Volume 49 — North Carolina Reports

<p>Timber furnished to an infant to enable him to build a dwelling on Ms land, is not a necessary.</p> <p>An infant, who has a guardian, cannot contract for necessaries.</p>

<p>INDICTMENT for ARSON, tried before bis Honor, Judge Dick, at tbe Fall Term, 1856, of Cumberland Superior Court.</p> <p>This case is sufficiently stated in tbe opinion of tbe Court.</p>

.This was an uydigtMENt for harboring a runaway slave, tried before his Honor, Judge Bailey, at the Eall Term, 1856, of Chowan Superior Court. .

INDICTMENT for unlawfully trading with a slave, tried before Bailey, Judge, at the last Superior Court of Clio wan.

This was an action of assumpsit to recover a debt due to the Bank of Washington, tried before his Honor, Judge MaNly, at the Fall Term, 1856, of Beaufort Superior Court. The plaintiff is the cashier of the bank of Washington. All jnotes of this bank are made payable to the cashier, and the note, out of which this debt grew, was thus made payable. It was executed by one Sutton, and means had been put into defendant’s hands to pay the debt at its maturity.

AotioN of ejeotment, tried before his Honor, Judge Pee-son, at the Pali Term, 1856, of Cumberland Superior Court.

<p>Appeal from tire Superior Court of Cumberland, bis Honor, .Judge-PeesoN, presiding.</p> <p>Tbe case was agreed as to tbe facts, and was as follows: Tbe defendant, Duncan McLaurin, was tbe bail of one Mc-Duffie, and a sei. fa. issued against him as such, returnable to tbe County Court of Cumberland. At the return term of the sci. fa., tbe defendant put in pleas to the same, which accordingly stood over to tbe next term. On Monday of the next term the defendant brought in his principal and surrendered him in discharge of himself as bail, and this record was then made. “ The principal, N. K. McDuffie, is surrendered in open Court by Duncan McLaurin, his bail, in discharge of himself on Monday of this term .whereupon, the said Mc-Duffie was permitted go without day on the payment of costs. Afterwards, on the same day, the plaintiff’s counsel gave notice, that he woiÜd move, during the term, to set aside the proceeding aforesaid, because the plaintiff had not been notified that the surrender would be made. The motion was accordingly made on Friday of the term, and on considering the same, the said County Court adjudged, “ that the order accepting the surrender of N. K. McDuffie, in the case of T. R. Underwood v. Duncan McLaurin, bail of said McDuffie, in discharge of his bail, be rescinded, and the case stand on the trial docket as before, without prejudice to the defendant.” The ground upon which this order was made, was as follows: The defendant’s counsel had told the plaintiff’s counsel, that his client would surrender McDuffie, in open Court, as soon as the Court was through with the business in hand. While the business still occupied the Court, the plaintiff’s counsel enquired of the Court, whether any other business would be taken up before dinner than that in which they were engaged, and he was informed that none other would be taken up before dinner. Whereupon the plaintiff’s counsel retired from the Court to his chamber, and had no cognizance of the proceeding complained of. The surrender was made in open Court before dinner, and the principal, McDuffie, on being discharged, immediately went out of reach of his bail, and was beyond his reach when this motion was made.</p> <p>Erom this order of the County Court to rescind the previous proceeding, &c., an appeal was taken to the Superior Court, where, on consideration of the case agreed, his Honor, Judge Person, reversed the order of the County Court; from which the plaintiff appealed to the Supreme Court.</p>

INDICTMENT for muRDer, tried before bis Honor, Judge Dick, at tbe last Superior Court of Bladen. Tbe charge was for tbe murder of one Neil Eerguson. Elora McDonald, tbe mother of the prisoner, and also the mother of tbe wife of the defendant, had lived for many years with her son, the prisoner, upon the plantation where tbe homicide was committed.

This was an action of ejectmeNt, tried before his Honor, Judge Caldwell, at the Special Term (December, 1856,) of Stanly Superior Court. On the trial below, the lessors of the plaintiff showed title to the land in dispute, by a grant from the State, and by mesne conveyances to them. The defendant relied on a grant from the State to himself, and one ‘William Crayton, of junior date, and a possession, under it, of seven years.

Issue of demsamt vel non, tried before his Honor, Judge Bailey, at the EallTerm, 1856, of Currituck Superior Court. A script, as the last will and testament of Alfred Perkins, was offered for probate. It had two subscribing witnesses, one of whom was admitted by the caveators to be competent; the other was objected to on account of his religious belief.

AotioN of trespass q. c. f., tried before his Honor, Judge Manly, at the Fall Term, 1856, of Beaufort Superior Court. On the trial, a deed to Thomas Collins and Christian Reed, from Samuel and Thomas Gardner, was offered in evidence in behalf of the plaintiffs. It did not 'appear that this deed had ever been proved; there was an endorsement upon it of registration, but no endorsement or other evidence of its having ever been proved.

