Volume 34 — North Carolina Reports

<p>Appeal from the Superior Court of Law of Martin County, at the Fall Term, 1850, his Honor Judge Baxi-ey presiding.</p> <p>This was a ease agreed. The facts of the case are as follows, to wit:</p> <p>In March, 1848, the plaintiff’s carriage and horses were taken on board a Flat at the public Ferry, on the Roanoke river, called Hill’s Ferry, to transport across the river, and. -in carrying them across, both of the horses were thrown out of the flat by the limb of a tree, projecting from the bank of the river, striking the carriage, and one of the horses was thereby drowned.</p> <p>The Ferry was attached to a tract of land conveyed to the defendant’s testator, to be held in trust, for the sole and separate use of one Mrs. Jones, with a stipulation that she should enjoy it free from all claim whatsoever, by her husband. The deed was executed by the grantor and trustee.</p> <p>The defendant’s testator never undertook to control or manage the property, nor in any manner opposed the management thereof by Mrs. Jones or her husband. Mrs. Jones always permitted her husband to take the profits, and he always furnished his own hands for Ferrymen, and leased it according to his discretion.</p> <p>The Ferry, for the year 1848, was leased to one Purvis, who was to pay Mr. Jones therefor two thirds of the profits. There was also a marriage contract between Mr. and Mrs. Jones, and the witness stated that the defendant’s testator sometimes, when there was a dispute between Mr. and Mrs. Jones, about the property, would, on being consulted with, advise them what to do.</p> <p>If, upon the foregoing facts, his Honor should be of opinion that the plaintiff is entitled to recover, judgment is to be entered ior $125 and costs. If otherwise, the plaintiff to be non-suited. His Honor being of opinion with the plaiatiff, rendered judgment for $125 and costs of suit, from which the defendant appealed, and entered into bond, <fcc.</p>

The defendant was charged, under an indictment, the material parts of which are as follows: That Benjamin F. Powers, the defendant, contriving and unlawfully, wickedly and maliciously intending to hurt, injure, vilify and prejudice one Samuel Fulton, and to deprive him of his good name, &c., and to bring him into great contempt, &c., on the 15th day of June, 1850, with force and arms in the county aforesaid, unlawfully, &c., did publish and cause and procure to be published,…

<p>Appeal from the Superior Court of Law of Bladen County, at a special term in December, 1850, his Honor Judge Dick presiding;</p> <p>The case is stated by the Judge in his opinion in the Court.</p>

<p>Appeal from the Superior Court of Law of Stanly County, at the Spring Term, 1851, his Honor Judge Manly ' presiding.</p>

This is assumpsit to recover the price of a flat. The declaration contains three counts. First, in a special contract to indemnify; second,' for money paid to the use of the defendant; third, for work and labor done.

This was an action of ejectment to recover the lands and tenements mentioned in the plaintiff's declaration. A verdict by consent was given for the plaintiff upon the trial, subject to the opinion of the Court upon a case agreed. The case agreed is as follows : The premises in dispute belonged to Peter R. Davis, under whom they are claimed by both parties.

The judgment of the Supreme Court in this case, being certified to the Superior Court for Cumberland County, at its Spring Session, 1851, A judgment and execution for the costs of the said Superior Court against the defendant and his sureties on the appeal bond, (to be taxed by the clerk,) were moved for by the petitioner’s counsel.

• In this case tfie.ev-idence was, that the lessor of the plaintiff purchased the land, in dispute, as the property of Robert L. Osborn, husband of the defendant, at November Term, 1847, of Rockingham County Court, at sheiiff s sale, took a sheriff’s deed and bad the same duly recorded : That before Christmas, 1847, the lessor leased the said land to the said Robert L. Osborn, for the year 1848: That the-said Robert held over, and lived with the defendant; his wife, on the…

This was an action originally commenced before a Justice of the Peace on a bond, of which a copy accompanies this case, marked A. The defendant pleaded general issue, and payment, accord, and satisfaction.

This was an acliou of covenant for the breach of a warranty, alleged to be contained in a deed for land, in which the defendant, after conveying by metes and bounds, cov-. enanted as follows : “ To have and to hold to him the said Robert Huntley, his heirs and assigns, the right and title of the same, I warrant and will ever defend the,same.” Upon a survey of the land contained in the metes and bounds, set forth- in the deed, it appeared that there were only one hundred and…

<p>An omission by a Judge to instruct the jury upon a particular point, is not error. If the party, deeming them material, ask for instructions, and they are improperly granted or refused, the question may be brought before the Supreme Court for review.</p> <p>The cases of Torrence v Graham, 1 Dev. and Bat. 288, and State v O'Neal, 7 Ire. 253, cited and approved.</p>

This was an action of assumpsit, brought in October, 1848. It was in evidence, that the plaintiff deposited with the defendants, some time in May, 1841, one hundred and fifty barrels of fish, to be sold by them on commission, and took their receipt. The defendants relied on the statute of limitations.

presiding. 1 This suit is trespass for false imprisonment, the plaintiff alleging that she is a free person of color.

<p>Appeal from the Superior Court of Law of Pitt County, at the Spring Term, 1851, his Honor Judge Ellis presiding.</p>

<p>Appeal from the Superior Court of Law of Wayne County, at the Fall ■ Term, 1850, his Honor Judge Ellis' presi-' ding.</p> <p>The case is stated in the opinion delivered in this Court.</p>

<p>Appeal from the Superior Court of Law of Rockingham County, at the Spring Term, 1851, his Honor Judge Bailey presiding.</p> <p>The case is stated in the opinion of the Judge-delivered in this Court.</p>

This is an action on the case for deceit and false warranty in the sale of horses. testified, that the plaintiff, a resident of Guilford county, came to his tavern, in Statesville, at the Superior Court, in April, 1848: that the defendant, Blackwell, put up at his house with hi3 two horses, on Tuesday of Court, and told him he wished to sell his horses: that he learned from the plaintiff, that hp wished to buy: that on that day or the next, the parties came before him, and…

