Volume 47 — North Carolina Reports

This was an action of detinue, tried before his Honor Judge Bailey, at the special Term of Pasquotank Superior Court, December, 1854. The plaintiff declared for the detainer of a policy of insurance upon the life of James G. Scott, insured by the New York Insurance Company, being policy No. 930, for $3,000.

This was an action of debt, tried before his Honor Judge Bailey, at the Special Term, December 1854, of Pasquotank Superior Court.

<p>Where a Clerk and Master took money belonging to his Office and used it in speculation, the sureties of the bond for the term, then current, are liable : notwithstanding the amount invested had been paid to him by his copartner in trade after the time covered by that bond had elapsed, and a new bond had been given.</p> <p>Such a return of the funds could only be considered in mitigation of damages, and to have that effect it should be shown that the funds were specifically appropriated to the payment of those entitled to them.</p> <p>Where the sureties on the second bond were erroneously sued and the money forced out of them, the judgment in that suit is no bar to the action against the sureties who were actually liable ; and where the judgment had been assigned to the use of the sureties who had wrongfully paid, it will not be allowed to go in mitigation of damages.</p>

ActioN of Debt, tried before bis Honor, Judge Bailey, at tbe Spring Term, 1854, of Perquimons Superior Court. The question of the defendants’ liability on the bond of 1846, which arose also in the case having been disposed of in the foregoing case of White v. Smith, another question remains to be considered in this case; what interest the relators have in the fund for which they are liable, and their right to sue for the same?

<p>The assignment of a bail bond, by the administrator of a Sheriff, passes no such interest in it as to entitle the assignee to maintain an action in his own name against the bail.</p>

<p>PROCEEDING under the acts concerning bastardy at Spring Term, 1854, of Wayne Superior Court.</p> <p>The question made below was on a motion to tax the defendant with the whole costs after he had been acquitted upon an issue made up and submitted to the Jury. His Honor ■Judge Caldwell, made the order that he should be so taxed, and the defendant appealed to this Court.</p>

AotioN of Covenant, tried before bis Honor Judge Dice, at the Fall Term, 1851, of Tyrrel Superior Court.

AotioN of AssuMpsit, tried before his Honor Judge Dice, at the Fall Term, 1854, of Pasquotank Superior Court. The plaintiff declared on the following promissory note, viz: “ Elizabeth City, Sept. 9, 1852. “Pour months after date I promise to pay James Nichols or “ order, for value received, one hundred and thirteen dollars “ and ninety-six cents, negotiable and payable at the Branch “Bank of the State of North Carolina, at this ¡hace.” Signed by the defendant.

AotioN of Assumpsit, tried before his Honor Judge Manly, at the Eall Term, 1854, of Cumberland Superior Court. John A. McDonald, owing Peter P. Johnson for a bill of goods, gave him a note of hand worded as follows: « Fayetteville, N. O., Nov. 20th, 1850. $259 08.

<p>In a declaration for a deceit in the sale of a fishery, the price paid for the property, is not a material constituent of the cause of action, and need not be proved as alleged.</p>

<p>ActioN on the case in the nature of waste, tried before his Honor Judge Masi/t, at the Pali Term, 1854, of Bladen Superior Court.</p> <p>The plaintiffs (husband and wife) claimed damages for certain timber trees cut upon the land in question, which had descended to the feme plaintiff from Thomas Ered. Smith. The plaintiffs produced in evidence a deed from defendant, Thos. 0. Smith and another, for the land in' question, (640 acres) on North-"West River, to Thomas Fred. Smith, his heirs, &c., dated 14th day of May, 1827, reciting a consideration of $2,000, “ to have and to hold all and singular the privileges and appurtenances thereunto belonging unto him the said Thomas Fred. Smith, his heirs and assigns forever, except that all the pine timber, upon said tract, that will square one foot, is hereby reserved unto the said Thomas Smith and Thomas Cyrus Council Smith, their heii’S and assigns foiever, with the privilege of cutting and carrying away said timber at any time that may be convenient for said Smiths, their heirs and assigns.” To which there is a covenant of quiet enjoyment, “ except the above mentioned reserved pine timber.” Thomas C. Smith, with the other defendant, Council, who entered under him, went upon the land and cut pine timber, which he hauled off to market and sold, but none of the trees were of less size than would square one foot. The plaintiffs offered to show that some of the trees cut, had attained to the size reserved in the deed since its date of 1827 : but the Court, construing the reservation in the deed to embrace, not only the trees of that size then growing on the land, but also such as thereafter might attain that growth, excluded this testimony, and upon this point charged the juzy in favor of the defendants. Yerdict for the defendants. Motion for a venire de novo for error in the ruling of the Court. Rule discharged. Judgment and appeal by plaintiffs.</p>

<p>In an action for words spoken, charging the plaintiff with the murder of an individual, what that individual said, though in extremis, and under the full impression that he would not recover, is not evidence on the plea of justification.</p> <p>To establish a justification, the same cogency of proof is not necessary, as would he required if the plaintiff were on his trial upon a criminal charge fof the offense imputed to him in the words.</p>

This was an aotioN oh the case, tried before bis Honor Judge Ellis, at tbe Spring Term, 1854, of Lenoir Superior Court. Tbe defendant agreed witb tbe plaintiff to hire to him a negro slave at tbe price of $67, for tbe year 1853, beginning witb tbe 1st of January, be, first giving her a note for that sum witb two individuals named, (Fields and Waters,) as sureties, and this was to be done within a few days. Tbe agreement took place some time in the l&st week in December, 1852.

ActioN for penalties for failing to work on a public road, tried before his Honor Judge Saundeks, at the Spring Term, 1853, of Tyrrel Superior Court.

AoxioN of TRESPASS qucure clausum fregit, tried before bis Honor Judge Manly, at the Fall Term, 1854, of Cumberland Superior Court. The exceptions taken to the instructions which his Honor gave the jury were abandoned in this Court, and the only question submitted is upon a motion' here by the defendants’ counsel to arrest the judgment, because the jury in their verdict, had allowed interest upon the damages which they found for the plaintiff.

. This was a proceeding against the defendant, who is a free negro, to subject Mm to a penalty for immigrating into this State against the form of the Act of Assembly : It was instituted with the following order of the County Court of Eich-mond, at its January Sessions, 1851, viz : “ Ordered by the Court that the Shei’ifF of said County leave a written notice at the respective dwelling houses of (fourteen persons, naming them, among whom was the defendant,) in-forming said…

AotioN of TROVER, tried before his Honor Judge SauNdees, at the Spring Term, 1854, of Robeson Superior Court. This was a case agreed, and the following are the facts as presented in the statement signed by the counsel.

ActioN of teespass quare clausum fregit, tried before his Honor Judge Manly, at the Eall Term, 1854, of Cumberland Superior Court. Plaintiff adduced in evidence a grant from the State to Jacob Grazier, dated 5th Sept. 1759, for a large quantity of land embracing the locus in quo. Also, proof of a sale of sixty-seven acres (the land in dispute) as the property of the grantee, Grazier, to William Eorbes, by Alexander McKay, sheriff of Cumberland, for taxes due on the said land.

<p>It is erroneous for a Court to set aside an execution issued on a dormant judgment where property has been purchased under it.</p> <p>The purchaser of property at a sale, under an execution issued on a dormant judgment, has a right to intervene and appeal from an order of the Court setting such execution aside.</p>

INDICTMENT for assault and batteRY, tried before his Honor Judge Settle, at the Spring Term, 1854, of Mecklenburg Superior Court.