AotioN OK debt, tried before bis Honor, Judge PebsoN, at the Fall Term, 1856, of Caswell Superior Court. The action was upon an unsealed note, dated 20th March, 1844, due one day after date. The writ was issued on the 6th of October, 1853. The defendant pleaded the statute of limitations ; to which plaintiff replied that, within the three years preceding the issuing of the writ, the defendant promised to pay the said note.

ÁoxioN of covenant, tried before- Manly, J., at the Fall Term, 1856, of Wayne Superior Court.- The action was brought upon' the following instrument of writing: “ I, Henry Britt,… Held: but that he believed this opinion in accordance with the weight of authority. Defendant further excepted. Yerdict and judgment for plaintiff, and appeal by defendant. argued as follows: 1. The rule of law respecting the alteration of bonds as stated in Pigot’s case, is not followed any where.

<p>Property delivered as a pledge to secure a debt, and re-deiivered by the pawnee to the pawnor, is liable to be seized and sold under execution • against the pawnor.</p>

ActioN of TROVER, tried before SauNdbes, Judge, at a Special Term (December, 1856) of Wayne Superior Court. The declaration alleged the conversion of a gun. One Bright Kennedy was the owner of the gun in question, and having had some repairing done tc^|, and being unable to pay for it, the defendant went with him to the gunj smith and advanced the money so due him.

AoxioN of Debt, tried before Peeson, Judge, at a Special Term (June, 1856,) of Cumberland Superior Court.

ActioN of debt, tried before Saundees, Judge, at a Special Term (December, 1856,) of Wayne Superior Court. The action was brought upon a bond, purporting to have been executed by William Whitman and'Wright Whitman, payable to Lemuel H. Taylor, and endorsed by him to the plaintiff.

AotioN of Assubípsit, tried before Manly, Judge, at the ’ Fall Term, 1856, of Beaufort Superior Court. The plaintiff declared on a promissory note, payable to him as Cashier, and negotiable at the Washington Branch of the Bant of Cape Pear. On the back of this note was endorsed, “ I assign the within note to--, without recourse to me. Ben. Runyon, Cashier.” The defense was under the plea of payment. Thomas JET.

INDICTMENT for PERJURY, tried before DioK, J., at the Fall Term, 1856, of Stanly Superior Court.

.ActioN of Teespass, q. c. f.,'tried before PeesoN, Judge, at the Special Term, (June,' 1856,) of Cumberland Superior Court. The plaintiff showed title to, and possession of, the field in which the acts complained of were done. The defendants claimed to be tenants in common of 1690 acres of land, and read a grant for the same to John Gray Blount, dated in 1Y89, but did not connect themselves in any way with Blount, or show any possession at the time of the alleged trespass.

AotioN oe Trespass, tried before Caldwell, J., at the Spring Term, 1856, of Anson Superior Court. The action was brought for seizing and selling a negro slave named John. The plaintiff, Carter, and one Kirk had jointly hired the slave for the year 1855. In May, of that year, their joint ownership was terminated by a contract between them, and John became the sole property of the plaintiff for the remainder of that year, and thenceforward was in his sole possession.

AotioN OK detinue, tried before Bailey, J., at the last Eall Term of Currituck Superior Court. Upon the trial below, it was admitted that the slaves in question belonged to one Mary Wilson, who, in July, 1855, intermarried with the plaintiff, and that he was entitled to them, unless the title had been divested by a deed of gift' to Willis C. Wilson, who was an illegitimate son of the said Mary Wilson, and for whom the defendant held the slaves as guardian.

This was ail aotioN of detintfe, tried before SauNdeRs, J., at a Special Term, December, 1856, of Wayne Superior Court. The plaintiffs claimed title to a negro slave named Martin^ by virtue of a deed in trust, executed in September, 1852, by one Henry Roberts to John A. Green, the plaintiffs’ intestate.

, presiding. William II. Johnson, the plaintiff, had sold the note on which this action was brought to Jesse TI. Adams, but had not endorsed the same. On the return of the writ in this case to the County Court, the defendants’ attorney required of the attorney for the plaintiff to produce a written authority to carry on this suit, or that the same be dismissed. Thereupon Mr. Howard produced a power of attorney in due form, signed “ W. II. Johnson by Jesse II.

<p>Where a joint owner of property,.authorised to sell; warrants the soundness of the property, which turns out to be defective, and the seller pays for the defect without suit, the other joint owner is liable to contribute to the loss in proportion to his interest.</p>

AotioN oe teovee, tried before Saunders, Judge, at tbe Pali Term, 1856, of Pitt Superior Court. Tbe action was brought for tbe conversion of a refrigerator. One James had temporarily exchanged the refrigerator in question with Mrs. Worthington, and sold it, while in her possession, to one Bell, who sold it to tbe plaintiffs.