<p>Tlie term “ property,” in its legal sense, does not include choses in action, and in reference to personally, is confined to “goods,” which embraces things inanimate, as furniture, <!sc. and to “ chattels,” which term embraces living things, as horses, <Ssc.</p> <p>Where a testator devised all his “ property” to his wife for life, and directed that, after her death, “ it should be sold,” &c. Held, that choses in action did not pass.</p>

<p>Appeal from the Superior Court of Law of Currituck County, at the Fall Term, 1850, his Honor Judge Caldwell presiding.</p> <p>This is an action of debt upon the administration bond of one Jesse Doxey, who was the administrator of James Doxey, deceased.</p> <p>The facts of the case are as follows.: The said Jesse, after the expiration of two years from his administration, paid over to the next of kin all the estate in his hands : he died some time in the year — and Benjamin Simmons became the administrator de bonis non of said James Doxey: the plaintiff brought suit against the said Simmons upon a cansé of action, which accrued between the death of said Jesse and the grant of letters of administration de bonis non to said Simmons : the said Simmons, in the suit against him, pleaded fully administered. t)n the trial, the jury found in favor of the plaintiff as to the debt, and in favor of said Simmons on the plea of fully administered. There was no judgment on the verdict, other than such as the law implies. This suit is brought to recover the amount of the judgment.</p> <p>The Court was of opinion, that the action could not be sustained, and in submission to this opinion, the plaintiff submitted to a non suit. A motion to set aside was refused and the plaintiff appealed.</p>

<p>Appeal from the Superior Court of Law of Hertford' County,, at the Spring-Term, 1851, his Honor Judge Dick presiding.</p> <p>The case is stated in the opinion delivered in, this Court,</p>

- Appeal from the Superior Court of Law of Edgecombe County, at the Spring' Term, 1851, his Honor Judge Ellis presiding. This was an action of trover for the conversion of a slave, named Barton. The plaintiffs proved, that the slave in question, had been the property of one Robert Belcher, who, by deed in trust, dated 1st of June, 1849, conveyed him, with other slaves, for the payment of debts to the defendant, Petway.

The plaintiffs declared in trover on a bailment to the de--fendant for the value of two slaves, Edmund and Luke.. On the trial it was proved, that one of the plaintiffs, Franklin Pitt, in the month of June, 1850, brought to the defendant, who was sheriff of Pitt county, the two slaves, and requested him to keep them in the common jail, until he should call for them himself or by his order. The defendant received them on those terms.

This action is assumpsit, and the plaintiffs declared in two counts. First, on a special contract for the sale to the defendants of ten coils of fishing rope, at the price of 13 3-4 cents, per pound. And secondly, on a quantum valebit for goods, wares and merchandise,, sold and delivered.

<p>Appeal from the Superior Court of Law of' Perquimans. County, at the.Spring Term 1851, his. Honor Judge Dick. presiding.</p> <p>' This was a rule on the defendant obtained by the plaintiff, after due notice given him, at May Term, 1850, of the ■ County Court of Perquimans county, to show cause why an execution of fieri facias, which be had caused to be issued on a judgment recovered by him against the plaintiff, John S. Wood, at the preceding Term of the Court, should not be set aside. The rule having been made absolute in. the County Court, and the Court having ordered the said' execution to be set aside, the defendant appealed to the Superior Court.</p> <p>Upon the hearing oí the case in this Court, the following Were the facts.</p> <p>The defendant’s intestate, Miles Bail, recovered at February Term; 1850, of Perquimans County Court, against the plaintiff, John S. Wood, judgment for the sum of-dollars, with costs oí suit, and caused an execution, tested oí that Term, and returnable to the May Term, following, to be issued on the —— day of —--, against the property of the said Wood, and on the same day delivered to the sheriff, of Perquimans County aforesaid.' Subsequently, to February Term of Perquimans County Court-, aforesaid, to wit: at the Terms of the Superior Courts held in the counties of Perquimans and Pasquotank, respectively, in the month of April, of that year, the other persons who are plaintiffs, severally recovered judgments in those Courts against the said John S. Wood, on each of which executions of fieri facias were - issued shortly thereafter, to wit: on the-day of-of the same year, which were on the same day delivered to the sheriff of Perquimans, and were returnable to the Fall Term, 1850, of those Courts respectively.</p> <p>Under these executions, and the execution of the defendant, Bagiey, which afterwards came into his hands, as stated, the sheriff made sale of the property of the said John Wood, and holds the proceeds of the sale in his hands unappropriated.</p> <p>The judgments recovered by the several plaintiffs were by default on writs, of which the said Wood accepted service during the latter part of the week of the said Superior Courts.</p> <p>Accompanying the judgment, as entered upon behalf of the said Dail against John S. Wood, and immediately underneath, appears the following entry on the docket, in that cause, to wit:</p> <p>“ Stay execution till May Court, and thereafter till called for.”</p> <p>It was in proof, that this entry was made on Thursday of the February Term aforesaid of the Court, in the office of the County Court Clerk, which is in the Court House, in the presence both of the said Dail, and the said Wood, by the County Court Clerk, under the direction, of the defendant Dail, and that no Court sat on that day or the next-day.</p> <p>The circumstances, under which this entry was mad.e in the case, were as follows :</p> <p>After judgment had been rendered in the case of Dail v Wood, the said John S. Wood called on the said Dail to know, if execution was. to be issued, and stated, that he did not wish to prejudice his debt, but it would not be convenient for him to pay it before May Term, and, perhaps, not before August Term of the Court. The said Dail suggested, that, under the advice of the Counsel, he preferred, that his execution should issue, but not be enforced. To this the said Wood answered, that that arrangement would not'suit him, and that he could appeal and keep it off longer; and thereupon, the said Dad, turning to the Clerk, instructed him to make the entry of the.stay, as already described ; and it was done. The execution, at the instance of Dail, was for Seventeen Hundred Dollars, or thereabouts. And the executions, in favor of the plaintiffs, other than Wood, amount ed to about Three Thousand Dollars, while the proceeds of sale of said Wood’s property, in the hands of the Sheriff, were about Four Thousand Dollars.</p> <p>It further appeared, that, according to the practice and usages in the County Court of Perquimans, rules and other orders are taken and entered on the docket in the County Court Clerk’s office, at any time during the week, until Saturday when the Court adjourns and that the said Court did sit and transact business on Saturday of the February Term aforesaid, not having adjourned until that day.</p> <p>The Court was of opinion, on the above statement of facts, that the entry on the docket was merely a private agreement between Dail and Wood, and not a record of the Court. It therefore ordered, that the judgment of the County Court be reversed and the rule discharged.</p> <p>• From which .judgment, the plaintiffs appealed to the Supreme Court. ■ • ...</p> <p>. The entry on the docket is either a record, a contract, or a mere direction:</p> <p>1st. On principle, it is not a record. A record is the process bringing the party into Court; the allegations of the parties ; the action of the Court thereon, and the final process. This entry is not a record nor a part of a record — is not leading process, adjudication, nor final process. The fact that it appears on the record does not make it a part of the record : An execution, when returned, is a part of the record; Pigot v Davis, 3 Hawks, 25. Yet the plaintiff’s receipt thereon, is no part of the record; Spruill v Bate-man, 4 Dev. and Bat., 489. On principle, then, particularly, as no Court was in session on the day, on which the entry was made, it is no part of the Record. Equally as little claim has it to be considered a record, on authority: Cody v Quinn, 6 Ire. 191, is a direct authority, that it is not a record. It is true, the learned Judge, who delivered the opinion, in Cody v Quinn, intimates, that the party interested might complain to the Court, “ in a motion to have the execution set aside.” This, however, is a mere obiter 'dictum, not necessary,to the decision of the cause, and may be questioned, however much the droppings even of his mind may be entitled to respect. And supposing the Court could exercise its discretion, it would'require a proper case, which this is not; as, by setting aside the execution in this case, the defendant would be defrauded of the money due on his execution, and perchance, might lose title to the property, bought under it.</p> <p>2d. As a contract, it lacks the material ingredient of a consideration ; for the want of which it is believed, it could not be enforced, by suit even, much less by rule. If the waiving of the appeal, under the circumstances, could be construed into a consideration, the injury to Wood, ii any, is not such an one as calls for the interference of this Court by rule; but he should be left to his action at law. It is believed, however, it cannot be deemed a contract.</p> <p>3d. If not a record nor a contract, then the entry is a mere direction, which the party giving had a right to countermand, and did countermand, and his execution issued rightfully.</p> <p>4th. This entry being no part of the record, nor even a contract, which the Court could or ought to enforce by rule, it was, at the most, a mere matter of discretion with the Courts below, whether the execution should be set aside or not. The County Court having ordered the execution set aside, an appeal was properly taken to the Superior Court: the Superior Court having examined the testimony, and, in the exercise of its discretion, having reversed the decision of the County Court, no appeal lies therefrom: the cause is improperly in this Court, atid the appeal must be dismissed. That the appeal from the County to the Superior Court is rightful, and that the appeal to the Supreme Court is not, see Slade v Burton, Exrs. 6 Ire. 207, Britt v Patterson, 10 Ire. 390.</p>