ActxoN of debt, tried before bis Honor Judge Ellis, at-the Fall Term, 1854, of Pitt Superior Court. Plea, non est factum.

<p>This was an action of detihue for slaves, tried before his Honor Judge DioK, at the Fall Term, 1854, of Camden Superior Court.</p> <p>The case was agreed between the parties and depends, mainly upon the construction of the following clause of the will of Isaac J. Sanderlin, viz :</p> <p>“ And I lend the use of the balance of my property, both “real and personal, after paying my just debts, unto my son, “ Willis Sanderlin, during his natural life, and at his death, I “ give and bequeath it unto his heirs lawfully begotten by his “ body ,• and for the want of such heirs, to go to W. W. San- “ derlin’s children, and Maxcy Sanderlms children.”</p> <p>Willis Sanderlin held the properly under this bequest for about fifteen years, when he died intestate and without having had issue, (having never married,) and administration was taken upon his estate by the defendant, who holds the slaves, for which this suit is brought, in that right; insisting first, that her intestate had an absolute estate, and that the limitations over were upon a contingency too remote, and therefore void.</p> <p>Several of the children of W. W. Sanderlin and Maxcy San-derlin died in the life time of Willis Sanderlin, and this suit is brought by their administrators. It was objected, secondly, that nothing vested in these intestates in their life-time, and that, in no point of view, can their administrators recover. It is agreed that if either of these questions is against them, that a nonsuit shall be entered, otherwise that they have judgment on the special case.</p> <p>His Honor was of opinion upon this case, that the limitation over was good and effectual to vest the title in the children of W. W. and Maxcy Sanderlin; but only to those of them who were living at the death of Willis. Whereupon a judgment of non-suit was entered, and the plaintiffs appealed.</p>

This was an action of detiitue, tried before bis Honor Judge Bailey, at the Fall Term, 1854, of Caswell Superior Court. The action was brought for certain slaves bequeathed to the plaintiffs in the will of Alexander Moore, of Halifax county, in the State of Virginia-.

This was an otdiCtmeht for stealing a slave, tried before his Honor Judge Bailey, at the Eall Term, 1854, of Chatham Superior Court. The defendant was found guilty by the jury, and a rule was obtained for a venire de novo, which was discharged, and the defendant appealed.

<p>To supply the loss of a deed under the Act of 1830, in relation to the destruction of the records of Hertford county, proof that a deed had been seen by several persons and copied by one of the witnesses, having in it the names.of . several creeks, but in what connection was not remembered, also calling for the lands of three individuals, but such proof not establishing any course or dis■tance, nor whether the deed had a seal or whether the word heirs was in it, is not sufficient for the purpose intended.</p>

Tesespass guare clausum fregit, tried before bis Honor Judge DioK, at the Eall Term, 1854, of Hertford Superior Court. The plaintiff read in evidence a deed to him from Kinsey Jordan, dated in 1831, for two hundred acres of land, embracing the locus in quo : and showed that for forty years he had held and enjoyed, under an undisputed title, a tract of land, adjoining that contained in the Jordan deed.

The case was brought from the County Court by appeal. The following is the record made of the motion to amerse in that Court, viz: “ It appearing to the satisfaction of the Court that the President, Directors and Co., of the Bank of Cape Pear at September Term, 1852, of this Court, recovered judgment against I. G. Lash, Jesse Austin and George Austin, for the sum of $101 11, of which sum $100 70 is principal money and his costs of suit, and that A. J. Stafford, the clerk of…

ActioN oe debt for an escape, tried before his Honor, Judge Bailey, at the Special Term of Moore Superior Court, June, 1854. This action was brought against the Sheriff of Moore county, for an escape. The case is presented in the opinion of the Court.

AotioN ON the CASE.for words published through the Telegraph, tried before his Honor Judge DiCK, at the-Pali Term,, 1854, of Camden Superior Court. The plaintiff excepted to the-ruling of his-Honor, excluding, the testimony of the operator at Portsmouth,, giving a telegraphic dispatch,, upon the ground that there was testimony of a higher character,, to- wit, an. original dispatch from which the words were taken-. In submission to the opinion, of the.

AcxioN of detinue, for Ben, a slave; tried before bis Honor Judge Manly, at tbe Fall Term, 1854, of Robeson Superior Court. Held: and so instructed the jury, that if the defendant had the custody of the will in question, and concealed it, for a time, from the knowledge of the executor and the plaintiffs, the statute would not begin to run until after its discovery. Upon the second question, his Honor held against the defendants. Verdict for the plaintiffs.

<p>ActioN OR EJECTMENT, tried before his Honor Judge MaNly, at the -Fall Term, 1854, of Montgomery Superior Court.</p> <p>The plaintiff’s lessor offered in evidence a deed executed by John L. Christian, late sheriff of Montgomery, bearing date the day of March, 1845, to him for the land in question, in which was recited abridgment before a-justiee of the peace, in favor of the plaintiff’s -lessor, against Edmund Cook and Mastín C. Williams, and execution on said judgment, and a levy made of the same en the land sued-for. And that a ven-ditioni exponas had issued -from July Term, 1842, of Montgomery County Court,-commanding the then sheriff to sell the lands levied on to satisfy the .plaintiff’s..judgment and costs. Upon which vendi. expo. >the sheriff, in October, 1842, had sold said land, and that the .plaintiff’s lessor had become the purchaser upon which the deed, was made.</p> <p>The .plaintiff’s lessor then proved-that the defendant Calvin J. Cook, was in possession of -the premises, and that he acknowledged that ho entered in .under Mastín C. Williams, one of the defendants, in the execution named in the sheriff’s deed aforesaid, lie then offered in evidence the 2nd section of the private Act of Assembly, passed in the year 1831, in relation to supplying proof of the records destroyed, by the burning of the court house of Hertford county, as follows, to wit: “ That in all cases hereafter, when any person shall produce, and offer in evidence, any bill of sale for slaves or other property, or a deed for lands, purporting" to be executed by any attorney, or by virtue of a power, or by any sheriff in virtue of any execution from any Court of the county of Hertford, or by a clerk or master under a decree, the production of such bill of sale or deed for lands, shall be held and deemed, prima facia evidence that there was a valid power of attorney, judgment and execution or decree authorising such sale, and that in such cases, it shall not be necessary to produce the said power of attorney, judgment and execution or decree or a copy thereof, but such bill of sale or deed of lands shall be prima facia evidence of the title, so far as the title could in law be transferred, in case the judgment and execution, power of attorney or decree, had been shown in evidence j.” also, the Act passed in 1841 and 1845, making the said Hertford Act applicable to the burning of the records and court house in Montgomery, in March, 1843,. lie then stopped his case.</p> <p>The defendant’s connsel contended that, inasmuch as the sheriff’s deed was executed in 1845, three years after the burning of the records in Montgomery, and when the said sheriff was out of office, it was necessary that the plaintiff’s lessor should prove, by evidence, the existence of the record recited in the deed, and that the deed itself was not prima, facia evidence of such record, according to the provision of the said 2nd section of the Hertford Act as aforesaid, as the deed alluded to in said section, must bo one made while the record itself was in existence for the sheriff’s inspection.</p> <p>The Court was of a different-opinion, thinking the deed sufficient in form, and the recitals therein of the judgment,, execution, &c., to he evidence by virtue of the Acts of Assembly referred to, of the former existence of said records, and the jury being so advised, gave a verdict for plaintiff.</p> <p>There was a rule which was discharged. Judgment and appeal.</p>

<p>Property held by copartners in a trading firm, is not the subject of suit for partition under the Act of 1829. Nor will it become so by the rights of the copart-ners passing into other hands. Such rights can only be, with propriety, dealt with in a Court of Equity.</p> <p>A dissolution of a copartnership without a settlement of its affairs, does not convert the members of the firm, or the purchasers of the partnership effects under them, into tenants in common, so as to authorise a proceeding under the Act of 1829.</p>

This was an INFORMATION in the nature of a quo warranto against the defendants, alleging that by usurpation and without legal authority, they were proceeding to lay off and sell town lots in the town of Marshall, sh” the county of Madison, under an Act of Assembly, passed in the year 1852, brought to this Court by an appeal from the Superior Court of Madison county.

