Volume 44 — North Carolina Reports

<p>Turpentine trees are the subject of lease.</p> <p>Where A, let turpentine trees to B., and was by the contract to receive a share of the crop made by him : — Held, that A. cannot maintain trover for a conversion of the turpentine, before a division.</p>

The defendant was summoned as garnishee on the 24th December, 1849, under an attachment of the same date, sued out at die instance of the plaintiff against one Henry Adcock residing in Mississippi, and returnable to the January Term, 1850, of Anson County Court.

The prisoner was indicted at Caswell, at the Fall Term, 1851, for burglary, of which, upon his trial, he was acquitted; but was found guilty of grand larceny. In the bill of indictment, he was charged to be the property of George Williamson, who was duly notified to come forward and defend him. It was proved that said 'Williamson was his owner, hut during that year he had hired him to one John F. Wagstaff, who also had notice to appear and defend the slave.

<p>The defendant was indicted, under the Act of Assembly, (ch. 34, sec. 12, Rev. Stat.,) for taking and conveying a free negro named Jim Corn, out of the State, with intent to sell him as a slave. The indictment contained several counts, in which the taking and conveying away were differently laid — to be by “ violence,” by “seduction,” by “persuasion,” by “deception.” On the trial, before his Honor Judge Ellis at Surry, on the last Fall circuit, the evidence for the State was substantially as follows: John Brovin testified that in the Spring of 1848, tire prisoner proposed to join him in a trip to Stokes Court, for the purpose of trading — the prisoner to furnish the wagon, and the witness the horses. They started off to Germanton, he having fish in the wagon, and the prisoner guns. While camped at Robertson’s branch, one Robertson came and asked prisoner if the free negro, Jim Corn, tvas going with him on a trip over the mountains. Prisoner said, not to his knowledge. R. then remarked that he had seen Jim Com a few hours before, and he said he was going with the prisoner on a trip over the mountains. The prisoner then said there had been some talk about it, but if Com wanted, to go, he should not sleep in the wagon. They, witness and prisoner, went on to Germanton next day. Not being successful in trading, the prisoner proposed to go to Mount Aiiy, and over the mountains. To this witness assented. Prisoner proposed that they should take Jim Com with them to wait on them, but witness objected, there being but a one horse wagon and two of them, and that they would have no use for him. The prisoner finally agreed to pay the expenses of the boy on the road, and witness, on these terms, agreed that he might go. They all went on together with die wagon from Stokes county, through Surry, and out of that county into Virginia. They traveled along the usual public road, and in an open manner. There was no attempt to conceal the boy Com. On the road, after they had passed into Virginia about fifty miles, Corn gave the witness some insolence, when the latter gave him a blow which knocked him down. The prisoner told him not to abuse the boy — that he intended to put him in his pocket before he got back. This was said in a jocular way, and the witness so regarded it. At another time, after this, when the boy fell behind on the road, prisoner said he was afraid the boy would go back — that lie intended to put him in his pocket before he got back. The witness considered this a jocular remark. They went together to Burk’s Garden in Virginia, to the house of one Lowder, with whom the prisoner had some talk, and with whom he rode off, and returned with another man. Suspecting that the prisoner intended to sell the boy Jim Corn, the witness took Ms horse from the wagon and returned to North Carolina. He left tire prisoner, Com, and a man named Orfall, at Lowder’s, in Virginia — had never seen Corn since. He told Levi Stafford of the occurrence soon after he returned. Evidence was also offered of the prisoner’s confessions of having sold the boy Corn in Virginia, and connecting Com with the prisoner in traveling together from the county of Stokes, where Corn lived, on to the Virginia line.</p> <p>The prisoner’s counsel contended that the Act of Assembly was inoperative, for the reason that it contemplates that a part of the transaction constituting the offence must take place in another State. 2. That actual violence is necessary to be used as a means of taking him from the State, and no such violence was proved. 3. That the taking was from tire county of Stokes, and that the county of Surry had no jurisdiction of the offence.</p> <p>His Honor was of opinion that the Statute was sufficient to prohibit the taking of free negroes from the State, under the circumstances there specified. That although there was no evidence of violence used in taking the negro from the State, any means equivalent to actual violence, as deception, seduction and persuasion, would meet the requisitions of the Statute. That although the negro may have been taken from Stokes county, yet if the prisoner passed with him through Surry county, and from thence immediately into the State of Virginia, that would be a sufficient taking in Surry. His Honor instructed the jury, that if the free negro consented to go, <md be sold by the prisoner, this consent would deprive the act of its criminal character, and it would be no offence. But if the prisoner took the free negro from Surry county into Virginia by practicing a deception upon him — as that he was to go simply on a trip over the mountains, or by similar means, with the intent to sell and dispose of him, he would be guilty. That the taking must be with the intent to sell and dispose of, and that it must be from this State to Virginia. The prisoner’s counsel insisted that there was not evidence of an intention to sell the free negro, entertained by the prisoner before he left this State. His Honor then charged the jury, that if they believed the prisoner sold the negro Jim Com into slavery, in the State of Virginia, this fact, and the other circumstances in the case, were evidence to be considered by them on the said question of intention, and from which they might find said intention on the part of the prisoner, whilst in North Carolina.</p> <p>The jury returned a general verdict of guilty. The prisoner’s counsel moved for a new trial, on the ground of error in the instructions as specified; and also moved in arrest of judgment; both of which motions were overruled, and sentence of death being pronounced upon the prisoner, he prayed an appeal to the Supreme Court, which was granted without security, it appearing that he was insolvent, and unable to give bond.</p>

<p>A plaintiff cannot convert an action founded on contract into a tort, so as to charge a feme covert defendant. To do so, the tort complained of must be an actual trespass.</p> <p>Therefore, where the plaintiff hired to the wife of A. a horse, she acting as agent for her husband, and the horse was injured by immoderate driving, and the action was brought against the husband and wife jointly, but abated by his death as to the former : — Held) that the action does not survive against the wife.</p>

<p>Where, by marriage articles, the power of appointing the estate by will is given to the feme, and no disposition of the same is made by the parties, in default of such appointment, Held that a will, made by her before the marriage, will be revoked thereby* under the provisions of the Act of 1844-5, ch. 33, sec. 10.</p>

<p>The recital of the age of an apprentice in the indenture of apprenticeship is conclusive of that fact, in a suit by the master against a third person for harboring the apprentice. Such recital, however, is not conclusive as against the apprentice, when he is prejudiced thereby.</p> <p>The County Court may correct a mistake in the recital of the age of an apprentice, but the recital, as thus corrected, cannot have relation back, so as to make a stranger a tort feasor, in haying previously thereto taken the apprentice into his service.</p>

<p>This was an action of debt on the bond of the defendant Home, executed by him as constable in January, 1850, with the other defendants as his sureties. The breach assigned was, that he failed to .collect a debt due by note to the relator by one Hutchinson; upon oyer of the bond, the defendant pleaded conditions performed a?id not brollen.</p> <p>On the trial before his Honor, Judge Caldwell, at Anson, on the last Fall circuit, the facts of the case were as follows: The relator placed the said note in the hands of Horne, on the 1st December, 1850. Hutchinson was then out of the county, but returned about the 14th or 15th of said month. On the 20th December, a warrant was sued out by Horne, on which judgment was rendered against Hutchinson on the 4th January following; but no execution was issued on said judgment. Hutchinson lived in Wadesborough, and Home about three miles therefrom. Hutchinson was possessed of property before December, and up to January 9th, 1851, of the value of $2,000 and upwards, and on that day he executed an assignment, covering all his property to secure other creditors. Nothing was known of IJutchinson’s design to malee the said assignment, until the time he executed it. Upon this state of the facts, his Honor charged the jury that the defendant Home had not used reasonable diligence to collect the plaintiff’s debt, and if the facts were believed by them, the plaintiff was entitled to their verdict. The jury found for the plaintiff, and the defendant moved for a new trial, which being refused, and judgment rendered on the verdict, he appealed to the Supreme Court.</p>

This was an action' of ejectment, tried before his Honor, Judge Dick, at Chatham, on the last Pall Circuit. Held: that as the Court of Pleas and Quarter Sessions had regularly entered up judgments and granted orders of sale, the Court could not properly go behind said judgments, and hold that there were no levies to authorize said judgments; but must respect them as judgments of a competent tribunal, until they were reversed.

<p>Where the husband has possession of the wife’s land, after issue born, case, in the nature of waste, is the proper remedy for an injury to the inheritance, by cutting timber trees, and should be in the name of the husband and wife jointly.</p> <p>But for an injury to the crop, he must sue alone, anch the Stat. of limitations bars the action after three years.</p> <p>The rule is, where the husband must sue alone, or may join his wife, the Statute of limitations bars j but when lie must join the wife, the Statute does not bar, for it is her action.</p> <p>(The case of Gentry v. Wagstaff, 3 Dev, 270. McRee v. Alexander, 1 Dev. 321. Allen v. Gentry, 2 Law Repos. 609, Davis v. Cooke} 3 Hawks 60S, cited and approved. And Caldwell v. Black, 5 Ire. 463, and Fagan v. Walkei'> commented on.)</p>

This was an action of debt on a promissory note for $ 150, executed by the defendant’s testator on the 11th July, 1849, payable to one Threadgill on demand, and by him endorsed to the plaintiff on the 17th day of June, 1851, who demanded payment thereof on the 25th of the same month. The pleas were nil debet — set-off.

This was an application, on the part of the plaintiff to the Superior Court of Law of Cumberland county, on the last Circuit, his Honor, Judge Caldwell, presiding, for a writ of certiorari, to bring up the record of a suit in which j udgment had been obtained against him and one Latta in the County Court of Cumberland, by the defendants, Halstead & Company.

