Volume 46 — North Carolina Reports

This was an indictment for an assault and battery, tried before Settle, Judge, at the Fall Term,, 1853, of the New-Hanover Superior Court.. The defendants were convicted and sentenced to imprisonment, but no fine was imposed. An appeal to the Supreme Court was prayed and granted.

<p>Whore it is admitted, that to bind a defendant, an express promise must be proved : it is not necessary to prove a promise in so many words, but.it maybe left to a jury, from words previously used, whether the defendant had not given authority to others to assume for him.</p>

This is an action of trespass,, quare clausum ere&iT), tried before Ms Honor, Judge Settle, at the Eall Term, 1858, of Cumberland Superior Court.,' Plea:. general issue., The plaintiff declared upon a grant from the State, which includes the locus in quo — the grant contained the following' exception: “ Including two hundred and fifty acres previously granted, which is excepted in this grant.” $It was admitted, that the plaintiff was not in actual possession.

INDICTMENT for a Rape, tried at Fall Term, 1858, of Johnston Superior Court, before his Honor Judge Manly. The female upon whom the violence was alledged to have been committed, was one Martha Cone,’ the daughter of the prisoner, about 17 years old, delicate in person, uneducated and ignorant, and residing with her father. Her mother had died in her early infancy, and her father had married a second time.

'Appeal from the Superior Court of Guilford, at Fall Term, 1853, his Honor Judge SauNDERS, presiding. Action on the case of obstructing plaintiff’s private way, in the town of Greensborough. The plaintiff, and those under whom he claimed, had held possession of his lot, which was enclosed up to the border of this alley or way, from the year 1818 up to the time of its obstruction, shortly before the bringing of this action.

<p>An issue is sent to be tried before i\ Court of Law for the purpose of aiding this Court in the ascertainment of facts. The Court of Law can take no action upon the finding of the jury; but simply returns the verdict with his notes of the trial to this Court. When taken up for further directions» the Supreme Court will pass upon the regularity of the proceeding oí the lower Court from the Judge’s statement, and order another trial or not, as it may seem expedient. v \</p> <p>An ACTION is ordered to be tried in a Court of Law, where the equity is based upon a disputed legal right, or where the defence set up, involves a legal right. Certain conditions are usually imposed on the parties,</p> <p>But, besides these, the whole .course of the trial, is according to the rules governing the Court of Law. That Court may grant a certiorari, or a now trial, order a removal, allow an appeal, &c. When the judgment is finally rendered in the Court of Law, it proceeds no further, but ieertifies the matter to this Court, for its action upon the same.</p>

This was an action-of assumpsit upon a guaranty, tried before Bailey, Judge at Fall Term, 1853, of .the Superior •Court, for Carteret County. The defendant excepted upon two grounds. First, bo-'•cause the Court permitted the plaintiff to prove the consideration of the guaranty, by parol .evidence. Tbe second ground Is sufficiently stated in tbe opinion of ■the Court. A verdict was rendered -for tbe plaintiff. Rule by defendant for a venire, de novo..

Action of assumpsit, tried before bis Honor Judge Saunders, at Fall Term, 1853, of Davidson Superior Court.

This was an action on the case for obstructing a PRIVATE way. The plaintiff claimed on two grounds: 1st, by prescription, and 2d, by a user for twenty years, from which the law presumed a grant.

This was an action on the case for the fraudulent removal of a debtor, tried before his Honor Judge SaüNDERS, at Eorsythe Superior Court, Fall Term, 1853. In order to show that the plaintiff was a creditor of the person removed (one Whicker), it was proved, that Whicker had a note in the Bank at Salem, for $5000, with the plaintiff and one Preston as his sureties, which was reduced by payment made by Whicker himself, to $2323 12 cents.

for a penalty brought by successive appeals to the Superior Court of Wake County, and tried before bis Honor Judge MaNLY, at Fall Term 1853, of that Court.

This was an action of -troves, tried before Settle, Judge,at the Spring Term, 1853, of Alamance Superior Court-The plaintiff bought a mare from on'e Andrews, conveying' to him a tract of land in payment.

This was an indictment for selling spirituous liquor to Charles, a slave, the property of William Norfleet, tried before Manly, Judge, at the Pall Term, 1853, of the Superior Court, for Edgecombe County. The defendants pleaded “not guilty.” The proof was, that they had sold spirituous liquor to said slave, under a written order from his master, as follows: “Messrs.

This vms arL action of trespass, fried before Bailey, .Judge, at Spring Term, 1853, of tbe Superior Court for Wake county. The facts were agreed on, as follows;: The plaintiff, a carpenter, owned a set of tools, «with which he carried on his trade, in the county of .Chatham. Whilst absent from the county, these tools were seized and sold by the defendant Fogleman, a constable, under an :attachment sued out by the defendant Whitehead. The plaintiff did not appear •to replevy.

This was a scire facias before Judge Saunders, at the Fall Term 1853, of Rockingham Superior Court. The plaintiff and one Jane Sanders, mother of the defendant, were co-sureties on a bond of Luther Linder, dated 5th Jan. 1842.

Ejectment tried before his Honor, Judge Manly, at the .Fall Term, 1853, of Northampton Superior Court. The land in question, it was .conceded, had been the property of Ann Eliza Bolton.

Sarah Cobblar, the legatee mentioned in the following will, had intermarried with the other plaintiff, John W. Robertson, at the filing of this petition. The only question in the case arises on the construction of the will of John Parish which is as follows:— 1st. It is my will and desire, that all my just debts be paid by my executor, hereafter named. 2nd.

Term, 1853. His Honor, Judge Dick, presiding. This was an action of debt, commenced by warrant before a Justice of the Peace. The plaintiff declared upon a common promisory note, under seal, for $47. Pleas: general issue; payment. Upon the trial, the plaintiff offered to provo the loss of the note, by his own oath, and to swear he had no other means of proving it. The evidence ivas objected to and rejected. The plaintiff submitted to a non-suit and appealed.

Where a defendant is ordered into custody upon a conviction, until lie shall pay the fine and costs imposed by the judgment, and is permitted •by the Sheriff to escape, this is no discharge of the judgment. Appeal .from the Superior Court of Bladen, Fall Term, 1853. His Honor, 'Judge Settle, presiding.

This was an action on the case for slanderous words spoken,'tried before his Honor Judge SaüNDERS, at Fall Term, 1'853, of Chatham Superior Court.. Pleas: general issue and Statute of Limitations. The words complained of, were proved to hare been spoken on the 5th day of August, 1851. The writ on the case was issued on the 23rd of January, 185.2.

This is an action of apsuMpsit for goods sold and delivered, commenced in the County Court of New Hanover, carried by appeal to the Superior Court, and tried before his Honor Judge Settle. Plea: Statute of Limitations.

This was an issue of fraud under the Statute upon the return of a ca sa, tried before his Honor, Judge Ellis, at Fall Term, 1853, of Washington,Superior Court. Among other specifications, was one for concealing money beyond ten dollars in amount. It was proved by the plaintiff that a certain amount of money had been received by the defendant shortly before the issuing of the ca sa.

Action of Trespass, Assault and Battery, tried before his Honor Judge Ellis, at the Fall Term, 1853, of Pasquotank Superior Court, The battery complained of, was a blow inflicted upon the head of the plaintiff with a stick, and was made in the' Court. It ensued upon the occurrence of an angry conversation between the parties, and no justification was alleged.

<p>ACTION on the case, in the nature of waste, tried before his Honor Judge Saunders, at the Camden Superior Court, Spring Term, 1858.</p> <p>The plaintiff showed title to the premises by descent from Malachi Dozier. Dower had been assigned to the widow 0‡ his ancestor by metes and bounds, including the building in relation to which this action was brought. The widow of Malachi Dozier, after this assignment, intermarried with the defendant, who took possession of the premises; and continued to occupy them until'the death of his wife, which occurred-just before the bringing of this suit. The defendant, during his occupaney, removed a small house used as a poultry house, worth about five dollars, which the defendant had placed upon the premises after he came info possession. There was a small house on 'the land used for the same purpose when the defendant entered.</p> <p>There was also on the premises a dwelling house, built in 1800, which the defendant occupied during the life of his wife. This had been thoroughly repaired in 1825, except that the shed could not he prevented from leaking. Upon this house the defendant'did no repairing during his- occur pancy, and it was in a worse condition when he gave it up than when he took possession. Many of the window sills, both above and below, were decayed; the floors also were decayed ; one window was suffered to remain without glass for some time before, and up to the time of surrendering the possession, through which the rain drove in and contributed to the rotting of the floors, though this was chiefly caused by the leaking of the shed roof. This building would have been much more valuable if it had been repaired in proper time. There were two old kitchens on the premises, which were out of repair at the death of Dozier, upon neither of which was any repairing done by defendant, and they continued from decay to decline in value until he gave up his possession. Ono of these had become entirely useless, and the roof connecting the other with the dwelling house had been blown down in a storm. The decay in these kitchens had been general, and was produced by natural causes.— There were also on the premisos stables and a quarter kitchen, which were in abetter state of repair when the defendant surrendered possession thaii when he took it.</p> <p>The defendant was married to the widow in 1837, and had possession up to a short period before the bringing of this action. Malaohi Dozier died in 1835.</p> <p>1st. It was contended by the defendant that no action would lie against him,_ after the death of his wife, for waste done in her lifetime.</p> <p>2d. That he was not liable for permissive waste.</p> <p>3d. That ho was not liable for waste in removing the house which he had put upon the premises.</p> <p>The Court instructed the Jury that, notwithstanding the last two objections raised by the defendant, the plaintiff was entitled to recover. The first question raised by the counsel he reserved.</p> <p>The Jury rendered a verdict for the plaintiff.</p> <p>Upon consideration of the question reserved, his Honor Judge SaüNDEIís gave it as his opinion that the plaintiff could not recover. The verdict was set aside, and a non-suit entered. Appeal by the plaintiff.</p>

ACTION of trespass Q. c. E., for piesne, profits, tried before bis Honor Judge Ellis, at Spring Term, 1853, of McDowell Superior Court. The facts of the caso sufficiently appear from the opinion •of the Court.

<p>Tins was an action of Assujipsit, tried before Bailey, Judge, at tho Spring Term, 1858, of tho Superior Court of Itaw for Franklin County.</p> <p>Tho case is stated in tho Opinion of tho Court.</p>