The following case agreed was submitted to his Honor: The defendant executed his promissory note to the plaintiffs as partners in trade, who endorsed it to a third person. Suit was brought on the note against the present plaintiffs as endorsers, and against the present defendant, by the endorsee. The writ was returned executed as to the plaintiffs, but returned non est w/omtus as to this defendant.

<p>ActioN of TRESPASS* tried before Ms Honor Judge PersoN, at the Spring Term, 1855, of Pasquotank Superior Court.</p> <p>Matthews, the town constable for Elizabeth City, applied to Speed, the justice, for a warrant to search for, and arrest a runaway slave, supposed to be concealed upon the premises of the plaintiff: the warrant was issued, and under it the defendant, Matthews, assisted by one Hay, broke open the door of a stable which opened into one of the public streets of the town of Elizabeth City. The breach was effected by the defendant Matthews, standing in the street and pulling out a staple with his fingers, but he did not enter the stable any further, nor did any one by his authority or command.</p> <p>His Honor charged the jury that the warrant was no protection, and that the acts -alleged by plaintiff constituted a trespass, and that the magistrate who issued the warrant, though not present when the-stable'was opened, as well as the constable and those aiding him, would be guilty upon these acts, if established to their satisfaction. Defendants excepted.</p> <p>"Verdict and judgment for the plaintiff. Appeal.</p>

<p>MotioN to amend the record of Pasquotank County Court, tried before his Honor, Judge Peesou, at the Spring Term, 1855, of the Superior Court of that county.</p> <p>A motion had been made in the county court of Pasquotank, at the June Term, 1854, upon due notice given, for leave to amend the record of that court so as to enter the following on the record of that' court of the December session, 1840: “ This cause coming on to be heard upon petition evidence, &c., and it appearing to the satisfaction of the court that there were debts to a large amount due by the said Pendleton^ (for some of which, j udgments have been rendered and execution issued, against her land named in the petition,) which render a sale ©f the land named in the petition expedient and necessary: it is ordered,, adjudged and decreed by the court that the petitioner,. G-. W. Pendleton, sell the land of his ward named in the petition, on the premises, at public sale, to the highest bidder, upon a credit of six months, with interest from the date: that he take bond with approved security from the purchaser, and make report to the next Term of this court.”</p> <p>Also a motion was made, on notice, that the commissioner be allowed to file his report of the sale which had been made of the land in question, as of the next term.</p> <p>These two motions were allowed by the county court, and an appeal taken to the superior court, and upon consideration of the case before his Honor in that court, satisfactory proof being adduced from the memoranda of the county court, and from the testimony of the commissioner appointed to sell the land, that these amendments ought to be allowed, he gave judgment accordingly, from which the defendant appealed to this Court.</p>

This was an actioh by a warrant, brought by successive appeals to the Superior Court of Tyrrel, where it was tried at the Spring Term, 1855, before his Honor Judge PeesoN. The plaintiff produced a bond, payable t,o him, for fifty-five dollars due 2Tth of December, 1851, on which was an endorsement of a credit of $43.05, which however had been erased and made to read $4.05.

AotioN of assumpsit tried before his Honor Judge Peeson, at the Spring Term, 1855, of Perquimons Superior Court.

AotioN of assumpsit, tried before bis Honor, Judge DiCK, at the Fall Term, 1854, of Pasquotank Superior Court. The declaration was for a refusal to deliver a quantity of corn sold to the .plaintiff. On the trial, one Killincger testified that he was present at the plaintiff’s store, in Elizabeth City, on 1st of September, 1853, and heard the plaintiff enquire of the defendant what he would take for his corn ?

ActioN of TRESPASS m et armis, tried before bis Honor Judge PersoN, at the Spring Term, 1855, of Chowan Superior Court.

ActioN of TRESPASS ON the case, tried before bis Honor, Judge Person, at the Spring Term, 1855, of Washington Superior Court. The plaintiffs and defendant were part owners of the schooner Sarah Louisa: a cargo belonging, one half of it to Short & Go., and the other half to the owners of the vessel, was put on board. The defendant agreed to act as master of the schooner from Plymouth to the West Indies and back, and the cargo was consigned to him.

Tins was an actioN of ejectment, tried before bis Honor Judge PERSON, at tlie‘Spring Term, 1855, of Washington Superior Court.

<p>AotioN of debt, tried before his Honor Judge Bailey, at the Spring Term, 1855, of New Hanover Superior Court.</p> <p>The plaintiffs declared on the administration bond of ¥m. A. Wright, as administrator of William C. Lord, to which the other defendants were sureties, and the breach assigned was the non-payment of a judgment for $536.11, obtained by the relator against defendants’ testator, in 1820.</p> <p>The pleas were, “ conditions performed ; and not broken ; and payment.”</p> <p>The execution of the bond declared on was admitted, and evidence of the judgment of 1820, was put in.</p> <p>To fix the defendant with assets, he proved that the intestate died in the summer of 184/7, and that his mother died some three or four months before him ; and he exhibited her will, by which certain property was directed to be sold, and the money divided among her next of kin. The executor of the mother was then called, by whom it was proved, that under the provision in this will, he had paid to the administrator of Wm. C. Lord, the present defendant, the sum of one thousand dollars. ($1000.)</p> <p>The defendant relied upon the presumption of payment arising from the lapse of time under the act of Assembly. Rev. Statute.</p> <p>To rebut this presumption, the plaintiff proved, that in the year 1819, the intestate, Lord, had failed — indebted to the amount of fifty or sixty thousand dollars, and was notoriously reputed to be entirely insolvent from that time till his death; and that in the year 1835, one McRae, who was the deputy United States marshal, had sundry executions against the said Lord, and after diligent search could find no property; and upon application to him (Lord) was told by him that he had no property.</p> <p>In reply to this evidence, the defendants showed that for 12 or 15 years before his death, the intestate, Lord, liad the ability and means to pay the debt sued for, and the same might have been made either by a fi.fa. or oa. sa.</p> <p>Ilis Honor charged the jury, that if they were satisfied that the intestate, Lord, had the ability and means to pay the debt sued for, although he could not pay any other of his debts, the law presumed it to be paid, and they ought to find for the defendants. To which plaintiffs excepted.</p> <p>Yerdictfor the defendants. Judgment and appeal to this court.</p>