<p>Case for malicious prosecution may be maintained where a warrant is sued out on an accusation of larceny, from a Justice of the Peace, although it is not placed in an officer’s hands, nor further proceeded on.</p>

The defendants were indieted for a conspiracy. Pleas, not guilty and Slat. Limitations.

This was an indictment for fornication, tried before his Honor, Judge Bailey, at the Fall Term, 1852, of Stanly Superior Court. The defendants pleaded not guilty, and in support of their plea, offered evidence of their having been lawfully married, unless, as was insisted by the Solicitor for the State, the marriage was void under the Act of 1838-’9, declaring marriages between white persons and free persons of color void.

<p>This was an action of ejectment, originally brought against Peter E. Maddera, returnable to the Fall Term, 1849, of Martin Superior Court; at which term the defendant appeared and entered into the common rule, and pleaded not guilty. The case was regularly continued from term to term, until Spring Term, 1851, when the death of the defendant rvas suggested, and it was “ Ordered that a copy of the declaration and notice issue to the heirs at law,” &c.; in pursuance whereof, a scire facias and copy of decimation were issued “to the heirs at law of Peter E. Mad-dera,” notifying them “to appear at the Fall Term thereafter, and defend the said suit,” &c.; and on this the Sheriff retoned, “There are no heirs of Peter E. Maddera to be found in my County. I understand they reside out of this State.” An alias soL fa. was then issued, on which the Sheriff made a like return to Spring Term, 1852; at which time it was ordered that publication be made for six weeks, &c., “for the heirs at law of Peter E. Maddera,” &c. 'On scire facias issued, and returnable to Fall Term, 1852, the Sheriff again made a like return, and added — “of the names of said heirs, I am not informed.”</p> <p>And on the trial before his Honor, Judge Settle, at said Fall Term, 1852, it appearing that publication had been made, as ordered, the plaintiff’s counsel moved for judgment by default against the casual ejector, and for a writ of possession — offering to prove that the original declaration was served on Peter E. Maddera, and that he, at the service'.‘thereof, tvas in the possession of the premises therein named. This motion was refused by his Honor, and thereupon the plaintiff’s counsel moved for judgment by default against the heirs at" law, and for an order that a writ of possession issue — which was also refused by his Honor. The plaintiff’s counsel then moved to submit the case to the jury upon the plea of not guilty, entered by Peter E. Maddera, which, also, his Honor refused to permit, on the ground that the proper parties were not- in Court; and thereupon the plaintiffs prayed an appeal to the Supreme Court, which was granted.</p> <p>argued 1st: The tenant in possession is admitted to defend, only on condition that he confess, at the trial, lease, entry and ouster. If he refuse to do so, or fail to appear, (in which case the confession cannot be made) the plaintiff is nonsuited as to the party let in, but afterwards takes judgment against the casual ejector. (Ad. on Eject. 289.) He is nonsuited because the plea of “ not guilty,” now part of the record, denies the whole declaration, lease, entry and ouster, and “for want of proving these requisites,” he is nonsuited. (3 Bl. Com. 204; Ad. onEject.. 289; 2 Sel. Pr. 90, 114.)</p> <p>2d, At common law, on the death of defendant, the casual ejector being out of Court, the suit abated. 1 Rev. Stat. ch. 2, sec. 7, provides that actions of ejectment shall not abate, but may be revived by “ sei'ving on the heirs at law or devisees or the guardians of minor heirs and devisees, a copy of declaration and notice; and after such service, the suit shall stand revived, and ¡shall be proceeded on in the same manner, as if the defendant were living.” So that, when the heir is served with notice, lie too must appear and confess lease, entry and ouster at the trial, or the plaintiff will be nonsuited, and judgment taken against the casual ejector.</p> <p>3d. There has been no service on the heir. The sci. fa. runs against “ the heirs at law of Peter E. Maddera,” without naming them. The return of the Sheriff is, that they are not to be found in his county — he is informed they live out of the State, but. he does not know their names. Whereupon publication is made for the heirs of Peter E. Maddera, without naming them. Publication is a substituted service of notice, and must be equally as certain as to the individuals, as actual service. If the sheriff had returned service on the heirs by name, it would have been good, and they would have been in Court; (Roberson v. Woollard, 6 Ire. 91.) But if the return had been u executed on the heirs,” without name, it is clear they would not have been in Court, either to defend or make default; (2 Sel. Pr. 173.) Nor in any action, where a personal judgment was sought against them, or against property in their possession. (Roberson v. Woollard, ut supra.) How then, can publication for the heirs, eo nomine, which is the substituted service, bring them into Court?</p> <p>There is no instance of such a service being held good at law. It,is like a summons “to executors,” and a return of “ executed on the executors. ” No service is good, unless the party is brought into Court thereby; and such service would not bring into Court the heir sued on the bond of his deceased ancestor — nor the heir, on a petition to make real estate assets — nor the heir to show cause why execution should not issue against lands descended.</p> <p>In Roberson v. Woollard the Chief Justice says “ this writ was against the lands descended to the heirs of Jo. Roberson,” without saying who they are; and thus leaving it to the Sheriff to judge thereof, which is often a difficult point, and on which there is no opportunity for the person to be heard in Court.”</p> <p>The heir of land situated in this State is heir according to the lex loci. A non-resident cannot know whether he is heir or not.</p> <p>4. It is not sufficient that the “heir ” be apprised by report or advice, that his interest is to be affected by proceedings. Unless he be brought into Court, as the tenant is, he cannot fail to appear, nor of course make default, (for default is always after appearance.)</p> <p>5. The plaintiff cannot suffer non-suit, unless the heir refuse to appear, and without nonsuit, he cannot have judgment against the casual ejector; (Bl. Com. 204.)</p> <p>6. There is no distinction in the modes of bringing parties into Gourt in the different actions. All arc in by service, and none without service or appearance.</p>

Assumpsit on a mercantile account. Plea, the Statute of Limitations.

Ti-ie action was trespass vi et armis; arid the defendant pleaded specially, that the plaintiff was a slave.

This was an action of TROVER, brought to recover the value of a mare, and comes up on appeal, after the new trial granted at August Term, 1850; (II Ire. 305.) On the trial before his Honor, Judge Battle, at Cherokee, at Pall Term, 1851, upon the plea of not guilty, the case was as follows: The defendant, Edwards, had levied upon and sold the mare in question, at the instance of the other defendant, under a judgment and execution against one Sam’l Lowdermilk.

This was an action of ejectment, tried before his Honor, Judge Caldwell, at the Superior Court of law of Randolph County at Fall Term, 1852. The following facts were submitted to his Honor as of a case agreed. “On ihe 22d day of January, 1848, Enoch Sawyer executed a written lease to the lessors of the plaintiff for seventy-five acres of land, including the Sawyer Gold mine in Randolph County, and bounded as follows, viz: Commencing at the entrance of the.

TRESPASS qxtare clausum fregit^ tried before Iris Honor Judge Caldwell, at Randolph, at the Special Term in January, 1852.

<p>Appeal from the Superior Court of Law of Martin county, at Fall Term, 1852, his Honor Judge Caldwell presiding.</p> <p>The action was ejectment, originally brought in the County Court, and there by the parties submitted of record to arbitration. An award was made by the arbitrators and judgment for the plaintiff, and the defendant appealed to the Superior Court. The award was as follows :</p> <p>“ Being appointed &c., we did, after giving full notice to the parties to attend at this place, (Free Union M. H.,) on the day above named, (June 7th, 1852,) with their witnesses, which notice they obeji-ed by appearing at the time and place specified, with tlioir witnesses and papers, and both said they were prepared and ready for a hearing and trial of said suit; and after hearing all the evidence and examining all the papers, we came to the following decision unanimously, (viz.) — That said Moore’s land extends to and adjoins the line of tire Thomas Pollock Patent, which runs from a white oak stump north forty five degrees east two hundred and. eighty-two poles to a red oak on Rose’s creek, as per Hnyman’s and Phillip’s survey and the callings of said Gherkin’s deed, who claims under the Pollock Patent; and therefore we further adjudge that the defendant Gherkins pay all the costs of said suit. Given under our hands the day and date above written ’ ’ &c.</p> <p>On the trial in the Court below, the defendant’s counsel moved to set aside the., foregoing award. His Honor overruled the, motion, and gave judgment against the defendant for the costs, according to the award, and the defendant appealed.</p>

This was an action of assumpsit for work and labor done. The defendant pleaded the general issue.

The defendant issued an attachment against William I/. Rhodes, as an absconding debtor, on the 7th of November, 1851.

Like the next preceding case, the same plaintiffs v. Pender, this was an appeal from the judgment of his Honor, Judge Manly, on the last circuit at Washington, discharging a similar rule, under the following cimumstances: The defendant, as the agent of Lawrence, issued his attachment against Rhodes on a note pajmble to Lawrence as Gashier of the Branch of the Bank of the State at Tarborougb, to which Simmons was surety.

This was an action of trover for a slave., named Washington. Plea, not guilty. On the trial before his Honor, Judge Settle, at Northampton, on the last Fall circuit, the case was substantially this: In 1843 Thomas Payne conveyed the slave in controversy to one Turner, in trust to secure a debt due by' bond, on which John Chambliss and four others were his sureties. All these parties then resided in the State of Virginia.