AotioN of assumpsit, fried before SauNdees, J., at the Fall Term, 1856, of Nasb Superior Court. Tbe plaintiff declared on a special 'agreement: that in consideration of bis services as clerk and general manager of defendant’s store, the latter was to distil and carry off, free of charge, all such turpentine as plaintiff might make and deliver during the year.

PetitioN for a Reoordari in the Superior Court of Craven County. On the return of the writ of recordari, which had been issued in this case, the petitioner’s counsel moved that the cause recorded and sent up to the Superior Court, should be placed on the trial docket, his Honor, Judge Manly, presiding.

This was a tbial for Mubdeb, tried before SauNDEbs, J., at the Fall Term, 1856, of Wake Superior Court. The prisoner was found guilty of murder, and amotion was made in arrest of judgment, but upon what grounds the record does not show. In this Court the prisoner’s counsel moved in arrest, upon the ground that it does not appear from the record that the bill of indictment, upon which the prisoner was tried, was found by a grand jury to be a true bill.

ActioN on the case, tried before Bailey, J., at the Pali Term, 1856, of Gates Superior Court. The action was brought for a breach of a contract of hiring.

PetitioN for damages to land taken for the use of the railroad, tried before Peeson, Judge,'at the Fall Term, 1856, of Davidson Superior Court. At the Fall Term, 1855, commissioners were appointed to ascertain and report what damages the petitioner had sustained by reason of the rail-road passing over her lands.

AotioN of debt, tried before PeesoN, J., at the Pall Term, 1856, of Forsyth Superior Court. The action was brought against the defendants, as the administrators of Isaac Pitts, who, it was alleged, had become the surety of A. T. Pitts, in the bond sued on. The defendants pleaded non est faoUtm, and resisted the recovery upon the ground that the signature of their intestate’s name to the bond in question was a forgery.

<p>PetitioN of an insolvent debtor to be discharged, heard before Bailey, Judge, at the Spring Term, 1855, of Sampson Superior Court.</p> <p>The petitioner was arrested on a ca. sa., at the suit gí Royal Robinson & Co., returnable to August Term, 1853, of tbe County Court of Sampson. He was imprisoned under tbis process, and while thus in close custody, filed tbis petition for bis release, accompanied with a schedule.</p> <p>The defendants, Royal Robinson & Co., opposed petitioner’s application, and made objections to the schedule, which were overruled. The County Court, deciding that they could only impeach the schedule for fraud by making up an issue, ruled that the petitioner was entitled to take the oath of insolvency and be discharged from custody, from which judgment, the said Royal Robinson & Co. appealed to the Superior Court, whore petitioner moved to bo discharged, on the ground that no issue had been made up, and no suggestions of fraud sworn to; but his Honor decided that there was no necessity for issues in this caso, and no necessity for any suggestions of fraud verified by -the creditor’s oath, and he proceeded to hear the application. Testimony was produced on both sides, but the Court refused the motion to discharge the petitioner, and ordered him into close prison until ho should make a full and fair disclosure, or be otherwise discharged ; from which judgment petitioner appealed.</p>

<p>MotioN to amend a record, beard before Bailey, J., at the Fall Term, 1856, of Currituck Superior Court.</p> <p>The motion was first made in the County Court of Curri-tuck, (on a notice to the defendant,) to supply a lost récord. It appeared that a petition had been filed in the County Court of Currituck for a partition of the lands of Caleb T. Wilson, dec’d. ; that an order had been made on said petition for the appointment of commissioners, who made a report to August term, 1820, of said Court, under their hands and seals, stating the partition and appropriation among the heirs of the said Caleb, of his real estate; and that the said report and appropriation had been lost from among the records of the said Court. A copy of this paper was produced and proved to the satisfaction of the Court, whereupon, the Court allowed the amendment asked, to wit, that the copy produced be filed in the cause as a part of the proceedings thereof; and that the order of confirmation be also amended, so as to read, c£ Report made and confirmed, and ordered to be certified, enrolled and registered, and that the same be so endorsed on the amended recordfrom which order the defendant appealed to the Superior Court.</p> <p>In the Superior Court the motion to amend was allowed, and the defendant appealed to this Court.</p> <p>It was urged by the defendant’s counsel here, that it did not appear that the plaintiff had any interest in the question, and, therefore, had no right to make the motion to amend.</p>