<p>This was an action of EJECTMENT, tried before Ms Honor Judge Bailey, at Craven Superior Court, Fall Term, 1853.</p> <p>The land in controversy is embraced within the lines G H J K of the diagram below. The plaintiff offered two grants, one to Roger Bratcher, in 1772, and another to Lydia Guard, in 1771, and insisted that the one to Robert Bratcher covered the land designated by the lines of D CEE, and that to Lydia Guard the land within the lines A B C D.</p> <p>She plaintiff introduced the will of Roger Bratcher, which was verified by the following protest: “ The will of Roger Bratcher, deceased, proved by -Henry Sikes. Executor Thos. Bratcher qualified. Ordered, that letters issue.” Defendant objected to this evidence .-upon the ground of the insufficiency of the probate. This objection was overruled, and the will read in evidence.</p> <p>Evidence was offered to show that the title to the land in question was in the heirs of Matthew Stephens, in the year 1809. lie then gave in evidence the record of a. petition .filed for a partition among the.heirs, an order-for partition, and a report of the Commissioners appointed for that purpose, .which was returned, and confirmed by the Court in September -1811. There was no registration or order for registration made at that time, nor- was it made until March Term, 1852. At that Term, an order was made, nunc pro 4unc, that--the record of 1811 be amended, so as to set forth the order for the- registration of this proceeding in 1811. The minutes -of September Term were not amended, at March Term, 1852, and it Avas objected by the defendant, that the record of the partition could not be read; that the Court had no right, at March Term, 1852, to make the .order mine pro tunc. .Objection overruled. During the examination of the testimony in this .-case, the-clerk of the County'Court made an entry on the minutes of September, 1811, and the record, as amended, Avas then offered; but the defendant’s counsel still objected, that this entry should have been made at> September, 1811, Avhen the report was confirmed. This objection was overruled by the Court, and .the evidence received.</p> <p>In the dRision, lot No. 1 was assigned to Joseph‘Stephens, Avithin the lines Q P E E; lot No. 2 to William Stephens, within the lines GHP Q; lot No. 3 to'Daniel Stephens, within the lines R N II Gr; lot No. 4 to Sally Stephens, AYithin ythe Ti-nes’VM'N R,;:and lot No. 5 to -Matthew Stephens, within the lines A B M Y. It was in evidence, that William Stephens sold No. 2 to Moses Stephens, in 1814. Moses Stephens died intestate, leaving an only son, John Stephens, his heir at law. Moses Stephens had become the administrator of one Elizabeth Stephens, and had executed a bond, as such, in the penal sum of five hum dred pounds. After the death of Moses, a suit was brought on this bond, against John Stephens, as heir at law, the plaintifi in that suit alleging that he had assets by descent. The w.- it Was executed on John, while yet an infant; his plea, wore entered by an Attorney, who appeared in his behalf, and a judgment rendered against •him for the penalty of the bond (without stating the amount), and for six pence damage and costs. Execution issued on this judgment, which was levied on the lands of Moses, which had descended to John, and they were sold under a venditioni ,exponas, by the Sheriff of .Craven county, on 6th of May, 1818, to William Holland, Sr. The evidence of this judg-ment and execution was objected ,to, on the ground that John, the defendant in that suit, was.an infant, but admitted;.</p> <p>The judgment against John Stephens, is in the name of John E. Smith, Chairman of the Court of Pleas and Quarter Sessions, of Craven .County, and the judgment recited in the execution, and the venditioni exponas, which issued thereon, is in the name of the “ Chairman of Craven County Court.” The defendant obejected todhe judgment and execution, on account of this variance, "but the objection was overruled.</p> <p>Wm. Holland Sr., in .1834, conveyed the land to Wm. Holland, Jr., under whom the plaintiff claims. The plaintiff fur..ther introduced a deed from Wm. Holland, Sr., to Wm. Ogles-.by, dated in 1832, and .alleged that the beginning was at S •on the lower line of the Lydia Guard patent, running thence up Coleman’s Creek to X, where it was crossed by .the line ‘Y M; then up that line, the. ,dividing .line between 4 and 5, to the letter M; tbence up to the letter H; thence to the letter G; and thence to S the first station.</p> <p> </p> <p>The defendant introduced the same deed from William Holland, Sr., to William Oglesby, dated in 1882, two years before William Holland, Sr., sold to William Holland, Jr., and agreed with the plaintiff that the beginning corner was at S, and ran from that point, as the plaintiff insisted to M : from this point he contended that the next call would extend to P; thence to Q; thence to the first station, covering the land in dispute. The defendant then introduced the will of William Oglesby, and a deed from his Executor, Joseph R. Franklin, to one Isaiah Dennis, for the same land. There was no evidence of any deed from Dennis to the defendant, but there was evidence that he was in possession of the land in dispute, at the time of the service of the declaration. It was agreed by the parties that the line A F was the lower line of the Lydia Guard and Roger Bratcher patent,- and that B E was the upper line of those patents; that S was the beginning corner of the land which William Holland, Sr., conveyed to William Oglesby, in 1832, and further agreed that his line ran up to M; that he ran from thence westwardly; but, whether he went to H and stopped, as the plaintiff contended, or went to P, as the defendant contended, was the point in controversy. Taking M as a pointy the call in the Oglesby deed, as to this part of the descrip->iion, is “ thence westerly with Lydia Guard’s patent line, and Roger Bratcher’s, so far as the corner of the second lot of the piece of land drawn by Daniel Stephens, in the division -of Matthew Stephens', land, being the two pieces drawn by ■Sally Stephens and William Stephens, and thence along that •division line to Lydia Guard’s line, thence along her line to «the first station.”</p> <p>The defendant asked his Honor to instruct the jury, that they were required by law, in deciding the question, to go from letter M to the letter P. His Honor declined to do ■so,'but left it to the jury, as a question of fact, whether the ■line stopped at H, or ran on to P.</p> <p>The jury rendered a verdict for plaintiff. Motion for a ■venire de novo, on the exceptions taken above, and for refusing to instruct as requested.</p> <p>Motion refused, and appeal to this Court.</p>

<p>This was an inquisition of forcible entry and detainer , had before David Lawrence, Esquire, a Justice of the Peace for t¿e County of Pitt, and brought up to the Superior Court of that County by certiorari, and there tried before his Honor, Judge Manly, at Fall Term, 1853.</p> <p>The affidavit of the plaintiff, upon- which the proceeding was instituted, is as follows:</p> <p>State oe North Carolina, 1</p> <p>Pitt County. J A. G-. Jordan maketh oath, before me, Groold Hoyt, one of the Justices of the County aforesaid, that he is the owner of lot No. 4, in the town of Greenville, as by his deed exhibited to me from Marshall Dickinson; and that forcible possession of the same has been taken from him.</p> <p>Signed, A. Gr. JORDAN.</p> <p>Witness G-oold Hoyt, J. P.</p> <p>' The process issued to the Sheriff by this Magistrate conr--manded him to summon twenty-four men to be at the lot No. 4, &e., “to inquire upon their oaths of a certain entry made with strong hand (ás it is said,) into the messuage,” &c., “ against the form of the statute in such cáse made and? provided.”</p> <p>The jury summoned in obedience to this writ came accordingly, and for their verdict found -that the plaintiff was seized in fee, and that the defendant entered, with force and a strong hand, into the premises, and that he still detained them. . ,</p> <p>The lot in question was unoccupied at the time of the alleged force, and without improvements. It had once been under fence, and stables put on it, and it had been for some years cultivated under the authority of Marshall Dickinson, who claimed to have bought it at Sheriff’s sale for taxes, but had taken no deed for the same, and produced no evidence of such purchase or payment of taxes. Such is the state-ment of Dickinson, plaintiff’s witness. The lot, some years before defendant’s entry, was occupied by one Kinsaul, by permission of one Selby, who setup a claim under one Evans, but produced no title or authority to dispose of the premises. The plaintiff claimed by deed of bargain and sale, with warranty of title, from Marshall Dickinson, made shortly before the entry of defendant- The force complained of, as proved by plaintiff’s witnesses, was the act of going on the unoccupied lot and partly removing a fence, when ho was forbid by the plaintiff; and Selby said, in his presence, that he could not be turned out by any force that could be produced ; but it does not appear that he replied, but he proceeded with his work, and held the land in question, and still holds it in possession. There was much other matter contained in the record, but this is deemed sufficient to present the points upon which the opinion qf this Court proceeded. The plaintiff moved to dismiss the certiorari, and •the defendant moved to quash the proceedings below.</p> <p>Upon consideration of tbe several matters set forth in the record, Ms Honor gave judgment in favor of the plaintiff, dismissing the petition for a certiorari, from which the defendant appealed to this Court.</p>

Action of Trespass for seizing and selling shingles and cypress timber, tried before his Honor Judge Manly, at Pall Term, 1853, of Martin Superior Court. Pleas, genera} issue and justification. On the 20th of January, 1851, the defendant, in the ■plaintiff’s presence, offered for sale, and struck off to the highest bidder, some shingles and timber belonging to the plaintiff.

Action-of assumpsit, tried before his Honor Judge Ellis, at Fall Term, 1853, of Washington Superior Court, upon the following case agreed, which was submitted' for the judgment of the Court:— The plaintiff owned a negro slave named Harry, and on 13th of September, 1850, the defendants insured his life for five years, at the amount of $500, by a policy of insurance, which contained the following clause: “In case the said slave shall die by means of any invasion, insurrection,…

This was a proceeding in bastardy, to subject the defendant to the maintainance of a bastard child, begotten of one Julia Duty, tried before his Honor Judge Saunders, at Eall Term, 1853, of Randolph Superior Court. ' ' A warrant had been issued by a Justice of the Peace of the county, on the 11th of March, 1852, against Julia Duty, to compel her to declare on oath the father of her illegitimate child.

This was an action of assumpsit, tried before Judge .Ellis, at the Fall Term, 1853, of the Superior Court for the County of Chowan. The plaintiff declared for $25, the sum alleged to be due from defendant, upon an exchange of horses. Plea: Won assumpsit. The defendant agreed to give his own horse and twenty-' five dollars for the horse of the plaintiff, provided the latter was a No. 1 farm horse.

Tins was an action commenced by warrant before a Justice of the Peace, to recover a penalty, for a failure of the defendants’ slaves to work upon a public road, tried before Judge Saunders, at Spring Term, 1853, of the Superior Court for Washington County. The plaintiff was overseer of a public road leading out of the town of Plymouth.

ACTION of ejectment for a lot in the City of Raleigh, tried before his Honor Judge Manly, at Fall Term, 1853, of Wake Superior Court.

<p>Where parties enter into an express and specific contract, which is neither general nor doubtful, local usage cannot be resorted to in ascertaining its-terms.</p>

ACTION in the case tried !before Judge Ellis, at Fall Term, 1858, of Chowan.Superior Court.

This was an action of devisavit vel NON, tried before bis Honor Judge Manly, at a Special Term of Wake Superior Court, held on tbe 3d Monday of June, 1853. Held: that the principle off exclusion could not be changed by any inquiry into the number of letters, or the sources from which they were drawn, or by consent on a former trial, now withheld.

Action of trespass quake clausum EREg-it, tried before his Honor Judge Ellis, at Fall Term, 18&3, of Halifax Superior Court. The case-was, the plaintiffs obtained a judgment, and tooli out an execution, which was levied on the land of the defendant in the execution, one John Overton. An order of Court was had for a sale of the land levied on; a sale made by the Sheriff, to plaintiffs, and a deed to them in the ordinary form.

ACTION op 'TSoyER for tlie conversion of a quantity of 'Corn, the ¡property .of the plaintiff, tried before his Honor ■Judge Ellis, at Eall Term, 1853, of Currituck Superior .Court. One Wilson was in possession of a ¡mill-house, and in it bad a quantity of corn. He sold to the plaintiff’s intestate '•all the corn then in the house for two dollars and a half per barrel, and .agreed to let it remain in the house till the purchaser could take it away in his vessel.

Action of debt on p constable’s bond, tried 'before Judge Sauhders, at Fall Term, 1853,.of Stokes Superior Court. The relator put into -the bands of Eair, the constable, two notes on Thomas Neal, on .the 9th of April, 1852, on which day he sued out warrants,,and on the 12th.of the ;same month obtained judgment.

This ,was an 'action of assumpsit,, tried before Judge .Saunders, at .the Fall Term,. 1853, 'üf Forsyth Superior -Court. The plaintiff sold to the defendant a wagon for thirty dollars, receiving an order on one Fries -for goods for that .amount. Fries .-declined accepting the order. The defendant afterwards had a settlement .with Fries, receiving from him the amount in -his- hand's belonging to himself. .

<p>Where a Solicitor for the State, as upon .affidavit, asserts upon the authority of A. B. a witness in the .cause, who is present, any matter material to the issue, and afterwards A. B. testified differently — Held, that testimony may he received to show the diversity, for the purpose of discrediting A. B.</p>

Indictment tried before Manly, Judge, at the Fall Term, 1853, of the Superior Court of Edgecombe County. The proof was, that the spirits were delivered by the defendant to the slave, after night-fall, in consequence of the-following order, from the overseer of the negro : “ Mr. McNair: — You will please to send me 5 quarts of whiskey, by-boy Jerry. James H. Higgs.” The price of the liquor was paid by the negro on delivery.