<p>Évery Court has the control of its own records, and may alter or' ame'nil 'them, or refuse to do so at its discretion.</p> <p>Where the County Courts exercises this discretion their decision is subject * :to an appeal to the Superior Court and is thereby vacated, and the trial 'in the Superior Court is de novo.</p> <p>In considering the matter in appeal, 'the Superior Court, is not confined to the evidence in the Court below, but may hear and will hear any additional -of new evidence, which may be offered by the parties.</p> <p>Whether the decision in the Superior Court is one purely in the discretion of tile Judge, or one which is subject to review here, the judgment is final and ■conclusive, because the Supreme Court is a Court for the correction of errors in matters ot law, and not matters of fact.</p> <p>The'Cases of Jewett v Boon, 5 Ire. 9, Galloway v MctKelhan 5 Ire. 12, Ditkerson v. Lippit, 9 Ire. 563, and Britt v Patterson, 10 Ire-. 390, cited and approved.</p>

Detinue for a slave Hasty and a horse, which was decided on a case agreed.

• Appeal from the Superior Court of Law of Beaufort 'County, at the Spring Term 1851, his Honor Judge Caldwell presiding. This is an ac-tioa ef covenant: plea, non est factum.

Motion-to-remove the defendant from the guardianship “ of the infant children of Jonas Jones, dec’d. The plaintiff is the mother of the wards, and the defendant their grand-father. In the County Court, the judgment was, that the ‘ defendant be- removed, and the plaintiff be appointed in his .place.

presiding.. The defendant was summoned as juror, under a special writ of venire facias, issued by the Judge of the Court,' according to the provisions of the act of Assembly, Rev. Stat. ch. 35, sec. 17. The writ was issued on Wednesday of the Court, in an indictment for grand larceny ; and the defendant, by virtue of the writ, was summoned to appear as a juror on Thursday of the same term of the Court.

<p>It is not a sufiieient j ustifiaation for a person, who does an unlawful act, to shew that he did not believe it unlawful. When the act is unlawful and voluntary, the quo animo is inferred necessarily frotó the act itself.</p>

This was an action of ejectment. The plaintiff declared for three tracts of land, but abandoned his claim for one tract No. 3. He claimed title to the said lands as purchaser at Sheriff’s sale, under execution a•gainst the defendant.

ty, at the Spring Term 1851, his Honor Judge Caldwell presiding. This was a motion in the Superior Court of Greene, for a writ of error, coram nobis, to reverse a judgment of that Court for error in fact. On affidavits, the caso was this: Richard Edwards gave his bond to the plaintiff, and, after the obligor’s death intestate, suit ivas brought thereon in the •County Court against his administrator.

This was a proceeding under the “ Bastardy Act,” instituted in the County Court of Richmond County. It appeared, that the child was born in Richmond County, that the mother and child removed to Montgomery County and there resided more than two years before this proceeding was com* menced.

Appeal' from the Superior Court of Law of Hertford County} at the Spring Term 1851, his Honor Judge Dick; presiding.. Held: the rule of construction contended for applies ; Bosnall v Harvey*, 4 Barn, and Cress., 610. IIT.

