Volume 35 — North Carolina Reports

<p>Where a witness to a contract,' subsequently to his attestation, acquires an interest in the contract, through or under one of the contracting parties, ho is an incompetent witness for the party so creating the interest, unless tho circumstances entirely negative any idea of fraud, as where the interest was thrown upon him by the act of the law, or where, after attestation of, an instrument, the witness has married the party seeking to establish tho instrument.</p> <p>Where a plaintiff gives evidence of the declarations of a defendant, the defendant has a right to call for all the defendant said at the time, provided it be pertinent to the issues or to the declarations proved by the plaintiff, hut not otherwise.</p> <p>A party claiming a new trial, because of evidence improperly rejected, must set forth, in his bill of exceptions, what was the evidence tendered, in order to enable the Court to decide upon its relevancy.</p> <p>The cases of Hamilton v. Williams, 1 Hay. 139, Hall v. Bynum, 2 Hay. 828, and Johnson v. Knight, 1 Mur. 298, cited and approved.</p>

This case came up by appeal from the judgment of a Justice to the County Court, and thence to this Court. The following facts appeared : On the 8th day of Decembe1’ 1848, the Plaintiff commenced this suit by warrant, for non-payment of the sum of seventy-five dollars and interest from the 1st day of April 1847] due by note.

<p>When a debtor is -committed to prison, and is permitted to take the prison bounds, the jailor is not under any obligation, while he continues in the bounds, to furnish him with provisions for his support, nor, of course, can the creditor, at whose suit he is confined, be compelled to reimburse the jailor for any sum so expended.</p> <p>The case of Howard v Postern¡ 3 Mur. 260, oited-and approved.</p>

<p>Under our Statute (Rev. Stat. Ck. 31 Sec. GS,) the deposition of an absent ■witness may be received in evidence, whenever the witness has left the State, either with an intention of changing his domicil, or under the expectation of being absent for a time, which will include two terms of the Court, say six months. But it cannot be received, when the witness is absent temporarily for a short time, as, in the case of a seaman, on a voyage to New York or Charleston, when his return may be expected in two or thrée months at farthest.</p>

, _ - • . This is an action of trover for a horsej and was tried on the general issue. The plaintiff was deputy sheriff, and had a fieri facias, on a judgment in favor of one Hoffman against one Horne, by virtue of which he seized the horse. He did not, however, take the horse out of the possession of Horne, and the latter sold it to the defendant a few days afterwards, and, upon demand by the plaintiff, the defend-' ant refused to give the horse up.

<p>Where, under the provisions of the Act of 1848, ch.38, three freeholders are appointed to lay off property of an insolvent debtor, to he exempt from execution, they have authority, under the words 11 other property,” to set apart, for the use of the debtor, a mare and five hogs, provided these articles do net exceed fifty dollars in value.</p> <p>The Act of 1844 includes, under the term “ debts contracted,” a bond given after the 1st of July, 1845, though the consideration of the bond had existed before that time.</p> <p>Under the Act of 1848, the insolvent debtor has a right to have allotments for his benefit made by the freeholders, from time to time, as his necessities may require, provided the allotments be made at intervals not unreasonably short.</p> <p>Each allotment must be complete in itself, so as to designate all the articles allowed.</p>

This was a motion for a final judgment of amercement •against the Sheriff of Tyrrell county, for neglecting to make return of a fieri facias, at the instance of the plaintiff, against several persons, of whom the present defendant was one, returnable to June Term, 1851, of this Court. A judgment nisi, founded upon the affidavit of the Clerk of this Court, had been entered against the defendant, at the last term of the Court.

<p>In an action on the Case, for the seduction of the plaintiff’s daughter, it io competent for him to give in evidence, on the question of damages, the character of his own family, and, also, the pecuniary circumstances of the defendant-</p> <p>In such an action, it is not competent for the defendant to sheiv that the daughter consented willingly to the seduction, or even that she, in fact, seduced the defendant, — her consent not depriving the plaintiff of his right of action.</p>

<p>Appeal From the Superior Court of Law of Beaufort County, at the Fall Term 1851, bis Honor Judge Dicxc presiding.</p> <p>The case is stated in the opinion delivered.</p>

<p>Appeal from the Superior Court of Law of Stanly County, at the Fall Term, 1851, his Honor Judge Bailey presiding.</p> <p>The case is sufficiently set forth in the opinion of the Court.</p>

<p>Appeal from the Superior Court of Law of Montgomery County, at the Fall Term, 1851, his Honor Judge Bailes1 presiding.</p> <p>The case is stated in the opinion of the Co.urt.</p> <p>Winston and Mendenhall, for the defendant, cited the following authorities, 2 Kent’s Oom. 508, Thorne v Dees, 4 John. R. 84 and 2 Chit. Plead. 154th page.</p>

This is an action of Ejectment, upon the demise of John Thomas. After the making of the demise, John Thomas, the lessor, died ; and, at a previous term of the Court, his heirs at law, upon motion, were made parties plaintiffs. At the present term, two of the said heirs came into Court, and entered a retraxit; whereupon their names were ordered tobe stricken from the record.

<p>Appeal from the Superior Court of Law of Montgomery County, at the Fall Term, 1851, his Honor Judge Bailey presiding.</p>

Case, for breaking and otherwise injuring the plaintiff’s mill-dam. The plaintiff, in his declaration, alleged, that the defendant, who owned a mill above the plaintiff, on the same stream, repeatedly shut down his gates, particularly on.

' ■ This action is trover for some corn, peas and beans, and on not guilty pleaded, the case was this. Held: that the action would not lie, and non suited the plaintiff, and he appealed.

The case is stated in the opinion of the Court. The Act of 1846, c. 1, Ired. Held: where a Statute is enacted here, in the words of an English Statute, the judicial construction in England will be presumed to have béen also adopted. Kennedy v Kennedy, 2 Ala. R. 571. A judicial construction and interpretation have been given to this Statute by the Supreme Court of Massachusetts. Drinhwater v Drinhwater, 4 Mass.

