Judge Battle, presiding.</p> <p>This was an action of assumpsit upon the guaranty of a note, a copy of which, marked A., is sent as a part of this case.</p> <p>For the plaintiff it was proved, that the note was given by the guarantor, in payment for the purchase of a share in a vessel.</p> <p>At the time when the note became due, on the 1st day of October, 1846, the maker had a store in the town of Bath and had $2 or 3000 worth of property in possession, and was then supposed to be solvent; but on the 6th day of January following, he executed a deed in trust, and the effects therein conveyed did not pay his debts by $5- or 6000. In February or March afterwards he died totally insolvent, and no administration has been taken on his estate. It was proved, that np to the time when he executed this deed of trust, he was punctual in paying demands upon him, borrowing money to meet such demands rather than be sued or warranted upon them; and that, as late as the latter part of December 1S46, he borrowed #400 from the bank by the aid of his father, who was a man of property. No evidence was offered of any demand having been made of Topping, the maker of the note, nor was it shown that any was made upon the defendant as guarantor, until a few days before the bringing of the action. This demand was made by Havens, to whose use this suit is brought, who has always resided in Washington, twenty miles from Bath.</p> <p>The plaintiff’s counsel contended, that, by the special terms of the guaranty, the defendant was bound absolutely and in all events to pay the note; but that, if that were not so, he was bound, unless it appeared that the money might have been collected from the maker, by the use of reasonable diligence. The defendant’s counsel contended, that the plaintiff could not recover, for the want of a demand on the maker of the note ; and also of a failure to use due diligence in endeavoring to collect the money from the maker: and that the question of diligence was a question of law, to be decided by the Court.</p> <p>The Court held, and so instructed the jury, that the defendant was not bound absolutely and in all events, as if he was a surety to the note ; nor was he discharged by the plaintiff’s failing to show a demand upon the guarantor under the circumstances of this case : that the true enquiry was, whether the defendant had sustained any damage by the plaintiff’s failing to use due diligence in endeavoring to collect the note from the maker, that is, such diligence as a man of ordinary prudence would use in collecting his own claim: that if they believed that the plaintiff could not have collected the money from themaker, by the use of such diligence, then they ought to find a verdict for him ; otherwise, for the defendant. The plaintiffhad a verdict and judgment, and the defendant appealed.</p> <p>(A.)</p> <p>$307 70, Washington, N. C., April 1st, 1846.</p> <p>Six months after date I promise to pay W. H. Willard or bearer, three hundred and seven dollars and seventy cents, for value received, as witness my hand and seal.</p> <p>L. J. TOPPING, [sjsal.]</p> <p>Upon the back of which note this endorsement appears: « I hereby guarantee the payment of the within note to Tilman Farrow.”</p> <p>ISAIAH RESPESS.</p> <p>April 36th, 1846.</p>

The action is assumpsit on special promises of the de« fendant’s testator, James Cromar tic, to pay the plaintiff $500 in consideration, that the plaintiff would marry and have issue of the marriage ; and they are laid in different ways in several counts. Plea, non-assumpsit.

The plaintiff warranted four defendants, Muse, Spivej^ McNeill, and McDonald, on a former judgment for $40, and on the 1st of January, 1837, judgment was rendered against the four for debt, interest, and costs.

<p>Appeal from the Superior Court of Law of Beaufort .County, at the Spring Term 1850, his Honor Judge Bailey presiding.</p> <p>The action is assumpsit, and non-assumpsit pleaded; and it was decided upon the following case agreed :</p> <p>In May 1829, Thomas Doughty was appointed the guardian of John Doughty, an infant, and gave bond with George Hill as a surety. Thomas Doughty died in 1830, intestate, leaving three infant children, the two defendants and a daughter, who were his next of kin. William E. Smaw was appointed the guardian of the infants in 1835, and in 1S38 he was also appointed the administrator de bonis non of Thomas Doughty, and received assets of his intestate. When the defendants came of age Smaw settled with each of them, and paid to each his share of the estate, without taking any refunding bond. In 1847, John Doughty brought suit on the guardian bond of Thomas Doughty against Smaw, as his administrator, and against Henry Hill, the present plaintiff, as the executor of George Hill, who was then dead ; and the damages were assessed to $ 100 for a balance due to the ward, and judgment endorsed accordingly, A fieri facias-wan issued thereon in September 1849, and on the first day of ])ocember following, the present plaintiff paid the same. He had before that time settled his accounts as executor and paid to sundry legatees all the estate, except such parís as. were given to him by the will, which he retained as his own legacy. At the time of the suit brought by John Doughty, Smaw and the sureties to his administrator's bond were insolvent, and have been ever since.' — ■ While the execution was in the sheriff’s hands, the attorney of the plaintiff, Hill, informed the present defendants, “ that he had been instructed to commence proceedings, to subject them to the payment of the amount recovered, upon the ground that it was a claim against their father’s estate and they had his property and the defendants then promised the attorney, that if he would not commence proceedings against them and run them to costs, they would pay the execution at or before its return ; and the attorney informed the plaintiff thereof, and was instructed not to commence any proceedings against the defendants, until after the return of the execution. The defendants did not say expressly, that each of them would pay a part of the demand, though they re" marked, that their sister was equally liable, and they said, they would make her pay her proportion. Both of the defendants, however, when together, told the attorney, as aforesaid, that “ they would pay the judgment and execution.”</p> <p>it was agreed, that, if the opinion of the Court should be for the plaintiff, he should have judgment for $124 and the costs : and that, if the Court should be of a contrary, opinion, there should be judgment as of non suit. Judgment was given for the plaintiff accordingly, and the defendants appealed.</p>

<p>Appeal from the Superior Court of Law of Randolph County, at the Special Term in July 1849, his Honor Judge Battle, presiding.</p>

This was an action to recover §130, with interest from December 1847. The plaintiff declared in assumpsit in several counts. 1st. Specially on the case 2nd. As agent of the defendant upon a contract of indemnity. 3rd. For money paid to the use and at the request of the defendant. 4th. As between debtor and creditor for money laid out and expended at the instance and for the use and benefit of the defendant.

The action is brought by Camp and four others, and is trespass for the mesne profits of a tract of land, recovered in ejectment upon the several demises of the presertt plaintiffs. Upon the trial on the general issue, it appeared, that the plaintffs and the defendant were tenants in common of the premises.

The only question presented is, whether a ca. sa., issued by a justice of the peace in the County of Buncombe, ought to be returned to the County or Superior Court, under the provisions of the Act of 1844, which, abolishes jury trials in the County Courts of Buncombe and some other counties.

This is trover for a horse, tried on not guilty pleaded. The evidence was, that one Love owned a slave, and permitted him to purchase a horse and use him as his own. After the death of Love, his executors delivered the slave to one Prather, to whom he had been bequeathed by Love, and Prather sold and delivered him to the present plaintiff.