This was an indictment against the .defendant, in the following words: MARTIN COUNTY, ) Fa„ T t Superior Court op Law, s¡ ’ il The jiirot-s for the State, on their oath present, that, on the first day of September, 1848, there was, and irom thence to the taking oí this inquisition, there hath been, and is now, in the county of Martin, over a water course called the Canal, •a certain common public bridge in a highway in said county, leading from Hamilton to Williamston, used…

The defendant, Call McDugald, was arrested on the Tuesday of the County Court, and forced to give a ca. sa. bond, conditioned for his appearance on the next day. He failed to appear, and was called out, and judgment was moved for by the plaintiff. This motion was resisted by the defendant, Call McDugald appearing by counsel ahd his sureties, who appeared in person, and in their behalf the Court was moved to quash the ca. sa. and the bond.

1850, his Honor Judge Manly presiding. This is a petition for damages for overflowing land by a mill pond. It was filed at May County Court, 1849, which-was on the second Monday. On the first day of the month, more than ten days previous to the term, the petitionergave-the defendant notice, in writing,, of his intention to file the petition at the next Term ; arid on the ?th day of the month, the plaintiff served the defendant with a copy of the petition.

. This was an action of covenant, brought for several breaches assigned oí the covenants contained in the following instrument:. Bladen County, N. C., May 13th, 1846. “Received of Hugh Simpson Four Hundred and Fifty Dollars in payment for a negro boy, named Graham, about seventeen years of age ; which negro I warrant both as to soundness and right of property, except a small rupture on said Graham. In witness my hand and seal, ARCHD. S. McKAY. (Seal.) Test. Wm.

<p>Where a deed for land, after setting forth the parties, the description ef the land and the interest conveyed, goes on as follows: “to have and to hold the above described.peice or parcel of land, free and clear from me, my heirs, executors, administrators and assigns, and from all other persons . whatsoever, unto the said, &c.” Held, that this clause contained a cove- . nant for quiet enj oyment.</p> <p>No precise or technical language is required by law, in which a covenant shall be worded — any words, wheh amount to, or import an agreement, being under seal, are sufficient.</p> <p>The cases of Woodward, v Ramsay, 3 Hawks 335 [and Hafncr v Irwin, 4 Dev. and Bat. 433, cited and approved.</p>

851, his Honor Judge Dick presiding. This is detinue, for a female slave, named Anne, and three others, who are her children.' The pleas were non detinet, and the Statute of limitations.

The prisoner was charged, in two counts with the murder of Eli Sigman : in the one by shooting, and in the other by striking, thrusting, and cutting with a knife upon the throat, the front part of the neck and the left side of the belly. He pleaded not guilty, and was convicted on both counts, and after sentence of death he appealed.

The prisoner was indicted for stealing a slave, Giles, the property of George W. Smith, and charged in fourteen counts. The last seven counts were a repetition, with no material alteration, of the first seven. The first count charged, that the prisoner, with force and • arms, the said slave, the property, To this indictment the defendant pleaded not guilty.

.•■•í&ppeál'from the Superior Court of Law df Person County,a¡t''the Spring Term 1851, his Honor Judge Baila presiding. This is-a petition by a widow for a year’s allowance out ■ oMhe personal estate of hey late husband Hardy Walters, who died intestate. It came on upon appeal in the Superior Court, and the parties agreed upon the following facts. The intestate seduced the petitioner and lived in adultery with-her and then married her.

The defendants are indicted for an omission oí duty, as wardens of the poor of New Hanover County ; and the case comes here upon a motion in arrest of judgment. The indictment is as follows : “ Slate of North Carolina, ? Court of Pleas and Quarter New Hanover County, ( Sessions.

This was- an indictment against the defendant for illegal '-voting. Held: was about two miles distant from the place where the election was held in August last, though both- these places were within the locality, known as Gum Neck, by-which name-this precinct was known and called; but that for- about four years past the elections have been only held at the place, where the said elections were held in…

The premises consisted of a house and garden in the Town of Salem. Held: that, if the defendant entered by the permission of Mrs. Boner, he was estopped to deny the title of her landlord. The defendant then insisted that, if thus treated as a tenant, he was entitled to occupy until the 30th of April, 1850, and therefore, the action would not lie.

'The suit began in the County Court and was there tried on issues, and the plaintiff had a verdict and judgment in February 1849. The defendant appealed, and in filling up the appeal bond the name of the plaintiff, as the obligee, was omitted by the Clerk.

Detinue for a slave Caroline and her two children, which was tried on non detinet and the statute of limitations. The case was, that John McAllister owned the slave Caroline and conveyed her for life to the defendant, his sister.

The action is debt on the bond of the Clerk of the Superior Court of law for refusing, upon the demand of the re.lator, to issue a. fieri facias on a decree in a suit by petition. The pleas were, conditions performed, and conditions not broken ; and on the trial these were the facts : A petition was filed by Charles H. Mizell, Stephen Long and several other persons, against William L. Mizell, the executor of a will giving pecuniary legacies to the plaintiffs.

This was an -action of trespass m et ramis, quare dausum fregit. The plaintiff claimed under Frazier and Davidson, -.to whose title he had succeeded, the grant having issued to them in 1797 for the land trespassed upon. , The plain-. tiff proved, that the defendant, in 1847 and early in 1848, entered upon the lands aforesaid and cut down, and made into shingles, a large quantity of lumber, and carried them away; and proved their value.

This was trover for a slave, which had belonged to William Andrews and of which he died possessed. The will of William Andrews was admitted to probate in 1828, and the executors having renounced, John Dunn was appointed administrator with the will annexed. Among others, there is this clause in the will: “ 4th.

<p>An officer may levy an execution upon a standing crop, provided it is matured. The act of 1844, eh. 35, prohibiting officers from levying executions “ on growing crops,”, embraces only crops which are not matured.</p> <p>If an officer sells under execution a growing crop, and the purchaser after-wards gathers it, the officer, if he had no authority to sell under his execution, is as liable in an action of trover as the purchaser.,</p> <p>The case of Smitk v. Tritt, 1 Dev. and Bat. 241, cited and approved.</p>

The action is detinue for several slaves, which the plaintiff claims as the administrator of James Gaskill, deceased, and the defendant claims under a deed of gift from James Gaskill to Anson Gaskill, son of the former, and an infant ward of the defendant. It was tried on non detinet, and the defendant produced a deed from the father to the son, dated in February 1833.