<p>where there was a conspiracy to commit an offence, it is not competent on the trial of one of the conspirators, to give in evidence the declarations of another conspirator, made after the offence had been committed 5 because they were not made in furtherance of the common design.</p> <p>The case of State v George, 1 Ire. 329, cited and approved.</p>

<p>Appeal from the Superior Court of Law of Anson County, at the Fall Term, 1851, his Honor Judge BAiLEy presiding.</p> <p>This was an action on the Case, for taking and converting a certain quantity of lumber, belonging to the plaintiff, to the defendant’s use. The defendants justified under an attachment, which one of the defendants, acting as an officer, professed to have levied upon it, as the property of one Allen Chancy, and alleging that the conveyance from Chancy to the plaintiff was fraudulent against creditors. It was objected on the part of the plaintiff, among other things, that the attachment was void, and was no protection to the defendant, and especially because, so far as the execution issuing upon the attachment is concerned, it was void, as it appeared upon the proceedings themselves, that the judgment was rendered without any publication, or other notice to the defendant in the attachment. — And that the attachment, itself, was void, because not made returnable to any particular day. And the plaintiff offered to prove, that the day mentioned in the attachment, as that on which it was returnable, had been interlined since its execution, fraudulently, by the defendants, or one of them, but the Court overruled both objections of the plaintiff, apd held that the judgment in the attachment was good, — rthat notice was necessary, but that that was to be presumed to have been given by the Justice in this case, who granted the judgment ; and that the attachment was good, without any particular day of return being mentioned in it, if it stated that it was returnable within thirty days, which it did, and that, therefore, the insertion of the particular day by the defendant, or any one else, would make no difference. A verdict having been rendered in favor of the defendahts, and a rule for a new trial discharged, and judgment rendered for the defendants, the plaintiff appealed.</p>

1851; his Honor Judge CALD.vraup. presiding. ■ This is assumpsit on a Bank Note, for $100, dated October 1st, 1844, and payable to P. Rand, or bearer on demand at the branch hank of Cape Fear, at Raleigh : pleas, non assumpsit and set off; añd a case agreed was submitted to the Court to the following effect: The note belonged to the Bank of the ¡átate at Raleigh, and the Cashier, through a notary public, presented it at the branch bank of Cape Fear at Raleigh, on the 21st of…

<p>Appeal from the Superior Court of Law of Randolph County, at the Fall Term, 1851, his Honor Judge Ellis presiding.</p> <p>This was an action of ejectment. The plaintiff and defendant both claimed under one McCracken. The plaintiff showed a deed from McCracken to himself for the premises in question. The defendant relied upon a title subsequently acquired by McCracken to the premises, named in the plaintiff’s deed, by virtue of a seven years open and adverse possession, accompanied with a color of title, which colorable deed he held and claimed under, when he conveyed to the plaintiff.</p> <p>It was in evidence that in the year-McCracken acquired a good title by deed to the premises: that subsequently he conveyed them by deed to the plaintiff’s lessor, and afterwards remained in possession, claiming and using the land ns his own for more than seven years, when he conveyed by deed of bargain and sale to one Smith, and others, who regularly and successively conveyed to the defendant. And the question was whether McCracken could acquire title by a seven years possession, under color of title held by him before, and at the time he conveyed to the plaintiff’s lessor, and upon this question the Court was of opinion with the plaintiff; for the reason, that whatever color of title McCracken had, when he conveyed to the plaintiff’s lessor, was transferred by. that conveyance, and because he was estopped to claim against his own deed.</p> <p>There was a verdict for the plaintiff. Rule for a new trial was granted and discharged* when the defendant appealed to the Supreme Court.</p>

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

<p>• Appeal from the Superior Court of Law of Guilford County, at a Special Term in July, 1851, his Honor Judge Caldwell presiding.</p> <p>The case is stated in the opinion of this Court.</p>

The case is stated in the opinion of this Court, The amendment ought not to have been allowed, especially without being sworn to by the petitioner. The Statute requires, that the petitioner shall state and swear, that the facts, the grounds of her complaint, have existed, to her knowledge, at least six months before the filing of her petition ; and these facts are to be particularly and specially set forth in the petition.

<p>Appeal from the Superior Court of Law of Chatham County, at the Fall Term, 1851, his Honor, Judge Ei.lib presiding.</p> <p>The facts of the case are stated in the opinion of the Court.</p>

This is an action on a judgment rendered in Washington County Court, in November, 1841, against the defendant, and one Fagan, for $137 81, and the pleas are payment and satisfaciion.

<p>In a suit by legatees or distributees against an executor or Administrator, this Court has the power to review the decision of the Courts below in the allowance of commissions.</p> <p>This power may be exercised, not only where the allowance has been made upon a wrong principle, as in the case of a retainer, Or a delivery over of slaves being considered a disbursement, but also when the commissions allowed below are clearly either inadequate or, excessive.</p> <p>Where the exercise of discretion is in reference to a matter, arising collaterally and which does not present itself as a question in the cause, the decision m the Court below is conclusive, as m the case of amendments die. • But when the discretion is exercised in reference to a question in the cause, the appeal, bringing up the whole case, necessarily brings that up.</p> <p>The allowance of -commissions to executors and administrators is in every case, a question in the cause.</p> <p>Commissions may be allowed on a note, due to the testator or intestate, delivered over as a payment in cash, by the executor or administrator to a legatee or distributee.</p> <p>The case of Walton v. Avery, 2 D. B. Eq. 411 cited and approved.</p>

The action is Assumpsit for work and labor, and was tried on the general issue. The case was, that the defendant became insane, and so much so, as to attempt injury to himself and the destruction of his property. He had negro servants, but his physician and relations thought it necessary that there should be some white person with him, as a nurse and a guard against his violence ; and a son-in-law of the defendant requested the plaintiff to attend on him.