<p>The penalty of one hundred dollars, imposed by the Statute, (Rev. Stal. ch. 34, sec. 73,) to be paid to the owner, for harboring- a runaway slave, is not within the jurisdiction of a single magistrate.</p> <p>Where jurisdiction is withheld by law a plea in abatement therefor need not be put in— as a Court will, of its own motion, stay its action in such case.</p> <p>(The cases of Burrow t¿. McNeil, 2 Dev. & Bat. Eq. 331, and Jones v. Jones, 3 Dev. 360, cited and approved.)</p>

This was an action of debt for a penalty, commenced by warrant before the Mayor of Elizabeth City, under the provisions of the Act incorporating that town, against the defendant, for refusing to serve as patrol, he having been required so to do by the proper authorities. It was insisted for defendant that he was exempt from the performance of such duty, because he was a regularly ordained minister of the gospel of theM.

This was an action on the case, tried before his Honor, Judge Manly, at Hertford Superior Court of law, Fall Term, 1852. Plea, not guilty.

This was an action of ejectment brought against Charles S. • Moore, as the tenant in possession, who entered into the common rule, and pleaded not guilty; and afterwards John Freeman was admitted to defend as landlord.

<p>This was an action of assumpsit to recover damages for the breach of a contract for the hire of slaves. On the trial before his Honor, Judge Battle, at Henderson, at Fall Term, 1851, to which county the case having, by consent, been removed from the county of Macon, the facts appeared to be as follows:—</p> <p>About the beginning of the year 1850, the defendant, who resided in Rutherford county, agreed to hire to the plaintiff, who lived in Macon comity, four negro slaves to work in the plaintiff’s gold mines — the slaves to be taken the 1st of February following, and kept the remainder of the year; for which the plaintiff agreed to pay, monthly, $8 per month for each slave. And to secure the payment thereof, and for the safe keeping and return of tire slaves, the plaintiff was to give bond with good and sufficient sureties, residing in the county of Rutherford. H. Abrams, a brother of the plaintiff, testified that on or about the 1st of February, 1850, he, as agent of the plaintiff, went to the defendant for the purpose of getting the negroes and giving the necessary security, and that the defendant refused to let him have them, alleging that he intended to work them in the gold mine himself; and, therefore, the witness left him, without tendering him any bond. The plaintiff then produced a letter from the defendant, written the 27th of the same month, in which he stated he had declined working his hands in the mines, and that the plaintiff might have them, on complying with the terms agreed upon between them. The witness, H. Abrams, then testified that he went again as his brother’s agent, in company with one Hinson, to the house of defendant, to get the slaves and give the bond. That he and Hinson, who both resided in Rutherford, offered to be sureties for the plaintiff, and the defendant said they were good,- and that Hinson was about to write the bond, when the defendant said they should not have the negroes, unless they gave a bond according to a form which he read to them, and which bound the plaintiff to pay for the slaves absolutely, if they'or either of them, should die whilst in plaintiff’s employment. The witness and Hinson refused to execute such a bond, and left, without having tendered any bond. Hinson testified substantially to the same facts; and another witness testified to the declaration of the defendant, subsequent to that time, that tire reason why he did not let the plaintiff have the negroes was, that they were unwilling to go with him. The defendant then offered testimony impeaching the character of the last witness, and proving that H. Abrams and Hinson would have been insufficient sureties; and that he had subsequently hired his slaves to one Mills at a less price, reserving to himself the privilege of taking them back, should the plaintiff apply for them, and comply with the terms agreed upon.</p> <p>The defendant’s counsel contended that if the plaintiff’s testi-timony were all taken to be true, he could not recover, because there was no consideration for the contract, and because the plaintiff had failed to prepare and tender such a bond, with good and sufficient sureties residing in the county of Rutherford, as he had agreed to give. His Honor, the presiding Judge, charged the, jury, that there was a sufficient consideration for the contract, and that if the plaintiff’s testimony was true, the defendant, by his conduct, had made it unnecessary for the plaintiff to prepare and tender a bond, and he was entitled to recover. The jury retum-a verdict for the plaintiff, and judgment being rendered thereon, the defendant appealed.</p> <p>This case was argued at the last Morganton Term, by</p>

Ejectment, before his Honor Judge Manly, at Pasquotank, on the last circuit, upon the following statement of facts, as a case agreed: “ One Stephen Roach died seised and possessed of the land in dispute in fee — having made and published his last will and testament, a copy of which accompanies and is made a part of this case; and the said will has been duly admitted to probate.

This ivas an action of detinue for two slaves, tried before his Honor, Judge Dick, on the last Circuit at Granville. Joseph Sattenvhite, the brother-in-law of the plaintiff, conveyed the slaves to him for the alleged price of $1200. This deed was attested by Thomas Sattenvhite, another brother-in-law.

The action was assumpsit for board and four pair of shoes. Plea, infancy, and replication, that the articles declared for were necessaries. On the trial before his Honor, Judge Settle, at Edgecombe, on the last Fall Circuit, it appeared that the defendant was an infant, of seventeen years of age, under the guardianship of Josiah Lawrence, and that her property yielded an annual income of about ¡$107,50.

<p>Where an administrator (of one who died before the passage of the Act of 1844 ch. 51) by consent of the heirs of his intestate, sold land belonging to them, and one of the heirs, who were also the next of kin, had been advanced of personalty 1 — Held, that in the distribution of the fund arising from the sale of the land, among the next of kin, the said advancement cannot be taken into account — that? fund being considered as realty»</p> <p>A Court when called on to determine facts upon testimony is, like a jury, bound to take into consideration all that a party may have said at the same time; but it will scrutinize the statement, and if it believes a part of the same to be improbable, or at variance with other established facts, it Will reject that part until other proof is offered to sustain it.</p>

Trspass quark clausum fuegit, tried before his Honor, Judge Manly, at Washington, on the last Pall circuit. The locus in quo was a portion of the lots designated in the plan of the town of Plymouth as Nos. 154 and 155, and is represented in the diagram below, by the triangle 3,4, 0.

The defendant was indicted for retailing spirituous liquor to one John Smith. Pleas — not guilty and former acquittal. Upon the trial, the jury returned a special verdict, as follows : “ That the defendant was guilty of selling spirituous liquors to “John Smith, as charged in the bill of indictment.

The defendant was tried and convicted before his Honor, Judge Dick, at Guilford on the last Fall Circuit, upon an indictment for an assault and battery on Beulah Hussey, his wife. The wife was sworn as a witness on the trial, and testified to acts of violence on the part of the defendant, by kicking her on the leg and striking her on the head and side with his fist, whereby she suffered considerable pain, but no lasting or permanent injury.

This was an action of assumpsit against the defendant, as the administrator of Wright B. Evans, for goods sold and deliv-«red to the intestate, and for certain articles furnished for the burial of said intestate. It Was commenced by a warrant before a single magistrate, and by successive appeals carried to the Superior Court of Martin County, where it was tiled on the last Fall Circuit, before his Honor, Judge Settle.

<p>The 3rd section of the Act of 1844, chapter 31, (providing for the plaintiff a remedy against the bail of the defendant in judgment) embraces all judgments.</p> <p>It is therefore no defence for the bail, upon scire facias to subject him, that no ca. sa. had issued against his principal, on. a judgment in an action ex delicto.</p> <p>Though the caption as well as the preamble of a Statute, where the meaning of its provisions are vague, may be called in aid of construction, neither can control its enactments, when they are full and certain.</p>

This was an action of trespass ware clausum fregit, plea, general issue, tried before his Honor, Judge Manly, at Washington county, on the last Fall Circuit.

This was an action of debt on a bond, tried before his Honor Judge Bailey, at Spring Term, 1850, of Beaufort Superior Court of Law. Pleas, non estfactum, and that the plaintiff never acquired title to the bond by endorsement. The following is a copy of the bond declared on, and the endorsement:— u One day after date we promise to pay Martha A. Parker, guardian of the minor heirs of. James Parker, dec’d, the sum of three hundred and forty dollars for value received.

This was an action on the case, tried before his Honor, Judge Manly, at Fall Term, 1851, of the Superior Court of Law of Surry County — the case having been removed to that County, from the County of Davie.

Ejectment, tried before his Honor, Judge Manly, at New-Hanover Superior Court of Law, on the last Fall circuit, in which the plaintiff had a verdict and judgment, and the defendant appealed. The facts of the case are sufficiently set forth in the opinion delivered by this Court.

This was an action of replevin, brought to recover two slaves, tried at Union Superior Court of Law, Spring term, 1851, before his Honor, Judge Battle.

This was an action of debt upon the bond given by the defendant, John Fanshaw, and his sureties, upon taking out letters of administration on the estate of Davis Fanshaw, deceased. The breach assigned was the nonpayment to the guardian of the plaintiff, of the amount due him from die administrator, as one of the next of kin of the said Davis Fanshaw, arising from the sale of certain slaves. Plea — conditions performed and not broken.

Ejectment, tried before Ms Honor Judge Ellis, at Spring Term, 1852, of Anson Superior Court of Law. The following is the case transmitted to this Court:— “ It was proved that Marmaduke Myers died in the year 1831, leaving a last will and testament, bequeathing both real and personal estate to his six sons therein named, including among the real estate the premises in question.

This was an action of assumpsit, in which the plaintiff declared upon a special contract, and for money had and received. The writ was issued in September, 1846. The defendant pleaded the general issue, Stat. Limitations, and Stat. of Frauds. Upon the trial before his Honor, Judge Battle, at Wayne, on the last Fall Circuit, it appeared in evidence that the defendant had an execution against two men by the name of Westbiook, upon whose land it was levied.