• This is an action of debt on a bond, commenced by warrant before a single Justice, and brought by successive appeals to the Superior Court. The pleas are general issue, consideration of the bond unlawful, consideration fraudulent as against the policy of the law. The following facts are agreed. The Legislature of this State, at its session of 1846-7, passed an act to incorporate the Wilmington and Manchester Rail Road Company.

This was an ex officio information, filed by the Attorney General in the Supreme Court at Morganton.

<p>Appeal from the Superior Court of Law for Yancy County, Special Term, July 1850, his Honor Judge Battle, presiding.</p> <p>The facts of the case will be found in the opinion of the Court.</p>

This was a rule on the plaintiff to show cause, why certain costs taxed against the defendants should not be stricken ont of the fi. fa. The facts are : on the 5th of May 1847, the plaintifF commenced his suit in forma pauperis against the defendants, and continued to prosecute the same ■without surety, up to November,Term 1849, when he came into Court, and, on his own motion, was dispaupered, and tendered bond for the prosecution of his suit, which was accepted by the Court.

This was trover for the Conversion of a slave. Both parties claimed under one Glarke. The plaintiff read in evidence the record of a suit in equity, in which he was plaintiff, against the said Clarke for the foreclosure of certain mortgages, in which such pro* céedings were had, that a sale Was ordered to be made by the Clerk and Master; at which sale the plaintiff became the purchaser of the slave.

The defendant was arrested on a capias ad satisfacien-dum. on a Justice’s judgment, and entered into bond under the act for the relief of honest insolvent debtors. On the return of the, proceedings, the plaintiff moved the County Court to amend the. execution, and it was allowed. The defendant prayed an appeal, and, having surrendered himself in discharge of his sureties and been ordered into custody, he was allowed to appeal.

■ This is assumpsit, in which the plaintiff sought to recover the sum of $200, part of the price, which the intestate promised to pay the plaintiff for his iitterest in a tract of land.

This is covenant on a general warranty of title, contained in a bill ot sale made by the defendant to the plaintiff on the 21st of September, 1847, for two slaves, and expressed to be for the consideration of one dollar.

• Appeal from the Superior Court of Law of Iredell County, Fall Term, 1850, his Honor Judge Settle presiding. This was an action commenced by warrant before a justice of the peace on a former judgment, as follows : “ Au'gust 15th, 1844. ' “ Judgment by default in favor of plaintiff, principal $30, costs 30 cents. (Signed) NEIL McAULEY, J. P. (Seal.) The defence was, that the , former judgment had been, vacated ánd made void by the granting of a new trial.

<p>Where, under an order of the County Court in a bastardy case, the defendant gave a bond, to comply with any order of the County Court in that case, and tile Court ordered that he should immediately pay to the woman a certain sum then ascertained to be due ; Held, that the woman might release her interest in the said sum, and that such release would bar an action forthe same, whereshe was the relator and the suit brought in the name of the State, to whom the bond was payable.</p> <p>The cases of State v. Horsham, 4 Dev. and Bat. 471, and State v. Cordon, 8 Ire. 179, cited and approved.</p>

<p>On the compromise of a suit, the defendant agreed to pay the fee of the plaintiff’s attorney — neglected to do so, and the plaintiff' was obliged to pay it himself. Held, that the statute of limitations did not begin to run against the plaintiff’s claim, until he paid the money, and that it was not necessary to give notice of the payment to the other party to entitle the plaintiff to bring his suit.</p>

<p>A. and ÍB. entered into the following agreement in writing : ‘‘ Sold to B. one I gray filly for one hundred and fifteen bushels of corn, which the said filly stands good to the said (A.), as his own right and property, until she is paid for.” Signed and scaled by A. Held, that the legal title to the mare still remauunl in A. and that the sale was only conditional.</p> <p>The c4se of Ellison v. Jones, 4 Ire. 48. cited and approved.</p>

The defendant is indicted for perjury. The perjury is ^alleged to have been committed in an oath taken by the •defendant, before one Lemuel Pagett, a magistrate, of McDowell county, on the trial of a warrant for an assault and ¡battery against four persons — Archibald Hemphill, Benjamin Hemphill, John Hemphill, an'd Jesse Watkins.

Appeál from the Superior Court of Law of Buncombe county, Special Term, July, 1851, his Honor Judge Bailey presiding. In 1842, the plaintiffs recovered a judgment in debt against the defendant, which became dormant. In 1847, they sued out a scire facias to revive, which was served.