<p>In condemning an acre of land, for the purpose of erecting a mill, tlie Court is forbidden to confirm the report of the Commissioneis, if it take away “houses, &o.” — and, by necessary implication, the Commissioners are for. bidden to include them in their survey.</p> <p>The Commissioners, therefore, are not authorised to include in their valuation any houses found on the condemned aere, even though erected there by the petitioner, before the proceedings were commenced. The valuation must he confined to the naked land.</p>

This suit was begun by a warrant, for “ twelve dollars forfeited by the defendant by not working on a public road leading, &c., for twelve days, though lawfully summoned by the plaintiff, the overseer of said road,” The magistrate gave judgment against the defendant for $ 1 and costs, ar.d the plaintiff appealed ; and at the next Term of the Cd&nty Court, in February, 1851, the appeal was returned, and for want of the defendant’s appearance, the plaintiff’s attorney took a…

presiding- The prisoner was indicted with Aaron Malone'and Ro-hert George, a free negro, for passing to one Berry Davidson a counterfeit note, purporting to be a note for $20, issued by the Bank of Georgetown, in South Carolina. One count charged-, in the usual form under the statute, that all; three of them passed' the note ;• and’ a second, that Malone-passed it, and that George and Cheek incited and procured him to pass it.

This suit was commenced on the 31st of August, 1849, and the declaration was on the several demises of Judith Long, and all her brothers and sisters, except Alexander Oaks.

<p>Wlmt constitutes fraud, is a question of law.</p> <p>In some cases fraud is self-evident, when it is the province of the Court So to adjudge, olid the Jury has nothing to do with it.</p> <p>In other cases, it depends upon a variety of circumstances, aris;ng from tho motivo and intent, and then it must be left, as an' open question of fact, to the Jury, with instructions as to what, in law, nonstitutes fraud.</p> <p>And, in other cases, there is a presumption of fraud, which may be rebutted. Then, if there is any evidence tending to rebut it, that must he submitted to the Jury; bul, if there is no such evidence, it 13 tho duty of the Court so to adjudge, and to act upon the presumption.</p> <p>The case of Hardy v Skinner, 9 Ired. 191, cited and approved.</p>

The case is stated in the opinion delivered in this Court. A verdict was rendered below in favor of the plaintiff and from the judgment the defendant appealed.

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

<p>Appeal from the Superior Court of Law of Davidson County, at the Spring Term, 1851, his Honor Judge Bailey presiding</p> <p>The action was commenced on the 16th day of August, 1845. On the trial the plaintiff, gave in evidence a grant from the State to Thomas Monroe, dated November, 1792, which covered the premises described in the declaration, and proved that he died before the year 1845, and that the lessor of the plaintiff was his only child. The plaintiff further gave evidence, that the defendant was in possession of a part of the land covered by the grant. On the part of the defendant a grant to one Dolan and Holeman, dated in 1752, and a deed from Dolan and Holeman to Edward Williams, were given in evidence; but the defendant did not give evidence that those conveyances covered any part of the premises. The defendant then gave in evidence a deed from Edward Williams to Richard Pearson, dated in 1791, which covered the part of the premises which was in the defendant’s possession; and also a deed for the same from said Pearson to Nathaniel Peebles, dated in 1817, and that the defendant, in 1844, came in by mesne conveyances under Peebles. The defendant further gave evidence, that, in 1.835, Peebles built a cabin, and also a still-house on the land claimed by the defendant, and placed two of his slaves in the cabin, and his stills and stilling apparatus in the still-house, and that his slaves remained there, and he used the distillery, until the Spring of 1838, when he removed the slaves, and stopped distilling, but that the stills and beer-tubs remained in the still-house: and that, in June, 1838, the defendant leased, the land to one To we, for a term of years; but that, in August, 1838, To we, by the consent of the defendant, repaired the dwelling house, and prepared and farmed a piece of land around the house, to make a crop of turnips, and sowed them on the 10th day of the month, and in December, 1838, he, To we, removed to the place with his family, and he and the defendant continued in possession afterwards, up to the commencement of this suit.</p> <p>The plaintiff gave in evidence a record from the County Court, wherein it appeared, that, on the 3d of July, 1845, the lessor of the plaintiff gave to the defendant a notice, in writing, that, on the 15th day of July, <l I shall proceed to procession my land, to begin at the hickory tree, on the river bank, and commence at 9 o’clock A. M.,” and that to the next County Court, sitting on the second Monday of August, 1845, the processioner returned his certificate, that being called on to procession the lands of Rebecca F. Crump, he commenced, on the 15th day of July, 1845, at a hickory on the river bank, and run thence, &c. to a store; £iand then was about to run east twenty chains to a post-oak, when I was forbidden to. proceed any further, by Joseph F. Thompson, who contends that the line runs from the said store, south, fifty-five degrees west, instead of due east; and, consequently, the lines lie in dispute between said parties.” And it further appeared therein, that the proceeding was dismissed at that time.</p> <p>The counsel for the plaintiff therefore prayed the Court to instruct the Jury, that, even if they should believe, that Towe fenced, and sowed a turnip patch on the premises as early as the 10th of August 1833, and that he and the defendant have continued the possession ever since, the plaintiff would be entitled to recover, because the proceedings begun by the lessor of the plaintiff in July 1845, to procession her land, constituted such a suit, or claim as prevented her right from being barred at the commencement of the present suit. The Court refused to give the instruction, and told the Jury, that, if the possession of the defendant, and of those, under whom he claims, did not commence before the 10th of August 1838, yet, as it had continued ever since, and lor more than seven years, the plaintiff was not entitled to recover. 'Verdict, and judgment for the defendant, and the plaintiff appealed.</p>

<p>Under the Revised Statutes, ch. Ill, sec. SI, a master is not indictable for permitting his slave to go at large, hiring his own time; he is only, subject to the penalty of forty dollars, imposed by that section of the Act. Nor is the slave indictable.</p> <p>But the owner is indictable, under the 32d section of the same Act, for permitting a slave to go at large, as a-free man¡ exercising his own discretion in the employment of his time.</p> <p>The case of the State v Clarissa, 5 Ire. 221, commented on, and the decision approved.</p>

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

<p>In an action upon a bond, tbe Court, on affidavit that tbe bond is believed tp be a forgery, may, at the appearance term, under the act, Rev. Stat, ch. 81. sec. 86, order tbe plaintiff to file the instrument for such time as the Court may think proper, ia the Clerk’s Office, for the inspection of the defendant and others.</p> <p>The cases of Scarborough v Tunnell, 6 Ire. Eq. 103, and Cooper v Cooper, 2 Dev. Eq. 298, cited and approved.</p>

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

<p>Appeal from the Superior Court of Law of Bertie County, at the Special Term in June, 1851, his Honor Judge Settle presiding.</p> <p>The facts of the case are sufficiently stated in the opinion delivered in this Court.</p>

Appeal' from- the Superior Court of Law of Rowan County, at the Spring Term, 1851, his Honor J'udge Battue presiding. The question submitted in this case is sufficiently stated in the opinion, delivered in this Court.