<p>Tins was an ACTION ON the case, at common law, for the fraudulent removal of a debtor, tried before bis Honor Judge Dick, at Fall Term, 1853, of Surry Superior Court,</p> <p>The case was: One Henry P. Wilson was a constable for Davie County, in tbe year 1841, and the plaintiff’s intestate was one of his sureties. He (the constable,) had failed to collect and pay over, on claims put into his hands for collection, and amongst others, claims of McRorie and Dusen-bury, for which suit was brought by them against Wilson,, and plaintiff’s intestate as his surety, on the official bond of that year; and, after pending several terms, judgment was rendered against them, and the defendant’s intestate paid his part of tne same under execution. After the commencement of this suit, but before ,the judgment was rendered,-and before anything had been paid by defendant’s intestate, for the failure of the constable, Wilson, namely, on 19th of August, 1843, Henry F. Wilson fraudulently and secretly removed from the county of Davie.</p> <p>Evidence was offered by the plaintiff, tending to prove that the defendants fraudulently aided Henry F. Wilson to remove ; but his Honor, being of opinion that he had not shown a case that entitled him to recover, the plaintiff took a non-suit, and appealed.</p>

<p>Action of detinue, for tbe recovery of certain slaves, tried before bis Honor Judge Settle, at Spring Term, 1853, of Alamance Superior Court.</p> <p>Elizabeth, the daughter of Peter Foust, married one John Clapp, and was living at the death of her father. After the death of her father, but in the life time of her mother, Elizabeth died, leaving her husband and several children,her surviving. The plaintiff Daniel Eoust administered on the estate of Elizabeth, and claimed the' slaves in question as her property, as one of the next of Idn of Peter Eoust. The surviving executor of Peter Eoust had acquiesced in this claim, and allotted and delivered the slaves to the plaintiff: afterwards they went into the possession of the defendants, and were detained by them at the bringing of this suit. The defendants claimed as purchasers from the children of Elizabeth Clapp, who, at the death of Mary Eoust were her next of kin, their mother being then dead, and they insisted that, according to the following will of Peter Eoust, their grandmother,- Mary, took an absolute estate in the property bequeathed to her, of which these slaves are a part. The plaintiffs contend that, under this will, Mai-y E oust took only a life interest, and that, as to the interest after her death, there was an intestacy which gave a vested right to the next of kin of Peter Eoust immediately, but-not to bo enjoyed till after the death of Mrs. Foust.</p> <p>The following is a copy of the will of Peter Eoust</p> <p>“ 3d. As touching such worldly property as it has pleased the Lord to bless me with, I bequeath, give, devise and dispose of as follows:</p> <p>“ 4th. I give to my daughter Elizabeth Clapp a negro girl named Erry.</p> <p>“ 5th. I give to my daughter Sarah Amick a negro girl named Esther.</p> <p>“ 6th. I give to my son John Eoust the plantation I bought of Joseph, Stout, and a hundred acres of land that lie joining Daniel Eoust, James Neal, Jacob Moulder and my own, a' horse, saddle and bridle, and plow irons, with gears fit to plow.</p> <p>“7th. I give to my son George Eoust the plantation I bought of William Ray, adjoining my own land, Jacob Marshall’s and Freeman, a horse, saddle and bridle, plow and gear fit to plow.</p> <p>“ 8th. I give to my son Daniel Foust the plantation I bought of Henry Dale, with ten acres more, including the field that lies North of the house I now lire in, with a horse, saddle and bridle, plow and gears fit to plow, and three hundred dollars in cash.</p> <p>“ 9th. I give and bequeath to my beloved wife, Mary Foust, the plantation I now live on, with all the household and kitchen furniture, with all the horses, cows and stock of every kind, wagon and plantation tools, of every kind, with all the negroes unmentioned,' so long as she remain m,v widow; but, if she marry, she must quit the plantation, and have the half of the household and kitchen furniture, and a negro man, and a negro woman her life time, and they and their offspring, if any, to return to my children, to be equally divided between them, living at that time. I give her a horse, saddle and bridle, two cows: the remainder of the stock and household furniture, a,nd every other property in her hand, to bo sold, and the money given to the child she is pregnant with ; if a boy, he to have eight hundred dollars, a horse, saddle and bridle, plow and gear fit to plow; if a girl, to have .equal to what the other girls have had.</p> <p>“ 10th. I give my son Peter Foust the plantation I now live on, when he .comes .to age, if his mother be living and unmarried, to have the one-half thereof for himself, with a horse, saddle and bridle, flow and gears fit to plow, and the half of the land my father entered, which is to be divided between my brother Daniel and me, that to be joined with this old plantation for hwi.</p> <p>“N. B. If my widow .should marry as above said, after she makes her choice of the two negroes, the remainder of them must be divided amongst my .sons that may be living .at that time..</p> <p>“ In witness and testimony whereof, I, Peter Foust, have hereunto set my hand and affixed my seal, the day and year aboye written.”</p> <p>On the foregoing case agreed, his Honor, pro forma, gave judgment for defendants. Appeal.</p>

This was an indictment for murder, tried at Person Superior Court, Fall Term, 1858, before his Honor Judge SAUNDBRS. The case sufficiently appears from the opinion of the Court. • '>

<p>This was an issue of devisa vit vel NON, as to a script purporting to be the will of Thomas J. White, propounded by Esther White, his widow, and opposed by James Casten and his wife, tried before his Honor Judge Ellis, at Fall Term, 1858, of Chowan Superior Court.</p> <p>Upon the facts of the case, which are fully set forth in the opinion of this* Court, his Honor below instructed the jury that the acts deposed to amounted to a revocation under the Statute, if done with an intention to revoke.</p> <p>Yordictfor the caveators. Motion for a venire de novo. Motion refused and appeal to this Court.</p>

Astee the new trial granted in this case, at December Term, 1852, (see Busb. Rep. 134,) it came on to be tried again at Washington Superior Court of Law, on the last circuit, before his Honor Judge Ellis.

This was an action of assumpsit, tried at Chatham Superior Court, Fall Term, 1852, his’ Honor Judge Dick, presiding. The plaintiff declared on a special contract, and upon the general indebitatus counts.

This was an action of assumpsit against the defendants as common carriers upon the Cape Fear River, for failing to deliver goods : tried at Spring Term, 1858, of Forsythe' ■Superior Court, his Honor Judge Settle presiding.

. The plaintiff, sued out a capias ad satisfaciendum against the defendant Morris, returnable to December Term, 1850, of Pasquotank County Coürt; which was returned with a bond for the defendant’s appearance at that •term, and the defendant appeared accordingly, and was sur- ' rendered by his sureties.

Petition hoard before his Honor Judge Manly, at Spring 'Term, 1858, of Onslow Superior Coúrt, for the recovery of legacies under the will of William Henderson.

This was a motion to tax a bill of costs in a suit, which had been tried at a former term of the Court below, and was heard at Fall Term, 186,3, of Nash Superior Court. His Honor Judge Marly presiding. The former action out of which this motion arose, was tresspass in favor of Allison Lee against N. Harriss, 0.

This was an'action of ejectment, tried at Fall Term, 1853, of Martin Superior Court, before bis Honor Judge MaNLY. It was originally brought by William Johnson and wife against Peter E. Maddera, the tenant in possession. During the pendency of the suit, Maddera died, and the defendant Watts filed an affidavit as landlord, and was admitted to defend in place of Maddera.

This was an action of debt for a penalty, tried before' SaüNDERS, Judge, at the Spring Term, 1853, of Pasquo-tank Superior Court. The sum demanded in the writ was $150.

ActioN of EJECTMENT, for a portion of land lying in tbe town of Beaufort, tried before bis Honor Judge Manly, at Spring Term, 1853, of Carteret Superior Court.

This was an action of EJECTMENT, tried before his Honor Judge Manly, at Spring Term, 1853, of Carteret Superior Court. The subject matter of this action is the strip of land lying between Front street, in the town of Beaufort, and the water of the harbor south of that street, and designated by the letters a, b,, c, d, e. (See the diagram in the preceding case.) The leading facts of the case are set forth in the 'case of Doe on dem of the Commissioners of Beaufort v. Tiios.

Action on the case to recover damages for an injury to a stage coach and horses, occasioned by the breaking down of a bridge, which defendant was bound to repair, tried before his Honor Judge Ellis, at Fall Term, 1853, of Pas-quotank Superior Court. The defendant was the overseer of a public road, leading from Elizabeth City to Norfolk, in Virginia, and was duly notified, of his appointment.

This was an indictment for murder, tried before his Honor Judge Manly, at the Spring Term, 1854, of Granville Superi- or Court. The first question in the case was on the admissibility of the dying declarations of the deceased.

This was an indictment for cheating, tried before bis Honor Judge Bailey, at the Spring Term, 1854, of Bertie Superior Court.

This was indictment for murder, tried before Ms Honor Judge Saundeks, at the Spring Term, 1854, of Cumberland Superior Court. The case is fully set forth in the opinion of the Court,

This was an indictment for tbe muRdeb of one Ivey Jones, tried before his Honor Judge SauNDERS, at the Spring Term, 1854, of Brunswick Superior Court. The case sufficiently appears from the opinion of the Court.

This was an indictment tried before bis Honor Judge Caldwell, at tbe Spring Term, 1854, of Edgecombe Superior Court.

<p>This was an indictment for murder, tried before his Honor Judge Caldwell, at the Spring Term, 1854, of Northampton Superior Court.</p> <p>The prisoner and the deceased, both free persons of color, started from Gaston to ascend the Roanoke River in a loaded .boafc, assisted by a slave, the deceased being the manager. After rowing up the river three-quarters of a mile, they were heard quarrelling by a witness then about one hundred and fifty or two hundred yards behind them in another boat. When the witness first heard them quarreling, the prisoner was standing in the bow, and the deceased in the stern. The witness stated that their boat was gaining on the boat in which the prisoner and deceased were; the latter was somewhat drifting with the current. During the quarrel, and when within about a hundred yards of the other boat, he saw the prisoner striking at some one in the bottom of the boat, at which time it was drifting, and continued to drift towards them ; that the deceased so being stricken was near the stern, a little in advance of the point where he first saw him; that the prisoner continued striking until the boats were so near together taat he coitld discover that it was the person of the deceased on whom the blows were being inflicted; that he was lying on his back with his legs across a pushing pole, and that the prisoner continued the blows, giving the deceased five or six after he ascertained who it was.</p> <p>The witness also stated that the weapon used by the prisoner, ' while beating the deceased, was what is called a boat-slide ; that it was about eight feet long and three and a half inches wide, and two and a half inches thick, and had iron on each side near the ends; that he went into the boat where the deceased was lying, and washed the blood off his head and face, and said to the prisoner, “You have killed Harris,” to which he replied, “Damn him, he is only drunk.” The witness then asked the prisoner why he had done so, and he replied the deceased had stricken him first. The witness did not see the parties when they first engaged. The same witness testified, as did three others who saw the prisoner immediately after the occurrence, that there was a bruise or puncture on the cheek of the prisoner, and that it was bleeding.</p> <p>This witness also testified that the pushing pole, over which the legs of the deceased were hanging, was some fifteen feet long, bad iron on its end, and was broken off at tbe end at which the iron was. The jailor testified that the prisoner was committeed to jail a short time after the occurrence, and that he had a bruise or cut oyer one of his eyes, and said that it was caused by blows given him by the deceased. The deceased died about twenty-four hours after the occurrence. Several witnesses who examined the deceased, before and after his death, stated that his arms were bruised, and one of them broken; that his scull was badly fractured — that there was blood on the brain, after the bones of the scull were removed; and that his head was bruised and bloody all over.</p> <p>The counsel for the prisoner insisted that the testimony only made out a case of manslaughter, for that there was evidence that the deceased had stricken the prisoner two blows in the first instance.</p> <p>His Honor charged the jury that the weapon used by the prisoner was a deadly one, and that even supposing that the prisoner had been stricken by the deceased, as insisted by his counsel, still, if they believed from the testimony that the prisoner knocked down the deceased with the boat-slide in the ren-contre, and, when the deceased was so down, continued to beat him from the time when first seen striking, up to the time when the two boats came together; that with the deadly weapon described, he bruised and wounded him to the extent deposed toby those who examined the body of the deceased, that it would be a ease where the violence inflicted was out of all proportion to the provocation, and would be murdér on the part of the prisoner.</p> <p>The counsel for the prisoner then moved the Court to charge the.jury that if the prisoner and the deceased entered into the contest upon equal terms, and, during the rencontre, the prisoner killed the deceased, it would be but manslaughter on the part of the prisoner.</p> <p>The Court thereupon told the jury, that the general principle laid down by the counsel, all malice apart, was correct; but it did not apply to this case; for even supposing the prisoner to have entered into the conflict upon equal terms, yet, if he knocked down the deceased, and continued to beat hint with the weapon described, and in the manner and to the extent testified to by the witnesses, it would be murder on the part of the prisoner.</p> <p>Under these instructions, the jury, by their verdict, found the prisoner guilty.</p> <p>Rule for a venire de novo; for error in the instructions given the jury. Rule discharged, and appeal to the Supreme Court.</p>

This was an indictment for Grand Larceny, tried before his Honor Judge Saundees, at the Spring Term, 1854, of Anson Superior Court. The defendant claimed the right to challenge, peremptorily, thirty-five jurors, and having challenged four, offered to challenge the fifth juror, but the challenge was disallowed, and the juror taken and sworn. Defendant excepted for error. The jury found the defendant guilty. Rule for a venire de novo, for error in the matter excepted to.

This was an indictment for a Forcible Entry and Detainer, tried before his Honor Judge Ellis, at the Spring Term, 1854, of the Onslow Superior Court. The evidence on behalf of the State was, that the locus in quo was a small uninhabited .island, lying between Brown’s Sound and the Ocean, mostly a barren sand-beach, and principally fit for fishing. There was a sparse grove of live oak upon it, and some pasture land, suitable for grazing stock.