This is a scieri facias on an amercement nisi of $100, for not making return of a writ of scieri facias, sued out upon a judgment recovered by the plaintiff against one Smith and one Rhinehardt, and delivered to the defendant, then the sheriff of Haywood. The defendant pleaded mil tiel record of the order msi; which was adjudged against him.

<p>Appeal from the Superior Court of Law of Cleaveland County, at the Spring Term 1850, his Honor Judge Caldwell, presiding.</p>

<p>Where A. contracted to deliver to B. a certain quantity of corn, if called for by a particular day, and B. did not call for it till some time afterwards, Meld, that B. was not entitled to recover in assumpsit on the contract.</p>

This is an action of debt on a bond given by the intestate. Plea, plena adminisiravit. By an agreement between the parties, it was referred to the ClerK to inquire into the assets and state an account thereof, shewing the balance.

<p>In charging a guardian, the mode of compounding interest is to make annual rests, making the aggregate of the principal and interest, due at the end of a particular year, a capital sum bearing six per cent, interest thence forward for another year, and so on, with rests from year to year, Butifasumbe found due at a rest day during the guardianship, that sum, being then converted into capital, is entitled to draw interest thereafter until it shall be paid, and that is but simple interest, there being no subsequent rest made.</p> <p>Where an assignee of a bond brings an action of debt upon the bond, and the defendant pleads won est factum only, this plea does not deny the assignment. But, if the action be on the case, as given by our Statute to the assignee of a bond, the general issue denies both the execution of the bond and the endorsement.</p>

<p>A.being a surety for B., to indemnify him B: gave him a Hen on some hogs. B. afterwards sold the hogs to C. A. refused to deliver the hogs, unless C. "would agree to pay the debt for "which A. was bound. This C. promised, but failed to make the payment, and A. had to pay the debt himself. He then warranted C. for the money so paid. Held, that a justice of the peace had no jurisdiction of the case.</p>

<p>The verdict of a petit jury, acquitting a man indicted for a conspiracy, does not, in an action for malicious prosecution, support the averment, that the indictment was without probable cause.</p> <p>The case of Griffis v. Sellars, 4 Dev. Sr Bat. 176, cited and approved.</p>

<p>Appeal from the Superior Court of Law of Caldwell County, at the Spring Term 1850, His Honor Judge Caldwell presiding.</p>

<p>Appeal from the Superior Court of Law of Macon County, at the Spring Term 1850, his Honor Judge Ellis presiding.</p>

This was a suit by warrant for $50, the penalty for burning the plaintiff’s woods. The warrant was as follows : STATE OP NORTH CAROLINA, > Cherokee County.

<p>A seal is essential to a warrant, issued by a magistrate to arrest a person Cot a criminal offence, and, if there be no seal, the warrant is void, and the defendant is justified in resisting its execution.</p> <p>Whether there be a seal or not is a mixed question of law and fact, to be decided by the judge below, and from his decision there is no appeal to this Court.</p> <p>The cases of Welch y. Scott, 5 Ired. 72, and State y. Isham, 3 Hawks 185, cited and approved.</p>

This is a motion, made by the defendants in Rutherford Superior Court, to set aside an execution issued from that Court against them : and these are the facts, on which it is fouhded. In 184(5 acts were passed, to establish a County, called Polk, out of parts of Rutherford and Henderson Counties, and also establishing Superior and County Courts therein.

The action is trespass quare clausum fregit, and was tried on the general issue. The declaration and evidence were of an entry on the plaintiff ’s land by the defendant’s testator, secretly in the night, and maliciously burning a cotton gin-house and divers articles therein, and killing a horse ; and evidence was further given for the plaintiff, that the house and other property were of the value of $750.

<p>It is the rule in this country to apply payments to the debt, for which the security is the most precarious, when no application is made by the party who pays.</p> <p>The cases of Moss v. Adams, 4 Ire. Eq. 42, and State v. Thomast 10 Ire 165, cited and approved.</p>

This action was commenced September 29th, 1847, and' the declaration is on the several demises of Elijah Chas-tien and Samuel Higdon. Held: that the purchaser did not acquire a title under the sale of the sheriff, because the writs of venditioni exponas did not describe or include the premises. Thereupon, the counsel for the defendant insisted, that the defendant was entitled to the benefit of the possession' by Leonard Higdon and that it perfected the defendant’s title.

aldwei.1. presiding. This is a suit for a malicious prosecution. The defendant sued out a State’s warrant against the plaintiff and others, charging them with shooting and cutting her horses, in the nighttime, which was tried before a magistrate and dismissed. On the trial the defendant introduced testimony, tending to shew j|that she had probable cause for sueing out the State’s warrant.

<p>Appeal from the Superior Court of Law of Macon County, at the Fall Term 1849, his Honor Judge Ellis presiding.</p>

<p>A judgment, either before a magistrate or in a court of record, is not the subject of an action of trover and conversion ; nor is a note, on which a judgment lias been obtained, because it is merged in the judgment and is defunct.</p>

<p>As soon as tie owner of an animal knows or has good reason to believe, that he is likely to do mischief, he must take care of him and be responsible for any injury that he may inflict j and it makes no difference, whether this ground of suspicion arises from one act or from repeated acts.</p> <p>The act done, however, must be such as to furnish a reasonable inference, that the animal is likely to eommit an act of the hind complained of: this is a matter to be decided by the jury and not by the court.</p>

<p>O.ne may recover in an action of covenant or assumpsit, on a bill of sale for a slave, for a warranty of the soundness of tbe slave, although there be no witness to the bill of sale.</p>

<p>Appeal from the Superior Court of Law. of Rowan County, at the Fall Term 1849, his Honor Judge Caldwell presiding.</p>

This is an action of debt on a bond for $150, dated July 14th, 1842, and ■* payable January 1st, 1844, in good trading, to be valued and delivered at Eller’s house.” I’lea, payment. Before the jury was empannelled, the defendant, upon the authority of a letter from the plaintiff to him, moved to dismiss the suit, but the Court refused the motion.

<p>Appeal from the Superior Court of Law of Wilkes County, at the Fall Term 1849, his Honor Judge Caldwell presiding.</p>

This is a special action on the case, tried ou not guilty pleaded. On the declaration and evidence the ease is as follows : William Barry, of Fairfied District, South Carolina, by his will, which was proved there in 1823, gave several slaves, his land, and all his other property to his wife Lucy during her life.