<p>IndictMENT for unlawfully trading with a slave, tried before Manly, J., at the Spring Term, 1856, of Wayne Superior Court.</p> <p>Upon the trial below, it was proved that a clerk of the defendant had furnished the spirits to the slave in the absence of the defendant.</p> <p>The clerk was sworn for the defendant, and stated that he had instructions from the defendant not to sell at any time to a slave without a written order.</p> <p>In the argument of the case below,' it was contended, on behalf of the State, that such general instructions as those testified to by the defendant’s clerk, were not sufficient to rebut the presumption of approval by the principal raised by the statute.</p> <p>On the other hand, it was contended by the defendant’s counsel, that such instructions would rebut the presumption and throw upon the State the burthen of showing that the sale in question was an exception to these general instructions, and was specially approved by the defendant.</p> <p>In reference to this contested point, his Honor instructed the jury “ that general instructions would do, if unreversed and unexceptionable in their nature; that such instructions might be abrogated expressly, or by a course of practice to the contrary, or by a special approval; but that, unless tliere were some such reversal, the instruction sworn to by the witness would exempt the defendant" from responsibility.” Defendant excepted to the charge.</p> <p>The credibility of the witness proving the instructions was left to the j nry.</p> <p>There wms a verdict of guilty. Judgment and appeal by the defendant.</p>

The plaintiffs were jtrdgment creditors of Porter Thompson, and after his death, sued out a warrant upon their judgment against the defendant, his executor, and obtained judgment for their debt; but the defendant suggesting a want of assets on the trial before the magistrate, the case was sent to the County Court to try that question.

<p>INdictmuNt for obstructing a public highway, tried before Bailey, Judge, at the Spring Term, 1855, of Johnston Superior Court.</p> <p>The indictment was for removing part of a public bridge over Neuse river.</p> <p>It appeared on the trial, that there was a public road leading from Smithfield to ’W’ellon’s cross roads, passing across the river Neuse a few miles below Smithfield; that at the place of crossing, the Countj^ Court of Johnston had erected a public bridge, which constituted a part of such highway, and was free to all the citizens of the State to pass, &c., and had been kept up by said County Court, and so used by the citizens for -years ; that the river Neuse is navigable for flat boats and small steam-boats, to a point above Smithfield, for about eight months in the year ; that the defendants were the owners of a steam-boat running, as the state of the water would permit, between the town of Newbern, a port on the said river, and the town of Smithfield ; that on the day named in the bill of indictment, defendants’ boat, loaded with goods, to be delivered at Smithfield, reached the said bridge, and finding that it could not pass further up the stream, without removing a part of the bridge, the defendants did remove a part thereof, and it remained in that condition for several days, during Avhich time, no persons could pass along the said highway, over the said bridge; that the bridge had a draw in it, but it required a greater force to raise it, than the crew of the boat afforded, and there wrnre no hands provided by the County Court to raise the draw when necessary; that this draw was in such condition as to make it dangerous to raise it at all.</p> <p>Upon these facts, his Honor instructed the jury, that the defendants were, in law, guilty of the.nuisance with which they were charged. The defendants excepted.</p> <p>"Verdict for the State. Judgment and appeal.</p> <p>argued as follows:</p> <p>The Legislature of the State, prima facie, has the power of a sovereign, and among the acknowledged and most useful powers of sovereignty is that of establishing and constructing roads and bridges. Without proper internal communications, the prosperity of a State must be greatly retarded. 2 Gray’s Rep. 32 ; 4 Pick. 460 •; 13 How. 581. The Legislature may authorise a bridge, or oven a dam, across a navigable river, unless it conflict with the power of Congress to regulate commerce, &c. Wilson v. Blackbird OreeTe Go., 2 Peters (Supm. Court IT. S.) 245.</p> <p>Here there is no act of Congress which has any application to this case. The Neuse is an internal stream; it is not a highway between the ports of different States, nor between ports of the same State. If Smithfield were a port established by act of Congress, then the erection of this bridge would impede commerce, and would conflict with the powers of Congress, by which the commerce between the port of Newbern and that of Smithfield would be legalised and protected.</p> <p>The authority of Congress, if applicable to this river, has never yet been exercised ; it still lies dormant, and, until exercised, the sovereign power of the State is not excluded. Pennsylvania v. Wheeling Bridge Gomggany, 13 How. 581; 18 How. 430-2.</p> <p>The County Court acts in regard to the erection of bridges, as the agent of the Legislature, exercising a delegated power, and not as the grantee of a franchise, and, therefore, the construction should be liberal in favor of its acts. It is not the case of a contract between the State and the County Court, in which case a strict construction would obtain as in the case of Charles River Bridge Company, 11 Peters’ Supm. Court U. S. Reps. The Legislature, therefore, can, at any time, repeal, modify or restrict the powers of the County Courts, according as the public exigencies may require. This power they have subsequently exercised by requiring draws to be made in the bridges where necessary, Rev. Code, ch. 101, sec. 31.</p>

Soiee eaCias against bail, tried before his Honor, Judge Manly, at a Special Term (June, 1856,) of Orange Superior Court. Held: &c., by the judgment of the said Court, recovered against John A. Butler, a certain debt of $170, with interest, &c., and Stephen A. White, at the time of the execution of the original writ, in the above cause, became special bail, in the said suit, for the said John A. Butler, and liable, by virtue of an act of the General Assembly,…

PetitioN for damages for ponding water upon plaintiff’s land, tried before Peeson, J., at tbe Fall Term, 1856, of Davidson Superior Court. Th,e defendants were tbe owners of a mill, on Muddy Creek, and. the plaintiff owned a tract of land on the same stream, a short distance above the mill. The mill was'built in 1843, and one Fisher then owned the land alleged to be injured, who, about the first of the year, 1853, sold it to the plaintiff.