<p>This was an action of trespass quare clausum fregit, tried before his Honor Judge Maíovy, at the Spring Term, 1854, of Washington Superior Court. Plea : liberum tenementum. (The same case was before this Court at December Term, 1852, and reported in Busbee’s Law Report, 116.) The locus in quo was a portion of the lots designated in the plan of the town of</p> <p>Plymouth, as numbers 154 and 155, and represented on the annexed diagram by the triangle 3, 4, 0.</p> <p>DIAGRAM.</p> <p> </p> <p>The plaintiff offered in evidence a deed to himself for the lots No. 154 and 155, also for lot No. 123, adjoining on the South, and likewise introduced the deed made by him to the defendant, conveying £< two lots of ground in the town of Plymouth on the South-side of Water street, known as the Winchell lots, numbered in the plan of the said town as the upper parts of 154 and 155, upon which is located two store-houses, out-houses and kitchen: the grounds beginning at lot No. 153, thence along Water street up the said street to the corner of Jefferson street, thence up Jefferson street two hundred feet, thence to the Southwest corner of lot 153, thence along lot 153 to Water street, the first station.”</p> <p>It was in evidence that lots No. 154 and 155 were called and known as upper parts of 154 and 155, (the other or lower parts thereof being on the opposite side of Water street, on the margin of the Eiver,) and that they were also generally known as the Winehell lots. And it was admitted by both parties that the Southern limit of these upper parts extended to the stable of the defendant, and covered the locus in quo; but stopping short of that limit at the termination of two hundred feet, called for in the deed, and thence running eastwardly to the corner of the lots, would leave the defendant a trespasser.</p> <p>The defendant contended that no title had been shown, and consequently no possession, (there being no actual possession of the locus in quo ;) but the Court held that there was title by es-toppel as against the defendant, and a possession by construction.</p> <p>The jury returned a verdict for the plaintiff.</p> <p>Exception on account of misdirection, and after the judgment of the Court,- defendant appealed to this Court.</p>

<p>ACTION in the the case for negligently running into and injuring a seine, tried before his Honor Judge Ellis, at the Spring Term, 1854, of Hertford Superior Court.</p> <p>As the correctness of the instruction given by the Court to the jury rests mainly on the evidence produced in the cause, it is deemed expedient to set it forth fully. The plaintiffs called one Taylor, who swore that they were engaged in fishing on Chowan river; that at the time of the alleged injury, the seine was partially drawn into the shore, the farthest part of it extending about four hundred yards outwards into the river; that the river was unobstructed for three fourths of a mile beyond the outer part of the seine, over any part of which outside space, the defendant could have gone with his boat. At this juncture, the hands at the fishery were engaged in taking in the seine, the two ends upon the shore being two hundred yards apart: A flat boat was stationed at the upper end, the bow of which was on the shore, and the stern towards the stream, at which they were taking in the seine and placing it in the boat, While thus situated, the steamboat of the defendant came down the river, and when first seen, was on a course which would have taken her outside of the seine, had she kept it. As she approached, however, she turned suddenly in towards the shore, at the signal of a passenger standing on the beach near the fishing boat; she continued this course until within fifteen feet of the shore, when she came up against the stern of the fishing boat (upon which, in the meantime, the passenger had gone;) she was there entangled in the seine, which was lying and floating in the water near the stern of the boat, and it was thus torn. The steamer having taken the passenger from the flat, passed over the seine, tearing it apart, and proceeded down the river, passing over the lower part of the seine, and tearing that also s This was in the day time, the wind blowing freshly down the river. The plaintiff, Lewis, was upon the beach at the time, and after the boat’s getting within the seine, expostulated with those in charge of the boat against running over his seine, to which he received no reply. The boat made no stop after taking in the passenger, and no effort to back up the river after she became entangled with the seine. This was not a public landing place, but passengers occasionally got on and off the steamboat at this point, always using for such purposes a small boat, while the steamboat stopped out in the river.</p> <p>Another witness for the plaintiffs, Mr. Smith, stated that the fishery could .be seen from a point two or three miles up the river ; that the steamboat floated sidewise down against the stem of the fishing boat; that she got into the seine with her right wheel, but witness did not see how she got entangled. Her bows were at this time pointing out towards the stream, and if she had gone straight-forward, she would not have gone over the lower part of the seine, but she turned down the stream and went into it. Her stern was on the shore. No steam was put on as she drifted against the seine. Both these witnesses said they had no knowledge of the management of steamboats.</p> <p>The defendant introduced a witness, Mr. Halsey, who said, that he had commanded vessels for thirty years, and was in •charge of this steamboat at the time referred to, and had been bo for several years, as agent for the defendant; that it was a regular passenger boat on the riyer, which was a large navigable stream. He stated that he had previously agreed with the passenger spoken -of, to take him in the boat at this place. As he approached the fishery of the plaintiffs, he saw the signal of the passenger on the beach near by, and turned to take him off. On approaching the shore, he called to the passenger to get on board the fishing boat, and informed him at the same time that their small boat was lost. His aim was to run the bows of the steamboat up against the flat, but he did not intend to injure the plaintiff’s seine. He saw the hands taking in the seine, but thought he could run the steamboat up against the flat without injuring it. He succeeded in stopping the steamboat just as she •touched the flat, having shut off the steam just before, hut immediately the seine became entangled with the wheels of his boat : He sent a hand down to disengage it: As soon as the passenger was taken in, he passed down over t'he seine carefully, sinking the lower corkline below the water, so as to enable the boat to pass without injury. He could not then go any other way, as the stern was towards shore, and her bows down the stream. The witness was not aware that the seine was injured. When he first became entangled with the seine, he attempted to back the boat off by using poles, and reversing her engines, but could not do so, as the stern was against the shore. He ■used all the skill and care possible to avoid doing an injury. The witness had frequently taken passengers on and put them off at this place, with the knowledge of the plaintiff, Lewis, and without objection from him, and did so at other points on the river, commonly using a small boat for the purpose. The wind was blowing freshly down the river.</p> <p>Witnesses Freeman and Irvine, for the defendant, stated that •care was used to keep off of the seine, and that the boat could not have been managed otherwise, after she ran up to the shore.</p> <p>The Chowan river was admitted to be a navigable stream.</p> <p>Defendant’s counsel objected to a recovery upon tbe grounds:</p> <p>1st. That in tbe exercise of tbe paramount right of navigation, tbe defendant had liberty to run over any part of the river, without being liable for any other than wilful injuries, and that, in the present case, his purpose was to take in a passenger in the usual course of his employment, and that the injury complained of was accidental and unavoidable.</p> <p>2d. The defendant’s counsel asked the Court to instruct the jury, that as the Chowan river was a navigable stream, the defendant had a right to the use of all its waters, from shore to shore, for the purposes of navigation, and the conveying of passengers, and that where a passenger presented himself on the shore, the defendant had a right to go in with his boat to take him on board, and if he did this bona fide, and in the exercise of the right' all proper care and skill had been used in the management of the boat, the defendant was not liable.</p> <p>The Court charged the jury, that all navigable waters, above the ordinary ebbing and flowing of the tides, are public highways: upon which steamboats and all other water craft are free to pass and repass at all times, without hindrance by riparian owners or Others. In the same waters, however, riparian owners, and, in Borne instances, others, have a right to fish with nets, seines, and other contrivances, of a like nature. The two rights of navigation and fishing in these waters exist at the same time, but the right of navigation is ever held paramount to the right of fishing — the common good requiring that the private interest should yield to the public convenience, whenever the two may conflict. But when it can be done without such conflict, both rights may be exercised in the same waters, at the same time, and persons using the paramount privilege must respect the interests of those exercising the lesser, to the extent to which the law recog-nises the existence of the privilege itself.</p> <p>Both rights being thus recognised, neither is left without protection against mere wanton and unnecessary injuries. All persons are protected, though they be in the commission of a wrong; but where the law acknowledges a right, it extends still greater protection to those exercising it. Persons engaged in navigating public rivers, like the Chowan, are liable for other than mere wanton and unnecessary injuries to the seines and nets of those engaged in fishing in the same waters; they are required to use reasonable care and diligence to avoid injuries of this character ; they are not confined to the strictest degree of care, but only such as is ordinary and reasonable. And if the evidence offered on the part of the plaintiffs, as to the circumstances under which the injury cqmplained of was inflicted, be true, then there was such negligence upon the part of the agent, in charge of the steamboat, as would render the defendant liable to the action of the plaintiffs.</p> <p>And, if the version given by the defendant’s witness, Halsey, was true, and the other facts as to the condition of the seine, and the open space on the other side, as spoken of by the plaintiffs’ witnesses, were true, then the defendant would be liable, and the plaintiffs should recover; for, it was unnecessary for any useful purpose of navigation to have turned out of his course, and gone up to the fishing flat, where, according to his statement, even good and skilful management of the boat could not then avoid the injury. There was negligence in going to the flat, when such a result was most likely to follow.</p> <p>The counsel for the defendant asked the Court to charge the jury, that if they believed, from the evidence, that the commander of the boat saw the seine, and carried the steamer intentionally and wilfully to the stern of the fishing flat, when the injury happened, then, as every man is held to intend the consequences of .iis own act, the defendant could not be liable, as it was a wilful trespass on the part of the servant, the commander of the boat, and that trespass against the servant, and not case against the employer, would be the proper remedy.</p> <p>The Court refused to give these instructions, remarking that the evidence of the defendant’s own witnesses showed that the action on the case would lie. Verdict for plaintiffs.</p> <p>Rule for a venire de novo for wrong instructions given to the-jury, &c. Rule discharged; judgment and appeal.</p> <p>argued as follows :</p> <p>It is- conceded that the public right of navigation is of ». higher character than that of a fishery; the latter must not be exercised in derogation of commerce ; but it does not follow that one, navigating a river,, has the right to run his vessel either wil-fully or negligently upon the seine of another engaged in the lawful employment of fishing, unless the seine obstructed the entire stream, or so mush thereof, that it would subject the navigator to great loss of time in attempting to avoid it. The navigator and fisherman both have rights in the public waters* which may be exercised and enjoyed without any infringement or injury to each other; indeed, they are of mutual advantage, and the public are deeply interested in the protection and preservation of each-. If there were an overruling necessity for the. destruction of either, of course the fishing interest, being' less important, must yield; but this necessity cannot arise while our broad sounds and rivers furnish ample space for the enjoyment and exercise of both rights.</p> <p>If it were admitted, that the fishery were a nuisance, still the plaintiffs would be entitled to recover for the negligent conduct ©f the defendant's servant in the management of his boat.. There was no. reason for his attempting to land, his boat at that particular part of the river bank. He- might have taken on the passenger a short distance either above or below the seine, or have remained out in the stream until the passenger could have been sent aboard in a small boat, which was the usual mode of landing or taking them aboard on the river.. The defendant negligently destroyed the plaintiffs’ property, and even if it were a nuisance, he is responsible for its value. It is analogous, to the case of Davis v. ManN, 10th Meeson and Welsby’s Reports, page 545, “ Where the defendant negligently drove his horses and wagon against and killed an ass which had been left in the highway, fettered in the fore-feet, and thus unable to get out of tbe way of tbe defendant’s wagon, wbieb was going at a smartish pace along tbe road, it was beld that tbe jury were properly directed, that although it was an illegal act on tbe part of the plaintiff so to put tbe animal on the highway, the plaintiff was entitled to recover.”</p> <p>So again in the case of the Mayoe OR Colchester v. Brook, English Common Law Reports, No. 53, page 339, it was decided thus : “ If property be placed in a public navigable river, .so as to create a public nuisance, a person navigating is not justifiable in damaging such property by running his vessel against it, if he has room to pass without so doing; for an individual cannot abate a nuisance, if he is not otherwise injured by it than as one of the public.”</p> <p>“ A private individual cannot justify damaging the property of another on the ground that it is a nuisance to the public right, unless it does him a special injury.” — Dimes v. Petley, English Common Law Reports, No. 69, page 275.</p> <p>The maxim sic wtere tuo lit alienum non Icedas applies with equal force to navigators as well as others.</p> <p>“ Where a party is passing along a highway, he can only interfere with an obstruction as far as is necessary to exercise his right of passage.” — Woolrych on Waters, Law Library, No. 77, pages 198 and 202.</p> <p>A fishery may or may not be a public nuisance or obstruction to navigation, according to the circumstances of the particular case, and in the excellent work last quoted, at page 205, the author remarks, “ that if the thing complained of (whether it be an erection of any kind or other fancied hindrance to navigation) be in reality a public benefit, it shall not be considered as an obstruction, nor punishable as such, unless it actually amount to a nuisance.” Now, it will not be denied that our fisheries are a great public benefit. They furnish employment to a large class of our laboring and enterprising citizens, and they furnish also a large number of people with cheap and wholesome food, and give to the farmer abundant materials for renovating or restoring to fertility bis exhausted and impoverished lands. This largo and important interest, unless protected in common with others, by the broad shield of the law, will be left to the mercy of careless and malignant navigators and must necessarily languish and perish.</p>

Actior on the case, tried before his Honor Judge Bailey, at the Spring Term, 1854, of Camden Superior Court. The plaintiff owned and cultivated a tract of land adjoining the lands of the defendant, and of one Chamberlain.