<p>• Appeal from the Superior Court of Law of Cabarrua County, at the Spring Term 1850, his Honor Judge Dick presiding.</p>

<p>Where A. tras entitled to a life estate in slaves, and, being threatened with a suit in Equity to enjoin her from sending the negroes out of the State, in consideration that the suit should be forborne, agreed that the slaves should be placed in the possession of B., who was to pay her the hires annually and they were accordingly so ¡placed in B.’s possession. Held, that A. thereby transferred all her legal interest to B., there being a sufficient consideration and an actual delivery of the slaves — that A. therefore could not support an action at law for them, but her only remedy, if B. failed to pay over the hires> was in Equity.</p>

<p>Where the lessor of the plaintiff in ejectment claims as purchaser at an execution sale, made under a judgment in which he was himself the plaintiff, he must show the judgment as well as the execution — and if the Sale was by execution under a decree in Equity, he must not only show the decree, but also the bill and answer and so much of the pleadings and orders, as will shew, that the decree was pronounced in a cause properly constituted between the parties.</p> <p>In an ejectment brought by a purchaser at a sheriff’s sale against the defendant in the execution, the latter, while still in possession, cannot resist, upon the ground that he, the defendant, has a better title.</p> <p>The cases of Rutherford v. Raburn, 10 Ire. 148, Williamson v. Bedford, 10 Ire. 198, Thompson v. Hodges, 3 Mur. 546, and Islay v. Stewart, 4 Dev. and Bat. 160, cited and approved.</p>

<p>An officer, who has an execution against a tenant in common of chattels, may levy upon the undivided property and take it into his possession, for the purpose of selling the interest of the defendant in the execution ; and he does not thereby subject himself to an action by the other tenant in common.</p> <p>The cases of Tredwell v. Rascoe, 3 Dev. 50, Wells v. Mitchell, 1 Ire. 484, and Islay v. Stewart, 4 Dev. Bat. 160, cited and approved.' '</p>

This is a suit in tort, to recover from the defendants a certain sum of money, paid by the plaintiff to their use. The defendants, among other pleas, pleaded severally their certificate and discharge under the bankrupt law. On the trial it appeared, that the plaintiff became the surety of the defendants to one Logan for $2100; that, on the defendants becoming insolvent, he was forced to pay the said debt with costs, and, thereupon, instituted this suit.

The plaintiffs declare, as the executors of Leonard Shown deceased, on a bond to their testator; and the pleas are non est factum and ne ungues executor. After proving the bond, the counsel for the plaintiffs insisted, that they were thereon entitled to a verdict, forasmuch as the plea of non est factum overruled the other plea.— But the Court held otherwise.

<p>Appeal from the Superior Court of Law of Yancy County, at a Special Term in July 1850, his Honor Judge Battue presiding.</p> <p>submitted the following authorities :</p> <p>Miller v. Irvin, Dev. & Bat. 1 vol. 103. and the references. Wain v. Watters, 5 East. 10, published in Smith’s leading cases and the notes, 2 vol. 188.</p>

The action is trespass for mesne profits, Plea, not guilty. On the trial the plaintiff gave in evidence the record of a recovery in ejectment. The declaration contained three counts, upon the several demises of George W. Jones, Rebecca Poston,and the present plaintiff,Rob* ert Poston.

<p>Appeal from the Superior Court of Law of Rutherford County, at the Fall Term 1S49, his Honor Judge Ellis presiding.</p>

<p>Where a witness 'for the plaintiff, on being examined as to a particular transaction, stated that he had paid a certain sum of money to the plaintiff, and the witness’ credit was attacked and the transaction impeached for fraud, Held, that it was competent for the plaintiff to shew that he had entered the payment on his books at the time alleged.</p>

1849, his Honor Judge Ellis-presiding. This action was commenced in October 1843, and is. trover for slaves, which the defendant claims under a bill of sale- from his- father, Jonathan Hampton, the intestate of the plaintiff.

<p>Where a man has charged a woman with incontinence with a particular individual, he cannot, on the trial of an action for this slander, go into” evidence to show that she was incontinent with other persons.</p> <p>The declarations of the husband, who is necessarily a party to the suit for . slander of his wife, are admissible in evidence to show her guilt.</p> <p>The case of Snow v. Witcher, 9 Ire. 346, cited and approved.</p>

This is a suit in trover, to recover the value of a negro boy, named John. The plaintiff relied on the deposition of one Hawkins to shew title.

<p>Appeal from the Superior Court of Law of Buncombe County, at the Special Term in February 1850, his Honor Judge Caldwsll presiding.</p> <p>The lessors of the plaintiff set up a title, by virtue of a sheriff’s sale under a judgment and execution against the defendant, Ratcliff. By the transcript of the record it appeared, that the action was debt by James S. Brooks, William E. Colton, and William E. Churchill, partners trading under the name and firm of “Brooks, Colton and Company,” upon a bond given by the defendant to “Brooks, Colton &Co.” and that, a fieri facias was issued thereon, running also in the name of “Brooks, Colton &■ Co.,” by virtue of which the sale was made, under which the plaintiff claims. For that variance or defect, the counsel for the defendant insisted, be was entitled to a verdict; but the Court held otherwise. The plaintiff then gave in evidence the return of the sheriff on the execution, that on the 4th of October, 1843, he sold the premises to the plaintiffs in the said execution, and also a deed lrom the sheriff, dated September ISth, 1346, to James S. Brooks, William E. Churchill and William M. Colton and Eli Colton, in which is recited the levy of the execution and the sale of the premises to James S. Brooks^ William E. Colton and William E. Churchill, copartners under the firm of Brooks, Colton & Co, and that, after-wards, the said William E. Colton died and left surviving him the said William M. Colton and Eli Colton, who were the only children and heirs at law of the said William E. Colton, deceased ; and then the premises are conveyed therein to the said four persons, James S. Brooks, William E. Churchill, and William M. Colton and Eli Colton, in fee. After those recitals and stating the.price bid and the payment thereof, the deed proceeds thus-: “In consid. eration, &c., the said P. R. Sheriff', &c. doth hereby bargain and sell, alien, enfeoff, convey and confirm with the said James S. Brooks, &c. their heirs and assigns all, &c. to have and to hoi A the same to the said, &c., their heirs and assigns.” By reason of an alleged defect in the deed in using the word “with” instead of “to” in the'conveying part, the counsel for the defendant insisted, that it did not pass the title to the lessors of the plaintiff. But the Court •held to the contrary. The defendant then called, as a witness, the sheriff, who made the sale ; and he deposed that he did not sell on the first Monday of October 1843* (which was the return day of the execution,) but that, at the request of the defendant, he postponed the sale from Monday until Tuesday and again from Tuesday to Wednesday of that week, and that on this last day the sale ■was made. The counsel for the defendant, thereupon insisted, that if that testimony was true, the said sale was void ; but the Court held, that it was, nevertheless, valid* The counsel for the defendant, thereupon, excepted to the opinions of the Court upon those several points. The counsel for the defendant then insisted, that, for as much as there was no evidence, besides the recitals in the she* riff’s deed, that William E. Colton had died of that William M. Colton and Eli Colton were his heirs, the plaintiff could not recover.</p> <p>The Court gave no opinion thereon to the jury, but, by the request of the counsel in the cause, the point was reserved ; and thereupon a verdict was taken for the plain* tiff, subject to be set aside and a non-suit entered, if the Court should be of opinion on that point for the defendant! otherwise, judgment to be entered on the verdict. After-wards, the Court set the verdict aside and ordered a non-suit, and the plaintiff appealed, and then the defendant appealed also.</p>