' Appeal from the Superior Court of Law of Moore County, at the Special Term, in 1851, his Honor Judge Ellis, presiding. This is an action of Detinue for a slave, named Snkey, and the pleas are, non detinet, apd the Statute of Limitan tions.

This was an action of trespass for an assault and’battery, and for false imprisonment, and was tried at Camden, Fall Term, 1851.

This is an indictment for the murder of Simon Dyson. The prisoner appeared at his trial, in October, 1850,. to be small boy, but his age was not stated. Evidence was given on the part of fhe State, that, within a week or- two before the homicide, the prisoner had several times expressed ill-will towards the deceased, and threatened to kill him.

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

<p>Appeal from the Superior Court of Law of Columbus Comity, at the Fall Term, 1851, his Honor Judge Bailey presiding.</p> <p>The case is stated in the opinion of the Court.</p>

<p>Appeal from the Superior Court of Law of Stokes County, at the Fall Term, 1851, his Honor Judge Ellis presiding.</p> <p>The case is stated in the opinion "of this Court,</p>

<p>In indictments for misdemeanors, the Court may, without the consent of the defendant, withdraw a juror, when, in its discretion, it judges it necessary to the ends of justice.</p>

The lessor of the plaintiff claimed the premises, as a purchaser at a sale made by the Sheriff in May, 1846, under an execution issued upon a judgment rendered in November, 1844, against the defendant, Seymore York; and gave evidence that York and his wife, who is the other de* fendant, were in possession at the time of the sale, and at the commencement of this suit.

<p>Upon tha plea of “ nul tiel recard,” -whether tho record exists, is a question of fact j what is its legal effect, is a question of law. From a decision on "the. former, the party cannot appeal ; form a decision on the latter he may.</p> <p>Where a sci. fa. on a judgment is issued, and the plaintiff is nonsuited, and issues a second sci.. fa.,-a variance between the latter and the former is not material, if both be for the same cause of action and between the same parties.</p> <p>In an action on a penal bond, the judgment should be for the penalty of tho bond and the -costs. The damages assessed from -no part of the judgment but should bo entered at the foot of the record, 'and endorsod en the execution, for tho guidance of the sheriff.</p> <p>Where a judgment on the jilea of “ null tiel record” is reversed on appeal, the case must be sent back for the judgment-of the-Court 'below, as to the fact of the existence of the record.</p> <p>Where there is a penal bond for the payment of money, interest may be recovered upon the sum really due, up to the time of payment, even after judgment. But if the condition is for the performance of some collateral act, as to execute a mortgage or deed of trust, as additional security for payment of money, interest cannot be recovered on a sci. fa. upon the -dam■ages assessed</p>

John Bailey was seized in fee of the premises, and, on the 7th day of January, 1843, he conveyed them by deed of bargain and sale to Reuben Overman, one of the lessors of the plaintiff, upon trust to sell, and with the proceeds pay certain debts.

<p>Appeal from the Superior Court of Law of Washington County, at the Fali Term, 1851, his Honor Judge Settle presiding.</p> <p>■ James Jones was seized in fee of a tract of land, «OÍ which the premises were part, and in 1815, he devised it to his sons James, Jesse, Thomas, William and Frilev. and their heirs, equally to be divided between them; “and if at the death' of either or any of my said sons, they should leave no surviving issue, my will is, that the survivors or survivor of my said sons shall inherit the deceased child or children’s part of the land.” The sons entered, and one of them, Jesse, died in 1820, without having been married. In 1824, the other four united in a petition for partition, which was decreed and made; and thereby the premises described in the declaration,-, were allotted to the son William, as his share, and he entered therein, and on the 22d of Décember, 1825, he sold the same to Robert Blount, and ■conveyed them by a deed of bargain and sale, with a covenant of general warranty for himself and his heirs. Blount entered, and he and those claiming under him, including the lessor of the plaintiff, had a continued possession up to a short period before the commencement of this suit in March, 1851, when the defendant, Leary, took possession under James, Thomas and Friley Jones, who claimed the premises upon the death of William Jones, in 1849, without leaving issue surviving. Upon those facts, stated in a case agreed, judgment was rendered pro forma in the Superior Court, for the plaintiff, and the defendant appealed.</p>

Appeal' from the Superior Court of Law of Anson County, at the Fall Term, 1851, his Honor Judge Bailey presiding. This was an action of debt on a forthcoming bond, and on oyer prayed and had, the defendants pleaded general issue, illegal consideration, and that the bond was not taken according to law, and therefore void. A copy of the bond, marked A, accompanies and forms a part of this case.

<p>Appeal from the Superior Court of Law of Randolph County, at the Fall Term, 1851, his Honor Judge Caldwell presiding.</p> <p>The case is stated in the opinion of the Court.</p>