<p>ActioN for a penalty, brought by appeal to the Superior Court of New Hanover, and tried at the Spring Term, 1855, of that court, before his Honor, Judge Manly.</p> <p>The warrant was for a penalty of twenty-five pounds, for a violation of a private act of Assembly, applicable to the towns of Wilmington and New-Berne, forbidding the licensing of any one to retail spirituous liquors, within the limits of those towns, without a permission from the commissioners of the town.</p> <p>The act of Assembly under which this action is brought, was passed in 1800, and the part material to this consideration is as follows:</p> <p>“ Whereas many abuses and irregularities have been found to prevail in the towns of Newbern and Wilmington in consequence of improper persons being permitted to keep ordinaries, and to retail spirituous liquors by the small measure ; to remove the cause of such abuses and irregularities in future,”</p> <p>It is enacted, “ That from and after the next March Term of Craven and New Hanover county courts, no person shall keep an ordinary, or retail spirituous liquor, by the small measure, in the towns of Newbern or Wilmington, until he or she shall have first applied to the commissioners appointed for the government of the said towns, and have obtained from them a certificate of their permission for that purpose, which certificate and permission shall be valid and in force for one year from the time it is granted, and no longer ; and every person who shall keep an ordinary, or who shall retail spirituous liquors by the small measure, in either of the said towns, after, &c., without having first obtained the permission of the commissioners as aforesaid, shall forfeit, &c.”</p> <p>2d. “ That every person who wishes to keep an ordinary, or to retail spirituous liquors by the small measure, in either of the said towns, and who has obtained permission of the commissioners as aforesaid, may, on application to the county courts of Craven and New-IIanover, be ordered, at the discretion of said courts, to have a license for the purpose aforesaid, &c.” The act requires the applicant to give bond and security for conforming to the act of 1198, regulating ordinaries, &c.</p> <p>The defendant obtained from the commissioners of the town of Wilmington, the following certificate of their permission to retail spirituous liquors by the small measure, viz :</p> <p>This is to certify, I. Hutchins has obtained from the commissioners of the town of Wilmington, their permission to retail spirituous liquors by the small measure, at one place in the town of Wilmington, for one year from the June term, A. D. 1852, of the county court of New Hanover.</p> <p>(Signed,) E. MORRIS, Town Clerk.</p> <p>Three months afterwards, that is, at the September Term of the court, the defendant exhibited this certificate, and obtained an order for a license to retail for one year in the town of Wilmington, which was duly issued. The defendant continued to retail under this license for more than one year after the date of the commissioners’ certificate, but not more than a year from the date of his license from the court, and it was for these acts of retailing, (between June and September Terms, 1853,) that it is alleged this penalty was incurred.</p> <p>Upon this state of facts, his Honor advised the jury that the defendant had not violated the law, and that they should find a verdict in his favor. Exception to the charge of his Honor, and appeal to this Court.</p>

<p>The rule adopted in our Courts, in the action of ejectment, that where both plaintiff and defendant claim under the title of a prior grantee, neither shall be allowed to dispute the title of such prior grantee, does not forbid the defendant from showing, that before the plaintiff had got his conveyance, (which was a sheriff’s deed) such prior grantee had convoyed to him, though without consideration, and that he had conveyed to a third person for a full and valuable consideration, who had no notice of the rights of the plaintiff.</p>

AotioN of assumpsit, tried before bis Honor Judge Dior, at the Spring Term, 1855, of Guilford Superior Court. The plaintiff had purchased from the defendant a slave for himself and his father, who were trading in slaves as partners, and having put hand-cuffs upon him, the defendant told him the slave was honest, and that if he would remove the handcuffs he would guarantee to him one hundred dollars if the slave should run away.

<p>AotioN of detiNue, tried before his Honor Judge Bailey, at the Spring Term, 1855, of New Hanover Superior Court.Judgment for defendant. Appeal.</p>

This was an action of ejeotheNt, tried before his Honor Judge Ellis, at the Spring Term, 1855, of Beaufort Superior Court. The diagram below, as commented on and explained by the Court, will present the points in the case, without a further statement.

This was an bstdiotment for fornication and adultery, tried before his Honor Judge Dice, at the Spring Term, 1855, oi\ Eorsyth Superior Court. The defendants asked his Honor to charge the jury that unless they wore satisfied from the testimony in the case, that the defendants were guilty within the time stated in the bill of indictment, they were entitled to a verdict of not guilty.

This was an appeal from a judgment of his Honor Judge SauNDBRS, reversing an order of the County Court of Anson.

This was an action of slaNdeb, tried before his Honor Judge Ellis, at the Spring Term, 1855, of Jones Superior Court. The defendant’s slave had been brought before two justices of the peace at the instance of the plaintiff, upon a warrant, charging him with destroying his (plaintiff’s) property.

ActioN of trespass quaee olausuM eeegit, tried before his Honor Judge Bailey, at Spring Term, 1855, of Eobeson Superior Court. Erom a general lease of the defendant’s lands to one James Grice, for the purpose of making and distilling turpentine, there was a reservation to herself (deft.) of the privilege of using the fan timber.

<p>Appeal from the Superior Court of New Hanover, tried at the Fall Term, 1854, before his Honor judge Manly.</p> <p>This was an action for a ^penalty, commenced before a justice of the peace by warrant, and brought to the superior court by an appeal, for the violation of an act of Assembly passed in 1166, entitled “ an Act to encourage Benjamin Her-rón to build a bridge over the North East branch of the Cape Eear Eiver. ” Among other things it is therein enacted as follows:</p> <p>“Section first. “That when the bridge is built, the benefit thereof shall be vested in him, bis heirs.and assigns for ever.”</p> <p>Section Srd. “That after the said bridge is built and completely ended as aforesaid,- provided it be completed in four years after the passage of this Act, it shall not be lawful for any person whatever to keep 'any ferry, build any bridge, or set any person or persons, carriage or carriages, cattle, bogs, or sheep, over the said river, for fee or reward, within six miles of the same, under the penalty of twenty shillings proclamation money, for each and every offence, to be recovered by warrant by the said Benjamin Herron, bis lieirs, executors, administrators, and assigns before auy magistrate of the county of New Ilanover, to be applied to the use of the proprietor of the said bridge at the time of the offence being committed.”</p> <p>It is admitted that the franchise granted by this act, was transmitted according to law, and was vested in the plaintiff at the time the acts complained of were done by the defendant.</p> <p>The bridge was erected within the time prescribed by the act, and, with various intermissions, lias been kept up as a toll bridge by E. Ilerron, and those claiming under him, until this time. "Whenever the bridge was down, the proprietor kept a ferry-boat at the place which served as a means of transit in the absence of the bridge.</p> <p>The bridge was not standing when the defendants erected their bridge, but was afterwards re-built, and was used till the year , when it was washed away, and since that time has not been re-built, and was not standing when this warrant issued.</p> <p>The defendants pleaded specially the charter of the Wilmington, &c., Eail Eoad Company of 1833, with its various amendments, applicable to the case, by which the defendants were authorised to make a rail road over this tract of country, and it is admitted that the bridge in question was erected by virtue of this charter, and as part of the rail road, and that this bridge is less than six miles of the bridge site of the plaintiff. The complaint is for carrying a passenger over the rail road bridge in the common passenger cars, for which twenty-five cents was charged and received by the company. Besides passing the bridge the passenger went nine miles on the train and no specific charge was made for passing the-bridge. Nor was any specific charge ever made for persons passing the bridge as such.</p> <p>It was agreed by the parties upon this state of the case, that if his IlonOr should be of opinion that the plaintiff is entitled to recover, judgment might bo entered for the sum of two dollars; but if he should be of opinion with the defendants,, that a judgment of non-suit be entered.</p> <p>Ilis Honor an considering the case agreed, gave judgment of non-suit against the plaintiff, from which he appealed to this Court.</p>

This was an action of assumpsit, commenced originally by a warrant before a magistrate and brought by successive appeals to the Superior 'Court of Stanly, and there tried before his Honor judge Bailey, at the Spring Term, 1855. The suit was brought for the price of a quantity of walnut plank which had been made by the defendant at his mill out of the plaintiff’s saw logs.