<p>A man, being bound to maintain and support-his father, conveyed a tract, of land to his brother in trust to perform the conditions of that bond in the first place, and then out of the proceeds of the land to pay the other creditors of the maker of the deed. In the deed was contained the following clause; “The manner of executing the deed, as to the support of my • father,” is left to the discretion of the maker of the deed. Held, that this did not make the deed, on its face, fraudulent in law, for it reserved to the maker no control over the fund, but only the manner, in which the father should be supported-</p> <p>The fact, that the debt to the father was prospective, as well as immediate', does not make it illegal to give it the preference.</p> <p>The cases of Moore v. Collins, 3 Dev. 126, Hafner v. Erwin, 1 Ire. 490, and Cannon v. Peebles, 2 Ire. 449, cited and approved.</p>

The defendant, Beggarly, gave to Isbam Gaither his bond for $173 50, dated February 19th, 1847, and payable at twelve months.

<p>Where a mao has conveyed a personal chattel, but still retains the posses* sion, his acts and declarations, even subsequent to such conveyance, while he continues in possession, are evidence against the vendee or grantee,.oa a question of fraud.</p> <p>Where a man makes an absolute conveyance of a chattel, purporting to .be either a sale or a gift, and continues for a long time in the possession of the chattel, so purported- to be conveyed, this creates, in law, a strong presumption, on which the jury should find the conveyance fraudulent, as against creditors, unless opposing and explanatory circumstances should rebut the presumption.</p> <p>Fraud is never, exclusively, a question of fact, that is, in the sense of leaving it to the uncertain judgment of jurors to give to the intent to convey upon a secret trust, or to the fact of credit being given to the grantor, upon his. continuing in possession, such effect as to them, in each case, may seem proper, but, on the contrary, the effect of such an intent or false credit, if in fact existing, depends upon the fixed principles of the law</p> <p>The cases of Askew v. Reynolds,1 Dev. $-Bat. 367, and Gregory v. Perkins, 4 Dev. 50, cited and approved.</p>

This action is trover for a parcel of blacksmiths’ tools, and the plea “ not guilty.” The plaintiff claims under a deed of trust made to him by Thomas McNeily, on the 2d of February 1849, and registered the same day.

<p>In an action of slander, when the charge is made by using a cant phrase, or a nickname, or when advantage is taken of a fact, known to the persons spoken to, in order to convey a meaning, which they understood by con- ■ necting the words (of themselves unmeaning) with such fact, the plaintiff is obliged to make an averment of the meaning of such cant phrases or nickname, or of the existence of such collateral fact, for the purpose of giving point to the words and of shewing that the defendant meaut to make the charge complained of; and, in such cases, there must also be an aver- * ment, that the words were so understood by the persons to whom they were addressed.</p> <p>These averments are traversable and' must be proven, and differ entirely from what are called inuendoes, which need no proof.</p> <p>The cases of Hamilton v. Smith, 2 Dev. % Bat. 274, and Watts v. GreenUe, 2 Dev. 115, cited and approved.</p>

0., his Honor Judge Maní,! presiding. This case was an action of trover, in which damages, for the conversion of a slave named Esther, were de“ manded. It appeared that the slave had belonged to the defendant, and was loaned by him to his daughter, upon her intermarriage with one Joseph M. Hicks.

This was an action of assumpsit, brought to recover the sum of one hundred dollars, which, it was alleged, the defendant had offered to give any one, who would apprehend and commit to prison, a certain person of color, named Chavis, charged with homicide.

This was an action of debt upon a bond, of which the following is a copy : “With interest from date, I promise to pay to Alexander D. McRae the sum of three hundred and sixty dollars, being in consideration of money, which he paid for Hugh D. McRae and his heirs, which sum I am to pay, when it can be raised out of estate left to them by the will of Daniel McRae, their father.

This was an issue, devisavit vel non, made up to try whether a certain script was the last will and testament of Isham Ingram, deceased. While the issue was pend* ing in the County Court, the caveators had an entry made upon the records of the Court, that they admitted the script to be the last will and testament of the said Isham Ingram, as to his real estate therein devised, and contest* ed it only as a will of personalty.

This was an action of debt upon the official bond of the defendant, Hooks, executed in February 1845, for the faithful discharge of the duties of the said Hooks, as eon-stable for the ensuing year- The plaintiff alleged that the relator had placed in the hands of Hooks, during that year, a certain note for collection.

This was an action of ejectment, in wffiich the lessor of the plaintiff claimed title to the premises in dispute, by purchase at a sheriff’s sale, made under several judgments and executions, tested from Nov. 1845, to June 1846, of which regular transcripts were produced ; and the plaintiff also produced a deed from Otlin Carr, sheriff of Wayne, which, it was alleged, conveyed to him the title to the premises.

This was an action of detinue for the slaves Maria, &c., tried upon the plea of non detinet. In the last will and testament of Letitia Foster, who died and whose will was admitted to probate in 1837, appears the following clause, to-wit: “My girl Maria, after my death, I do not leave her as a bond slave to any person, I wish her to live among my children or otherwise, if she sees proper.

Term 1850, his Honor Judge Cald-wfxl presiding. On the trial of this ejectment, the lessors of the plaintiff deduced title to the land in dispute through a deed from one Benton to their ancestor, executed in August 1841. This suit was commenced against Benton, and the defendants were allowed by order of Court to come in and defend as landlords of Benton.

This was an action of trespass de bonis asportatis. The plaintiff alleged, that he was in the possession, and owned a stock of merchandise, on the 28th of June, 1847, when they were taken from him by one Exura, who professed to levy upon them in pursuance of an illegal attachment, sued out by the defendant, Britt, and that he did the act as deputy of the other defendant, Edmundson, who was at the time the sheriff of Greene County, when the goods were taken.