This was a petition for dower, filed by the plaintiff in the County Court of Jones County, against the devisees of her husband, Jonas Jones, deceased, from whose will she dissented; and upon appeal to the Superior Court, the case was argued before his Honor, Judge Caldwell, at the Spring term, 1851, upon exceptions taken by the defendant to the report of the jury assigning dower to the petitioner.

This was an action of ejectment, tried before his Honor Judge Caldwell, at Bladen on the last Fall circuit. It appeared on the trial, that in 1765 the land in controversy was granted to one Richard Harrison, who died during the Revolution, when one Robert McRee entered thereon, and occupied the same until his death, which took place before the year 1795.

This was an action of ejectment, tried before his Honor, Judge Card welt, at Pall Term, 1852, of Anson Superior Court of law. On the trial, the record shows that many questions as to the admissibility of evidence, on the part or the lessors of the plaintiff, were, raised by the defendant’s counsel, and by consent were reserved by his Honor, and the case allowed to proceed.

<p>This was an action of ejectment, brought originally in the County Court of Brunswick County, on the sole demise of Daniel Skipper, and carried by appeal to the Superior Court. On the trial, on the last Spring Circuit, bis Honor Judge Dick presiding, the counsel for the lessor of the plaintiff moved to be allowed to amend the declaration, by adding a demise in the name of Niram Skipper, who, it was admitted, died pending-the action, and before the term of the Court, but who was alive at the time of bringing the suit, and at the date of the demise. The defendant’s counsel resisted the amendment, but the same being allowed by his Honor, the defendant appealed to the Supreme Court.</p>

The prisoner was indicted under the 10th section of 34th chapter of the Rev. Statutes, for the offence of stealing and carrying away a woman slave, the property of one Blackwell. The indictment contained several counts, in which the felony was differently alleged to have been committed, as by stealing, violence, seduction, and done with the different intents mentioned in the Act.

This was an indictment under the Act of 1846, ch. 70, for the removal of the fence of one Noah Thompson, tried before his Honor Judge -Dick, at Spring Term, 1853, of Montgomery Superior Court of Law. The following is the case sent up to this Court:— e In the fall of 1850, Olive Smith sowed this field in wheat, and gathered the same in the summer of 1851.

The defendant was indicted and tried before his Honor Judge Dick:,- at Robeson, at Spring Term, 1853, for stealing a sheep. Pleas, former acquittal, not guilty. On the trial ft appeared that the defendant had before beeii indicted for stealing a sheep, charged to be the property of one Peter Prevatt, and on the trial had been acquitted, on the ground that the sheep was not the property of Peter Prevatt.

This was originally a suit by attachment, at the instance of the plaintiff against Bluford McDaniel; and the attachment having been levied on a negro slave, and returned to the Court of Pleas and quarter Sessions of Bladen county, the defendant Penelope McDaniel interpleaded, claiming the said slave as hers.

The defendant was indicted under the Act of Assembly prohibiting free persons of color from wearing or carrying arms about their persons. The indictment charged that he earned about his person a rifle, a musket and a shot-gun ; and the proof was that he carried a shot-gun.

<p>This was an action of assumpsit brought upon a promissory note ; and, as appears by the transcript of the record, the following was the case, at Cumberland Superior Court of Law, on the last Spring Circuit, his Honor Judge Dick presiding.</p> <p>At Fall Term, 1852, the defendant filed his affidavit (under the 86th sec. of the 31st ch. Rev. Stat.,) stating that a certain letter written to him by the plaintiff, and by him afterwards returned to the plaintiff or his clerk, was material and necessary to his defence to the action, as containing the terms of the contract declared on by the plaintiff; and accordingly an order was made\ directing the plaintiff to produce upon the trial the said letter or a copy thereof, or show cause to the contrary. Afterwards, at the same term of the Court, the plaintiff filed his affidavit, in which he admitted that he wrote to the defendant the letter in question, but stated that to the best of his recollection he never saw it after it was mailed ; that he had made diligent search for it, intending himself to rely on its contents for the maintaining of his action, but that he could not find it, and that he had preserved no copy of it; and he then stated substantially his recollection of its contents.</p> <p>Upon consideration of the premises, his Honor was of opinion that the rule against the plaintiff should be made absolute, and accordingly entered judgment of nonsuit, from which the plaintiff appealed to the Supreme Court.</p>

The defendants were tried at Wayne, before his Honor, Judge Manly, on the last Spring Circuit, upon an indictment for an assault aud battery, found by the grand jury at Fall Term, 1852.

<p>This was an action of debt upon the bond of the defendant’s testator, tried before Dick, Judge, at Brunswick, on the last Spring Circuit, and the issues were submitted to the jury upon the pleas of “ no assets — fully administered, generally and specially — debts of higher dignity — former judgments — no assets ultra.” The defendant had, under an order of the County Court, sold the slaves of his testator, and upon the plaintiff’s bringing this suit, had taken time, under the Act of Assembly, to plead. At the time of putting in his pleas, the notes for the sale of the said slaves were not due, nor any part of them received by him ; and the principal question was, whether these notes were assets in his hands. His Honor was of opinion that none of the pleas were sustained by the facts ; and there having been a verdict and judgment for the plaintiff, the defendant appealed. The facts of the case are fully stated in the opinion delivered by this Court.</p> <p>1. That an. Executor is not chargeable with choses in action, until he has received the money or been guilty of laches, (2 Williams on Exrs. 1022-3, Jenkins et ux. v. Plume, 1 Salk. 207, Norden v. Levit, 2 Lev. 189, Ram. on Assets 503.)</p> <p>2. If executor sells personal property on a credit, and takes bonds according to our statute, and is sued and pleads plane ad-ministravit and no assets — after the sale, and before the bonds are due, he is not guilty of a devastavit, and the plaintiff cannot recover. (Rev. Stat. ch. 46, sec. 11, Ch'egory v. Hooker'’s Adm., 2 Car. L. Repos. 116, Eurev. Eure, 3 Dev. 206.)</p> <p>1. The time was too long before the sale of slaves ; testator died before or early in October,-1848, and the defendant then, as executor, sold the perishable property in October. The County Court of Brunswick sat on the 1st Monday in December, when he might have obtained an order for sale of slaves; and had he done so, the sale notes would have been due before defendant pleaded ; but he chose to wait till March, 1849.</p> <p>2. Besides, the Act of Assembly gives him nine months in which to plead, and if from any accident he finds that insufficient, the Court will grant him longer time.</p> <p>3. The Judge was right in holding that none of the defendant’s pleas were sustained ; for the only plea to which the evidence applied, was the plea of plene administravit. Now that plea denies that the defendant has any assets, or ever had since the death of his intestate, which has not been administered. (2 Saunders Plead. & Evi.’lO, 511.)</p> <p>4. But the Act of Assembly, (Rev. Stat. ch. 46, sec. 11,) authorizes the sale and exempts him from liability thereupon, until the time at which the notes become due, when the fund on scire facias shall be bound for judgments previously rendered. But this must be shown by plea, (Gregory v. Hooker’s Adm., N. C. Law Rep. 116); otherwise how is the Court to know that the sale has been made 1 and how can the plaintiff know whether he ought to take issue, or admit the defendant’s plea, and take his judgment quando9</p>

<p>The Act of 1819, (Rev. Stat., ch. 34, sec. 60,) forbidding “ any person” from passing counterfeit bank bills, &c., does not embrace slaves.</p> <p>A statute must mention slaves, to bring them under its penalties.</p>

The defendant was convicted of manslaughter, before his Honor Judge Settle, at Guilford, on the last Spring Circuit, and from the judgment rendered on the verdict he appealed to the Supreme Court. No bill of exceptions nor statement of the case accompanies the record sent up.

The defendant was arrested upon a warrant sued out by order of the County Court of Richmond county, at its July Term, 1851, and charged as a free person of color with having migrated into this State, and having failed to depart the same within twenty days, after having been duly notified so to do, contrary to the provisions of the Act of Assembly, (Rev. Stat. ch. Ill, sec. 65, 66, 67.) The defendant accordingly appeared, and prayed to have an issue made up and submitted to…

This was an action of debt, commenced by warrant before a Justice of the Peaces for the sum of one hundred dollar,¶, in the name of Eli W. Moore & Co., as plaintiffs, and the same was carried by the appeal of the defendant to the Superior Court.

<p>In an indictment for a nuisance in not keeping a ferry in repair, where the only question was as to the present ownership of the land, to which the ferry had always been appurtenant, and evidence was offered tending to show that the defendant had purchased the same: — Held, it was no error in the Court below to charge the jury that if the defendant was the purchaser of the former owner’s estate in the land, they might find that he was the proprietor, and therefore guilty.</p> <p>(The case of Biggs v. Ferrell, 12 Ire. 1, cited and approved.)</p>

<p>This was a petition filed by the plaintiff, as widow of Nathaniel Credle, against the defendant, his executor, for an account and settlement of the personal estate. The defendant answered, and the parties proceeded to take testimony ; and the following was substantially the case, as it was heard by his Honor, Judge Settle, at Hyde, on the last Spring Circuit.</p> <p>The said Nathaniel Credle died in the year 1850, leaving a will which was duly admitted to probate, and from which the petitioner in due form of law dissented; and the defendant, his son, was qualified as executor. Previously to 1845, tire testator had put the defendant in possession of a certain tract of land, and had been accustomed to speak of and treat it as his said son’s land — though he executed no deed for the same. Previously also to April 1845, the said testator made an arrangement with one Martin Howard and the defendant, by virtue of which Howard was to convey to tire defeadant eight slaves, and in consideration therefor, the testator was to execute to him a deed for the said tract of land ; and in pursuance of this agreement, on the 15th of April 1S45, the said exchange was made — Howard taking the testator’s deed for the land, and the defendant taking Howard’s deed of same date for the slaves.</p> <p>Thus the principal questions presented to his Honor, upon the proofs and exhibits were, first, Whether the said slaves (or the land) were an advancement to the defendant by his father, as contended for by the plaintiff? and if so, whether they were to be brought into hotchpot in favor of the petitioner? For the defendant, it was insisted that the rule requiring advancements to be brought into hotchpot, did not apply to the case of a widow’s dissenting from her husband’s will; and if it did, the case showed an advancement of the land, and not of the slaves. And of this opinion was his Honor, who gave judgment accordingly, and the plaintiff appealed to the Supreme Court.</p>

This was an action of trespass vx et armis, to recover damages for taking the plaintiff’s slave — pleas, not guilty and justification. The case was tried before his Honor Judge Dick, at Brunswick, on the last Spring Circuit, upon the following statement of facts, agreed between the parties : The plaintiff, residing in Craven county, had hired his slave for two years to one Joseph Green, a resident of the county of Brunswick.