INDICTMENT for PETTY LARCENY and foi: TRADING WITH SLAVES, tried at the Spring Term, 1855, of Rockingham Superior Court. The State introduced, as a witn'ess, Col. 3.

This was a GARNISHMENT, tried before his Honol’ Judge Dice, at the Spring Term, 1855, of Orange Superior Court.

INDICTMENT for assault and batteRy, 'tried before his Honor Judge Bailey, at the Spring Term, 1855, of Bladen Superior Court.

ActioN of covenant, tried before his Honor Judge Pailey, at the Spring Term, 1855, of Montgomery Superior Court. Bartholomew Dunn was seized of a tract of land containing 640 acres, of which he conveyed 300 to his son Thomas, by deed, dated ljtli December, 1841; and 300 to his son John, by deed, bearing date 23d of February, 1842. It turns out that the deed to Thomas, includes 22 acres of the land described in John’s deed.

This was an aotioN of debt on a bond, brought by appeal from a justice of the peace to the Superior Court of Rocking-ham, and there tried before his Honor Judge DiCK, at the Spring Term, 1855, of that Court. The bond declared on was for $552, due the first day of May, 1852, on the back of which was endorsed a credit in the following words and figures, viz : “ September 7th, 1852.

ActioN of trespass, tried before his Honor Judge PersoN, at the Spring Term, 1855, of Robeson Superior Court. Pleas: General issue; and Justification. The plaintiff produced Pr.

Recordari directed to certain justices of Robeson to bring up the proceedings of an inquisition, under the statutes of forcible detainer. At a Special Term of Robeson Superior Court, May, 1855, his Honor Judge PersoN presiding; the matter was brought up for consideration. Counsel of the plaintiff in the Superior Court moved to quash the proceedings below, on account of irregularity; which motion was allowed, and the proceedings ordered to be quashed.

AotioN of debt on a guardian bond, tried before bis Honor Judge Peeson, at ^he Spring Term, 1855, of Pasquotank Superior Court. The plaintiff declared against E. IT. Perkins, N. S. Perkins, and J. II.

ActioN of COVENANT, tried before his Honor'Judge Dice, at the Spring Term, 1855, of Eorsyth Superior Court. The plaintiff declared on the following covenant: “ State of North Carolina, Surry County, August 2nd, 1842.

ActioN of ejectMent, tried before his Honor Judge Bailey, at the last Term of Brunswick Superior Court.

This was an action of assumpsit for the breach of a contract, tried before his Honor Judge Bailey, at the Spring Term, 1855, of Cumberland Superior Court. • The contract alleged in the plaintiff’s declaration was, that the defendant had agreed with plaintiff’s intestate to endorse a note made payable to him, (the defendant,) six months after 8th of August, 1848, by John S. Pearson, for the sum of $540, and on demand had refused to do so.

This was au appeal from the Superior Court of Orange, from a judgment of his Honor Judge Dice, at the last term of that court, affirming an order of the County Court of Orange to amend a former order of that court. The applicants for this amendment are free persons of color.

EjeotMENt, tried before his Honor Judge Bailey, at the. last Term of Moore Superior Court. The plaintiff’s lessor claimed as a purchaser at a sheriff’s sale under a judgment and execution against one Neil McLeod.

INDICTMENT for a forcible trespass, tried before his Honor, Judge Bailey, on’the last'circuit, at New Hanover. The defendant and Daniel Bordeaux were not on friendly terms. The defendant came to the dwelling house of Daniel Bordeaux in a wagon or carriage, with a shot gun in the carriage, and a five barrel revolver about his person, each barrel being loaded.

ActioN of ejectmeNt, tried before his Honor Judge Bailey, on the last circuit at Moore Superior Court. The plaintiff introduced a grant from the State, dated in 1767, for the land in question, and a regular succession of conveyances for the same, down to the year 1785.

INDICTMENT for murder, tried before bis Honor Judge Bailey, on the last Spring circuit at Cumberland Superior Court. The prisoner was indicted for the murder of one Jacob Stewart.

ActioN on the case in assumpsit, submitted to his Honor, Judge Caldwell, at the Spring Term, 1855, of Pitt Superior Court, upon the following case agreed, viz: “ Whitchard, with John Bell and Peter Reeves as sureties, gave his bond to Hanrahan, in 1845, for $200, on which Whit-chard paid the accruing interest until January, 1852, when lie became insolvent.

INDICTMENT for MURDER, tried before bis Honor Judge Dicic, at the Spring Term, 1855, of Person Superior Court. On the trial, a witness by the name of Jordan Moily, having been examined on behalf of the prosecution, was asked, upon bis cross examination, whether he had made as full a disclosure to the grand jury (before whom he had been sworn) as he had done on this trial ?

<p>This was an iNdictmeht, tried before PeksoN, Judge, for carrying, conveying and concealing a slave, in order that be might escape; at Spring Term, 1855, of Bertie Superior Court.</p> <p>The first count in the indictment was as follows, viz :</p> <p>“ State of North Carolina,) Superior Court of Law, Spring Bertie County, j Term, 1855.</p> <p>The jurors for the State, upon their oath present, that Alfred "Woodly, and Bichard Wynns, free persons of color, late of said county, with force and arms, at and in Bertie county aforesaid, on the thirteenth day of January, in the year of our Lord one thousand eight hundred and fifty-five, did, wickedly, wilfully' and feloniously, carry, conyey and conceal a certain negro slave, named Anthony, the property of one Tristram L. Skinner, executor of Joshua Skinner, deceased, he the said Tristram L. Skinner, then and there, being a citizen of this State, to wit, North Carolina aforesaid, without the consent in writing of the said Tristram L. Skinner, the owner of said slave, previously to the felonious carrying, conveying and concealing aforesaid of the slave aforesaid, obtained, with the intent, and for the purpose, then and there, of carrying and conveying said slave, Anthony, out of the limits of the said State, contrary to the form of the statute, in such case made and provided, and against the peace and dignity of the State.”</p> <p>There were various other counts: the 2nd, charging that the defendants “feloniously, wickedly and wilfully, did take and conceal, and then and there, did permit and suffer the same to be done, without the consent in writing of the said Tristram,” &c., “ with the intent of carrying and conveying the said slave, &c.”</p> <p>The 3rd count is like the 1st, only it charges the property as belonging to Tristram L. Skinner, without naming him as executor, and alleges the intent to be “for the purpose then and there of enabling said slave, Anthony, to effect an escape out of the State.”</p> <p>There were other counts varying the allegation of ownership, and somewhat varying the other allegations, but substantially charging as in one or another of those noticed,, each one containing the allegation that the acts were done without the consent i/n writi/ng of the owner.</p> <p>Upon the trial, much evidence was adduced to show that the principal witness had sworn falsely, both before this trial, and upon it, and the defendant’s counsel called on the court to charge the jury that they were bound to disregard his testimony entirely.</p> <p>But his honor laid down the rule to be, that if they believed the witness (Anthony) had sworn corruptly false, in a matter material to the issue “ here, upon this trial,” it was their duty to discard his testimony entirely' but if the false oath was taken formerly, in another part of this proceeding, to wit, on the trial before the examining magistrate, it went only to the credit of the witness. For this, defendant’s counsel excepted.</p> <p>Among other instructions to the jury, (which are not excepted to,) his Honor charged, that it was not incumbent on the State to prove, affirmatively, that the taking and concealing were done without the consent in writing of the owner, but that the prisoners, if they relied on it, must shew such consent’ in writing. For this defendant’s counsel again excepted.</p> <p>The j ur.y returned the following verdict, viz : “ That the prisoner, Alfred Woodly, is guilty of the felonious carrying, conveying and concealing in manner and form as charged in the bill of indictment, and that the defendant, Richard Wynns, is not guilty.”</p> <p>The counsel for the prisoner moved in arrest of judgment: First, because the bill of indictment was defective in not stating that the prisoners intended to deprive the owner of Anthony of his property, or some words of similar import. 2ndly, “ because it is not stated to what State or country they intended to carry him, and to which, to enable him to make his escape.” This motion was overruled, and his Honor having also refused a new trial, the judgment of the court was pronounced, and. the defendant appealed to this court. In this court, a further reason for arresting the judgment was urged on account of the insufficiency of the verdict.</p>