<p>Appeal from the Superior Court of Law of Orange County, at the Fall Term 1851, his Honor Judge Ellis presiding.</p> <p>The case, as agreed upon, is in the words and figures following, to wit: Thomas Faucett vs. Peter Adams, &c.'</p> <p>In this case the following facts are agreed upon by the parties : that one Fleming was committed in due course of Law, as a debtor in Execution, at the instance 'of Boaz Adams, to the custody of James C. Turrentine, as Sheriff of Orange County, and he delivered the said Fleming to the plaintiff Faucett, the jailor of said County, the 26th of November 1839, and he remained in close prison, until the night ot the 1st of November 1844, when he made his escape by his own act, assisted by some one from the outside of the prison, by cutting through the iron bars of the window, but without the knowledge, or consent, or actual negligence of the plaintiff. In order to provide for the legal charges, and expenses of the jailor for keeping or maintaining the said Fleming, as a prisoner, under the said commitment after the first twenty days, an obligation, a copy of which marked A. is hereunto annexed, was taken by the plaintiff from the said Boaz Adams. Said Fleming filed his petition for a discharge under the'act of 1798, which was heard in prison on the 20th of December 1839, and the prayer of the petition was refused, and he was adjudged to remain in prison.</p> <p>, The judgment of the said Boaz Adams against Fleming, under which he was committed as aforesaid, was obtained at May Term, 1839; of Orange County Court. It is further agreed, that the negroes and other property of Fleming aforesaid were then sufficient to pay off the plaintiff. — - Said judgment was carried to the western district of Tennessee, in the fall of 18SS, or as early as the 1st of March 1839, and taken from thence to Texas, in the Fall of 1839, that the said negroes were in the possession of Fleming’s children, as divided amongst them last year (June 1850) by commissioners appointed for that purpose. A judgment was obtained by the plaintiff against Fleming, at May Term 1844, of Orange County Court, for five hundred and nineteen dollars and sixty cents, being the prison fees, due up to the issuing of the writ in that case, and execution of fi. fa. issued thereon to the county of said Fleming’s residence, and was returned, “ no property was to be found,” Faucett’s account in jail till the escape. He acted as jailor. In the present case a verdict has been rendered for the plaintiff, subject to the opinion of the Court, upon the facts above stated. If the Court should be of opin-.with the plaintiff, judgment is to be given in accordance with the verdict; if otherwise, judgment of non suit is to be entered.</p> <p>The following is a copy of the bond referred to:</p> <p>We promise to pay to Thomas Faucett, jailor, &c., all such prison fees and charges as he may by law be entitled to by reason of the imprisonment of Mordecai Fleming in the public jail of Orange, at the instance of Boaz Adams.</p> <p>In witness whereof, we have hereunto set our hands and ■seals, this 20th Dec. 1839. B. ADAMS, (Seal.)</p> <p>P. ADAMS, (Seal.)</p> <p>Test. John A. Gilmer.</p>

County, at the Spring Term 1852, his Honor Judge Ellis presiding. The prisoner was indicted for a burglarious entry into the dwelling house of one John Owen, in the county of Sampson. The indictment contained two counts. In the one, it was alleged, that the intent was to commit a rape upon Sarah Ann, the daughter of said Owen; and in the other, to commit a rape upon Sarah Eliza Owen, the grand-daughter of said Owen.

■ This is an action on the case to recover damages from tiie defendant, for negligence in managing and steering his raft in the Cape Fear River, by which an unfinished raft of the plaintiff was broken from its fastenings, and the timber lost. The plaintiff called as a witness, James Colvill, who swore, that he was employed by the plaintiff to watch a raft of timber, which he was making in the river, and guard it from the dangers of a freshet.

This is an action of debt on a bond of one Gregory, who was appointed a constable at December Term 1838, by the County Court of New Hanover. This bond was declared on as a lost bond, and it was alleged to have been executed by the defendant, through a power of attorney to Joshua Wright) Esq., also alleged to be lost.

<p>Appeal from the Superior Court of Law of Johnston County, at the Spring Term, 1852, his Honor Judge Diok presiding.</p> <p>■ The facts of this case will be found in the opinion of the Court.</p>

<p>Appeal from the Superior Court of Law of Columbus County, at the Spring Term, 1852, his Honor Judge Ellis presiding.</p> <p>This was an application to prove the last will and testament of Etheldred Pridgen, deceased, in solemn form which was resisted by the next of kin of the deceased ; and an issue of Devisavit vel non had been made up in the County Court of Columbus, and sent into this Court for trial. Upon the trial, one of the subscribing witnesses proved the execution and publication of the will; and it appearing, that the other witness had made his mark and was not an inhabitant of the State, the executor proposed to prove by the first witness, that he saw the other witness make his mark in the presence of and at the request of the testator, (which was a common cross mark, as is usually made by an illiterate person.) This was objected to by the caveators, but admitted by the Court, whereupon the witness swore, that at the same time, at which he signed the will, as an attesting witness, the other witness was called on by the testator to witness his will — that the deceased knew what the will contained, and declared it to be his last will and testament; and that he saw the other make his mark. There was a verdict and a judgment for the pro-pounders, from which the caveators appealed.</p>

<p>No mere possession of land for a period of time, less than thirty years, wil] authorize the presumption of a grant.</p> <p>The cases of Candle v. Lunsford, 4 D. & B. 407, Wallace v. Maxwell, 10 Ire. 110, Reedy. Earnhart, 10 Ire. 526, and Bullard y. Barksdale, 11, Ire. 461, cited and approved.</p>

well presiding. This is trover for a wagon. The plaintiff claimed title to it under a purchase of it and horse, mads by him in May 1847, from one Thomas White and one Wall, at the price of $135; which was their value. In September 1847, the defendant obtained a judgment against Wall before a justice of the peace on a debt, which existed prior to March 1847, and then had the wagon sold on execution, and became the purchaser.

This is an application to the Superior Court of Pitt for a writ of error coram nobis, for error in fact on the following case: A paper writing was propounded in the County Court, as the will of Martin Woolard, by Hodges, as executor, and was contested by Ransom Woolard, and there was sentence for the will. Ransom Woolard took the cause to the Superior Court by certiorari, and gave a bond for that purpose, in which Latham and Perry, the present applicants, were his sureties.

This is an action of quare clausum fregit, originally brought by Thomas, for breaking and entering a house in his possession.

This ivas an action of assumpsit, brought against the defendants, doing business in partnership, on the following receipt executed by them : “Received of Edmund S. Moore one hundred and fifty barrels of herrings, to be sold for him on commission, May 1841.

<p>Appeal from the Superior Court of Law of Chowan County, at the Spring Term, 1852, his Honor Judge Battle presiding.</p> <p>The facts are stated in the opinion of the Court.</p>

This is assumpsit for the breach of a contract on the part of the defendant, in not finishing a horse gold-mill, which he had contracted to build, within the time stipulated.