The defendants were tried and convicted upon the following bill of indictment: “ State of North-Caeolina, ) Superior Court of Law, Brunswick County, j Spring Term, 1852. “The jurors for the State upon their oath present, that the Wilmington &.

This was á scire facias against E. E. Hussey, the intestate of the defendant, to subject him as special bail of one John W. Lewis, to the payment of a judgment against him in the Superior Court of Northampton, and the case was submitted to his Honor Judge Bailey, at the Spring Term, 1853, of said Court, upon the following facts agreed between the parties £££25th September, 1851, executed, and the defendant confined in the jail of my county, for the want of bail.’ ££ Judgment…

<p>The prisoner was indicted for the murder of one Josiab T. Parker. On the txial, before Saunders, Judge, at Chowan, on the last Spring Circuit, a witness named Simpson was introduced to prove certain confessions of the prisoner; and he testified that the prisoner was brought before him and one Welch, Justices of the Peace of Chowan county, on a warrant for shooting the deceased, “ That witness inquired of prisoner how the facts were. This evidence being objected to, witness in answer to questions put to him, stated that no' promise, threat or inducement of any kind, either of hope or fear, was held out to prisoner, and that he voluntarily made the confession offered. His Honor thereupon admitted the evidence, and the witness proceeded to give the confessions and statements of prisoner.” It does not appear in the case that the magistrates did - not reduce their examination of the prisoner to writing, nor was there any testimony offered in relation to that fact.</p> <p>(There were several other points made for the prisoner in the Court below, and argued also in this Court; but- it is deemed unnecessary to state them here, inasmuch as the case in this Court turned upon the single exception above set forth.)</p> <p>The jury found the prisoner guilty of murder, and judgment of death having been pronounced against him, he appealed to the Supreme Court.</p>

This was a contest for letters of administration on the estate of Eliza Coleman, dec’d, commenced in the County Court of Stanly, and the following is substantially the case, as presented by the record:— David Kendall, the defendant, gave notice to the plaintiff to come forward and apply for administration on the estate of said intestate, and that he would make application at November Term, 1849, for the same as a creditor or claimant against the said estate, and as assignee…

This was a proceeding in bastardy, returned to the Court of Pleas and Quarter Sessions of Wayne county, in which Court the defendant pleaded that he was not the father of the child as charged. From' thence it was carried upon the appeal of the County Solicitor to the Superior Court, where it was tried before Manly, Judge, on the last Spring Circuit.

The defendant was indicted for obstructing a public highway. On the trial before his Honor Judge Settle, at Rockingham, at Spring Term, 1853, the only question was as to whether the road charged in the bill of indictment was a public highway or not — • the fact of its obstruction by the defendant not being denied.

Assumpsit for work and labor done, commenced by warrant before a Justice of the Peace, and upon appeal to the Superior Court, the defendant put in a plea in abatement, averring that “ the parties to said action are foreigners — that the said Henry Heckman was not at the time of the suing out of the original warrant in this case, is not now, and has not at any time been, a citizen of any of- the United States of America, nor a resident of any of the United States of America,…

Assumpsit, in which the plaintiff declared upon a breach of contract by defendant in not delivering three hundred barrels of rosin, and for money had and received. Plea — general issue.

This was an information, filed by the Solicitor of the Sixth Judicial Circuit against the defendants, as commissioners appointed under an Act of the General Assembly passed at the session of 1850-’51, to select a site for a permanent seat of justice for the County of Surry, to show cause wherefore writs of Prohibition and Mandamus should not issue against them, prohibiting their further proceedings in the sale of town lots, at a place selected by them, called DobsoN, and…

The plaintiff declared in case upon a count for wrongfully suing out an attachment, and in thover for the conversion of his working tools. Upon the plea of general issue, the case wa% .submitted to his Honor, Judge Baily, at Edgecombe, on the last Circuit, upon the following facts agreed between the parties:— The plaintiff was a carpenter by trade.

The plaintiffs, partners, obtained judgment in an action of debt, against the defendant and one Isaac Wells, at December Term, 1848, of New Hanover County Court, and issued execution; upon which the sheriff returned, at the March Term following, “ nulla bona. ’ ’ At June Term, 1849, the judgment was amended, nunc pro tunc, on motion of the plaintiffs, by striking out the name of Wells ; and thereupon Wells, as agent of the plaintiffs, made affidavit, and a ca. sa. issued,…

Ejectment, tried before his Honor, Judge Saunders, at Pas-quotank, at Spring Term, 1853, upon the following statement of facts agreed between the parties : Both the lessors of the plaintiff and the defendant claim title under Miles Brothers, deceased, to whom the land belonged.

David E. Baker died in 1844, leaving a will in which he bequeathed as follows: “ It is my will and desire that my whole estate, both real and personal, except such as it may be necessary to dispose of to pay my just debts, remain together as joint stock of my beloved wife and children, and my farm continued under the management of my executor for their support and education, and that each one, if a son, receive his distributive share when he arrives at the age of twenty-one…

<p>This was an issue of devisavit vel non, hied before his Honor Judge Saunders, at Spring Term, 1853, of Pasquotank Superior Court of Law. The paper writing offered for probate as the last will and testament of Sabina Williams, was, on the the trial of the issue, proved by the two subscribing witnesses to have been signed and published by the testatrix in their presence, and by them subscribed and attested in her presence a short time previous to her death, which took place in the fall of 1850 ; and that at the time of executing said writing, the testatrix was of sound and disposing memory. It was further proved, that the said Sabina, at the time of making the will, was of the age of eighteen years and seven months.</p> <p>It was admitted that the said will was not sufficient to pass real estate by reason of the testatrix not having attained the age of twenty-one years, and the probate was insisted on only as a will of personal estate. For the defendants, it was insisted that by virtue of the Act of 1840-41, the paper writing not being valid to pass real estate, was also invalid to pass personal estate.</p> <p>His Honor being of opinion that the testatrix was capable of making a will to pass personal estate, notwithstanding the Act of 1840-41, so instructed the jury; and. from a verdict and judgment accordingly, establishing the paper, the defendants appealed to the Supreme Court.</p>

This was an action of debt, brought by the plaintiff, as chairman of the Board of Superintendents of Common Schools for Currituck County, against the defendant, Dozier, on his bond as. Sheriff of that County, and his sureties.

<p>A copy, however authenticated, of a will proved and recorded in another State only, is not evidence of a devise therein contained of lands situate in this State.</p> <p>(The case of Ward et al. v. Jiearnc, ante 134, cited and approved.)</p>

<p>By an appeal from the judgment of the County Court upon a petition to lay out a public road, the Superior Court acquires full possession of the cause, with power to proceed to a final hearing and judgment.</p> <p>Therefore, when the Comity Court dismissed such a petition, and the petitioners appealed, it toas held, that the Judge of the Superior Court, being of opinion that the prayer of the petition oughtto be granted, properly ordered a jury to lay out the road, instead qf awarding a procedendo to the County Court.</p> <p>(The cases of Lealh v. Summers, 3 Ire. 108; Welsh v. Picrcey, 7 Ire. 365, cited and approved.)</p>

This was an action of ejectment, upon the several demises of Benjamin Leggett and Lembury James, tried before his Honor, Judge Bailey, at Martin, on the last Spring Circuit.

This was a rule against the defendants to show cause wherefore the records of the Superior Court of Bertie should not be amended under the following circumstances, upon which the plaintiffs’ application was founded : It appeared that a paper writing purporting to be the will of one Christiana Freeman was offered for probate by the plaintiffs, at the February Sessions, 1842, of the County Court of Bertie, when a caveat was entered thereto by some of the defendants, who were…

<p>Ejectment, tried before Settle', Judge, at Orange, on the last Spring Circuit, upon the following statement of facts, as of a case agreed between the parties :</p> <p>The tract of land originally belonged to one Joseph Woods, deceased, who devised the same as follows :—</p> <p>“ I give to Lambert Woods, my grandson, the tract of land “ whereon I now live and reside, containing two hundred and “ twenty-five acres, more or less, provided the said Lambert “Woods shall pay to my grandson, Eli Woods, son of John “Woods, deceased, the sum of three hundred dollars.”</p> <p>Eli Woods died in the lifetime of the devisor, and Lambert Woods, the lessor of the plaintiff, claims under the foregoing clause of his grandfather’s will, and before the commencement of this suit, tendered the three hundred dollars therein mentioned, to the defendants, who are the executors of Joseph Woods, and in possession of the premises, holding the same for the purposes of the will.</p> <p>His Honor, the presiding Judge, was of opinion that the lessor of the plaintiff was entitled to recover, and after verdict and judgment accordingly, the defendants appealed to the Supreme Court.</p>

This was an action of trover brought to recover the value of a quantity of lumber. Plea — general issue.