<p>In the aclion of account there are two judgments; first, that the plaintiff and defendant account together; secondly, that the plaintiff or the defendant recover the balance found to be due from the one to the other.</p> <p>In order to obtain the first judgment, it is not necessary for the plaintiff to shew that the defendant is indebted to him as bailiff, $-c. He need only shew that he is bound to account with him as bailiff, or as a tenant in common, who has been in the pernancy of the profits, and the right to this judgment can only be barred by proof on the part of the defendant that he has already accounted, or by a denial, uncontradicted on the part of the plaintiff, of the existence of any such, relation between the parties, as gives the plaintiff a right to call for an account.</p> <p>Where there are several tenants in common, some of whom have been in the receipt of profits and some not, each of the latter must bring his own action of account for what he claims — they cannot bring a joint action in the names of two or more, to recover their several shares,</p> <p>So where several tenants in common receive the profits, unless it can be shewn that they received them jointly as partners, an action of account cannot be brought against them jointly, but each must be sued separately. If either of these cases appear upon the trial, the Court will order a non-suit Every tenant in common, who has been in the enjoyment of the property, is liable to account; and it is not material what was the mode of enjoyment, whether he used it merely for shelter, or as a means cf supporting himself and family, or made money by selling the products, or received money as reut. 1</p> <p>The case of Powell v Mathis, 4 Ire. 83, cited and approved,</p>

<p>Appeal from the Superior Court of Law of Tyrrell County, at the Fall Term 1850, hia Honor Judge Caldwell presiding-.</p> <p>The action is trover for three promissory notes, made by third persons, and payable to Joseph Brown, the intestate of the plaintiff*, and amounting, together, to the sum of @175. On the trial upon the general issue, the defendant set up title to the notes under a gift from Brown ; and he gave evidence, that, about the 1st of Nov. 1848 he, Brown, being about to sail on a voyage to the West Indies, delivered the notes to the. defendant, (who was his uncle) saying to him, “If I never return, these notes are to be vours.” Brown proceeded onjthe voyage at the time mentioned, and, at the time of trial,'in September 1850, he had not returned, nor had he, or the vessel, in which he sailed, ever been heard of, and it was the general belief, that they were lost on the voyage.</p> <p>The counsel for the defendant thereupon insisted, that the evidence, if believed, established a gift of the notes to the defendant by the intestate, to take effect in the event the intestate should not return; and that ior that reason the plaintiff could not recover. And he further insisted, that the evidence, if believed, established a bailment of the notes to the defendant, to be kept by him for the payee Brown, until he should return home, and that the same had not been determined, and that, for that reason, the plaintiff could not recover. But the Court refused to give these instructions; and, after a verdict, and judgment lor the plaintiff, the defendant appealed.</p>

County, at the Spring Term 185.0,. his. Honor Judge Bai-* ley presiding. The action was brought in May L84S, and is covenant.» on an agreement under seal,'dated J.une 7.th, 1S45, where?* by the defendant obliged himself to deliver in Beaufort ■ County, 5.0,000 red oak hogshead staves, on. or before the. 1st of December 1845, to. the plaintiffs, Cooke ds, Taylor - who were partners, and merchants in New York.

The declaration is in debt on a single bond for ¡0335 05., payable to Ezekial Midgett, or bearer,and on non est fac-tum. pleaded the defendant objected to the recovery by the plaintiff as the bearer, because the bond was not delivered to him, nor was it a contract with him. Of that opinion was the presiding Judge, and the plaintiff submitted to a non-suit and appealed.

The action is debt on the bond, given by the defendant as the clerk of the County Court of Martin,and the breach assigned is, in not issuing a summons to one Redding from January term 1838 to renew his bond, as the guardian of the relator— to which office he was appointed at January 1erm 1836, and in virtue thereof received large sums of money and other effects, belonging to the relator, by reason whereof and the subsequent insolvency of the guardian, the relator sustained…

The suit was commenced by warrant in debt on a former judgment for $45 66, and, on the trial, the defendant suggested the want of assets to the magistrate, who endorsed the suggestion on the warrant, and gave judgment for the plaintiff for the debt demanded and interest and costs, and returned the proceedings to the County Court. The defendant appeared and pleaded, no assets, and plene ad-ministravit, and issue was taken thereon.

This is a warrant for a sum due by account, and the claim of the plaintiff is for the price of 5 stacks of fodder, sold and delivered. Plea, non assumpsit; andón the trial in the Superior Court, the plaintiff proposed to prove his demand under the Book debt act.

, Appeal from the Superior Court of Law of New Hanover County, at the Fall Term 1850, his Honor Judge Battle presiding. The declaration is in assumpsit and contains two counts ; one, on the acceptance of a bill of exchange, drawn by the plaintiff on the defendant in favor of Randolph McMillan, or order, and endorsed by him to the plaintiff; and the other, on an account stated.

The action is trover for a negro slave, Alfred, with a special count in case on the following facts, which appeared at the trial on not guilty pleaded.

The lessor of the plaintiff was seised of the premises in fee on the first day of January 1843, and then leased them to one John Smith for the term of six years. The plaintiff gave evidence, that Smith entered and executed a deed in fee in 1846 to one Dudley, under whom the defendant was in possession at the commencement of this suit in April 1849.

<p>Appeal from the Superior Court of Law of Gates County, at the Fall Term 1850, his Honor Judge Caldwell presiding.</p>

<p>Appeal from the Superior Court of Law of Perquimans County, at the Fail Term 1850, his Honor Judge Caldwell presiding.</p> <p>This is an action of covenant, upon a guaranty under seal, dated September 12, 1845, oí a note executed by one Halsey for two hundred and fifty dollars, payable to the defendant. The note was executed in July 1845, and fell due on the 1st of January 1840. On the 13th of April 1S44, Halsey executed a deed in trust to Badha n, conveying the greater part of his property to secure debts due to sundry persons, amounting to five thousand dollars or thereabouts; and. on the 11th of April 1840, the said Halsey executed another deed in trust to oneNorcom and o.ui Benbury, embracing all the balance of his property of every description and the interest thereon, including fourteen negroes, not conveyed in the deed of IS 14, to secure debts due to sundry persons, amounting to a much larger sum, than those secured in the deed of 1844. It was proved on the trial, that Halsey was reputed to be entirely insolvent, from and after the execution of the deed of 1846,and that, on the sale of all his property in December 184S, by the said trustees, it fell short of paying the debts secured in the sum of six thousand dollars. It also appeared, that in March 1S49, the plaintiff made a demand on Halsey to pay the said note; that, in May 1849, the plaintiff, by his counsel, sued out a writ in as-sumpsit on the said covenant, returnable to May Term of Perquimans County Court, (the second Monday of May) and returned “executed that his counsel moved the Court to change the said writ from case to covenant, which motion was refused, and the plaintiff submitted to a non*suit. Whereupon the present suit was brought, returnable to August Term 1849 of Perquimans County Court.</p> <p>The defendant offered to prove by parol, that it was a condition of the said guaranty, that suit should be brought by the plaintiff on the note in question. The evidence was rejected by the Court.</p> <p>The Court charged, that the plaintiff was bound to use the same degree of diligence in collecting the note from Halsey, that a prudent man would use in collecting a debt of his own ; that, if he had failed to do so, then the defendant was entitled to their verdict The Court further charged, that the suing out of the writ in May 1849, though not in proper form, was such a demand on the defendant, as w'ould satisfy the law. To this latter part of the charge the defendant excepted. After the jury had been out sometime, they returned into Court, and asked, if the said note was not secured in the deed of trust of April 1846 ; to which the Court answered, that the deed embraced a debt of two hundred and fifty dollars, the balance due on two notes, and there was no other evidence, that it embraced the note of two hundred and fifty dollars, now the subject of litigation To this answer of the Court to the interrogatory of the jury the defendant excepts. The defendant also excepts to the opinion of the Court, in rejecting the parol evidence.</p> <p>The jury returned a verdict for the plaintiff, and from the judgment thereon the defendant appealed,</p>

<p>The County Court, outhe petition of the guardian of a certain infant, passed the following order — “Ordered that he, the said W. B., guardian, sell the land of said deceased T. Ii., or so much thereof as will be sufficient to discharge the debts.” Held, that this order was unauthorized and void, and, of course, that a purchaser under it acquired no title.</p> <p>The case of Leary v Fletcher, 1 Ire. 259, cited and approved.</p>

This is debt for @250, claimed as a penalty for fishing in Roanoke river with a seine, contrary to the act of 1827, C. 54, entitled “an act to prevent the obstruction offish passing up the Roanoke andCashie rivers and their waters.’-’ Pleas; nil debet, and statute of limitations.