This was an action of TRESPASS, tried before his Honor Judge Bailey, at Spring Term, 1854, of Tyrrell Superior Court. The plaintiffs declared in two counts: first, for a trespass, for entering upon land; and, secondly, for a trespass, in forcibly driving away certain negro slaves.

<p>An administrator of a deceased sheriff, who is authorised, by a special private act of Assembly, to collect arrearages of taxes, is bound on his administration bond, for the amounts called for in the tax lists of those years for which he(is thus authorised to collect.</p> <p>Where sueli administrator was only a special administrator, when the act was passed, but became the general administrator afterwards, he is nevertheless liable as above stated, on his general bond. •</p> <p>Where such administrator dies before his administration is completed, his administrator is liable to the administrator de bonis non of the deceased sheriff for the breaches of the bond above stated.</p> <p>Where the first administrator of the sheriff had been a deputy sheriff under his intestate, and had tax lists to collect, as such, for certain districts, and failed to collect them, he was bound to have made good these amounts to his intestate, while acting as his administrator, and not having done so, his administrator is liable for the same to the administrator de bonis non of the sheriff. There being a bond to cover the duty of the deputy sheriff to his principal, and to indemnify him, does not make it necessary to show any other damnification than the not accounting for the sums he ought to have collected.</p> <p>The administrator of the deceased deputy cannot allege the inability of the deputy, for the want of'means, to account to the estate he represented as administrator, without suggesting and showing such inability.</p> <p>The act of Assembly, authorising the sureties of a deceased sheriff to collect ar-rearages of taxes, does not abridge or supercede the power or duty of the administrator to make the collection, under the private act of Assembly.</p>

ACTION of Assumpsit, tried at the Superior Court of Curri-tuck, at the Spring Term, 1854, before his Honor Judge Bailey.

Issue of devisavit vel non, tried before his Honor Judge Bailey, at the Spring Term, 1854, of Currituck Superior Court. Held: that if they make their marks, it is sufficient. The fraud intended to be prevented by the act could much more easily be perpetrated in that case than in this. This case differs from EagiaND v. HuntiNGDON.

This was an Action of Debt, tried before his Honor Judge Bailey, at the Spring Term, 1854, of Pasquotank Superior Court. The feme relator, Miranda, was the only child and orphan of Henry Taff, deceased, in March, 1838, when the Term of Pas-quotank County Court was held. Since that time, to wit, in the year 1850, she intermarried with the other relator, J. P. Shuster, at which time she was under the age of twenty-one years.

This was an action of Trespass q. e. /., tried before his Honor Judge Bailey, at the Spring Term, 1854, of Tyrrell Superior Court. The plaintiff showed title to the locus in quo, by reading a deed in fee simple for the premises, with warranty of title from the defendant to the plaintiff, executed six months previously to the beginning of this action.

This was an Action on the Case tried before his Honor Judge Bailey, at the Spring Term, 1854, of Gates Superior Court. The plaintiff declared in a special action on the case, with a count in Trover, for a negro girl named Drusilla. It was in evidence, that Drusilla was the property of one Geo. W. Smith, of Gates county, who died in the month of June, 1852, intestate.

<p>ActioN of Assumpsit for the value of a negro woman, slave, tried at Spring Term, 1854, of Lenoir Superior Court, before his Honor Judge Manly.</p> <p>The defendants were co-partners in running a steamboat on the Neuse River: being in want of a cook on board the boat, they applied to the plaintiff to hire the woman in question for that business. The plaintiff at first refused to hire them the woman, on the ground that she was much addicted to drunkenness, and she was afraid the life on board a steamboat would increase the force of that vicious habit, and expose her to greater danger. Whereupon, the defendants assured the plaintiff that there could be no risk from this cause, as they never allowed spirits to be carried on board at all; and agreed with the plaintiff, that if she would hire them the negro, “ they would guaranty ■against all loss from that source,” and “ would pay all loss or damage from accident or misfortune, arising from that cause.” Upon this understanding and agreement, the woman in question went into the service of the defendants, as cook on board their boat. A few weeks afterwards, the woman became much intoxicated, and by reason thereof, in a fit of drunkenness, delusion or abstraction, jumped overboard, and was drowned. Plaintiff proved a demand and refusal by tbe defendants to pay anything for tbe loss of the woman.</p> <p>Tbe defendants counsel took tbe ground, that tbe contract of .guaranty, did not apply to the case of suicide or self-destruction, though tbe act was immediately induced by intoxication from spirits. His Honor, however, held differently, and instructed the jury, that, upon the state of facts appearing in the case* the plaintiff was entitled to recover. Verdict for plaintiff. Defendant excepted to the charge of the Court, and obtained a rule for a venire de nove, which was discharged, and they appealed to this Court.</p> <p>argued as follows:</p> <p>The exception to the ruling in this case, is founded upon the opinion that this case is governed by the law applicable to Insurance upon Lives, and that such is the nature of this contract. Suicide, in such cases, is always an exception made in the contract. With respect to the risk which the underwriter is to run in insurance upon lives, this is usually inserted in the policy; and he undertakes to ansrver for all those accidents to which the life of man is exposed, unless the cestui que vie puts himself to death, or he die by the .hand of justice ; and these exceptions are always inserted in the policy. Park on Insurance, 491, ’92. This case differs entirely from such a contract. Here the defendant agreed to guaranty against all loss of property arising from the use of, or indulgence in, “ardent spirits” by that property, or to pay all loss and damage from accident or misfortune to that property from that source. Mania a potu, or fits of drunken delusion or desperation, are natural consequences of excessive indulgence in the use of spirituous liquors. The contract of the defendant embraced these consequences. Drunkenness, and the consequences incident to it in the sla c, were the perils the defendants insured against. These were the immediate, and not the remote, cause of the loss. Drunkenness brought about the loss. This was the vice of the slave or property Avhich the plaintiff guarded against in tbe contract, and tbe consequences of which tbe defendants insured against.</p> <p>In an action upon a warranty of a chain cable, it was held .that tbe plaintiff might reccover the value of an anchor, which was lost through the insufficiency of the cable, proof being given that the ship would have been lost, if the anchor had not been slipped. Bonodaile v. Beaxton, 2 Moore 582; 8 Taun-ton 535; 3 Starkie on Ev. 1666; vide Coit v. Smith, 3 Johnson’s cases, 16.</p>

<p>This was an Action, commenced by warrant, for a sum alleged by the plaintiff to be due bim, as a branch pilot, and brought to the Superior Court of Craven county, by a writ of recordari, and tried before his Honor Judge Ellis, at the Spring Term, 1854, of that Court.</p> <p>The following is the case agreed between the parties: the plaintiff, at the time of the occurrence of the facts set forth, was a branch pilot for the district of Ocraeoeke, duly appointed, commissioned and qualified, and the defendant was the commander of a schooner called the “Isaac W., Hughes,” of the burden of one hundred and twenty-six tons, sailing between the ports of New York and New Berne in this State, and bound to the latter port, and was owned by a citizen of New Berne.</p> <p>When near the bar at Ocraeoeke inlet, and bound in, the plaintiff wont off in his pilot-boat to the vessel, when she was outside the bar, and spoke her, for the pm-pose of piloting her over the bar, either to Beacon Island Road, or Wallace’s Channel, at the option of the commander; but the defendant refused to heave to, or stop for the plaintiff, and came in over the bar without any pilot. It was admitted that this was in August ; that the weather was fair, and that the defendant was competent to, and did bring the vessel over the bar in safety.</p> <p>The plaintiff claimed the same pilotage as he would have had for conducting the schooner in, under the act, Rev. Stat. chap. 88, see. 38.</p> <p>The defendant contended that he was not bound to take & pilot, if he did not need or desire one; and that the act is unconstitutional and void, and, for these and other reasons, the plaintiff was not entitled to recover.</p> <p>It was agreed, that if his Honor be of opinion that the plaintiff was entitled to recover, that a judgment be entered against the defendant for $ 12.60 and costs; otherwise, that the plaintiff be non-suited.</p> <p>Upon consideration of which case agreed, the Court being of opinion with the plaintiff, rendered judgment accordingly, from which judgment the defendant appealed to this Court. Exception was taken in this Court to the form of the warrant.</p>

ACTION of Detinue for a slave, tried before bis Honor Judge Ellis, at the Spring Term, 1854, of Wayne Superior Court.

This was an action of Ejectment, tried before bis Honor Judge Caldwell, at tbe Spring Term 1854, of Edgecombe Superior Court.

This was an Action of Ejectment, tried before his Honor Judge SAUNDERS, at the Spring Term, 1854, of Moore Superior Court. There were two counts in the declaration; one on the demise of P. W. Dowd, the other on the joint demise of the heirs at law of Willis Dickinson. The action was commenced in 1850.

This was an Action of Ejectment, tried before his Honor, Judge Saunders, at the Spring Term, 1854, of Brunswick Superior Court. The case sufficiently appears from the opinion of the Court.

This was an Action of Debt, upon a bond tried before his Honor Judge SauNDers, at the Spring Term, 1854, of New Hanover Superior Court. The plaintiff declared as the endorsee of the following bond, to wit: “ $100. On the first day of January, 1853, the Wilmington and Manchestor Eailroad Company promise to pay William H. Laspeyere or order, one hundred dollars for the hire of negro Bob, (to be paid in quarterly instalments,) until the first day of January, 1853.

<p>In some oases the Presiding Judge, in order to save time, and when he sees no harm will result from it, may, in his discretion, allow a leading question to be put, yet his refusing to allow it is never error.</p> <p>To award a-deed in law, under the plea of non est factum, upon the ground of fraud, there must be fraud in tho factum as by substituting one paper for another, so as to show that the party did not intend to execute the paper he was made to sign, seal and deliver.</p>

<p>This was an action of Debt, upon tbe official bond of the defendant, as Clerk of the County Court of Martin county, tried before his Honor Judge Ellis, at the Spring Term, 1854, of Beaufort Superior Court..</p> <p>The plaintiff declared for a breach of the condition of the defendant’s bond, executed on 10th of October, 1887, upon his appointment as Clerk, for a failure on his part to issue an ex~ officio summons to Joseph S. T. Redding, the guardian of the relator, to renew his bond. Redding was appointed guardian on the 12th day of January 1885, and gave bond in the sum of $10,000, with John Pierce and Lewis A. Powell his sureties, who removed from this State to the State of Mississippi, in the year 1837, and it was admitted that Powell has resided in the State of Mississippi from that time to the present, and is amply good to pay the amount of the bond which he executed as Red-ding’s surety.</p> <p>The evidence was contradictory as to the pecuniary condition of Redding, the guardian, in January 1838. Some of the witnesses expressed the opinion that he was insolvent; others, that although he was embarrassed, his credit was good ; but he was insolvent before and at his death, in 1848, which was before the relator became of age. In August 1840, the defendant did issue a notice to Redding, requiring of him to show cause why he should not renew his bond, which was served and returned to October session, 1840, of' Martin County Court, which was placed upon the docket,, and continued from session to session until July 1841, when it was dismissed, without Redding having renewed his bond, or the Court having removed him. :</p> <p>The plaintiff gave evidence of the indebtedness of Redding as guardian, and claimed to recover of the defendant, as damages, the amount due from him to the relator, and he insisted, that, although Powell, one of the sureties to the guardian bond, was good for the amount, yet, that the relator, upon his arrival at fall age, was not bound to go to Mississippi to seek his remedy.</p> <p>The Court instructed the jury, that, as it was admitted that the defendant did not issue the summons at the proper time, the relator was entitled to nominal damages ; but that, before he could recover more than nominal damages, he must satisfy the jury that he could not recover anything, by prosecuting the guardian bond of 1835.</p> <p>■ Under these instructions, the jury returned a verdict for the plaintiff, and assessed his damage at one dollar.</p> <p>The plaintiff obtained a rule for a venire de novo, for error in the instruction given the jury by the Court, which was discharged, and the plaintiff appealed to this Court.</p>

This was an Action of Ejectment, tried before his Honor, Judge Manly, at the Spring Term, 1854, of Stokes Superior' Court. The plaintiff showed the defendant in possession of the land in question at the time of the bringing of this suit, and he read in evidence a grant for the land to Electious Musick, a deed from Musick to one Vernon, and a deed from the Administrator of Vernon to the lessor of the plaintiff.