This was an aotioN of COVENANT, tried before MaNly, J., at a Special Term (June, 1856,) of Orange Superior Court. The instrument declared on is as follows: “ Know all men by these presents, that we, John Brown, Vm.

This was a motion to vacate a judgment rendered at this term of the Corut, and to strike the case from the docket.

ActioN of detinue, tried before Ellis, Judge, at the Spring Term, 1856, of Rowan Superior Court. The declaration was for the detention of a female slave, named Sarah. The slave in question had been bequeathed to Lunda Roseman by her father, who died in the year 1843. Within that year the will was duly proved, and James C. Roseman, the executor therein named, qualified.

This was an actioN of tRespass q. c. f., tried before Manly, J., at the last Beaufort Superior Court, in which the plaintiffs claimed title to the locus in qyio, through a grant from Chas. Eden, Chris. Cale, Era. Foster, Nath. Chevin and Wm.

This was an action on the case, for unlawfully seizing and detaining a vessel, called the Belle, belonging to the plaintiff, tried before Bailey, Judge, at the Spring Term, 1854, of Pasquotank Superior Court. The vessel had been chartered to one Burgess, to make a voyage from Elizabeth City, in this State, to the West-India Islands.

ActioN of assumpsit for the breach of warranty, tried before Bailey, Judge, at a Special Term, (June, 1856,) of Meck-lenburg Superior Court. The plaintiff offered as evidence of the contract between the parties, a paper-writing, as follows: “ September 12th, 1853. Know all men by these presents that I have this day sold to IT. M. Pritchard, a soda-fountain and fixtures, represented to be in good condition,, which good condition I warrant.

<p>ActioN of debt, tried before his Honor Judge Saundeks, at the Pall Term, 1853, of Pasquotank Superior Court.</p> <p>Sometime in the year 1851, ¥m. E. Mann sued out a writ against one Hendrickson, returnable to the Pall Term, 1851, of Pasquotank Superior Court, and placed it in the hands ©f the plaintiff’s intestate, who was then the sheriff of that County. The writ was executed, and the sheriff took from Hen-drickson and the defendants in this case, the bond sued on, as a bail-bond for the appearance of the principal, according to the exigency of the said writ, and returned it with the writ; but the sheriff died before the said bond was assigned to the plaintiff. At Spring Term, 1852, of the Court, Mann obtained a judgment against Hendrickson, which is still unsatisfied. There has been no payment of this judgment by the sheriff, or his adm’r., and no proceeding against his personal representative by Mann, to recover the amount. Hen-drickson had left the State, and was insolvent when the suit was brought.</p> <p>The defendants contended that there could be no recovery upon this bond, by the adm’r. of the sheriff, until he first paid the amount of the judgment to Mann, and his Honor, being of that opinion, so instructed the jury. Plaintiff excepted.</p> <p>Verdict for defendants. Judgment and appeal.</p>

<p>An inn-keepor, by the custom of the land, is liable as an insurer for the goods and animals which his guest has with him for the purposes of the journey.</p> <p>But if his customer is only a boarder, or the goods and animals are entrusted to the landlord upon a special contract, or if they are not placed in the van or its appurtenances to be kept, he is only liable for negligence, as any other bailee.</p> <p>Hence, an inn-keeper is not liable, without proof of negligence, for the loss of a mule, put, by a “ drov.er,” into a lot belonging to the landlord, separate from the inn, to be kept under a special agreement.</p>

AotioN of ejectMent, tried before Ellis, J., at the Spring Term, 1856, of Mecklenburg Superior Court. Tbe lessor of tlie plaintiff claimed title to tbe land in controversy, by virtue of a sheriff’s deed, and a judgment and execution against William Davidson, in 1853.

Assumpsit, tried before Peesoe, Judge, at the Spring Term, 1856, of Martin Superior Court. In 1840, the defendant received, in the way of the compromise of a law-suit, a sum of money in which his brothers and sisters, and their children, were interested, as well as himself. In compromising the suit, and receiving the money, the defendant acted as the agent of the next of kin of one Pearce, from whose estate it was derived.