This case was commenced by warrant against the defendant, who was a constable, and carried by appeal to the Superior Court, where, at Spring Term, 1853, at Martin, it was tried before Bailey, Judge. On the trial, it appeared that a note for $6.IT, against one Carroway and Ausbom was placed for collection in the hands of the defendant on the 3rd of February, 1844. That the defendant who gave a receipt for the said note, was constable for the years 1844r-5~6.

This was a petition for a writ of recordari, in which the plaintiff alleged that the defendants, Avery and Jordan, owed him a debt of $55., due by their joint bond ; that on 13th February, 1851, he procured a warrant to be issued against the defendants, and placed the same in the hands of one Hasket, a constable, with directions to execute the same and have a trial thereof.

It appears from the transcript of the record that the plaintiff had obtained a judgment quando against the assets of the defendant’s intestate ; and this was a scire facias to renew the same, and suggesting that assets had come to the defendant’s hands. The following are the facts agreed between the parties : Sundry Justices’ Judgments amounting to $250 and more were rendered against M. A. Causey, and William Coltrane, the defendant, became surety for the stay of execution.

This is the same case that is reported in 11 Ire., 135, and for a statement of the facts, the Reporter refers to the opinion of the Court as there given. At Anson, on the last Spring Circuit, his Honor, Judge Ellis, awarded alternative writs of mandamus to each of the relators, from which order, tlié defendants prayed an appeal to the Supreme Court, which was granted.

This was an action of trespass, tried before Battle, Judge, at Spring Term, 1852, of Hyde Superior Court. The defendant drew out his pleas at length, justifying the trespass: 1, as servant of the President and Directors of the Literary Board; 2, as servant of the President and Directors, &c. and of others, tenants in common of the premises ; 3 and 4, under the sheriff of Hyde.

This was an action on the case in tort, tried before his Honor, Judge Battle, at Spring Term, 1852, of the Superior Court for Washington county. The following are the facts sent up from the Court below : “ On the trial, the plaintiffs provéd that in the month of December, 1848, they and the defendant were owners of a vessel; the plaintiffs owning three-fourths, the defendant, one-fourth.

This was an action of ejectment, tried at Currituck Superior Court, Spring Term, 1853, before his Honor, Judge Saunders. On the trial the plaintiff proved that the land formerly belonged to one Baxter, and that at his decease it passed into the possession of his daughter Mary.

This was an action of debt tried before Manuy, Judge, at the Special Term of Beaufort Superior Court, in January 1853. The plaintiff declared as assignee of two bonds, which were admitted to have been made in Baltimore’, in the State of. Maryland, by the defendant, who resided in North Carolina, and that they were in Baltimore delivered to the payees, who resided there.

This was an action of debt, brought upon the official bond of tbe defendant Bean, a constable. Plea — general issue. . Upon the trial, at Montgomery, on the last Spring Circuit, before his Honor, Judge Dick, .it appeared that the relator was one of the sureties to the bond sued upon ; although the writ had been executed upon the principal and other sureties only. The defendants insisted under such a state of facts, the plaintiff could not recover.

<p>This was an action on the case for slander, in charging the plaintiff with bestiality. The pleas upon the record were — general issue — justification—stat. limitations — accord and satisfaction and confidential communication.</p> <p>On the trial, before Saunders, Judge, at Perquimons, on the last Spring Circuit, the plaintiff, after the examination of several witnesses, offered to prove a good character for himself; but this testimony being objected to, was ruled out. The defendant offered no evidence. As to the testimony ruled out, his Honor charged the jury that he had excluded the evidence of character, because , all men were presumed to have a good character, until the contrary appeared ; that they were to take the plaintiff as a man of good character.</p> <p>The jury found a verdict for the plaintiff, assessing his damages at fifty dollars ; whereupon the plaintiff’s counsel moved for a rule to show cause why a new trial should not be granted ; the rule was discharged, and the plaintiff appealed.</p>

This was an action of debt, tried before his Honor, Judge (Saunders, at Currituck, on the last Spring Circuit. Upon the trial in the Court below, the material facts attending which are sufficiently set forth in the opinion delivered by this Court, the plaintiff, on an intimation of his Honor, submitted to a nonsuit; and after a motion for a new trial, which was refused, he appealed to the Supreme Court.

This was an action of ejectment, tried before Saunders, Judge, at Spring Term, 1853, of Chowan Superior Court. The lessors of the plaintiff deduced title from one William R. Skinner, by sheriff’s deed, under executions against said Skinner. One Miles Wright had purchased at the sheriff’s sale, and had subsequently conveyed to the lessors.

This was an action of assumpsit, tried before Manly, Judge, at Jones, on the last Spring Circuit. The declaration contained three counts : 1, for goods sold and delivered ; 2, on a special contract; 3, for work and labor done.

This was an indictment for murber, tried at Spring Term, 1853, of Wake Superior Court, before his Honor Judge Bailey. The facts of the case are sufficiently set forth in the opinion delivered by the Court.

This was-an action in ejectment, tried at Fall Term, 1852, of Washington Superior Court. The plaintiff showed title in right of the feme lessor, (she having intermarried with the other lessor,) to one undivided moiety of the premises, as tenant in common with the defendant.

<p>This was an action of debt, originally commenced by warrant, and carried by successive appeals to the Superior Court of Washington county.</p> <p>On the trial, before his Honor Judge Manly, at June Term, 1853, the plaintiff exhibited in evidence a bond executed by the defendants, and proved its due execution. To sustain the plea of payment, the defendants introduced one James E. Rhodes, who testified that after the bond became due, and before suit, he had a conversation with the, plaintiff Rhodes, and that the plaintiff stated, that he had borrowed notes of the defendant, J. B. Chesson, and that he was to pay him- again in notes, and that the bond now in suit, was to be one of them. The amount borrowed of Chesson was proved to be upwards of $200. At the time these notes were borrowed, no note or obligation in writing was given, and the bond now in suit was then due.</p> <p>His Honor was of opinion that the substance of the agreement thus concluded, was that the plaintiff became indebted to the de= fendants, upon borrowing the notes in question, to the amount of the notes less the amount of' the one in suit, and the effect therefore was, the extinguishment or payment of said note. Upon this intimation of the opinion of his Honor, the plaintiff submitted to a nonsuit. Rule for a new trial — rule discharged, whereupon the plaintiff appealed to the Supreme Court.</p>

This was an action on the case', with a count in trover— pleas, general issue — statute of limitations.. It was in proof on the part of the plaintiff, that the defendant, living in Washington county, and owning a slave named Jerry, in the beginning of the year 18-, hired Jerry for that year to one Ray, on the terms, among other things, that he was not to be carried out of Washington county.

This was an action of ejectment, tried at Spring Term, 1853, of Currituck Superior Court, before Saunders, Judge. The lessor of. the plaintiff shewed title under a deed to himself and the defendant, and made the other necessary proof.

<p>However untecbnical and ungrammatical a deed may be, yet it may be valid, if its words declare sufficiently and legally the party’s intention.’ Therefore, where by a very informal deed, A. “in consideration of good will and affection for bis son-in-law H.,” gave him certain slaves, and then followed this clause: “I also appoint H. agent of the following property, to wit,” (mentioning certain slaves,) “ and the following tracts of land,” (describing them,) “to be to use and benefit of my daughter C.,” &c.: — It was held, that the intention to give the land to the daughter being plain, the deed might operate as a covenant to stand seised, either to the use of H. as trustee for C., or to the use of C.; and quacumque via, the title had passed from A., and he could not recover in ejectment against H.</p> <p>(The cases of Bronson v. Baynter, 4 Dev. & Bat. 393 ; Armjicld v. Walker, 5 Ire. 580; Spiñngs v. Hawks, ibid, 30; Davenport v. Wynne, 6 Ire. 129; Brooks v. Rat-cliff, 11 Ire. 321; and Kea y. Robeson, 5 Ire. Eq. 373, cited and approved.)</p>

This was an action of detinue, in which the grantor, in the paper writing forming a portion of the statement of the case immediately preceding this, sought to recover the slaves mentioned in the second part of that paper writing, and their increase. The parties are substantially the same in both clises, and the Reporter refers to the former statement for the facts necessary to the understanding of the opinion in this case.

<p>Where a sheriff sells lands under several executions, and the sale is rightful under one, though unlawful under the others, the purchaser acquires a good title.</p> <p>A sheriff having in his hands several executions against A. levied upon lands and other,* property for their satisfaction. One of these executions had been assigned to indemnify the sheriff and two others against loss as sureties of A., and it was agreed between the sheriff and his co-sureties, that one of them should bid off the property, if it should sell low, for their common benefit; under this agreement the land was bought: — Held, that the agreement was not fraudulent, or otherwise unlawful, and did not vitiate the sale.</p> <p>(The cases of Seawellv. Bank of Cape Fear ,3 Dev. 279; Cherry v. Woollard, lire. 43S; Haitan v. Hem, 3 Mur. 260; Smith v, Kelly, ibid 507; Blount v. Davis, 2 Dev. 19; and Smith v, Greenlee, ibid 126, cited and approved.)</p>

This was an indictment for murder, tried at Spring Term, 1853, of Northampton Superior Court, before Bailey, Judge. , On the trial, a witness for the prisoner, was asked upon his cross-examination by the Attorney General, whether he had not been indicted, convicted and whipped, in the County Court of Warren, for stealing. The witness was informed by his Honor, that he was not bound to answer the question unless he chose to do so, and he declined to answer.