AotioN on the Case, tried before his Honor Judge Dice, at the Spring Term, 1855, of Stokes Superior Court. This was an action brought for a false return made by one Pringle in the name of the defendant, who was the sheriff of Stokes county. The plaintiff having a fi. fa. against oné Charles T. Martin, who lived in the State of Virginia, took it to the defendant and instructed him to appoint one Pringle, a deputy, to execute it, which the defendant did.

This was a petition for a writ of oeetioeaei and motion, predicated thereon, to quash an order of the County Court of Wake granting a license to the defendant to retail spirituous liquors in the city of Raleigh, heard before his Honor Judge Caldwell, at the last Term of Wake Superior Court.

This was an action of debt, tried before bis Honor Judge Caldwell, at the Spring Term, 1855, of Wake Superior Court, brought before him by appeal from the judgment of the In-tendant of the city of Raleigh.

AotioN on the case for an escape of a runaway slave, tried before his Honor, Judge Person, at the last term of Robeson superior court.

AotioN on the case to recover damages for ponding water back on the land of the plaintiff, and overflowing it, tried before his Honor Judge Caldwell, at the last Term of Martin Superior Court.

ActioN on tbe Case to recover damages for failing, as a Justice of the Peace, to take security of a Guardian on committing the estate of a ward to him : Tried before his Honor, Judge Caldwell, at the Spring Term, 1855, of Martin Superior Court.

<p>Where by an Act of Assembly, Jury trials are abolished in the County Courts o£ a particular County,' and an issue of devisavit vel non was made up in such County Court, there being‘no provision in the Act for removing the issues into the Superior Court: Held that the proper mode would be’ by certiorari, but that a removal by consent of parties would render the issuing such.writ unnecessary.</p> <p>Held further, that an order of removal simply, is to be taken as a removal by . consent.</p> <p>It is not an unconstitutional exercise of power in the Legislature, to make it discretionary in a County Court to abolish Jury trials in such Court.</p>

sa. bond, heard before his Honor Judge Person, at the Special Term of Eobeson Superior Court, May, 1855. At February term, 1854, of Eobeson County Court, the following is the entry in this case : “ Defendant not allowed to take the oath ; fraud suggested. Transferred to the superior court.” This transfer was intended to be in pursuance of an Act of Assembly passed in 1850, concerning the County Court of Eobeson.

ActioN of trespass quare clausum fregit, tried before his Honor Judge Pekson, at the last Spring Term of Perquimons Superior Court. Title to the locus in quo was proved to be in the plaintiff, 'Sutton : it bad been cultivated by one Thach, under whom Sutton claimed title in 1851, but by no one in 1852, until the fall of the year, when it was proven that both of the plaintiffs were seen there,with their respective horses and hands, plough-ing and putting the land in wheat.

ACTION of ejectMent, tried before Dice, Judge, at the last Term of- Alamance Superior Court.

ActioN of debt, tried before bis Honor Judge Caldwell, at tbe Pali Term, 1854, of tbe Superior Court of Hyde county. A verdict was taken by consent, subject to the opinion of bis Honor upon tbe case which is recited in tbe opinion of this Court. Tbe Court below, upon consideration of the case, being of opinion with the defendants, ordered tbe verdict to be set aside and a non-suit to be entered.

ActioN of covenant tried before his Honor, Judge Caldwell, at the Spring Term, 1855, of Wake Superior Court. The following case was agreed and submitted to the Superior Court.

<p>This was an indictment for an affray, tried before his Honor Judge Manly, at the Spring Term, 1855, of Ashe Superior Court.</p> <p>The sole question in the case, arose upon the sufficiency of the following bill of indictment:</p> <p>“State of North Carolina,) Superior Court of Law, Ashe County. j Eall Term, 1855.</p> <p>“ The jurors for the State upon their oath present, that John King, Marion Woody, and Alvis Blevins on the 1st day of September, A. D. 1853, with force and arms, at and in the county of Ashe did unlawfully assemble together to disturb the peace of the State, and being so then and there unlawfully assembled together, did make an affray, to the terror and disturbance of divers of the good citizens of the State and its laws, to the evil example of all others in like case offending and against the peace and dignity of the State.</p> <p>“ SIGNED.”'</p> <p>One of the defendants submitted and was fined at a former term : the others were regularly put upon their trial at this term and being found guilty, a motion was made in arrest of judgment for the defects on the face of the indictment.</p> <p>His Honor refused to arrest the judgment, and having pronounced the same, the defendant Woody appealed to this Court.</p>

INDICTMENT for retailing spirits by the small measure, without a license, tried before bis Honor Judge SauudeRS, at the last Superior Court of Macon county.

AotioN of debt upon the official bond of the sheriff of Haywood, tried before his Honor Judge PeesoN, at the last Pall Term of Macon Superior Court. The breach assigned in the declaration was the failure of Allison, the sheriff, to collect a debt of the plaintiff.

Plea in abatement to a writ to which the plaintiff filed a general demurrer — Joinder in demurrer. The facts of the ease appear from the opinion of the Court. On the argument'of the demurrer below, his Honor, Judge PERSON, being of opinion that the plea was insufficient, sustained the demurrer and adjudged that the defendant answer over. From this judgment defendant prayed an appeal which was allowed.

Rule served upon the defendant to show cause why he' should not be held in Contempt of the Court: Heard before his Honor, Judge PERSON, at the Pali Term, 1854, of Rutherford Superior Court.

Action on tete case for the fraudulent removal of a debtor, tried before his Honor Judge Peeson, at the Fall Term, 1854, of Caldwell Superior Court. In March, in 1849, J. O. Roberts & Co., owed a debt due by note, to the plaintiffs, who were merchants, living and doing business in the city of New York. The plaintiffs had sent their note for collection to an attorney, residing in the county of Burke.

AotioN of debt on a penal bond, tried before his Honor Judge Saundees, at the Spring Term, 1855, of McDowell Superior Court. Upon the case stated in the opinion below, his Honor instructed the jury that the plaintiff was entitled to recover ; to which defendant excepted. Verdict for plaintiff. Judgment and appeal.

Ejectment, tried before SauNdes, Judge, at-the Spring Term, 1855, of Henderson Superior Court. The plaintiff claimed title únder a decree, a sale and a deed, made to him by the clerk and master of the Court of Equity of Buncombe county.

ActioN of debt, tried before his Honor, Judge SauNdeks, at the Spring Term, 1855, of Cleaveland Superior Court. The action was brought in the Superior Court by the as-signee of a note, which note is as follows : “ On or before the 1st day of January, 1853, I promise to pay John Carpenter, or order, two hundred and seventy-five dollars, with interest from date. March 31, 1852. “Peter Baxter, Seal.” On which is endorsed as follows, viz: “ April 1st, 1853.