Tins was an action of ejectmeNT, tried before PehsoN, Judge, at the Fall Term, 1856, of Alamance Superior Court. Plaintiff’s lessor claimed title of the land in question, by virtue, of an execution sale to him, as the property of Thomas Davis. He showed a judgment, an execution tested at March Term, 1848, and a sheriff’s deed, dated March, 1849. The defendant produced, in evidence, two deeds, covering the land in question, dated on the 12th of April, 1845.

<p>AotioN of assumpsit, tried before Bailey, Judge, at a Special Term, November, 1856, of Granville Superior Court.</p> <p>The plaintiff declared, frrst, upon the following special contract between himself and the defendant’s testatrix, viz., the plaintiff was to perform such work upon the farm of defendant’s testatrix as she should require of him, and attend,, generally, to all the business on her farm, and, as a compensation/ was to have the privilege of preparing a lot on said farm, and cultivating the same in tobacco for himself.</p> <p>Secondly. He declared on the common count for money had and received by the testatrix for plaintiff’s use.</p> <p>Thi/i'dly. Eor money had and received by the defendant, as executor, to plaintiff’s use.</p> <p>The defendant pleaded the general issue.</p> <p>On the trial, it was admitted that defendant’s testatrix died in the month of February, 1853. It was proved that the testatrix owned a small farm, on which she resided, and the defendant lived with her, and that while so residing together, the contract, as alleged in the first count, was made between' them; that in the year 1852, the plaintiff, in pursuance of such contract, attended to, and managed all the business of the farm, and did such work ás the testatrix required of him; that during that year, he cultivated for himself, and on his own account, a lot in tobacco ; that he cut, cured and housed the tobacco, in his own barn, on the premises, which the testatrix never claimed, nor interferred with ; that after the testatrix’s death, the defendant, as her' executor,, seized and sold the tobacco in question, as'a part of her estate, without the plaintiff’s consent.</p> <p>His Honor instructed the jury that, according to the evidence, in the case, the plaintiff was not entitled to recover upon either count of his declaration. Plaintiff excepted.</p> <p>Verdict for the defendant. Judgment and appeal.</p>

This was an aotioN of trespass, q. c. f., tried before PbrsoN, J., at the Pall Term, 1856, of Caswell Superior Court. The declaration alleged a trespass in breaking the defendant’s close, and tearing away the roof of her house, iy which she was exposed to intense cold, which caused her much suffering and disease, and resulted in the loss of one of her eyes.

This was an ACTION of trespass and false imprisonment, tried before his Honor, Judge Ballet, at the Fall Term, 1855, of Iredell Superior Court. To prove the arrest, the plaintiff introduced the constable who acted in the case. lie stated that the instrument pi-oduc-ed, which purported to be a warrant, but which had no seal, and, in fact, charged no offense known to the law, was sued out by the defendant Sharpe, and placed inhis (witness’) hands to be executed.

ActioN of teovee, tried before DiCK, Judge, at the Spring Term, 1856, of Caswell Superior Court. The plaintiff claimed title to the property in question, which consisted of a carriage and horses, with some other articles of personal property, by virtue of a written transfer, which was lost.

ActioN of debt, tried before bis Honor, Judge Saundees, at the Eall Term, 1856, of Pitt Superior Court. The action was brought on a bond, originally for $100, payable to one Jason Pnrvis, dated in 1842, on which there was a credit of $53,90, dated 9th of January, 1843.

This was an ACTION of assumpsit, begun by warrrant, and brought up to the Superior Court of Martin, where it was tried before SauNDERS, J., at the Fall Term, 1856. The only question in the case was, whether, on an account containing various particulars amounting, in all, to more than sixty dollars, items could be credited so as to bring it within the jurisdiction of a single justice of the peace ; the credit being entered for that purpose only.

This was an ENquiby of damages upon a judgment by default, tried before PeesoN, J., at the Eall Term, 1856, of Orange Superior Court.

This was an application for a MANDAMus, to be directed to the justices of Harnett County to compel the fulfilment of a contract made with the petitioner for the building of a CourtHouse and Jail, heard before PeesoN, Judge, at a Special Term, June, 1856, of Cumberland Superior. Court. At the Term of the Court to which the writ was returnable, an informal statement, entitled “ a return,” was filed by Geo.

ActioN of debt, tried before Bailey, «J., at the Eall Term, 1855, of Cabarrus Superior Court. The following ease agreed, was submitted for the judgment of the Court. The note declared on is as follows: u $927,00. Ciiablotte, N. C., April 13th, 1854.