<p>This was an action of trover for a slave, and to it (he defendant had pleaded — not guilty.</p> <p>At the trial before his Honor, Judge Settle, at Rockingham, •during the last Spring Term, it appeared that the plaintiff claimed under a bill of sale, including several other slaves, made to him by one Bayloss Lynn, on the 23d of May, 1840, it being Saturday before Rockingham County Court. The consideration recited therein, was one thousand dollars, but no money passed at that time, the real consideration being debts due by Lynn to the plaintiff, and risks incurred by the plaintiff as surety for Lynn. No settlement of their accounts took place at that time between the parties, nor was anj^ credit given, as for money received, by the plaintiff to Lynn — the latter, as he testified, trusting to the plaintiff’s honor for a proper application of the money. The bill of sale was attested by only one witness, who proved that he had not subscribed his name as a witness until during May Court, 1844. It also appeared that at the time of making the bill of sale, Lynn was indebted to a larger amount than he was worth, and that several suits for debt were then pending against him. It was admitted that after receiving the bill of sale, the plaintiff had paid off debts due by Lynn — in which he himself was interested — to the full value of the slaves conveyed to him.</p> <p>The defendant claimed by purchase under an execution issuing in a suit by himself against Lynn, upon a bond dated September 9th, 1839, on which judgment was obtained at May Term, 1840, of Rockingham County Court. Upon that judgment executions had issued regularly up to February Term, 1844. At August Term, 1846, judgment was had on a scire facias issued to revive the former judgment, and upon this executions issued regularly up to February Term, 1849. Under the last of these, this slave was sold, and bought by the defendant. The defendant further shewed in evidence a deed in trust, made by one Elizabeth Lynn, in 1842, conveying the slaves included in the bill of sale — she then owning a life estate in them — to Rayless Lynn as trustee to sell and pay certain debts ; and this deed was executed by the trustee. Elizabeth Lynn died in the year 1845.</p> <p>The defendant asked the Court to charge, that the bill of sale from Lynn to the plaintiff was fraudulent as to all creditors of Lynn : 1 stly, for want of a subscribing witness at the time it was made, this defect not being helped by what took place in 1844 : 2ndly, from the testimony offered by the plaintiff, if believed by tire jury : 3rdly<¡ if they believed that Lynn, being deeply involved, conveyed the negro away, receiving nothing at the time, and estopping himself from collecting anything at law. He also insisted that if the plaintiff was entitled to recover anything) it was only the value of the negro at the time of conversion, without interest.</p> <p>His Honor charged the jury that the bill of sale, as it stood until it was subscribed, although good as between the parties, was void as to creditors ; but that, if the jury believed that the plaintiff, before the subscription of the witness, and before the time at which defendant’s judgment was taken, had paid debts due by Bayless Lynn, to an amount equal to the consideration recited, and that the contract of 1840 was bona fide, the plaintiff would be entitled to recover, and that he was not estopped by the deed in trust executed in 1842. His Honor declined to give the instructions prayed for by the defendant, but told the jury that the circumstances detailed in the evidence were fit for their consideration, and if these shewed that the object of the bill of sale was the hindrance of Lynn’s creditors, or the securing of any ease to «himself, it was fraudulent and void, and then the plaintiff was not entitled to recover. The plaintiff had a verdict and judgment, and the defendant appealed.</p>

This was an action of ejectment, tried befóte Manly, Judge, at the Spring Term, 1853, of Beaufort Superior Court. The following is the case agreed, upon which, in the Court below, judgment was entered for the plaintiff: The will referred to above, which the opinion delivered by this Court renders unnecessary to insert here at length, consisted of eleven items, and two codicils, by which a large estate was disposed of. By the sixth item it disposed of certain mills.

<p>A. made a parol contract to purchase of B. a tract of land at an agreed price, and B. further agreed that he would put certain repairs on the premises, before the first of January ensuing. Afterwards, and before that day, B. delivered to A. the deed for the land, renewing the promise to make the repairs. The repairs not being made, A. brought assumpsit to recover damages, and on the trial offered to prove the agreement by a witness, when it was objected that the deed was the only legal evidence of the contract between the parties: — Held, that the proof was admissible, the deed being an execution of one part of the agreement, the other having been left in parol $ so that the proof offered was not to add to, alter or explain the deed.</p> <p>(The case of Tmdy v. Saunderson, 9 Ire. 5, cited and approved.)</p>

This was an action of assumpsit, against the defendant, as endorser of a bill of exchange. Pleas — general issue-, payment and statute of limitations, The bill in suit had been protested for non-acceptance in the city of New-York, and the question before the Court below was as to tbe sufficiency of the notice given to the defendant.

<p>Where a sheriff returned an execution, endorsed (t Enjoined:” — Held, that the return was sufficient.</p> <p>(The cases of Forsyth v. Sykes, 2 Hawks, 54; Governor r. Bailey, 3 Hawks, 463; Tagert v. Hill, Con. Rep. 164, and Edney v. King, 4 Ire. Eq. 465, cited and approved.)</p>

<p>This was a rule against the defendants to show cause why a constable should not be allowed to amend his return of a levy of a Justice’s execution on land, returned to the County Court, so as to make the description comply with the requirements of the statute. Upon an appeal from the County to the Superior Court, the case was tried before Ellis, Judge, at Haywood, on the last Spring Circuit, when the following appeared to be the facts shown by the transcript of the record sent up to this Court: — ■</p> <p>“ The levy of the constable was endorsed upon a Justice’s judgment in the following words : — c Levied this execution upon Leonard Higdon’s land, lying on Carny Fork.’ It appeared that under this levy, after it had been returned to the County.Court, and an order of sale obtained, the land was sold by the sheriff, and one John B. Allison became the purchaser, at $115. It appeared also, that one Chasteen had the legal title previously to that time, and had contracted with the defendant, Leonard, for the sale of it, and that the latter had paid the price agreed on, but had not taken a deed when the said levy was made. On the part of the defend* ants in the rule, it appeared that Samuel, the son of Leonard, had made a contract with his father for the purchase of his interest in said land, and that in pursuance of this agreement, and by the direction of Leonard, the said Chasteen had, after the sheriff’s sale, accordingly made title to the'land to Samuel.</p> <p>“ One Coward testified.that the lands were as well identified in said levy, as they would be by a strict compliance with the words of the statute ; that no other land ^adjoined them, except that of the State, known as the ( Speculation claim,’ covering a large tract of country, and that Leonard Higdon then lived on said land and had no other in the county so far as was then known ; that since that time he had seen a deed to him for other lands on Carny Fork, but this was not generally known at the time of the levy. Another witness testified that the land was as well identified in the levy, as it would have been by adopting the words of the statute, and the public generally knew the land in question by the description in the levy. Higdon lived on it at the time, and so far as was generally known, had no other land in the county.</p> <p>“ Another witness testified, that as agent of J. B. Allison, he went to the defendant, Leonard, soon after the sale, and told him he might redeem the land by paying what it sold for, or that Allison would buy from him, by increasing the price to what the land was worth: Said Leonard replied, he had not the money with which to redeem the land, and that he must sell it. And it was then agreed between them, that the land was worth $325, which sum the witness paid to him for said Allison, it including the amount bid at the sale. Thereupon said Leonard surrender* ed the possession to Allison, who conveyed to the plaintiffs ; and his deed was exhibited.</p> <p>“ It also appeared in evidence, that an action of ejectment, by Samuel Higdon, against the plaintiffs, for the premises in question, is now pending in the Superior Court of Haywood county, and has been pending for several years.”</p> <p>The defendants’ counsel objected to the. amendment, for that the Court had not the power to make it — that it could not take cognizance of it upon the case sent up from the County Court— and that if it had the power, the evidence did not warrant its exercise here.</p> <p>His Honor gave judgment making the rule absolute, and the defendants appealed to the' Supreme. Court.</p>

This was an action of COVENANT, brought upon the deed of bargain and sale, executed by the defendant in 1834, conveying to the plaintiff a tract of land. Pleas — covenants performed, and not broken.

Petition to change the public Road, leading from Wades-borough to Concord, at the ford on Rocky River, in Union county. Held: without deciding the question as to whether the same would be injurious to the defendant, that the Court had no power under the Act of Assembly and the Constitution of the State, to grant the prayer of the petition ; and from this judgment accordingly, dismissing the same, the petitioners appealed to the Supreme Court.

This was an action of trover for money, tried before his Honor, Judge Caldwell, at Rowan, on the last Spring Circuit. Plea — general issue.

This was an action, commenced by a warrant before a justice of the peace, in which the plaintiff declared for a debt due by a former judgment, rendered the 28th February, 1851.

Tens was an acti’on on the case for malicious prosecution in the siring out á State’s warrant charging the plaintiff with a lar» ceny, and was tried upon the plea oí general issue before Ellis, Judge, on the last Spring Circuit, at Rutherford.

This was an action on the case por a malicious arrest of the plaintiff in ,a civil suit, at the instance of the defendant. Pleas — not guilty — -justification.

This was an actioN on the case, in which the plaintiff declared in tort for an injury done to his horse whilst in the defendant’s possession — Plea, not guilty. Upon the trial before Caldwell, Judge, at Ashe, at Spring Term, 1853, the case was :— The defendant had purchased from the plaintiff the horse in question at the price of eighty dollars, and executed his note for that sum.

This was an action of debt commenced by warrant before a justice of the peace, and afterwards carried by appeal to the Superior Court of Law of Wilkes, where, at Fall Term, 1S52, it was tried before his Honor Judge Caldwell. The pleas were general issue — ne unques executor — fully administered ; and the plaintiff replied that the defendant was executor deson tort.