Action on the Case for obstructing a private way, tried before his Honor Judge MANLY, atthe Spring Term, 1854, of Rocking-ham Superior Court. The road in question passed over the land of an ancestor of the plaintiff for sixty or seventy years, and had been used by him and by the plaintiff for that length of time as a mill road, and also for the purpose of going to meeting, and for getting out into the Danville Road, when they had occasion to visit that place.

This was a motion for a rule to show cause, &c., in a suit on a constable’s bond, made before his Honor, Judge Saunders, at the Spring Term, 1854, of Sampson Superior Court.

This was an action of Ejectment, tried before his Honor Judge Settle, at the Pall Term, 1853, of Moore Superior Court. The case is fully stated in the opinion of the Court.

This was an action of Trespass, q. c. f., for breaking and entering plaintiffs’ store-bouse, and for carrying off a quantity of goods.

This was an action of Trover, brought to recover the value of certain partnership goods, sold by the sheriff and delivered to the purchasers, tried before his Honor Judge SAUNDERS, at Spring Term, 1854, of New Hanover Superior Court. The plaintiff and one Southgate were partners, in the business of merchandizing, at a place called Strickland’s, in the county of Duplin.

<p>Professional books, or books of science, (e. g. medical books,) are not admissible in evidence, though experts may be asked their judgment, and the grounds of it, which may in some degree be founded on books, as a part of their general knowledge.</p> <p>Where counsel, in his address to the jury, read and commented on a book of science, as evidence in the cause, without being interrupted by the adverse counsel, this is no waiver of the error, for it was the duty of the Judge, in his instructions to the jury, to present the case to them properly, and to correct any errors into which counsel may have fallen. '</p> <p>For the Judge to say that a book on faniery, which had been read by counsel, was entitled to as much authority as a witness, who had been examined (as an expert in the science of diseases of horses,) is a clear violation of the act of 1796, (1 Rev. Stat. ch. 31, sec. 136,) forbidding the Judge to express an opinion on the facts.</p>

Action of Ejectment, tried before Ms Honor, Judge Bailey, at the Spring Term, 1854, of Tyrrell Superior Court.

Action on the Case for an injury to the plaintiff’s freehold, tried before his Honor, Judge Ellis, at the Spring Term, 1854, of Craven Superior Court.

Tins was an action of Detinue, for eight slaves, tried before his Honor Judge SaunbeRS, at Spring Term, 1854, of Ala-mance Superior Court. Tbo plaintiff claimed title as the administrator of William A» Nelson, who, it was alleged, acquired the slaves in question by his intermarriage with the defendant, in the county of Cumberland, State of Virginia, in the year 1845.

This was an Action of Debt, tried before his Honor, Judge MANLY, at the Spring Term, 1854, of Granville Superior Court. The plaintiff declared npon a bond, to whieh defendant pleaded infancy.

ACTION on the case for a fraud in the exchange of horses, tried at Spring Term, 1854, of Nash Superior Court, his Honor Judge Caldwell presiding. The plaintiff declared in deceit for a false warranty. On the trial, it appeared that the plaintiff’s horse was estimated by the parties at ninety dollars, and that of the defendant at sixty dollars.

Action of Debt upon the Bond of the Defendant’s testator, tried before his Honor, Judge Ellis, at the Spring Term, 1854, of Carteret Superior Court. The defendant pleaded general issue, payment, set off, Statute of Limitations, fully administered generally and specially, debts of higher dignity, retainer, no assets ultra, &c., relying mainly upon the plea of “fully administered.” At the Spring Term, 1852, of the Court, it was ordered that it be referred to William Gr.

This was an Action of Ejectment tried before his Honor Judge Bailey, at the Spring Term, 1854, of Lenoir Superior Court. There wore two counts in the declarations, one, upon the demise of William C. Loftin, and the other upon that of the trustees of the University. The plaintiffs claimed title from one Tbomas Box, to whom two grants had issued, one in 1757, and the other in 1760, which together covered the land in dispute.

This was an action of Replevin, tried before bis Honor Judge Caldwell, at the Spring Term, 1854, of Warren Superior Court. The action was brought to recover a slave by the name of Mourning, formerly the property of John T. Peace : the plaintiff claimed title as a purchaser at an execution sale. The execution, under which the sale was made, was in favor of the plaintiff, against John T. Peace, returnable to May Term, 1846, of Granville County Court.

This was an action of Assumpsit, commenced by a warrant front a Justice of the Peace, and brought by successive appeals to the Superior Court of Wayne county, where it was tried before hi* Honor Judge Ellis, at Spring Term, 1854. .Upon the trial, the plaintiffs offered in evidence the following sealed obligation: “ Twelve months after date, we, or either of us, promise to pay Wm.

This was an Action of Debt, tried before his Honor, Judge Saundees, at the Spring Term, 1854, of Bladen Superior Court. The plaintiff declared upon a bond for one hundred and twenty-two dollars payable to John McKeethan, Administrator of the estate of Dugald McKeethan, deceased, due twelve months after date, and dated the 6th of February, 1887, signed by G. J. McKeethan, W. Atkinson, and Robert Murphy, on which there was a credit of $13.03, endorsed the 5th of October, 1844.

This was an action on the case for wrongfully sueing out Attachments, tried before his Honor, Judge Manly, at the Spring Term, 1854, of Guilford Superior Court. The plaintiff introduced a witness by the name of Sidenham, who proved that, at the request of Wesley Coe, he went, shortly after daylight, on Monday morning, to plaintiff’s house, and he assisted the defendant, Wesley, to remove from the crib of the plaintiff some thirty-five or forty bushels of corn.

<p>This was a Petition for Dower, heard before his Honor Judge Manly, at the Spring Term, 1854, of Orange Superior Court.</p> <p>The cause was heard upon the petition and answers, and the ' following are the facts of the case : The petitioner is the widow of Porter Thompson, who, having made his last will and testament, died in 1858. From this will the widow dissented, and ‘had her dissent duly entered of record in the County Court of Orange. In 1849, Porter Thompson contracted with one Riche-son Nicholls, for the purchase of a house and lot, in the town of ‘Hillsborough, and took a bond from him to convey the title in fee simple to him, whenever he (Thompson) should pay the purchase money for the same, to wit: the sum of six hundred dollars. Thompson entered upon the premises immediately, and continued to occupy them up to the time of his death, and paid, during that time, of the purchase money, four hundred dollars. The balance due is something over two hundred dollars."</p> <p>The petitioner prayed for the writ of dower, for her dower to fee assigned in the house and lot in question.</p> <p>The Executor of Porter Thompson and his heirs at law were made parties, defendant, who filed answers admitting the facta as above stated, but denying the right, in law, of petitioner to have dower in the premises.</p> <p>Upon consideration of the facts above stated, his Honor being of opinion against the petitioner, so declared and ordered the petition to be dismissed. From which judgment the plaintiff prayed am appeal to this Court.</p>

This ivas an action originally brought by a warrant against two slaves for violating the provisions of an ordinance of the town of Washington, tried before his Honor Judge Ellis, at Spring Term, 1854, of Beaufort Superior Court. The warrant under which the defendants were arrested was as follows: State oe NoRtii Carolina, Beaufort County.

Action of Trespass, quare clausum fregit, tried before his Honor, Judge Manly, at the Spring Term, 1854, of Forsythe Superior Court. Plea, general issue, and a special plea under the statutes, disclaiming title, alleging the trespass to be involuntary, and tender of sufficient amends.

Action of Detinue for a slave, tried before his Honor Judge Saunders, at the Spring Term, 1854, of Bladen Superior Court.

Action of Slander, tried before his Honor Judge Settle, at the Spring Term, 1854, of Stanly Superior Court. Pleas, General Issue, and Statute of Limitations. Exception to the instructions given by the Court to the jury, upon the Statute of Limitations.

Ejectmfnt, tried before his' Honor Judge Ellis, at the Spring Term, 1854, of Hyde Superior Court. The plaintiff claimed title under a sale by the sheriff of Hyde, under a-venditioni, founded upon a Justice’s judgment, and a levy upon the premises in question by a constable.