<p>When a constable is appointed by the County Court at May Term, his ap. pointment expires at the next February Term, which is the regular time prescribed by law for the qualification or appointment of constables.</p> <p>The case of the State v Wilroy, 10 Ire. 330, cited and approved.</p>

<p>Appeal from the Superior Court of Law of Lenoir County, at the Fall Term 1850, his Honor Judge Ellis presiding.</p>

This was an action of detinue for a negro slave named Mary. Plea, non detinet. Upon the trial, both parties claimed under Stephen D. Pool, to whom the slave in question formerly belonged.

This is an action on the case in tort, and the declaration contains two counts. Held: that the plaintiff might recover on the second Court without- proving a scienter. The jury gave a verdict for the plaintiff, and the defendant moved for a venire de novo, on the ground of error in the

<p>After a debt bad been barred by the statute of limitations, the debtor said to the creditor, “uuless Jí. R. has paid it for me, it is a just debt and I will pay it;” and again, ‘‘it is a just debt and I will pay it, if l cannot prove, that it has been settled by J. R.” Held, that the case was thereby taken out of the statute. By sueh_ declarations, the onus of proof that the debt had been paid rested on the defendant.</p>

This action is assumpsit for the hire of a slave, named Frank, for the year 1842. The suit was brought on the 25th of August 1848, and the defendant pleaded non assumpsit, and the statute of limitation.

This was a petition filed at the Spring Term 1848 of Quilford Superior Court, for permission to emancipate a negro boy, named Alvis, and other slaves named.

This was an action of Ejectment. Upon the trial the case appeared to be as follows.— The] defendant, Cox, was seised in fee of the premises, being a wharf and store in the town of Edenton, and, on… Held: that the plaintiff could not recover, and, after a verdict and judgment against him, he appealed.

This was an action of Ejectment, The premises are situate in Sampson County and contain 440 acres, and were granted to the lessor of the plaintiff in 1845, who instituted this suit in May 1846 : the defendant gave evidence at the trial, that, in 1847, he purchased the premises from a person then in possession, and immediately entered and had been in actual possession of them ever since, and that his vendor and those, under whom he claimed, had been in the actual continued…

This is a petition filed in August 1S47, by the adminis* trator de boms non of Elisha F. Hare, to sell a tract of land under the Act of 1646, oh. 1, which makes real estate personal in certain cases. The intestate died in 1846, and administration was granted in that year, to a person who died in 1847, and in August 1847, the letters, were granted to the petitioner.

<p>Appeal from the Superior Court of Law of Martin County, at the Fall Term 1849, his Honor Judge Bailey presiding.</p> <p>This was an indictment in the usual form for an assault and battery. Upon the trial it was proved, that the prosecutor was a constable and had in his hands an execution against the defendant, under which he seised a negro belonging to the defendant. Whereupon, the defendant, standing within a few feet of the prosecutor, and within carrying distance of the pistol, presented the same at the prosecutor, remarking to him, “If you do not turn the negro loose I will shoot you,” by which the prosecutor was put in fear. The prosecutor did not turn the negro loose, and the defendant immediately lowered the pistol and went away.</p> <p>The defendant’s counsel contended, that, as it did not appear that the pistol was loaded, the defendant was not guilty. The Court charged the jury, that, if they believed the facts deposed to were true, the defendant was guilty in law of an assault.</p> <p>The jury found the defendant guilty of an assault, and from the judgment on the verdict the defendant appealed.</p>

The defendant was tried upon the following indictment : State op Noeth Caeolina, ? Superior Court of Law, Martin County, > Pall Term 1849.

<p>Appeal from the Superior Court of Law of Guilford County, at the Fall Term 1850, his Honor Judge Manly presiding.</p>

<p>Appeal from the Superior Court of Law of Northampton County, at the Fall Term 1849, his Honor Judge Bailey presiding,</p>

<p>A householder, who wishes to avail himself of the provisions of the Act of Assembly of 1844-5, ch. 32, Ire. Digested Manual, p. 118, may do so, by making application and procuring the assignment to be made according to the Act of Assembly, at any time, even after a levy of an execution or attachment, before the property is changed or converted by a sale;</p>

*' Appeal from the Superior Court of Law of Bertie County, at the Fall Term 1850, his Honor Judge Cald* well presiding.

This was an action of trover for a mare, in which it appeared, that the defendants had, on the 10th of November 1847, converted the mare, by virtue of a process of fi fa. against Urias Wilson, a son of the plaintiff.

<p>It is the settled law in this State, that a debt, due by an assignor of a bond or note at the date of the assignment, may be pleaded, as a set off to an action by an assignee after maturity ; but this departure from the Statute, Rev. Stat. ch. 31, sec. 80, is put on the ground, that a liberal construction is necessary to prevent evasion and injustice.</p> <p>Where it is shewn this injustice will not result, the rule is different. As when the assignor, at the date of the assignment, had an account against the defendant in the action, larger in amount than that which is attempted to be set off. Held, that the defendant could not avail himself of his account, as a set off, in an action by an assignee, on a note or bond assigned after maturity.</p> <p>The case of Haywood v McNair, 3 Dev. 231, 2 Dev. Bat. 283, cited and approved.</p>

TMS was an application to be discharged under the insolvent debtor’s act. The defendant was arrested under a writ of ca. sa , returnable to this term of the Superior Court of Law for the County of Montgomery, p.nd gave bond for bis appearance to tafee the benefit of the act for the relief of insolvent debtors. He accordingly issued a notice, which was regularly served upon the plaintiff, more than ten days before fhe first day of this term.