This was an action of trespass for mesne profits, after a recovery in ejectment, and was brought in the joint names of John Den and W. A. Blount and others. Plea — general issue.

The defendant was tried before his Honor Judge Dick, at Pall Term, 1851, of Macon Superior Court of Law, for the crime of perjury.

Ejectment for a tract of land situate in Cherokee county, tried before his Honor, Judge Ellis, at Spring- Term, 1853, of the Superior Court of that county.

Debt upon a former judgment, rendered by a Justice of the Peace — Pleas—general issue — former judgment. Upon the trial, before Ellis, Judge, at Yancy, on the last Spring Circuit, the case was as follows : — The plaintiff had obtained a judgment for the amount - of his claim against the intestate of the defendants, who, upon the trial before the magistrate, without contesting the claim, made a suggestion of u no assets,” which was entered by the magistrate on the warrant.

The defendant was indicted for selling spirituous liquor to a slave charged in the bill of indictment as the property of one William Michaels.

This was a suit commenced by attachment before a Justice of the Peace, in which the plaintiff declared, 1, for money had and, received to the use of the plaintiff, and 2,. for money paid at the request of the defendant. The defendant appeared, and the case was carried by successive appeals to the County and Superior Courts of Macon county, where upon the plea of the getieral issue, at Spring Term, 1853, it was tried before his Honor, Judge Ellis.

This was an action of debt upon a promissory note of the defendant for two hundred dollars, due twelve months after date, and dated 4th October, 1838. Pleas — general issue — fraud— want of. consideration in the note — consideration against the policy of the law — statute of limitations.

Ejectment, tried before Baily, Judge, at Madison, at Pall Term, 1852.

Assumpsit, commenced by warrant before- a magistrate, in which the plaintiff declared upon a special contract and upon a quantum meruit for services rendered in keeping, taking care of, and boarding a helpless old negro woman that had once belonged to the father of Mrs. Gray, wife of the defendant’s testator.— Pleas — non assumpsit — statute of limitations.

<p>assumpsit upon the following instrument:</p> <p>“ Davidson’s River — Sept.</p> <p>$78. Due Ezekiel McCall, seventy-eight dollars for value received.</p> <p>(Signed) GEO. CLAYTON, Agt. for</p> <p>Davidson’s River Mr. Company.”</p> <p>The defendant pleaded non assumpsit; and on the trial before his Honor Judge Ellis, at Henderson, on the last Spring Circuit, it appeared that the articles of property for which the due bill was given were furnished by the plaintiff to Davidson’s River Manufacturing Company, and used by them ; but the plaintiff contended that the defendant had become personally liable, acting at the lime as the agent of said Company. By consent of the parties, a verdict was returned for the plaintiff subject to the opinion of the Court upon the question of the plaintiff’s right to maintain the action ; and his Honor, upon consideration of said question reserved, being of opinion that the defendant was a stranger to the consideration, and simply the agent of the Company, and as sucli not personally liable on tbe bill, set aside the verdict, and entered a judgment of nonsuit, from which tbe plaintiff appealed to tbe Supreme Court.</p>

This was an action of assumpsit, brought on the defendant’s assignment of a note under seal. The following are copies of the note and assignment:— “Due Newton'& Hayes nine hundred and thirty-seven dollars — six hundred and sixty-three dollars and seven cents to be paid to J. M. Martin when called upon, and the balance to be paid to said Newton & Hayes for value received of them. Witness my band and seal, 5th July, 1851.

<p>The defendants, William Melton and Jesse Melton were indicted for larceny in the Superior Court of Buncombe, and liad respectively given their bonds in the usual form to appearand answer the said charge, at the Superior Court of said county, on the first Monday after the fourth Monday of March, 1853. At Spring Term, 1853, the indictment was tried and the defendants convicted ; who being thereupon called to answer the judgment of the Court, failed to appear. Mr. Solicitor Burton moved for judgment nisi against each of said defendants and their sureties for the sum of five hundred dollars, the penalty of their appearance bonds ; but his Honor, Judge Ellis, before whom the matter was moved, being of opinion that, as the Act of 1852 changed the time of holding said Court to the second Monday instead of the first, the defendants had not forfeited their recognizances, and he accordingly refused to allow the motion ; -.and the Solicitor for the State appealed to the Supreme Court.</p>

The defendant was indicted and tried before his Honor, Judge Caldwell, at Catawba, at Fall Term, 1852, for the offence of buying and receiving from a slave fen pounds of Iron. The indictment concluded against the form of the statutes; and, after conviction, the defendant’s counsel moved in arrest of judgment on account of this defect — insisting that there was but one statute subjecting the defendant to indictment.

This was an action of debt, commenced by warrant before a Justice of the Peace to recover from the defendant a penalty pf twenty-five dollars, for violating an ordinance of the town Council of Lincolnton, as alleged by the plaintiff.

<p>In an indictment against a Justice of the Peace, for corruption in an act done in virtue of his office, it is not sufficient to charge that the act was done corruptly; the facts must be set out in which the corruption consists.</p> <p>It is a misdemeanor in office, for a Justice of the Peace to sell or transfer a judgment rendered by himself or by any other Justice, if in his possession, mrtute officii, the law making it his duty to keep and preserve such judgments.</p> <p>(The case of Cunningham v. Dilliarcl, 4 Dev, & -Bat., 351, cited and approved.)</p>

The prisoner was indicted and tried before his Honor, Judge Caldwell, at Lincolnton, on the last Spring Circuit, for the murder of his wife, alleged in the bill to have been committed by means of choking, suffocation and strangling. The following is the case sent to this Court as made out by the presiding Judge :— u On the trial, it was alleged by the State that the parties had lived very unhappily together.

This was an action of trover for three slaves — Plea—not guilty — tried before his Honor, Judge Ellis, at Spring Term, 1853, of Lincoln Superior Court of Law, to which county the case had been removed from Cleveland county.

This was a proceeding by the plaintiff to have his land processioned according to the provisions of the 91st ch. of the Revised Statutes, as follows: — At March Term, 1849, of the County Court of Uenderson, George Orr, the processioner of that county, made a report, wherein he stated, that at the instance of the plaintiff he proceeded, on the 13th day of January, to procession the lands of the plaintiff, (it appearing that due notice had been given to the adjoining…

This was an issue of devisavit vel non, upon a paper writing dated 27th February, 1830, purporting to be the last will of John Kirby, and to convey both real and personal estate, and attested by James Kirby, Nancy Stanly and Thomas Isbell, as subscribing witnesses.

Ejectment for a tract of land situated in Rowan, and tried before Manly, Judge, at Fall Term, 1851, upon the following statement of facts as of a case agreed :— “Both parties claimed title under one Williams, who held a leasehold interest for ten years to the' premises in dispute.

This was an action of ejectment; tried before his Honor, Judge Caldwell, at Ashe Superior Court of Law, at Spring Term, 1853. The lessors of the plaintiff offered in evidence a grant to their ancestor for fifty acres of land, issued in 1834, and proved that the defendants were in possession of about one acre of it, and had been so in possession for six or eight years.

This was an action of ejectment. The lessor of the plaintiff, at the appearance term, on the return of the declaration, filed an affidavit, under the Act of Assembly, that “ the defendant entered into the possession of the premises in dispute, under his tenant¡ as tenant at will, and that before the commencement of this suit, possession had been demanded from the defendant, who refused to surrender itand he objected to the defendant’s being allowed to plead until he had…

This was an action of ejectment, tried before his Honor Judge Dick, at the Special Term of Buncombe Superior Court of Law, in June 1853.

The defendant, Barnes, had issued an attachment against the plaintiff, Sluder, for the sum of one hundred dollars due by bond at interest, and the same was made returnable before a Justice of the Peace ■, but was by the Justice returned to the County Court of Buncombe county; and after due advertisement, according to the order of said Court, a judgment by default final was entered up against the plaintiff, according to the specialty sued on, and condemning a tract of land…

The defendant had obtained a writ of recordari to have brought up to the Superior Court of Rowan the record of a warrant and judgment against him, rendered by a Justice of the Peace ; and this was an application by him, on the return of the writ, at Fall Term, 1852, of said Court, to have the cause placed upon the docket. It appeared that the plaintiff obtained a judgment before a Justice of the Peace against the defendant, who prayed an appeal to the Superior Court.

This was a petition for dowee, filed against the defendants, heirs at law of one William Pinner, in which the petitioner alleges that she is the widow of said William, and that he died intestate and seised of certain lands in Buncombe, of which she is entitled to her dower.

<p>This was a scire facias against the defendant to enforce the forfeiture imposed by the Act of Assembly for his non-attendance as a witness. It appeared that the defendant was summoned as a witness for the plaintiff in a suit pending in the Superior Court of Mecklenburg county ; and he was also summoned to attend as a witness in a suit pending in the County Court of Surry county, and which was for trial the same week with that of the Superior Court of Mecklenburg. The subpoena from Mecklenburg was first served on the defendant. He attended as a witness under subpoena at Surry, and could not attend both Courts-the same week. The only question was, did his attendance at Surry excuse his non-attendance at Mecklenburg.</p> <p>His Honor Judge Bailey, before whom the case was tried, at Mecklenburg, at Spring Term, 1852, was of opinion with the defendant, and having given judgment accordingly, the plaintiff •appealed to the Supreme Court.</p>

This was an action of debt, brought on the relation of the plaintiff, upon the bond of the defendant, as his guardian. Pleas — accord and satisfaction and payment.