<p>Application for a mandamus to compel payment for building a bridge over the South Yadkin River, heard before his Honor Judge Caldwell, at Spring Term 1853, of Iredell Superior Court.</p> <p>The petition was as follows:</p> <p>“ To the honorable the Judge of the Superior Court of Law in and for the county of Iredell, State of North Carolina :</p> <p>“ The petition of Samuel Tucker respectfully showeth to your Honor, that, at the November sessions, 1847, of the Court of Pleas and Quarter Sessions for the county aforesaid, the Justices thereof made an order, and caused the same to bo entered of record, appointing Henderson Forsyth, Enos Gaither and Alexander Bailey* Commissioners, to let and contract for the building of a bridge over the South Yadkin river, near where Belts’ bridge formerly stood.</p> <p>“ Your petitioner further showeth that the said Commissioners, in the month of January, 1848, contracted with your p titioner for building said bridge, at the place designated, according to certain written specifications, describing and establishing, with great particularity, the kind of a bridge, the manner of building it, and the material to be used about the same ; that the said Commissioners required your petitioner to sign specifications, and the same were returned to, and are now on file in the office of the clerk of the County Court, and that, to secure the performance of the contract, your petitioner was required to and did execute a bond, with good security, in the sum of two thousand dollars, which said bond was delivered to the said Commissioners, for and in behalf of the county of Iredell, and returned to the said Court, and is now on file in the clerk’s office.</p> <p>‘•And your petitioner further showeth that the said Henderson Forsyth, Enos Gaither and Alexander Bailey, in contracting with your petitioner, only acted for and in behalf of the county, and by virtue of tbeir appointment as Commissioners as aforesaid, of the County Court.</p> <p>“ And he further showeth, that the said South Yadkin River at the place designated, is within the limits of Iredell county, and within the jurisdiction of the County Court.</p> <p>“Your petitioner further showeth, that it was contracted by the Commissioners aforesaid, to pay your petitioner the sum of seven hundred and ninety-nine dollars, for building the bridge according to the said specifications.</p> <p>“Your petitioner further showeth, that he soon’thereafter went to work, and employed a large number of hands, and, in as substantial and workmanlike manner, as the specifications would admit, built and completed a bridge, which, in every respect, your petitioner positively avers, corresponded to the specifications above mentioned; that, in all things, he perfoimcd his contract, and fol. lowed the said specifications as.his guide. Your petitioner further showeth to your Honor, that the said Commissioners, after viewing and examining the bridge after its completion, entirely .approved the same, and made their report to the November session, 1848, of the County Court, stating their examination and approval, and recommending that your petitioner be paid the sum of seven hundred and ninety-nine dollars, according to agreement, (which is filed as an exhibit.) That, upon the presentation of said report, and, according to its recommendation, the Justices of the Court, at the said November session, 1848, made an order, directing the county trustee to pay to your petitioner the sum of $799, for building the bridge as aforesaid contracted for, and completed by your petitioner, a copy of which order, marked B, is herewith submitted, as a part of this petition. Your petitioner further showeth to your Honor, that said bridge thereupon was opened to and used by the community as a county public bridge; and your petitioner applied to the county trustee for his pay; that said trustee deferred payment at the time for the want of the necessary county fimds wherewith to discharge the same. Your petitioner further showeth to your Honor, that, after said bridge had been used by the citizens of the county, and the public geneially, a part of said bridge fell down, not because of any deficiency in the execution of the work on the part of your petitioner, as he is fully convinced and satisfied, but entirely from the plan of the bridge itself, as prescribed in the said specifications, and your petitioner shows, that it is next to impossible to make a permanent bridgo on the plan proposed: for this one reason that the pillars, limit of common rough rock, without mortar or ccmeut, and bounded and built as specified, of only four feet base, and twenty feet high, and three feet at top, are not calculated to stand and support- a bridge ; that your petitioner has taken the opinion of an intolhgent eng’neer, upon the plan of the pillars and bridge, and he states, unequivocally, that such a structure could not. be expected to stand. And your petitioner shows to your Honor, that he faithfully and to the best of his ability, performed t,ho work specified by tbe county, and for which he and the Justices, by their Commissioners, contracted, and that he did not contract to insure the work to he permanent, and is in nowise responsible for defects in the original plan of the work. Your petitioner further showeth, that, after said bridge had fallen in part, the Justices, at the February Term, 1849, rescinded ther former order of payment, and hare instructed their County Trustee not to pay your petitioner. Your petitioner shows to your Honor, that he has repeatedly demanded his money, and sought to obtain it, but that his demands have been and still are met with positive refusal; that, having performed his contract, according to his written directions, and received an order for his money, he is now strictly entitled to receive, from the treasurer of the county, the sum of $799, with interest on the same, from the 17th November, 1848, until the same be paid; and as he can have no relief in the premises, save by the extraordinary process of mandamus, he shows that ho is entitled to the same; that he learns from the clerk of the County Court, and so shows to your Honor, that the following are the Justices of the Peace, in and for the county of Iredell, (setting them forth at large.)</p> <p>“ Your petitioner therefore prays your Honor, that an alternative mandamus may issue to the aforesaid Justices, commanding them, that, unless they show good cause to the contrary, whenever thereto required by this honorable Court, they pay, or cause to be paid, by the officers of this county, the said sum of $7 9, with interest thereon, from the said 17th of November, 1848 ; that, upon their failure to show such cause, they be absolutely and peremptorily commanded by this honorable Court, to pay to the petitioner, the aforesaid sum of $799, with the interest thereon, as aforesaid.</p> <p>North Carolina, \</p> <p>Iredell County. J</p> <p>Samuel Tucker maketh oath, that the several matters of fact set forth in the foregoing petition, as of his own knowledge arc true, and those as not of his own knowledge, he believes to be tiue. Samuel Tucker.</p> <p>(Sworn to before the Clerk of Superior Court.)</p> <p>This petition was then entered upon the minute docket of the said Court, and the following proceedings had, viz :</p> <p>Samuel Tuckek, vs. Thomas A. AllisoN, and others,</p> <p>This petition coming on to be heard on the petition and affidavit of the petitioner, it is ordered by the Court, that, unless the defendants shall pay the sum of $799, and interest, as prayed for in the plaintiff’s petition, on or before the first day of January, 1852, that the Clerk of the Superior Court of Iredell county shall issue notices to the several defendants, to show cause, at the next term of this Court, wherefore a writ of mandamus shall not issue, as prayed for by the petitioner.</p> <p>And at Spring Term, 1852, said suit appears on the trial docket, and the following proceedings are had: “Motion to quash disallowed, and defendants required to make a return.” From which order the defendants were allowed to appeal. No appeal bond to be filed, by consent.</p> <p>In the Supreme Court, the judgment below was affirmed (13 Ired. Rep. 434;) which, being certified, an alternative mandamus issued, requiring the defendants to pay the petitioners the sum of $799, with interest, or show cause, and make return to the next term of the Court.</p> <p>At the Fall Term, 1852, of our said Court, came the defendants and made return to the said petition of Samuel Tucker, as follows:</p> <p>To the petition of Samuel Tucker, praying a mandamus against the justices of Iredell county, they the said justices make return, and for cause show respectfully, to this Honorable Court, that they, from the best of their knowledge and belief, in refusing the payment of the petitioner, as alleged in his petition, haye not acted in bad faith or unjustly towards him, and do not withhold from him a debt which in good conscience he can demand, but they have acted with a sole regard to their public and official duty to the county, and from a desire to protect it from an unfounded and iniquitous claim. They say it is true, that at November Term, 1847, of their county Court, they made the order mentioned in the petition, and also, that the petitioner undertook a contract to build a bridge on the South Yadkin River, according to specifications in writing» (the substance of which is set forth below.)</p> <p>They deny that the petitioner has built the said bridge in all things, according to his contract, and the said written specifications. They represent that from the best of their knowledge and belief, the petitioner built the said bridge with such gross negligence and wilful unskilfulness, that it is of no public utility whatever; that owing to the frail and insufficient construction of the work, one end of the bridge had crushed the abutment, upon which it was supported, before the petitioner had finished his work ; and in less than two months afterwards, the other end crushed the abutment upon which it was supported, and sunk down, and that since then, the greater part of the bridge has been carried off by the waters Of the stream.</p> <p>These defendants show, that in the petitioner’s contract, it is specified that “the face wall of the abutment on the South side of the river was to be started in the bottom of the river, against a rock; to be four feet thick tapered up twenty feet high, to be three feet thick at the top for the cope; two side walls to be started, fifteen feet from outside to outside; to be three feet thick at bottom, tapered to two feet at top, and the space between the walls to be filled with rock and dirt to settle them ; and the abutment on the North side of the river is to start forty-eight feet in the river, and tobe constructed as the abutment of the South side.” And they represent, from the best of their information and belief, that the face walls and side walls of the abutments were not built as specified in the terms of the contract, but that stone, without regard to their fitness, in size and form, were so laid as fraudulently to present the face of a wall, when in truth, what represented walls were of unequal thickness, and of a single stone, and varying with the size of the stone; and instead of rock and dirt, the abutments were filled in with loose salid. These constructions st; rted in water, from foundations loosely placed in the mud and sand, instead of at the bottom of the river against the rock, and were reared on one side of the river to the height of twenty feet. These defendants represent, from the best of their information and belief, that these pretended walls, in many parts, did not exceed a foot in thickness, and were so frail as to be totally inadequate for the support of the bridge, and for this cause they crushed, and the bridge sank down, and was rendered impassable and useless. They further represent, from their information and belief, that the timbers used in the construction of the said bridge were not such as are specified in the terms of the contract; — - were not all of heart timber, but large portions of material pieces were white pine or sap wood; the defendants show that the petitioner, in the several particulars mentioned, as well as others, has violated the terms of his contract for building said bridge, and has no just demand for the payment of the stipulated price. The defendants show that the said bridge fell down and became useless from the deficiency of the execution of the work, by the petitioner, and that it was not because of any defect in the plan of said bridge as contained in said specifications. Defendants further show, that it is true, that two of the commissioners, appointed by them to make the contract for the building of said bridge, did represent to them in writing that said contract was completed according to agreement, but such representation was untrue. The petitioner and the said commissioners knew, at the time it was made, that it was untrue ; they were all fully aware that the bridge, in its construction, was deficient in the particulars, herein before alleged, and that it was of little or no use to the public. These defendants are informed, and believe, that the said commissioners, before they would agree to make the »aid fraudulent representation to the justices concerning the structure of said bridge, knowing it to be frail and wholly insufficient, required the petitioner to put a wooden pillar, consisting of two wooden posts upright under the main wooden structure of the bridge, to support it, and that said bridge was in this condition, supported by such wooden posts, when they made the aforesaid representation to the defendants. The defendants believe and say that with a knowledge that petitioner had not performed his contract, these commissioners with him fraudulently confederated to procure from these defendants an order for the payment of the stipulated price of the work, and in pursuance of this design, they falsely made the above mentioned representation, by which the defendants were misguided and deceived, and induced to make an order directing the county trustees to pay the stipulated money. The defendants believe and represent that the said certificate of the commissioners was advised, counselled, and approved by the petitioner with a perfect knowledge, on his part, that the contract for building said bridge had not been substantially performed, and with the design of fi audulently taking and receiving money from the county, without any just title to demand it. These defendants state that at the next term of their County Court, they rescinded the aforesaid order, (it being the very first opportunity they had of so doing, after learning that they had been imposed upon by the petitioner,) and that said defendants believed at the time, and they still believe, that they had power and authority in law so to rescind their own order. These defendants state that they are not informed that any surrender of the bridge was made to them or the public, by the petitioner, nor have they surrendered or dedicated it to the public use, by any special act of their own ; nor have they any knowledge or belief that the aforesaid commissioners accepted it, except as the above mentioned certificate may be evidence of acceptance.</p> <p>Personally appeared Thomas A. Allison, one of the defendants in behalf of all the justices of the county of Iredell, and maketh oath that the several matters which are set forth in the foregoing return, as of their own knowledge are true, and those set forth as not of their own knowledge, are true to the best of his-.undorstanding and belief. Thomas A. Allison.</p> <p>Sworn to in open Court. W. II. Haynes, Clerk.</p> <p>This suit was regularly continued in Court until the Spring Term, 1853, when the following proceedings were had, his Honor Judge Caldwell presiding:</p> <p>The following issues were made up between the parties:</p> <p>1st. Was the bridge in question built according to contract?</p> <p>2d. Was the bridge in question accepted by the County Court, or by the Commissioners, after it was so built ?</p> <p>Whereupon, the following jury of good and lawful men are empanelled, and sworn to try the issues joined between the parties, viz: (naming them;) who, for their verdict, say, as to the first issue: “ That the bridge in question was not built according to contract.”</p> <p>And, as to the second issue, they say, “ That the said bridge, after it was built, was accepted by the County Court of Iredell.”</p> <p>Upon which verdict and premises aforesaid, it is moved by the plaintiff that a peremptory mandamus issue to the said Justices of the Peace, commanding them to pay the said sum of $799, in the pleadings demanded.</p> <p>The Court, upon consideration, refused the said motion, “ and thereupon it is considered by the Court, that the said writ be-quashed, and the defendants go without day,” from which judgment the plaintiff appealed to the Supreme Court.</p>

<p>ACTION of Detinue, tried before his Honor Judge Dick, at the Fall Term of Alexander Superior Court.</p> <p>The only question in the case arose upon the clause in the •will of Benjamin Newland, which is cited by his Honor Judge Battle, in giving the opinion of this Court, and it was agreed, that if, under said elause, Catharine Newland was entitled to an absolute estate in the slaves Richard and Pinckney, the plaintiff was entitled to recover ; but, if otherwise, the verdict must he for the defendant. His Honor, on this question, being of opinion with the plaintiff, so instructed the jury, who found a verdict for the plaintiff.</p> <p>Motion for a venire de novo; rule discharged. Judgment and appeal.</p>

<p>The rules of law, established for the ascertainment of boundary, are applicable in locating the lease formally set forth in a declaration of ejectment, so tha* where trees were marked originally by a surveyor, for the purpose of obtaining a grant, and are called for as such in the grant, and are mentioned as such in the lease set forth in the declaration, the lines in establishing such lease must be run to such marked and recognized trees, regardless oí other calls, depending merely on course and distance.</p>

ActxoN of Assumpsit, tried before his Honor Judge Manly, at the Fall Term, 1851, of Rowan Superior Court. Held: payable to his testator, as guardian, it would be satisfactory, as they did not want the money. The executor said he would settle it. As this Court approve the charge of his Honor upon the liability of the defendant’s testator, it is deemed unnecessary to state it.

<p>ActioN of Trespass q. o. /., tried before his Honor Judge Caldwell, at the Fall Term, 185b, of Cleaveland Superior Court.</p> <p>This case was before this Court at the August Term, 1850, 11 Ired. Rep. 247. The trespass alleged was, that the defendant’s intestate entered upon the plaintiff’s land in the night time, in July 1844, and set fire to the plaintiff’s machine house, which contained a Wheat Thrasher, Cotton Gin, a quantity of Wheat, Cotton, Straw, and other articles all of which were destroyed by the fire, and also that the defendant’s intestate at the same time entered into the plaintiff’s barn yard upon another part of the same premises, and there killed a horse belonging to the plaintiff, by breaking his skull. A part of the wheat des-. troyed was the property of other persons, brought there by to be threshed for a certain toll. The evidence against the defendant was circumstantial, no one having seen the act perpetrated.</p> <p>The defendant’s counsel contended—</p> <p>1st. As this was a case of circumstantial evidence, the jury must be satisfied, beyond a reasonable doubt, of the guilt of the intestate, and unless the facts proved precluded every other hypothesis, except that of his guilt, they must find for the defen dant.</p> <p>2nd. As this was an action, brought to recover damages for an injury done to real estate, in no event could the jury find the value of the horse killed.</p> <p>3rd. That the defendant was not liable for the wheat in the plaintiff’s possession, which belonged to other persons, and was brought to plaintiff’s Thresher to be threshed.</p> <p>4thly. That plaintiff was only entitled to recover the actual damage of his property destroyed by the fire, at the time it was destroyed, without interest.</p> <p>His Honor charged the jury that the defendant, in this case, was not on his trial for the criminal offence of burning the plaintiff’s property, and that the strict rules of eveidenee applicable to the crime of Arson, did not apply to this, which was only an action brought to recover the value of property which plaintiff alleges was destroyed by the defendant’s intestate. And, to entitle the plaintiff to recover, he must satisfy the jury that the defendant’s intestate did the acts complained of, and that the jury must weigh the whole evidence, and say how the matter was.</p> <p>Upon the other points made up by the defendant’s counsel, the Court instructed the jury that they might find the value of the horse killed, the value of the wheat and straw which was destroyed with the house, as well that brought there to be threshed, as that of his of his own. If the jury desired, they might find interest upon the value of the property destroyed irom the time it was destroyed ; but that the question of interest was a matter wholly for the jury.</p> <p>Under these instructions, the jury returned a verdict for the plaintiff.</p> <p>Motion for a venire de novo. Rule discharged. Judgment and appeal.</p>

This was Action of Debt, on a bond, tried before bis Honor, Judge Settle, at tbe Spring Term, 1854, of Wilkes Superior Court. The signature of the hand in question was established to be the hand writing of the defendant’s testator.