<p>This was an action of assumpsit, tried before Ellis, Judge, at the Spring Term, 1856, of the Superior Court of Union County.</p> <p>The action was founded upon the following written instrument, viz:</p> <p>“Whereas, John M. Ingram, has released to me all his interest in the estate of George W. Ingram, and also agreed not to bid for the property, when sold, upon which I hereby agree to pay him, when the estate of George W. Ingram is settled by the administrator, his claims on the estate of said George W. Ingram, consisting of one hundred and seventy-five dollars for the hire of negroes, due the 1st of January, 1843, for which no note was given ; and a note due on the 1st of January, 1842, for one hundred dollars and eighteen cents; also, anote for twenty dollars, due 1st of January, 1836. Given under my hand, May 13th, 1848.” (Signed by defendant.)</p> <p>The defendant pleaded the “ general issue,” and that the “ contract was against public policy.”</p> <p>The execution of the instrument was proved ; also, that the administration, on the estate of George W. Ingram, was granted to one Roland Crump, in April, 1848. The writ, in this case, was issued 10th February, 1854.</p> <p>The defendant’s counsel contended in the Court below, that plaintiff could not recover. 1st. Because he had not proved that the estate of Gr. W. Ingram had been settled before the suit was brought. 2nd. The contract was against the public policy, and therefore void. ■</p> <p>Ilis Honor was of opinion with the defendant on both these points. Whereupon, the plaintiff submitted to a nonsuit and appealed.</p>

<p>This was an action of debt, tried before PersoN, Judge, at the Pall Term, 1856, of Chatham Superior Court.</p> <p>The declaration was against the defendant Johnson and his sureties, on the bond of the former, as sheriff of Cumberland. The breach alleged was, for failing to levy an execution on property liable to the debt.</p> <p>It appeared that on the 2nd day of January, 1852, an execution, in favor of the plaintiff, against Talliaferro Hunter and Solomon McCullough, was put into the hands of the sheriff, on a judgment that had been rendered against them at the December Term, 1851, of Cumberland County Court, and at the time of the rendition of the said judgment, the defendants, as copartners in working a contract on Cape-Pear river, owned a number of mules, wagons, carts, and other personal property, witliin the bailiwick of the said sheriff; upon which execution, the sheriff returned nulla bona.</p> <p>Eor the defendants, it was shown that, on the 10th day of December, 1851, Hunter, by a deed of bargain and sale, assigned all his interest in the property in question, to one Jas. McCullough; after which, a new copartnership was formed, which was known by the name and style of “ McCullough & Co.”, consisting of the defendant Solomon McCullough, and his two sons, James and Thomas, and one James McElrath.</p> <p>On the 1st day of January, 1852, James McCullough, one of the partners in this latter firm, by deed of that date, assigned and conveyed to'one John II. Cook, all the said property, and every thing else belonging to the firm of McCullough & Co., in part satisfaction of a debt, which the said firm owed to the said CooTr. After which, McCullough & Co. became insolvent, and the remainder of Cook’s debt was not collected. The sheriff went, on the day after receiving the execution, to search for property, but could find none other than the mules, wagons, carts, &c., aforesaid, which were then in the possession of Cook, who claimed the same as his property, and forbade the said sheriff, at the risk of a law-suit, to levy on it.</p> <p>His Honor charged the jury that, if they believed that the sale from Hunter to James McCullough was an honest one, the property in question, after December, 1851, vested in the new company of McCullough & Co., and if they should find that the sale by James McCullough on the 1st of January, 1852, to John H. Cook was Iona fide, and in satisfaction of a firm debt, they should find for the defendants. Plaintiff excepted.</p> <p>Yerdict and judgment for defendants. Appeal by plaintiff.</p>

This was an action of assumpsit, tried before Saukdees, J., at the Pali Term, 1856, of Martin Sujierior Court. Albert 0. Shepherd owned, and carried on, a steam sawmill, near Williamston, and under a contract with the plaintiff, boarded himself and his mill-workmen, among whom -was his son, William Shepherd, at plaintiff’s house. The defendant was the administrator of A. G. Shepherd, who had recently died.

ActioN of detiNxie, tried before his Honor, Judge Ellis, at the Spring Term, 1856, of Cabarrus Superior Court. The action, was brought to recover a slave, named Lizzie, and her child. Robert Cochran, who was the owner of Lizzie, made a will, and died in 1855. He bequeathed the slave in question to his grand-daughter, Martha Ann, dv/rmg her natmrdl life, and made no further disposition of the slave or her increase.

Issue of devisavit vel NON, tried before his Honor, Judge Dicic, at the Fall Term, 1856, of New-Hanover Superior Court. The propounders offered a script purporting to be the last will and testament of William Marshall, deceased, dated 5th of October, 1852. The subscribing witnesses were sworn and examined, and proved that it was executed on the day it was dated, and the paper-writing, read to the jury, is the same.

■Tins was an action of ejectMENt)-tried before Saukdees, J., at a Special Term, (June, 1856,) of-Moore Superior Court. The declaration contained two counts, both dated 1st of June, 1853 ; one on the separate demise.of Benjamin C. Williams, and the other on the joint-demise of John D. Williams and others. The land in question, it .-.was admitted on both sides, had belonged to Benjamin W. Williams by a valid title.