<p>Ia order to make the declarations of a deceased persou'evideuce, as “dyiu;; declarations,” it is not necessary that the person should be in articulo mortis (in the very act of dying); it is sufficient if he be under the apprehension of impending dissolution, when all motive for concealment or falsehood is presumed to he absent, and the party is in a position as solemn, as if an oath had been administered.</p> <p>A witness cannot be admitted to state, that “he thought, the decease! thought, he would not die from his wounds,” He cannot give his own opinion, but only depose to the state of the wounds of the deceased an l what he then and there said and did, from which the Court may decide what he thought of his condition.</p> <p>If the deceased, at the timehe made the declarations, was, in fact, in a condition to make them competent evidence, a hope of recovery, at a subsequent time, would not render them incompetent.</p> <p>There is a distinction between a cause for a new trial and a cause for mistrial; the former is a matter of discretion — the latter a matter of law.</p> <p>Where, on a trial, the circumstances are such, as merely to put suspicion on the verdict, by shewing, not that there was, but that there might have been, undue influence brought to bear on the jury, because there was opportunity and a chance for it; it is matter within the discretion of the presiding J udge. But if the fact he, that undue influence was brought to bear on the jury; as if they were fed at the charge of the prosecutor or the prisoner ; or if they be solicited and advised how their verdict should be; or if they hear other evidence, than that which urns offered on the trial; in all such cases, there has been, in contemplation of law, no trial, and this Court, as a matter of law, will direct a trial to be had. whether the former proceeding purports to have acquitted or convicted the prisoner.</p> <p>Where the facts, in relation to the jury on a trial for murder, were, that the jury were placed in the charge of an officer and confined in the ordinary jury roots ; that they retired from the Court on Thursday at 6 P. M. and rendered their verdict on Saturday at 10 A. M.; that while out, the members of the jury separated at various times to obey calls of nature — that e3ch one separated himself from the others, more than once for this purpose, and one of them as often as six times ; that, when they did this, they went, one at a time, under charge of an officer, and, during such absence, the other jurors remained together in the jury room, with the door locked; that they went about fifty yards from the Court-house, and returned as soon as practicable, holding no intercourse with any one; that one of the jurors separa ted himself from his fellows, and visited a drug store, about one hundred and fifty yards from the jury room, for the purpose of procuring medicine, being sick; that he went under the charge of an officer, and held no conversation except with the keeper of the drug-store, who asked him if they had agieed on their verdict, to which he replied, "they had not;’’ that this store was in the most public place in the town of New-borne ; that another juror separated himself from his fellows and stood on the outside of the jury room, near the door closed, and conversed privately for ten or fifteen minutes with a third person, but what was'said did not appear; that the jurors also ate and drank, while out, but not to excess • that a part of the time they did so with permission of the Court, but whert enjoined by the Court not to eat or drink, they violated this injunction, contrary to the wishes of the officer, who had them in charge ; that several jurors wrote notes and dropped them from the windows of the jury room, and also received notes from persons not of the jury, but neither the contents of the notes nor the names of the persons, to whom sent or from whom received, appeared; that some of the jurors conversed from the windows with persons in the street, on various subjects andjabout this suit, hut what was said did not appear; and that some servants and small children had access to the jury room, the servants for the purpose of carrying food and clothing to the jurors, and the children to see their fathers; Held, that these facts might, in the discretion of the presiding Judge, have been a good cause for granting a new trial, but they could not justify the Court in declaring, as a matter of law, that there was a mistrial.</p> <p>The admission of dying declarations, as evidence, is not in opposition t'o that part of the Bill of Rights, which says, that, “In all criminal prosecutions every man has a right to be informed of the accusation against him, and to confront the accusers and'witnesses with other testimony.”'</p> <p>Thecase of the Stale v Miller, 1 Dev. Sc, Bat. 300, cited and approved.</p>

. Appeal from the Superior Court of Law of Anson County, at the Fall Term 1850, his Honor Judge Battle presiding. Held: that insulting language, used by a slave, may ¡ justify a white mail in striking him, yet the principle did : not apply, to the ease or a free negro, stricken under $>«*&■« Jar circumstances, a whité man. The defendant was convicted, and, judgment being pronounced against him, appealed.

<p>Appeal from the Superior Court of Law of Rutherford County, at the Spring Term 1849, his Honor Judge Bailey presiding, to the Supreme Court at Morganton, and thence transferred, by an order of that Court, to the Supreme Court at Raleigh.</p> <p>This was an action of trespass, vi et armis, for an as< sault and battery on the plaintiff’s person, tried at Rutherford Spring Term 1849, upon the following facts, submitted to the Court for judgment, as a case agreed.</p> <p>' íhe General Assembly, at its session of 1840 and’7, passed an act establishing a County by the name of Polk, Out of certain portions of the Counties of Rutherford and Henderson By virtue of that act and a supplemental aGt, passed at the same session, Courts, both County and Superior, were organized, and all County officers were, appointed and elected, and entered upon the discharge of their duties as such.</p> <p>The site for the County Town and Court House was selected, and a deed to the Chairman of the County Court was duly executed and delivered. At the general election for sheriff, in August, IS4S, the defendant was duly elected sheriff of Polk County, for two years, next ensuing — entered into bond according to law, and was qualified as such and acted as sheriff of said County, and claimed the right to act as such, at the time of executing the writ, under which the arrest was made, which issued from the Superior Court of Rutherford, with the County seal attached, tested of the Fall Term 1S48, and was directed to the Sheriff of Polk County. The writ was issued on the 1st day of April 1819, came to the defendant’s hands on the 2nd day of that month, and it was immedi-■diately executed by arresting the plaintiff.</p> <p>■ The said Act of Assembly was repealed .at the Session of 1848.</p> <p>It is further agreed that a majority of the people of Polk County were opposed to the passage of the repealing act.</p> <p>On the above statement of facts it is contended by the plaintiff, that the defendant, being no longer sheriff of Polk County, after the act went into operation which repealed the act establishing it, his arrest was -not author-ised, and, therefore, a trespass. On the other hand it is contended by the defendant, that the repealing act was unconstitutional and void, and therefore he was sheriff of Polk Count}1', at the time of arresting the plaintff and well justified therein by virtue of the writ aforesaid.</p> <p>And it was further agreed, that, if the repealing act be constitutional, there is to be judgment for the plaintiff for six pence and costs of suit; if otherwise, then the plaintiff is to have judgment of non suit. And his Honor being of opinion that the repealing act was constitutional, gave judgment against the dc fendant, accordingly, for six pence and costs, from which the defendant prays an appeal to the Supreme Court, which is granted.</p>

This was an action of debt. The plaintiff declared, as the indorsee of a promissory bond, of which the following is a copy : “$160, I promise to pay Benjamin C. D. Ea. son or order, at any time after ten days from this date, when presented, one hundred and sixty dollars, value of him roc’d. April 24th, 1S48.” Signed, “Wyatt Moye,” and sealed: Indorsed, “I transfer the within note to F. Ormond for being value received, May 29th, 1848.” It was admitted that the indorsement…