<p>Appeal from the Superior Court of Law of Haywood County, Spring Term, 1848, his Honor Judge Battle presiding.</p> <p>This is a petition and scire facias to vacate a grant for 640 acres of land in Haywood, obtained by the defendant, John Crow, on the 17th day of November, 1820, upon the ground, that the greater part of the same land had been granted to James Holland, the elder, on the 5th day of September, 1798, and that at the time Crow made his entry and obtained his grant, he knew of the said prior grant to Holland, and that the same covered .the greater part of the land included in the entry and grant to Crow, and, therefore, that the land was not then subject to entry, and with such knowledge fraudulently made his entiy and obtained his grant. The petition was exhibited in October, 1838, by Hardy Perkins and his wife, Selina Sophia, and by Peter R. Booker and his wife Cynthia, and represented that James Holland, the elder, died in the year 1825, seised of the land and in possession thereof, leaving the petitioners, Selina Sophia and Cynthia Booker, and one James Holland the younger, his only children and heirs at law, to whom the said land then descended from their said father; and that James Holland, the younger, afterwards died, and the petitioners entered into possession of the land and so continued up to the filing of the petition: The petition further states, that, by color of the grant to Crow, he and the other defendants, claiming under him, by petition in Crow’s name instituted a scire facias, against the said children and heirs at law of James Holland, the elder, for the repeal of the grant to Holland, for certain pretended frauds in obtaining the sáme, and otherwise disturbed them in their possession, and that in the suit so instituted by Crow, judgment was rendered for the defendants therein.</p> <p>The defendant, Crow, did not appear; and the other de* fendants put in answers to the petition, in which they state the manner in which they respectively claim under Crow, all the land included in the grant to him; and further allege, that the grant to Holland was, itself,, void, because it was founded on an entry by one Felix Walker, which he, being surveyor, surveyed for himself, and then transfered to Holland, and because of other defects assigned: The answers then deny, “ that Grow procured his grant with aN knowledge, that the land was not the subject of entry, as the defendants are advised,- and believe that the said land was vacant and unappropriated and the subject of entry at the date of the entry of the said Crow, the said grant to said James Holland being fraudulent and void as aforesaid.” The answers further admit, that some of the defendants instituted the proceedings in the name of Crow to vacate Holland’s grant, and that the several defendants still set up various claims to the land under Crow. The answers deny a knowledge by the defendants of the children and heirs at law of the elder Holland. In 1840, the death of Peter R. Booker was suggested and his. wife Cynthia Booker was allowed to prosecute the suit for herself; and at the same time, on the motion of the relators and of Sarah Ann Holland, Mary L. Holland, and Cynthia Holland, the three infant children of James Holland, the younger, deceased, and his heirs at law, by their guardian and next friend, an order was made for amending the petition by making those three children parties, as some of the heirs of James Holland, the grantee; and the Court ordered the scire facias to issue, as prayed for. The amendment was not actually made in the petition, but the scire facias was issued, as upon the relation of Perkins and wife, Cynthia Booker, and Sarah Ann Holland, Mary L. Holland, and Cynthia Holland, as the heirs at law of James Holland the elder. On the scire facias issues were joined, on which the jury found, amongst other things, that, at the time the defendant Crow obtained his grant and made his entry, he knew of the previous entry by James Holland the elder and of the grant to him, and that the two entries and grants interfere in a certain manner specified; and that the relators, Cynthia Booker and Selina Sophia, the wife of the relator Hardy Perkins, are heirs at law of the said James Holland the elder, and that the other relators Sarah Ann, Mary L. and Cynthia Holland are not heirs at law of the said James the elder.</p> <p>Upon the trial the relators produced as a witness one Andrew Welch, who deposed that many years ago a man came to the house of the witness in Haywood County, who told him, the witness, that his name was John Crow, and that he had lately entered “ The Holland Old Fields,” being the premises in disputeand that the witness asked him, if he did not know, that James Holland had entered the same lands long before, and he, Crow, replied, that he did: and thereupon the witness further asked him, why he had done so, and Crow replied, that he did it because Holland’s grant might be void, and as ii would only cost him forty cents to make an entry, he thought he would try it. On the part of the defendants it was objected, that there was no evidence to be left to the jury of the identity of John Crow,' of whom the witness spoke, with J ohn Crow, the patentee, and prayed the Court so to instruct the jury. But the Court was of opinion to the contrary, and left the evidence to the jury with directions, that they were to judge of its weight.</p> <p>The relators also produced in evidence the deposition of Thomas Love, who, being asked to state, who are the heirs of James Holland, Sen’r., replied : “I was acquainted with James Holland deceased in his life time, and from reputation I understand that Cynthia Booker and Selina Solphia Perkins are the only daughters, and Sarah Ann, Mary L. ahd Cynthia Holland, children and heirs at law of James Holland, Jun’r. deceased, (whose guardian is Alcalem Thompson) are, as I am informed and verily believe, the only heirs at law, who have claim to Holland’s Old Field tract, in Haywood County, North Carolina;” and the witness further stated, that he had once been the agent of all those persons to attend to these lands and to have this suit instituted for them. On the part of the defendants it was objected; that the testimony of the witness did not tend to prove Jhát Sarah Ann,-Mary L. and Cynthia.Holland were some of the heirs at law of Jamea Holland, the patentee, for want of evidence of the relationship, ifany, between him, the paten - tee, and James Holland the younger; and of that opinion was the Court, and soinstructed the jury, who found accordingly. Thereupon the other relators moved the Court for judgment, that the grant to Crow be vacated and for their costs against the defendants. That was opposed by the defendants: 1st, because of the variance between the petition and the scire facias in stating the persons who were the heirs of the patentee, Holland : 2ndly, because three of the'persons, who were stated in the scire facias to be some of ihe heirs at law of James Holland the elder, are found' not to be his heirs : and thirdly, because the relators offered no evidence that the defendants had disturbed or in any manner interfered with the relators' possession of the land granted to James Holland; and upon those grounds the Court refused the motion of the plaintiffs and gave judgment for the defendants, and those relators appealed.</p>

<p>Appeal from the Superior Court of Law of Haywood County, Fall Term, 1850, his Honor Judge Dick presiding. Case set out in this opinion.</p>

' This is assumpsit upon a special promise of Yincent Ferrell, to execute to the plaintiff a covenant to convey to the plaintiff in fee a certain tract of land.

<p>Where a deed of trust, conveying a debtor’s property for the satisfaction of certain creditors, is necessary to support an action against persons claiming as purchasers under executions against the grantor, and it is npt shewn that independent of the property conveyed the grantor had enough, at the date of the deed, to satisfy other creditors, the party relying upon the deed must produce evidence of the existencé of the debts therein mentioned, as the bonds, notes, judgments <fec.,'oratleastof such an amount of them as will shew prima facie that the transaction was bona fide.</p> <p>When this prima facie evidence has been given by the grantee, the onus of proving any fraud, alleged to impeach the deed, is thrown upon the party alleging such fraud. "</p> <p>The cases of Clay well v. McGimpsey, 4 Dev. 89 ahd Hafner v. Erwin, 4 Ire. 529, cited and approved.</p>

<p>Appeal from the Superior Court of Law of Rowan County, Spring Term 1851, his Honor Judge Battle presiding.</p> <p>This was an action of ejectment. The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Superior Court of Law of Mecklenburg County, Special Term, lS5l, his Honor Judge Ellis presiding.</p> <p>This was an action of ejectment. Plea not guilty. The facts are stated in the opinion of the Court.</p>

This was trover for four cattle. The plaintiff proved, that, in 1838, the cattle were levied on and about to be sold under an execution in favor of one Ray against one Lan-ders : On the day of sale, the cattle were brought to the muster ground, (the place appointed for the sale,) by the wife of Landers: She sold them to the plaintiff for the price of $30 75, which he paid to the officer and satisfied the execution, and then told her, she might take them home and use them,…

This was trover. The plaintiff declared for the taking of a quantity of rails, which belonged to him, and the conversion thereof by the defendants. To sustain his allegations, he introduced a witness, who testified, that the plaintiff, some five years previous to the bringing of this action, had enclosed a small piece of land by a fence, containing about one acre and a half, and had cultivated the patch.