This was an application for a mandamus against the Justices of Cleaveland, to compel them to pay the plaintiff for building a Court House in the county of Cleaveland, tried before his Honor Judge Settle, at Spring Term, 1854, of Lincoln Superior Court.

This was a motion as to the taxation of the costs, before his Honor, Judge Dick, at the Spring Term, 1854, of Haywood Superior Court. The suit in which the motion was made, was an action of as-sumpsit brought by the plaintiff against R. M. Henry, William L. Henry, and the defendant, Robert, for work and labor done in building a mill.

This was an action of Ejectment, tried before bis Honor Judge Caldwell, at the Fall Term 1858, of Buncombe Superior Court. The facts of the case sufficiently appear from the opinion of the Court.

ActxoN on the case for a malicious prosecution, tried before his Honor Judge Diok, at the extra Term of Buncombe Superior Court, in June 1858. It appeared in evidence that the plaintiff was a deputy sheriff in said county, in the years 1843 and 1844, and as such had for collection a justice’s judgment in favor of one A.. B.. Chunn, against Hugh Clark and Reuben Brown.

<p>According to the general understanding of the profession, where a plaintiff i» not required to file a formal declaration, the Court is to assume that his declaration contains all the averments necessary to sustain his case.</p> <p>In an action of slander, where the words proved are not actionable in themselves, they cannot be made so by the aid of other words, spoken at a different time and place, which are barred by the Statute of Limitations.</p>

Action of Debt, begun by warrant and carried to the Superi- or Court of Catawba, by appeal, where it was tried before his Honor Judge Dice, at the Fall Term, 1858. The ease sufficiently appears from the opinion of the Court.

<p>This was an action of Ejectment, tried before his Honor ¿fudge Ellis, at the Fall Term, 1852, of Cabarrus Superior Court.</p> <p>The plaintiff’s lessor claimed title from one Solomon Earn-hart, sr., the father of the defendent, and showed in evidence Several judgments and executions against the said Solomon, sr., a levy upon the premises in question, a sale and Sheriff’s deed for the same.</p> <p>A witness was then called for the plaintiff, who testified that the defendant was the son of Solomon Earnhart, sr., and living with him on the land at the time of the sale to plaintiff’s lessor, and that on the day after the sale, the father left the y remises, leaving the defendant in possession, and was in the habit of returning and taking part in the management of the farm and workshop.</p> <p>The defendant claimed title as the tenant of one Solomon Earnhart, jr., another son of the defendant in the exucution, who claimed title by a deed of bargain and sale from his brother, one John M. Earnhart, who claimed by a similar deed from Solomon, sr. This deed was dated in 1848, and that from John M. to Solomon, jr., in 1844. The plaintiff objected to the introduction of these deeds, upon the ground that the defendant was estopped from setting up any defence which the defendant, in the execution could not set up, as the defendant went in under him. The objection was oYerruled, and the evidence admitted, to which the plaintiff excepted.</p> <p>The conveyance from Solomon, the father, to John M. Earn-hart, was attacked for fraud, and many witnesses examined.</p> <p>To rebut this evidence, the defendant introduced John M. Earnhart, who, in the course of his evidence, stated, that the deed from himself to his brother, Solomon, was made in consideration of a note for $1200, which was afterwards paid off and destroyed. The plaintiff objected to his speaking of a note, unless he produced it. The evidence was admitted by the Court. Plaintiff excepted.</p> <p>The plaintiff then offered to prove the fraud alleged, by showing that there was a family arrangement, whereby Solomon, sr., gave other tracts of land to other sons, as they came of age, contending, that the plan for defrauding his creditors was pre-concerted between the said Solomon, the father, and his sons.</p> <p>The evidence was objected to and rejected by the Court, for which plaintiff ■ excepted.</p> <p>There was a verdict and judgment for the defendant, and appeal for error in the masters excepted to by the plaintiff.</p>

Actioh of Trover for a wagon, tried before his Honor Judge Caldwell, at the Spring Term, 1853, of Wilkes Superior Court.

ACTION in the case for a Deceit in the sale of a mule, triéd before his Honor Judge Dick at the Spring Term, 1854, of Burke Superior Court. The defendant offered for sale, at public auction, a male mule, which had not been castrated, but which had the usuaj. visible-developments in the scrotum.

<p>An indictment charging the defendant with going into a religious congregation engaged in actual service and then and there exhibiting himself drunk, and by cursing and swearing with a loud voice, and by making indecent gestures and grimaces, disturbing them, is not sustained by proving that he disturbed them by striking the meeting house, on the outside, with a stick.</p>

This was a petition to recover damages for an injury to the plaintiff’s sawmill, caused by the defendant’s erecting a dam for a mill below, over the same stream, and thereby ponding the water back on the wheels of the plaintiff’s mill. The suit was commenced in Gaston County, and removed to Mecklenburg, where it was tried at the Fall Term of 1853, before his Honor Judge Dick.

ActioN of Debt, tried before bis Honor Judge Dick, at the Spring Term, 1854, of McDowell Superior Court. The suit was commenced oidginally by a -warrant before a Justice of the Peace, by the plaintiff’s testator, and came up by successive appeals to this Court.

Action of TitovER, for the conversion of a mule, with a count in case, tried at the Spring Term, 1854, of Union Superior Court, his Honor, Judge Settle, presiding. The mule in question had been bought in South Carolina, in December, 1850, by one James M. Houston, who returned with the animal, and sold it to the plaintiffs for seventy-five dollars, and by way of payment, received a credit for that amount on the books of the plaintiffs, who were merchants.

This was a motion before his Honor Judge Dice, at the Spring Term, 1854, of Rutherford Superior Court, to set asido a judgment.

Action of Ejectment, tried before bis Honor, Judge Dick, at the Fail Term, 1853, of Mecklenburg Superior Court. The case stated many points of exception, and much of the testimony, but as there was error in the one instance stated below, and the opinion of the Court regards that alone, and fully recites the facts, it is deemed unnecessary to set forth more of the case sent up.

ACTION of Detinue for a negro slave named Susan, tried before bis Honor Judge Dick, at the Fall Term, 1853, of Iredell Superior Court. The plaintiff is the administrator of Asenith Sharpe, (one of the daughters of Elihu S. King,) who had intermarried with one Ezra A. Sharpe, and died within three years before this suit was brought.

<p>Where there are several counts in a declaration for distinct causes of action, and the plaintiif abandons one of the counts in the progress of the trial, and obtains a vvrd.ct on the other counts, the Court, on motion of the other side, ought to give instructions to tho Clerk not to tax the defendant for the attendance of the witnesses summoned to sustain the abandoned count.</p>

This was an indictment for an assault and battery, and false imprisonment, tried before his Honor Judge Dick, at the Fall Term, 1853, of Rowan Superior Court. There were two counts in the bill of indictment, one for assault and false imprisonment, and the other for an assault and battery. On the trial, a series of violence, by words and gestures, several amounting to assaults and two or three of them to batteries, were proved.

The petition was filed at Spring Term, 1858, alleging violent and abusive treatment and oppression, on the part of the husband, and a final driving of the petitioner from his house, and frequent refusals to let her return, and prays for alimony, &c. The answer of the husband ivas filed at the return term, and explicitly denies all violence and ill treatment, and denies cx- ] oiling her from his house, hut attributed their dissension to tho obstinate and violent temper of the…

Scire Facias to revive a judgment, tried before his Honor Judge Caldwell, at the Fall Term, 1853, of Yancey Superior Court.

This was an appeal from iho judgment of a Justice of iho Peace of McDowell county, brought by successive appeals totha Superior Court of that county, and decided at the Spring Term, 1864, his Honor, Judge Dice: presiding. At Spring Term, 1862, of the Superior Court, defendant filed an affidavit, setting forth the insolvency of the sureties of the prosecution bond which had been filed by the plaintiff.

This was another question of cost arising in the case preceding this, (ante. 534,) tried at Spring Term, 1854, of McDowell Superior Court, before his Honor Judge Diok. The following additional facts appear from the record in the case, which will show the question now presented to the Court.

ActioN of Debt on a constable’s bond, tried before bis Honor Judge Dick, at the Spring Term, 1854, of Burke Superior Court.

This was an action of Trover, tried before Ms Honor Judge Dick, at the Spring Term, 1854, of Henderson Superior Court. The plaintiff proved that he bought a wagon from one Cook, at the price of seventy-five dollars, and paid for the same.

ACTION on the case for a fraud in passing insolvent notes,' tried before bis Honor Judge Caldwell, at tbe Fall Term, 1853, of McDowell Superior Court. This was an action on the case to recover damages for passing to the plaintiff’s intestate notes on certain individuals whom he knew to he insolvent, and whom he represented as solvent.

ACTION of Ejectment, tried before his Honor Judge Settle, at Spring Term, 1854, of Iredell Superior Court. The plaintiff’s declaration contained two counts, one on the demise of Joseph James, and the other on the demise of Win. R. Feimster, each of which counts alleged the demise of two tracts of land, the one of one hundred and thirty-five acres, and the other of fifty-one acres.

MotiON to retax the bill of costs, heard at Spring Term, 1854, of Macon Superior Court. The- defendants were arrested on a peace warrant, at the instance of one William Tatbam, and upon tbe hearing of the complaint before a Justice of the Peace, the defendants were ordered to be bound to the peace, and to be bound to the next term of Macon Superior Court, and they gave bonds accordingly.

Pleas, General Issue, Statute of Limitations, former judgment.

Action of Debt on a penal bond, tried before his Honor Judge Dick, at the Spring Term, 1854, of Henderson Superior Court. Held: that they were liable, and so charged the jury, who, under these instructions, rendered a verdict for the plaintiff. Motion for a new trial. Eule discharged; judgment and appeal.

<p>This was a petition brought in the County Court of Mecklen-burg, to correct and amend a record of that Court, and waa brought to the Superior Court of that County b.y appeal, and tried at the Spring Term of that Court, his Honor Judge Settle presiding.</p> <p>The petition and affidavit filed, embracing the specifications, stated that one Thomas Jamison, as administratin' of one John Barnhill, filed his'petition in the County Court of that county, at May Term 1832, against the children and heirs at law of Barnhill, alleging that he had paid large sums out of his own funds, for the estate of his intestate, beyond the amount of assets that had come to his hands, and praying that the real estate ‘of the said Barnhill might be sold to re-emburse him in such amount. Whereupon, the Court appointed “ Isaac Alexander, Clerk of the Court, guardian .pendente lite'of the heirs of John Barnhill,” who were all then infants, and the entry of such appointment was made in the case, in those words; that the cause was referred to the clerk, who reported a balance due the petitioner, which report was confirmed, and a judgment was entered for eighty-five dollars, for which an execution issued, and levied on a tract of land which descended to the heirs above mentioned; that Jamison bid off the land, and sold it to this petitioner, who has had the occupation of it for eight years, and has made valuable improvements on it; that, in consequence of the defect in the record of appointment of the guardian to the infant defendants, in not naming them, he is advised that the title to his land is defective, and that he may suffer great wrong and inconvenience, and he prays that the record may be amend* £d in that particular, nunc fro tunc. There was no answer or formal plea to the petitions The case sent to this Court States that there was no evidence offered of the facts alleged in the petition, and no proof that the defendants were the heirs of Barnhill, nor airy proof that the plaintiff was a purchaser from Jamison.</p> <p>The defendants contended that the record could riot be cor= rected, without ftill proof of all the facts alleged* and that it could only be corrected at the instance of Jamison or his heirs;</p> <p>But his Honor being of opinion with the plaintiff, affirmed the decision of the County Court, allowing the record to be amended, as prayed for in the petition, from ivhieh judgment the defendants prayed an appeal to this Court;</p>

ActioN of Ejectment, tried before bis Honor, Judge Settle, at the Spring Term, 1854, of Cabarrus Superior Court.