<p>Parol evidence may be admitted to show a custom or usage of a place, where a contract is entered into, for the purpose of annexing incidents to, and explaining the meaning of terms used in it. But before the incident can be annexed, the contract itself, as made, must be proved. The incident cannot be used to establish the contract, nor can it be inconsistent with the terms of the contract.</p>

<p>If il.e wé&ther is so bad, as to prevent an overseer of a road from Working on the road, orto render unavailing any work lie might do, he ought to bt excused.</p>

<p>Appeal from the Superior Court of Law of Bladen County, at a .Special Term in December 1S50, his Honor Judge Dick presiding.</p>

<p>It is no ground of exception to w deposition, that the notice was given to take the depositions of A , B., C. and others, and tire deposition of neither A, B., nor C. was taken.</p> <p>Where a copy of a Statute of another State has been received in evidence in the Court below,upon insufficient proof, yet, if it is made to appear to this Court from an official and proper source, that the copy,so received in evidence, was correct, a venire de novo will not be. awarded for that error.</p>

<p>WRere an executor arrests a defendant on a ca. sa., sued out on a judgment obtained by his testator, and afterwards dies, and the proceedings on the ca. sa. are discontinued, and then administration de bonis non, with the will annexed, is granted,this administrator is not hable in any way for thfe costs of the proceedings on the ca. sa.</p> <p>T-be oas'e' of Matlock v Gray, 4 Hawks 1, cited and approved.</p>

<p>A con version, to subject a defendant in an action of trover, consists either in an appropriation of the thing to the party’s own use and beneficial enjoyment or in its destruction, or in exercising dominion over it, in exclusion or de.’ . fiance of the plaintiff’s rights, or in withholding the possession from the plaintiff, under a claim of right, inconsistent with his own.</p> <p>Giving to a negro a certificate that he is free, does not amount to a conversion in the person giving the certificate, if the negro should turn out to be a slave.'</p>

<p>V here a petition had been filed in the County Court by the next of ldn of an intestate for the sale of negroes for the purpose of distribution, and a sale had been made by a commissioner appointed by the Court, according to the prayer of the petitioners, and he liad paid over to them what he alleged to be their full respective shares ; it is not competent for these petitioners to file a subsequent, original petition in the same Court, charging that the commissioner had not paid them their full shares, (they having signed a receipt in full by mistake) and requiring the commissioner to account, &o. and pay over the balance, $re.</p> <p>Their relief could only be obtained by an application to the County Court for a rehearing, if the proceedings of the Commissioner had beep confirmed, or by recourse to a Court of Equity to set aside the receipt, if given through mistake.</p>

This is an action of assumpsit, which was tried on the general issue. The case was, that the defendant as' sheriff sold some slaves under writs oí fieri facias against the plaintiff; and the present suit was brought to recover a surplus of the proceeds after satisfying the executions. The defence was, that the plaintiff was not entitled to the surplus; because the slaves were not his, but he had conveyed them by deed to one Colson before the defen. danftook them.

This was an action of trover, brought to recover a negro woman, a slave, by the name of Marina, and her two children. The plaintiff proved, that Marina was once the property of Zebulon Tarkinton, who made a parol gift ofher to his grand-daughter, the plaintiff, when she was an infant, and quite small.

<p>No action at law cao be main tai nod, to collect theassetsof a deceased man, except by liis personal representative; but where A., claiming a slave as a distributee of B . employs C. to sell such slave, and C. accordingly sells the slave and receives the price, he receives it for the use of A., and cannot dispute the title of A., but is bound to account with him for the sura received.</p> <p>The case of Dumooody v Carrington, 2 Car. L. R. 469, Means v Ilogan, 2 Ire. Eq. 525, and Love v Edmunds, 1 Ire. 152, cited and approved.</p>

<p>A Com't Martial is a Court of special and limited jurisdiction. It must be organized agreeably to laiv, and this must be shewn distinctly by every one, who seeks to enforce its sentences or justify action under its precepts. Therefore, where a company court martial, as is required by our law, must be composed of at least fcwogcommlssioned officers, audit did not appear in this case that more than one commissioned officer sat in the Court, an execution, issued by a tribnnal so constituted, is void and does not justify an officer in acting under it.</p>

<p>Appeal from the Superior Court of Law of Pitt County, at the Fall Term 18-19, his Honor Judge Bailey presiding.</p>

Alexander McD. Williams obtained a judgment against Joshua Bryan in Bladen County Court, for $11 91 debt, and $66 89 costs, and sued out a ca. sa. thereon, upon which Bryan was arrested by the Sheriff.

at the Fall Term 1850, his Honor Judge Battle presiding. Held: that neither of the grounds of objection was sufficient to invalidate the defendant’s title ; and, under directions to that effect, the jury found for the defendant, and the plaintiff appealed.

<p>In this State, land is taxed according to its fee simple Yalue, and whoever is owner of the land for the time being is bound to pay the tax ; as if an estate is limited to A. for life or for ten years, remainder to B. and his heirs, the valuation is assessed, without reference to this division, and each must pay the tax, during the time that he is the owner and enjoys the possession and pernancy of the profits.</p> <p>It is otherwise in the case of landlord and tenaut, where rent is reserved, for the rent is in lieu of the land, and the landlord is in the pernancy of ihe profits of the land : and if the tenant is compelled to pay the tax, ho may recover from the landlord, or deduct the amount out of the rent.</p>

This case was submitted to the Court on the following facts.

<p>Although it be not error to refrain from giving instructions, unless they bo asked for; yet the Judge, when he does give instructions, either of his own motion or at the party’s, should give them in such a way, that they be not in themselves erroneous, or so framed as to mislead the jury.</p> <p>In order to satisfy that port of the law, which requires the attestation of subscribing witnesses to a will to be in the -presence of the testator, it is sufficient if the attestation be in the same’ room in which he is, provided it be not done in a clandestine, fraudulent way, which would not be in the party’s presence.</p> <p>Where t,wo persons agree to make mutual wills, it would seem, that bad faith in the one, either in not making his will or in cancelling it after it was made, will not prevent the probate of the will of the other party.</p>

The declaration states that the plaintiff hired to the-defendant a negro slave between the ages of ten and twelve years, for the term of one year from, &c., with permission to the defendant to employ the slave in driving a horse attached to a whim, at a certain Gold mine, belonging to the defendant, and that the defendant undertook and promised the plaintiff to take ordinary care of the said slave during the term; and that the defendant, not regarding his understanding…

The defendant was indicted as an overseer of a public road for not keeping the same in repair.

In this case the following facts are agreed upon by the parties: That one Fleming was committed indue course of law, as a debtor in execution, at the instance of Boaz Adams in one case, and of John P. Mabry in another case, to the custody of James C. Turrentine, the plaintiff, as the sheriff of Orange County, and he delivered the said Flem* ing to the defendant, Faucett, the jailor of said County; and he remained in close prison until the night of the 1st of November 1844,…

<p>Tlie following- dissenting opinion of Nasii,J., should have been inserted at page 651.</p>