' This is an action of assumpsit brought to recover $200, part of the price of a negro, named Juno, which the plaintiff alleges, he had sold and conveyed to the defendant. The facts are set forth in the opinion of the Court.

<p>Appeal from ’the Superior Court of Law of Mecklenburg ‘County, Spring Term, 1849, his Honor Judge Ellis presiding.</p>

, The action is in covenant for the breach of a warranty of soundness in a bill of sale of a negro woman. The defendant sold the negro to the plaintiff and warranted her soundness. Held: that no defect, except such as was apparent to the senses, could be excluded from the operation of the covenant; and so charged. There was a verdict and judgment for the plaintiff, and the defendant appealed.

<p>On the trial of an ejectment, it became important to prove that the defendant was the tenant of A. To prove this the plaintiff called A., who proved the fact, and, on cross examination, produced a conveyauco, dated more then seven years before the commencement of this suit, and swore that he liad been continually in the peaceable and adverse possession. The counsel for the plaintiff was then about to urge to the jury that A’s testimony, as to the time he obtained said deed, was false, and that the deed was antedated. The Court informed the counsel, that, as lie had introduced A. as a witness^ he could not discredit him before the jury ; that he might have proved by other testimony, that the witness was mistakeu, and that the facts were otherwise. The Court permitted the deed to be given to the jury for their inspection, that they might determine from the face of it, whether it was antedated or not. The Court then instructed the jury, that if they believed^ from an inspection of the deed, that it had not been in existence for seven years or more before the action was brought, they should find for the plaintiff; butit did not lie in the mouth of the plaintiff to say, that his witness, . A., was unworthy of credit; aud, particularly, as the plaintiff was uot entitled to recover, unless that part of A*s testimony, in relation to the possession, was believed. The plaintifi'had no right to ask them to believe so much of A’s testimony, as was in his favor, and to discredit him as to tho balance.</p> <p>Held, that the charge of a Judge should be taken as a whole — that all he says upon any one particular point should be taken together, and that, thus viewing it, the .charge of tho judge in this caso *vasecorreck</p> <p>The party producing a wltnessshall not be allowed to prove him corrupt. He may prove that he is mistaken, or that the fact sworn to is other than is represented by him.</p> <p>There is a distinction between discrediting a witness, and shewing that the facts are different from what he has represented them. In the latter case, the discrediting of the witness is incidental, not primary. The evidence may be discredited, and the integrity of the witness remain nnimpeaehed-</p> <p>Peaiison, J. dissented, as to the construction of the Judge’s charge.</p>

This was Assumpsit for “ money had and received.” One Fleming held a bond for $297 on one Holcomb and one Brigman. Fleming sold the bond to the plaintiff’s testator, and delivered it to him without endorsement. The testator instituted suit on the bond, in the name of Fleming, and took judgment, from which there was an appeal; and the defendant’s intestate was security for the appeal. There was judgment against Holcomb, Brigman, and the defendant’s intestate.

Aopeal from the Superior Court of Law of Burke county, Spring Term, 1851, his Honor Judge Settle presiding. This is the same case, which has been decided at this term, upon the appeal of the plaintiffs, and is brought up here upon the appeal of the defendants, with a view of presenting an exception, because of the rejection of Fleming, who was offered by the defendants, for the purpose of proving, that the sale and delivery of the bond had certain conditions annexed thereto.

This case is similar to that or Love v Schenck, decided at this Term, except that the defendant was appointed County Trustee for Lincoln County, in March, 1846, and in the summer after, the sheriff of the county, by order of the County Court, paid to the defendant the sum of $1200-, which he then had of the fund, raised since March, 1842, for the purpose of building a Court House and Jail in Lincoln; and except further, that on or before the 1st of September, 1846, the…

<p>An indictment for malicious mischief must either expressly charge malice against the owner, or fully otherwise describe the offence.</p> <p>Setting forth in the indictment that the act was done “feloniously, wilfully and maliciously,” without averring that it was done “mischievously,” or with malice against the owner, is not sufficient.</p> <p>The cases of the Slate v Robinson, 3 Dev. & Bat. 130 ; State v Cockman) 1 Ire. 381; State v Simpson, 2 Hawk. 460, and State v Scott, 2 Dev. & Bat. 35, cited and approved.</p>

The facts of the case are set out in the opinion of the Court. There was judgment tor the defendant, and the plaintiff appealed. '

Spring Term, 1851, his Honor Judge Battle presiding. Tms is debt on a bond lor ^1500, and the defence was usury.

This was trespass for mesne profits. The plaintiff read in evidence the record of a recovery in ejectment.— The declaration contained three .counts upon the several demises of the plaintiff, of Rebecca Posten, and of George W. Jones. At the trial, the issue on the demise of the plaintiff was alone submitted to the jury.

■ Appeal from the Superior Court of Law of Catawba County, Spring Tenn, 1851, his Honor Judge Battle presiding.

<p>-A bond, given for money lostfupon a wager on the result of a public election, though neither of the parties be a voter, is based upon an illegal considera* 'tion, being against publib policy, and is therefore void.</p>

<p>In an action of slander (under our statute) for. charging that the plaintiff had1 criminal intercourse with one A. at a particular time and place, the defend^ ant eanuot justify by showing that she had such intercourse with A. at another time and place.</p> <p>The defendant in such an action, in a plea of justification must aver, and must, prove, the identical offence; and when any circumstance is stated; which is descriptive of and identifies the offence, it must be averred and proved, for the purpose of shewing, that it is the same offence.</p> <p>Yet, though the plea is not favored when other descriptive circumstances are proven, so as to show clearly, that it is the offence charged, a slight variar tion in some of the other circumstances, which may be ascribed to mistake, would not be fatal, as, for instance, that it was on Saturday instead of Sun», day, and the like.</p>

This is an issue of Devisavit vel non, to try the validity of a script, bearing date May 13, 1842, offered for probate as the will of Robert Love, deceased. James P. Love, Dillard Love, John B. Love, William Welch, Dorcas Henry, and Robert Love were parties to the issue, as propounders.