INDICTMENT for MURDEB, tried before bis Honor Judge Saunders, at the Spring Term, 1855, of Buncombe Superior Court. The offense was charged to have been committed on the body of Drury Norton, by the prisoner, and that Til in an Lan-ders and Lewis Shelton were present, aiding and abetting the prisoner in the felonious act. The bill was found in the county of Madison, and the cause removed for trial, on the affidavit of the prisoner, to the county of Buncombe.

ActioN of TROVER, for the conversion of a slave,,tried before his Honor, Judge SauNdees, at the Spring Term, 1855, of Henderson Superior Court. The plaintiff claimed title to the slave in question, under the will of Asa Edney, by which, it was given to plaintiff for life, and, after her death, to be sold by the executor, and the proceeds divided among his next of kin.

A carpías ad satisfaciendwn, with a bond for the appearance of the defendant, were returned into the County Court of Ca-barrus, whereupon an issue of fraud was made up, and tried by a jury on Tuesday of the term, which issue was found in favor of the defendant. On a subsequent day the defendant was called, and failing to appear, on motion of plaintiff’s counsel, a judgment for the debt and costs was rendered against him and his sureties.

Ejectment, tried before SauNdeks, Judge, at the Spring Term, 1855, of Henderson Superior Court. The plaintiffs’ lessor adduced a succession of conveyances from the State, through several persons, to himself, and amongst them a devise from David Myers to his wife Phalby, and from her to himself. The questions considered by this Court arise under the will aforesaid.

AotioN of debt on the official bond of a sheriff, tried before his Honor Judge SauNdees, at the Spring Term, 1855, of Yancy Superior Court. The suit was brought against the defendants as the sureties of Thomas Wilson, sheriff of Yancy count}-, upon his official bond.

AotioN of debt on the official bond of the Sheriff, tried before his Honor, Judge SauNdees, at the Superior Court of Macon county, Spring Term, 1855. Judgment for tbe plaintiff and appeal. The facts are recited in the opinion of the Court.

ActioN of debt, on a sealed note, tried before Manly, Judge, at the Spring Term, 1855, of Union Superior Court. The defendant pleaded infancy, and the plaintiff relied on the replication of a new promise after he cam'e of age. The sole question in the case was, whether the following letter was sufficient to establish the replication : “ The legatees of Uncle E. holds against me a note to the amount of four hundred dollars, for two old negroes not worth ten cents.

AotioN ON the case for slandee, tried before Saunders, Judge, at the Spring Term, 1855, of Madison Superior Court. The words complained of in the declaration, charged the plaintiff, a boy under fourteen years of age, with bestiality, and in his instructions to the jury his Honor charged, that they were not only to be satisfied that the words were spoken, but that the plaintiff was physically capable of committing the crime.

<p>ACTION ON THE CASE for A FALSE WARRANTY and for a DECEIT, tried before his Honor Judge Saundees, at the last Superior Court of Cabarrus.</p>

<p>A County Court upon its own mere motion can institute and carry on proceedings to revoke letters testamentary, which they believe have irregularly issued.</p>

AotioN of assumpsit,, tried- before SauNDees, Judge, at the last Spring Term of Macon Superior Court. The suit was brought for money collected upon anote, due by J. M. Bryson for $150, dated December, 1851, payable to John Baxter, assigned by Baxter on 10th March, 1852, to J. E. Mounce, and by him to Jesse E. Siler, the defendant, by whom the amount was collected.

<p>AgtioN of teoveR to recover the value of a slave, tried before his Honor, Judge SauNders, at the last Spring Term of Cleave-land Superior Court.</p>

, EjegtheNt, tried before Bailey, Judge, at a Special Term of Buncombe Superior Court, July, 1855. The land in question, had been granted to John Lakey, who died in 1835, seized of the same in fee, leaving the plaintiff Elizabeth, Hiram Lakey, and Anne Lakey his only children and his heirs at law.

This was a petition for dower, tried before his Honor Judge Bailey, at the Special Term of the Superior Court, held for the county of Buncombe, July 1855.

The record' in this case shows that a ca. sa. and bond was returnable to the '’County Court of Caldwell; that defendant failed to appear and judgment was rendered against him and liis sureties.

<p>AotioN of debt, tried before his Honor, Judge Manly, at the Spring Term, 1855, of Eowan Superior Court.</p> <p>The action was brought on the following instrument: “We promise to pay Pemberton White for three boys, Milas, Elam, and Stanhope, Ten Dollars per month, from 4th of January, 1853, until we finish our contracts on the Eail Eoad: the said White agrees to pay Dr.’s Bills, clothe them and make good lost time in sickness. M. Brown & SoN.”</p> <p>It was in evidence that the slaves, in pursuance of the contract, went into defendants’ possession on 4th of January, 1853, and worked through that year, at the end of which, and before the defendants’ rail road contracts were completed, plaintiff took the slaves home, against the will of the defendants, and refused to deliver them afterwards on demand of defendants’ agent.</p> <p>Defendants’ counsel contended that the plaintiff was not entitled to recover, inasmuch- as he had not allowed the slaves to remain until the Rail Road contracts were entirely fulfilled.</p> <p>The Court, however, placed a different construction on the instrument, and held that the plaintiff was entitled to recover for the time the slaves had worked, deducting for lost time for sickness. Defendants excepted. Yerdict for plaintiff, judgment and appeal.</p>

<p>INDICTMENT for MUEDER, tried at the Spring Term, 1855, of Buncombe Superior Court, before his Honor Judge Saundeks.</p> <p>The prisoner was indicted for the murder of one Mastin Gosnall. The evidence was, that the prisoner, the deceased, James Gunter (the half brother of the deceased,) and others, were at the house of the father of the deceased on the day of the alleged murder, and that the prisoner and the deceased were apparently friendly, and that the deceased had mended the shoe of the prisoner; that during the day the prisoner and Gunter had a quarrel, when the former drew his knife on the latter, and the latter drew a loaded pistol on the prisoner. In the evening of the same day, the deceased and Gunter were in the house, and the prisoner and the wife of the deceased were in the yard, when insulting language passed between the two latter, which was heard by the deceased : thereupon the deceased pulled off his coat and came out of the door into the yard, in a threatening attitude, throwing down his hat, and saying to the prisoner, “ if you have any thing to say, I am your man,” and advanced towards the prisoner in a menacing manner, with his half brother close to him, with his pistol in his possession: the mother of the deceased caught hold of him, saying, that the prisoner would kill him, when one Norton, the father-in-law of the deceased, pulled her away, saying, “ let Mastin alone.”</p> <p>The prisoner, at the time the deceased came out of the house, was standing at the fence, about ten or twelve steps from the house, whittling with his knife, and as the deceased was advancing on him, turned around and advanced two or three steps towards the deceased: the father of the prisoner got between them and said, boys, there shall be no fight here then both struck: the prisoner, with his knife, giving the mortal blow; and the deceased fell and died in a few minutes. It was likewise in evidence, that immediately upon the fatal blow being struck, the sister of the deceased .hit the prisoner with a stone, the father of the deceased knocked him down twice with a board, and Gunter snapped his pistol at him. There was conflicting testimony as to who struck the first blow. The mother of the deceased swore, that when the prisoner turned “ round from the fence, he gut his Imife open in his pocket, and advanced two or three steps, meeting the deceased, when his father got between them : that the deceased raised his arm, and may have struck over his father at the prisoner, but if he hit him, it was a very slight blow, and the prisoner, being a left handed man, reached round the father and stabbed the deceased, giving the mortal wound.</p> <p>The Court after explaining what constituted the different grades of homicide, and reciting the testimony on both sides, charged the jury that “ if the deceased and the prisoner met each other in a threatening attitude and the deceased struck the prisoner, and he in turn struck with the knife and gave the mortal blow under a passion, it would be such a legal provocation as to reduce the case from murder to manslaughter.”</p> <p>“ But if the prisoner saw the deceased approaching him in a threatening way, put his knife open in his pocket, and advanced to meet the deceased with a view to a rencounter, and with the intent and purpose of using the knife, not in self-de-fence, but with the design of taking away the life of the deceased, and did use it at the time, and in the manner as described by the mother of the deceased, it would be a case of murder.” Eor this the prisoner’s counsel excepted.</p> <p>The verdict of the jury was for murder. Judgment and appeal.</p>

EjectMENT, tried before SauNDees, Judge, at the Spring Term, 1855, of Henderson Superior Court. The defendant in this suit had recovered in a former action of ejectment a moiety of the land in question, under which recovery, she, by her agent, took possession thereof.