<p>A. placed notes in the hands of Lawrence, a constable, for collection. Lawrence went to Alabama, without collecting them. A. then took them from Lawrence’s saddle bags and delivered them to Gupton, another constable, taking and placing in the saddle bags a receipt from Gupton, promising to account with Lawrence. Upon Lawrence’s return, he received the money from Gupton. Held, that the sureties on Lawrence’s constable’s bond were not discharged from their liability.</p>

<p>in an indictment for bigamy, the place, where the first marriage was had is not material. It is sufficient to put forth, that there was a prior marriage.</p> <p>The words, “ the cure of souls,” used in the marriage act, Rev. Stat., ch.7l, does not imply a necessity, that the minister should be the incumbent of a church living, or tho pastor of any congregation or congregations in particular ; but they do imply that the person is to be something more than a minister merely, and that he has the faculty, according to the constitution of his church, to celebrate matrimony, and, to some extent, at least, has the power to administer the Christian sacraments, as acknowledged and held by his church.</p> <p>When a marriage is claimed to have been made by a minister, the extent of his authority for that purpose should appear.</p> <p>The statute admits every one to be a minister, who, in the view of his owu church, has the cure of souls by the ministry of the word, and of any of the sacraments of God, according to its ecclesiastical policy: implying spiritual authority to receive or deny any desirous to bo partakers thereof, and to administer admonition or discipline, as he may deem the same to be to the soul’s health of the person, and the promotion of godliness among the people. When to such a ministry is annexed, according to the canons or statutes ■ of the particular church, the faculty of performing the office of solemnizing matrimony, the qualification of the minister is sufficient, according to our .statute.</p>

The action is assumpsit upon a special contract of hiring, and on a quantum meruit for work and labour. It was brought April 4th 1849, in the Superior Court, by Ellen T. Simpson against Edwin A. Thorpe, administrator of Lott Holton deceased, who pleaded non assumpsit and the statute of limitations.

This was a special action on the case, brought to recover damages for an injury done to a negro slave, the property of the plaintiff, by the overseer of the defendant. The facts of the case were substantially as follows : The plaintiff hired a negro man, named Willie, to the defendant, who was a miner, to be employed as a laborer in the mine.

This was an action of debt upon an administration bond, which, being informal, was declared upon as a bond at common law. The breach assigned was, that James Ross, the principal1 in the bond declared on, in which the defendant was a surety, bad not accounted with Richmond Bailey; the relator, the amount to which he was entitled as the next of kin of the intestate. Pleas — conditions performed and not broken, and payment.

<p>The cases of Avery v. Strother, Conf. Rep. 434, Strother v. Cathey, 1 Mur. 102 and University v. Sawyer, 2 Hay, 98, cited and approved.</p> <p>Appeal from the Superior Court of Law of Cherokee County, at the Fall Term 1851, his Honor Judge Settle presiding.</p>

The action is for malicious prosecution, in having the plaintiff arrested on a warrant, and bound over to the Superior Court, for stealing- growing corn, and was tried on not guilty.

This was an action of assumpsit, brought by the plaintiff tagainst the defendants, for an injury done to the plaintiff’s boat, and after the whole case had been submitted to the jury, the Judge, being of opinion that the plaintiff was not entitled to recover upon the evidence, so declared, and thereupon the plaintiff submitted to a nonsuit, and appealed. The sole evidence was that of one witness, John W.Pugh.

<p>It seems, that, although a proposition to compromise, rejected by the other party, could not be heard, yet admissions of facts, made by the defendant in the conversation with the party proposing the compromise. But there can he no doubt, that such admissions are competent evidence, when made to one, who informs the defendant, that he has no authority to compromise.</p>

The facts in this case were the same as those reported in State v. Moore, 11 Ire. 161: and the only question was, as to the time of the death of a party, who had been absent seven years and not heard from; the presumption oí death should apply.

This is an action of debt on a single bill for forty dollars, and was'tried on non est factum, payment at and after the day.

The defendant was indicted for receiving stolen goods ; and was convicted upon the following counts in the bill of indictment: 5th count. And the jurors, 6th count.

The indictment is for defacing and injuring, a dwelling house of Joshua Hearnes, contrary to the statute. The evidence was, that one Bowers leased the house from Hearnes for a time, and entered into possession ; and when the term was about to expire and Bowers to leave the premises, he took up the flooring plank to carry it away ; and. at his request the defendant assisted him, knowing that Bowers was the tenant of Ilearne.

Henry Bright devised the premises as follows: “ I lend the» tract of land I now live on, unto iny wife, during the time she remains my widow. I also lend negro woman Clary and child, Pleasant, Major, Sylvester, Ann, and Amanda, to my wife Polly, as long as she lives my widow.

<p>A forcible detainer is not indictable, where the entry was peaceable and lawful.</p> <p>From the finding of the jury, that the defendant “ unlawfully and with a strong h.and detained,” it cannot be implied, that the entry was also unlawful.</p> <p>The ease of State v, Johnson, 1 D. and B., 324, cited and approved.</p>

This was an action on the case for a false and fraudulent representation of soundness in the sale of a negro slave. Upon the trial, there was evidence given, tending to show that the slave in question was unsound at the time of the sale, and that the defendant knew it.

This was an action oí trespass quare clausum fregit. The plaintiff claimed title under a patent to Slade, which patent was bounded on the North by the second line of a patent to one Taylor, under which the defendant claimed. The last mentioned patent calls to begin at a Gum on Roanoke river, half a mile below Quitsny. The gum could not not he found.

<p>A ■warranty of the soundness of a slave includes in it a stipulation, that there is no defect in an eye, so as to make it unfit for ordinary purposes, and, therefore, if the slave is near sighted, there is a breach of the warranty.</p> <p>Ruirpm, C. J. dissent.</p> <p>íhe case of Simpson v. McKay, 13 Ire. 142, cited and approved.</p>

This is a petition for dower, and the defendants pleaded in bar, that the plaintiff willingly left her husband, and went away and lived in adultery with a certain negro slave, without any reconciliation.

<p>Appeal from the Superior Court of Law of Martin County^ at the February Term 1852, his Honor Judge Dick presiding.</p>

<p>What are the boundaries of a tract of land, is a question of law, being a mere question of construction. Where a line is, and what are the facts, must, of course, be found by ths jury.</p> <p>There is no law requiring leases for years to be registered, and, therefore, a copy from the register’s books is not evidence, as in the case of deeds for freehold estates.</p> <p>A map, which is not shown to have been made before the conveyance, under which a party claims, is not evidence for said party.</p> <p>Proof of a deed by one witness is sufficient; and proof of the handwriting of one witness, both being dead, is also sufficient.</p>

This is a proceeding against the defendant, charging him •with being the father of a bastard child •, and, at his instance, an issue was made up, in pursuance of the provisions of the Statute on the subject. Upon the trial of the issue at this Term, the examination of the woman by the justices was offered in evidence, and in reply the defendant proposed to prove, that the character of the woman for truth was bad.