<p>'Where there is an appeal from an interlocutory decree in a cause, and this parties proceed to the trial of the cause, without waiting for the decision of the matter appealed from, the appeal will be dismissed at the cost3 tjf the appellant. ‘</p>

<p>AppeaFfrom the Superior Court of Law of Rutherford* county, Spring Term, 1851, his Honor Judge Settle presiding.</p>

<p>Appeal from the Superior Court of Law of Wilkes County, Spring Term 1851, his Honor Judge Battue presiding.</p> <p>The action is quaré clausum frágil, and the plea, not guilty. On the trial the plaintiff gave in evidence a deed to himself) covering the locus in (quo. Tie also gave in evidence a grant to another person,- which likewise covered the locus in quo ; but he was unable to deduce title from the grantee to his bargainor. Upon taking his deed, the plaintiff went to reside in a house situate on the land and cultivated a field that was enclosed ; and soon afterwards the defendant committed the alleged trespass on an unenclosed part of the -wood land included in the plaintiff’s deed.</p> <p>The counsel for the defendant moved the Court to instruct the jury, that the action could not be maintained, because the plaintiff had not shown himself to be in posses-; sion of the locus in quo by having it enclosed, or otherwise in his actual occupation, or by having a title for it against all the world. But the Court refused to give the instruction, and directed the jury, that the plaintiff’s actual entry under his deed into a part of the land covered by the deed -w&s, prima facie, sufficient to maintain trespass against the defendant, who set up no claim to the locus in quo, and was a mere wrong doer — no other person appearing to be' in possession of another part of the land under a conveyance, also covering the locus in quo.</p>

This is trover for a slave, and was decided on the following case agreed, Thomas Rhodes, of Buncombe County,owned the slave and died intestate in the year 1827, leaving a widow and an only child then-married to John Miller No administration was taken on the estate,- but Mrs..

<p>Appeal from the Superior Court of Law of Yancy county, Spring Term, 1851, his Honor Judge Settle presiding.</p> <p>This is an action for words spoken, with the intent to charge the plaintiff with having stolen biscuits. Plea not guilty. The declaration stated, that a report had been in circulation, that the plaintiff had stolen some biscuit belonging to one Elisha Iiunicutt, and that the defendant, speak-jng of the plaintiff, and of the said report, said-, in the heari ing of diVeis persons, of and concerning the plaintiff: “ I will make the biscuits roar under the cloak before Saturday pight,” with inuendoes and averments, applying the words to the plaintiff, and that the defendant meant thereby, and ■ was understood by the hearers, to charge her with feloni-ously stealing the biscuits.</p> <p>On the trial; two witnesses deposed, that on a certain day fhe defendant and the plaintiff’s father had a dispute about a line and -fence between them, and the plaintiff passed by fhe defendant and the witnesses, and the defendant said, if they do not mind, I will make the buiscuits roar under the cloak before Saturday night.” But each of the witnesses said, he did not understand what the defendant meant. Another witness, L. Phillips, deposed, that he was a justice of the peac'é, and that on the day spoken of by the other witnesses, the defendant asked him, what he would think, if he were to see a woman take á parcel of biscuits, and slip them under her cloak; and he answered, that he would think it was stealing; and thereupon the defendant told him he wanted a State’s warrant, and said that on that day -he was talking with the other two witnesses, “ as a certain woman passed by, and he said that he Would make the bis. ©uit roar before Saturday night, and she looked worse than any one he had over seen.” The witness further deposed, that he had previously heard of a report, that the plaintiff ■had stolen biscuits at Hunicutt’s, and he understood the defendant as alluding to the plaintiff, and. that he intended ito charge her with stealing those biscuits; that he. the wit. ■ness, declined issuing the warrant at that time-, and promised to attend to it at some other time, but the defendant made no further application-</p> <p>The counsel for the defendant insisted, that the action would not lie, because the words were not understood by the two first witnesses in the sense imputed to them in the declaration; and because ihe communication to Phillips wes for the purpose of obtaining a warrant for the felony, and was, therefore, privileged. The counsel for the plaintiff insisted, on the other hand, that the communication to the magistrate was not privileged; and further, that, although the two first witnesses did not at the time understand the defendant's allusion, the action will lay, if they af-lerwards heard the repot t, and then understood the defendant’s allusion, or if they believed the defendant really meant to charge the plaintiff with larceny; and other persons, besides those two witnesses, were present, who might, or might not have understood the allusion.</p> <p>The Court instructed the jury, if they believed the ap=-plication to the magistrate Was bona fide for the purpose of obtaining a State’s warrant, and tor no other purpose, the defendant wa's not answerable for the words then spoken; but that, if he had any other purpose, then the defendant was answerable in this action '; and that, for the purpose of arriving at the defendant’s intention, the jury should consider all 'the circumstances, including the facts, if the jury believed the witness, that the defendant did not at the time insist on then having a warrant, nor apply fof one after-wards. The presiding Judge did not express any opinion on the other points insisted on, in the argument of the plaintiffs counsel to ihe jury, and was not requested to give ■any instructions on them. The jury found for the defendant, and the counsel for the plaintiff moved for a venire de novo, upon the ground of error in the instructions as to the words spoken to the witness Phillips, and in his Honor’s not giving any instruction on the other two questions made in the. argument; and also, because one of the jurors on this trial had been on a jury on a former trial of this case, and then concurred in a verdict for the defendant. The motion was refused, and judgment rendered for the defendant ; and the plaintiff’ appealed.</p>

* The defendant was indicted for the murder of his wife, Mai y Rash, and convicted. Several objections were taken to the charge of the presiding Judge, which are set out in the opinion of the Court. The facts are also stated therein.