INDictmeNt for assault with an intent to Ravish, tried before Manly, Judge, at the Spring Term, 1835, of Iredell Superior Court.

Tms was an ikdiotmeNt for murder, tried before bis Honor, Judge Saunders, at the Spring Term, 1855, of Burke Superior Court. The indictment charged the defendant with tbe murder of one John Davis, and was in tbe common form, with the two exceptions pointed out in the reasons given in arrest of judgment, and which need not be noticed here.

<p>PetitioN for the payment of legacies under the will of David Phifer, heard before Manly, Judge, at the last Spring Term of Union Superior Court.</p> <p>After giving his wife 250 acres of land, (describing it) and other property amounting in value to $850, with the liberty of taking $850 in cash for and in lieu of her thi/rd of his real estate, and a negro woman, and making other provisions which resulted in the accumulation of the fund in question, and are not material to the question involved, the testator proceeds: “ My will and desire is, that my executors hereinafter named, at my decease, shall sell my negro property in families, or at the discretion of my executors, and the balance of my property not above named: sale to bo conducted as all executors’ and administrators’ sales are: and the proceeds of sale, together with what notes and cash may be on hand at the time of my decease, all to be disposed of as follows : Item, my will and desire is, that my son Matthew Phifer’s heirs : my son David- Phifer’s heirs: my son Ezra Phifer’s heirs: my son, McCallum Phifer: my daughter Eachel Biven’s heirs: my daughter Martha Craig’s heirs, each receive as much of my estate as the value of my land given to my wife ; then beloved wife, Elizabeth Phifer, and the above named heirs, with the exception hereinafter named, to share and share alike.”</p> <p>“ Item, my will and desire is, that if my grand-daughter, Mary Jane Phifer, should die before she comes of age to receive her part of my estate, it to be equally divided among my lawful heirs.”</p> <p>McCallum Phifer, and the widow Elizabeth, were appointed executors ; the former only qualified.</p> <p>In 1852, the testator added a codicil to the above will, which adds an additional amount to the fund “ to be divided among my heirs as above directed.”</p> <p>Eachel Bivens died in the life-time of the testator, leaving six children,</p> <p>Martha Craig four children,</p> <p>Martha Phifer seven “</p> <p>David Phifer three “</p> <p>Ezra Phifer one child.</p> <p>McCallum Phifer is still surviving. So, with the widow, there would be twenty-three individuals if reckoned by the per capita rule; and only seven classes, with the widow, if reckoned by the per stirpes rule. The suit was brought against McCallum Phifer by the grand-children, praying that their legacies should be paid them all equally, or per capita.</p> <p>It was referred to a commissioner, J. M. Stewart, to take an account of the estate of David Phifer, Sr., and report the amount of the estate and the part due each of the legatees under the will. He reported the sum of $34,059 01, which was divisible into seven parts, one, viz: $4,929 59, forMc-Calluin Phifer; the like sum (with a small deduction) to the widow; and the like sum to each of the families of the deceased sons and daughters of the testator.</p> <p>To this report an exception was filed in the County Court, insisting that the division should be madeper capita,. On consideration and argument in that Court, the exception was overruled and the report confirmed. And judgment being given ■for the petitioners, according to this report, they appealed to the Superior Court.</p> <p>In the Superior Court it was proved that McCallum Phifer was a man with a family of children, and the only question in the cause, being whether the division under the will of David Phifer should be made per cepita or per stinpes, his Ilonor^ considering the above fact, in connexion with various clauses of the will, decided, that the intention of the testator was, that the division should be mad eper stirpes. He gave judgment that the report be confirmed, and that the parties recover accordingly, from which judgment the plaintiffs appealed to this Court.</p>

PetxtioN for Dower, tried before his Honor, Judge Manly, at the Fall Term, 1854, of Wilkes Superior Court. The only question in this case was, as to the effect of a deed made in the life-time of the husband of the petitioner, by a feme covert (with her husband) but not acknowledged and registered until after tlie death of the bargainee.

Ejectment tried before his Honor Judge Saundees, at the Pall Term, 1854, of Rowan Superior Court.

AotioN of TRESPASS, tried before his Honor, Judge Saunders, it the Fall Term,. 1854, of Eowan Superior Court-. This action was brought by the plaintiff, W. A. McCorkle, or the seizure and sale, under an execution, of certain goods sold and transferred to him by his father, W. B. McCorkle, under the following circumstances: William B. McCorkle, the father of the plaintiff, was engaged in the business of merchandise at Wadesborough and Monroe.

This was a motioN to amend the record of the County Court of Cabarrus, originally made in that Court and refused. Erom this judgment there was an appeal to the Superior Court of that county', which was heard by his Honor, Judge Bailey, at the Special Term, June, 1855.

ActioN of assumpsit, tried before Manly Judge, Spring Term, 1855, of Cabarrus Superior Court. The case at first stood on the plea of “non assumpsit.” At this term the defendant pleaded further, “ aeeord and satisfaction since the last continuance? which plea the plaintiffs admitted to be true.

ActioN on the oase for maliciously suing out a State’s warrant, tried before bis Honor Judge SaundeRS, at the Spring Term, 1855, of Macon Superior Court.

AotioN of debt commenced before a justice of the peace for a balance due for pork sold and delivered, tried before Manly, Judge, at the last term of Wilkes Superior Court. The plaintiff agreed to deliver to the defendants 1500 lbs. of pork by tile 1st January, 1853, at 6 cents per pound, to be paid for in demands which defendants already held against the plaintiff, and the balance, if any, one half goods the other cash.

Caveat to the probate of a will, tried before SauNdees, Judge, attheEall Term, 1854, ofMecklenburg Superior Court. The only question in this case was upon the competency of Isabella Hunter as a witness to establish the will, her husband, John Hunter, being named one of the executors.

AotioN of DETINUE, tried before SaundeRS, Judge, at tlie Pall Term, 1854, of Ashe Superior Court. The following is the case verbatim sent up by his Honor: “This was an action of detinue for a negro man slave named Rich. .

Tins was an ACTION for a peNAltt brought by a warrant, against a mill owner for not repairing a bridge, tried before his Honor, Judge PbesoN, at the Pall Term, 1854, of Macon Superior Court.

INDICTMENT for a FORCIBLE. ENTRY AND DETAINEE, tried before Manly, Judge, at the Spring Term, 1855, of Catawba Superior Court. The bill was for a forcible entry into the dwelling house of the prosecutor, and a detainer, he being present forbidding the same. The evidence was, that the defendant went to the house of the prosecutor (Clodfelter) in his absence, his wife and daughter being- present.