The action is trespass quare clausum fregit. Upon the return of the writ in the County Court, where it pended, the eause was, by consent of the parties, referred to arbitrators, “and their award to be a rule of the Court/’ The order then proceeds, “ it is further ordered, by consent of parties, that the said referees enquire and ascertain the dividing line of the lands of the said parties, and that they lay off and establish the lines, which they shall ascertain, &c., and…

e presiding. This was an action of travel', brought by the plaintiff against the intestate of the defendant, in his lifetime, for the conversion of a note for two hundred dollars against one Jonathan Rouse, claimed as the property of the plaintiff. The plaintiff declared, 1st, upon a conversion of the note; 2d, upon a conversion of the proceeds of the note, the same having been collected from Jonathan Rouse, by the defendant’s intestate, and converted to his own use.

Appeal' from the Superior Court of Law of Currituck County, at the Spring Term., 1852, his Honor Judge Battle presiding. This was an action of trespass quare clausum fregit, to which the defendant pleaded the general issue and licence. Upon the trial, it appeared that the alleged trespass was committed upon a tract oí ¡and, to which the plaintiff showed title, and of which he was then in possession.

This was an action of ejectment, submitted on the following case agreed. The feme lessor, Susan E. Beckwith, while the wife of Watrous Beckwith, now deceased, signed a deed in due form of law to convey her interest in the premises, which she owned in fee, prior to her coverture. The probate, examination and report on the said deed are as follows, viz: February Probate Court, 1827.

<p>Hie general rule is, that a -witness must speak to facts, and cannot give hia opinion as derived from these facts. The only exceptions are as to questions of science and of sanity.</p> <p>It is the duty of a Judge, -when lie does charge upon evidence, to collate it, and bring it together in one view, on each side, with such remaiks and illustrations, as may properly direct the attention of the jury. It is also his duty to bring to the notice of the jury, principles of law or facts, which have an important bearing upon the case, though omitted in the argument of counsel.</p> <p>The case of State v. Moses, 2 Dev. 452. cited and approved</p>

<p>Note. — Judge Pearson was under the impression that this ease would not have been reported at December Term, 1851. His dissenting opinion, therefore, was not filed till the present terra. RseoimsB.</p>

<p>A constable received claims to collect from solvent persons in February, 1842. The sureties on his bond were sued in October, 1845, for His failure to collect. Held, that the statute of limitations did not bar the suit.</p> <p>Where there is error in the charge of a judge, and it is excepted to, there must be a venire de novo, unless the appellee can shew conclusively from the record, that the error could not in anywise have affected the verdict.</p>

<p>Appeal from the Superior Court of Law of Buncombe County, at the Spring Term, 1852, his Honor Judge Manlv presiding.</p>

<p>Itis not necessary for a pui’chaser at an execution sale to produce a judgment corresponding exactly with the execution, nor, it seems, any judgment at all.</p> <p>Courts have power to amend their process and records, notwithstanding such amendment may affect existing rights.</p> <p>The case of Hamilton v. Adams, 2 Mur. 161, overruled, and Rutherford v. Rabun, 10 Ire. 144, cited and approved.</p>

This was an action of Trover brought to recover the amount of a bond, alleged to belong to the plaintiffs intestate, and which had been converted by the defendant. It appeared that the interest in the bond was, in fact, in the intestate, but the bond had never been legally transferred to him. Under the instructions of the Court, a verdict was found for the plaintiff, and from the judgment thereon the defendant appealed.

<p>Appeal from the Superior Court of Law of Iredell county, at the Pall Term, 1851, his Honor Judge Maní,y presiding. The case is sufficiently stated in the opinion delivered in this Court.</p>

<p>On the trial of a collateral issue between the administrator and heirs, as to assets, in a suit by a creditor, one of the heirs is an incompetent witness for the administrator, though he may have released to him all his interest in the personal estate, and also an amount supposed to be the value of the real assets descended to him.</p> <p>in such a proceeding by soi. fa. any one of the heirs can tender the issue, and, if found against the administrator, -the creditor would have execution against him for the sum found in his hands, which would necessarily operate to the exoneration pro tanto of all the real estate descended.</p>

This was an action of ejectment, which was referred to arbitration. The arbitrator's reported, among other things, that judgment should be entered for the plaintiff for ten* dollars, as the actual amount of the damages he had sustained by the trespass. To this part of the award the defendant objected, and moved that the award be set aside. The Court over-ruled the motion and gave judgment pursuant to the award, from which the defendant appealed.

<p>Whether an instrument is a mortgage or not, is a question of law for the decision of the Court, and it would be error to submit it to the jury.</p>

<p>A Sheriff is not hound to collect an execution, and pay the amount t& the plaintiff, before the return day of the writ.</p>

<p>Appeal from the Superior Court of Law of Ashe County, at the Spring Term, 1852, his Honor Judge Baily presiding.</p>

<p>To constitute a legal arrest, it is not necessary that the officer should touch the person of the individual, against whom the precept has issued. It is sufficient, if, being in his presence, he tells him he has such a precept against him, and the person says I submit to your authority, or uses language expressive of such submission.</p> <p>But in all such and similar cases the question is, whether there was or was not an intention to arrest, and so understood by the parties, and this is a matter to be left to the jury and cannot be decided by the Court alone.</p>

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

<p>The probate of a deed of trust or mortgage, under the provisions of the Act of Assembly, Rev. Stat. ch. 37, sec. 25, is not valid, when taken by one, who, though .acting as deputy clerk, has not been duly appointed, nor qualified by taking the oaths to support the constitutions of the United States and of this State and an oath of office, as prescribed by the Act, Rev. Stat. ch. 19, sec. 15. A registration, therefore, under such a probate, has no effect in rendering such a deed operative, according to the provisions of the first recited Act.</p> <p>The case of Shepherd v. Lane, 2 Dev. 148, cited and approved.</p>

<p>In cases of Usury, the question of a corrupt intent must he submitted to a jury.</p> <p>It is error in the Court to assume such intent from the fact that a bond for money borrowed sets forth a larger sum than the amount actually borrowed.</p>

<p>Where a creditor had placed a note in the hands of an officer for collection, and another, by persuasion, induced the officer not to collect E and the debtor not to pay the debt. Held, that the creditor had no ground for an action on the case against the other parties</p> <p>See the facts, as formerly reported in this same case, 11 Ire. 268, and the additional matter set forth in the opinion delivered in this Court.</p>

<p>Appeal from the Superior Court of Law of Buncombe County, at the Spring Term, 1852, his Honor Judge Manly presiding.</p>

<p>The donee of a slave by parol is the bailee of the donor, and no length of possession, although upon a claim of property, will constitute a title in him, unless there has been a demand and refusal, or some act done in opposition to the wiE of the donor, changing the nature of the possession.</p> <p>The cdses of Palmer v. Fcmeett, 2 Dev, 240, Martin v. Ern'bin, 2 Dev. and Bat. 604 and Green v. Harris, 3 Ire. 210, cited and approved.</p>

<p>Under the book debt act, the book and oath are only evidence of small articles, which have been delivered within two years; but they are not evidence that the book contains all the credits and a full and true account of all the dealings between the parties, so as to shew that nothing is due to the other party and to disprove all of his claim, except such items as are stated in the book, upon the ground that this contains all just credits, and consequently sets forth all the amount, to which the opposite party is entitled.</p>

<p>Where an execution against two does not distinguish which is principal and which surety, the Sheriff has a right to collect it from either; and the one from whom it is collected, has no cause of action against the Sheriff, though he claimed to he only a surety and though the plaintiff in the execution directed the Sheriff to collect it from the other.</p>

<p>Appeal from the Superior Court of Law of Haywood County, at the Fall Term, 1851, his Honor Judge Battle presiding.</p>

<p>A declaration in deceit for the sale of an unsound negro, alleging the unsoundness to have proceeded from drunkenness, is not supported by evidence, shewing merely that the negro had a propensity to get drunk and a habit of intemperence. The unsoundness must he shewn to have existed before the sale.</p>

<p>Appeal from the Superior Court of Law'of Mecklenburg County, at a Special Term in June, 1851, his Honor J.udge Ellis presiding.</p>

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

<p>Appeal from the Superior Court of Law of Burke County, at the Spring Term, 1852, his Honor Judge Manly presiding.</p>

<p>The Act of Assembly of 1850, ch. 3, authorizing an appeal by one defendant, where there are more than one, does not apply to appeals, taken before that act went into operation.</p>

<p>Where contiguous tracts of land are conveyed and held by one deed as one tract, they are to be taken as one tract, though they lie in different counties and are separated by a river; and, therefore, the owner is bound to list such lands as one tract in the county in which he resides.</p> <p>The case of Oarson v. Burriet, 1 Dev. and Bat. 556, cited and approved.</p>

<p>Appeal from the Superior Court of Law of Cherokee County, at the Fall Term, 1851, his Honor Judge Battle presiding.</p>

<p>A sderi facias, to recover a penalty imposed on a Sheriff for not returning process, cannot upon his death, be revived against his representatives.</p>

<p>The declarations of a sick person, at any particular time, of his sufferings and condition, are evidence so far as they refer to the time, at which they are made; hut declarations of such persons as to their state and condition at any preceding period are not admissible.</p> <p>Physicians alone are permitted to give their opinion as to the existence, nature or extent of disease in any person.</p> <p>Where it is alleged that a slave was unsound at the time of her sale, in consequence of her then having'the venereal disease, evidence of physicians is competent to show, that the disease did not at that time prevail in the neighborhood in which she was sold, but did prevail in the town, about seventy-five miles distant, to which she was taken by tl.e purchaser soon after the sale.</p> <p>The cases of IiouThac v. White, 9 Ire. 63, and Biles v. Holmes, 11-Ire. 16, cited and approved.</p>

<p>An action of ejectment does not abate by the death of the lessor of the plaintiff.</p> <p>If the lessor, who dies, be tenant for life, judgment may be rendered, though the Court may refuse to amend a writ of possession thereon.</p> <p>Where the estate is continued in heirs, judgment is to be rendered as if the lessor were alive; and a writ of possession may also be delivered, though that is to be done under the directions and control of the Court, as to the persons entitled to be put in by the Sheriff.</p> <p>Where the defendants are a part of the heirs of the deceased lessor, the proceedings under the judgment and execution should be accordingly modified, by not putting the defendants out of possession, but by putting in the other heirs with them.</p>

<p>Appeal from the Superior Court of Law of' Buncombe County, at the Spring Term, 1852, his Honor Judge Manly presiding.</p>

<p>It is error in a Judge to tell a jury, in his charge, that From the testimony of. A. R, the prosecutor, and from the nature of his testimony otherwise, it was not possible for the witness innocently to be in error; it was, therefore, a question of guilt on the one hand, or corrupt false swearing on the other.</p> <p>The case of Slate v. Thomas, 7 Ire. 381, cited and approved.</p>

<p>Appeal from the Superior Court of Law- of Burke County, at the Fall Term, 1851, his Honor Judge Battle presiding.</p>

<p>Appeal from the Superior Court of Law of Henderson County, at the Spring Term, 1852, his Honor Judge Manly presiding.</p>

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

<p>It seems that, though an assanlt with intent to murder, was formerly considered a felony, it is now held to be a misdemeanor only; and although it may be a high misdemeanor, it is not subject to any additional punishment, but only such as in the discretion of the Court, may be inflicted for other misdemeanors at -common law.</p> <p>Where a person had been forbidden a house by the owner, but visits it at the invitation of a servant, at an hour when he may expect to meet the owner, for the purpose of having music; when, instead of bringing his violin, he comes armed with a deadly instrument, a six revolving pistol; when, upon being ordered out by the owner, he asked the latter to go with him, and, this being refused, he stopped at the door and made an assault by presenting Ijiis pistol — this, if death had ensued, would have been murder, and therefore, even according to the old authorities, he might well be convicted of an assault with intent to murder.</p> <p>The case of State v. Uurtis, X Dev. and Bat., 422, cited and approved.</p>