Tins was an INdiotmeNT for muedeb, tried before PeesoN, Judge, at tbe Eall Term, 1856, of Alamance Superior Court.

ActxoN of debt, tried before Bailey, J., at a Sp^iial Term (November, 1856,) of Granville Superior Court.

This was an action of ejectmeNT, tried before Ellis, J., at the Spring Term, 1856, of Rowan Superior Court. The lessor of the plaintiff claimed title, as the heir-at-law of Polly Kerns, wife of Peter Kerns. It was proved that both Peter Kerns and his wife were dead before the bringing of this action, and that the lessor, David, is their only child, and the heir-at-law of the said Polly.

<p>A guaranty, at the time of a contract between two or more persons, is binding upon the guarantor, because it is founded upon the consideration existing between the principal parties; but if it be made afterwards, without any new consideration, it is not obligatory, and putting it in writing (if not under seal) will not help it.</p> <p>Bat such new consideration need not be expressed in the writing; it may bo proved by parol aliunde.</p>

<p>ActioN of debt, tried before Saundees, Judge, at tbe Eall Term, 1856, of Johnston Superior Court.</p> <p>The action was originally commenced before a single justice of the peace, and brought to this Court by successive appeals. The plaintiff declared on a sealed note, for seventy-live dollars, made by one Andrew Shaw, a slave, and the defendant as his surety. The execution, of the instrument was proved, and the only question was, whether it was void as to the surety, as being against the policy of the State.</p> <p>A verdict was taken, subject to the opinion of the Court, with an agreement to enter a nonsuit, in case he should be of opinion against the plaintiff.</p> <p>His Honor, on this question, being of opinion in favor of the plaintiff, gave judgment accordingly, from which the defendant appealed.</p>

AotioN of debt, tried before Saunders, Judge, at a Special Term of Moore Superior Court, November,-1856. This case was before this Court at its December Term, 1855, (reported 3 Jones’ Rep. 67).

AotioN of assumpsit, tried before Bailey, J.,' at the Eall Term, 1856, of Currituck Superior Court. The plaintiff declared for the nonpayment of a certain county order in favor of one Gilman, and which, on certain conditions, it was alleged he had promised to pay.

MotioN to dismiss an ATTACHMENT, heard before Person, J., at the Pall Term, 1856, of Davidson Superior Court. The attachment, which issued in. this case, is as follows: “ State of North Carolina, 1 To the' sheriff or any other Davidson County. j ■ lawful officer: Whereas, James Y. and T. Symons & Co. have complained on oath before me, John P. Mabry, one of the justices of the peace for the said county, that T. II.

This was a petition to lay out and establish a public road, tried before PeesoN, Judge, at a Special Term, January, 1856, of Bladen Superior Court. The petitioners filed their petition, ex parte, in the Court of Pleas and Quarter Sessions for Bladen county, having previously given twenty days’ notice of their intention to do so, to all persons over whose land the road was to pass.

<p>ActioN of assumpsit, tried before bis Honor, Judge Ellis, at tbe Spring Term, 1857, of "Washington Superior Court.</p> <p>Tbe defendant was tbe owner of a tract of land on tbe Eoanolce river, called tbe ’Walling tract, on which tlicre were growing a large number of white-oak trees, suitable for making staves. It appeared that tbe plaintiff and defendant being in treaty relative to the sale and purchase of these trees, the former, about 1st of February, 1853, wentto examine them, and thence went to see the defendant, who lived at William-ston, Martin county. What then took place between the parties did not appear, except as may be gathered from the evidence thereafter arising. On the 14th of February, 1853, the defendant wrote to L. S. Webb, cashier of the Windsor Bank, who lived in the town of Windsor, about seven miles from the residence of the plaintiff, a letter, of which the following - is a copy:</p> <p>“ WilliaMStoN, Feb’ry 14th, 1853.”</p> <p>“ Sir: — I sold Solomon Mizell, Jr., some oak timber, amount $800. I was to take such names to the notes enclosed as yon would write me were good for the amount. I also, send a letter over to Solomon Mizell, Jr., please give it to him (to-day) if he is in town.”</p> <p>In the letter to Mr. Webb, was enclosed the following letter of the same superscription and date, directed to the plaintiff:</p> <p>“ Sir: — I received your letter of the 10th inst., and would say in reply, you can have my oak timber on the tract,of land, known as the Walling tract, on Roanoke river, as per-agreement when you were here, for $800, in two notes, 12 and 18 months from date, with interest from date, with such security as L. S. Webb says is sufficient for the kmount. I am unable to get over, but you may consider it a trade, you complying with the above. You can get your notes fixed as above stated; show them to L. S. Webb, and get a letter from him, to me, stating that the security is sufficient, and all will be right; then I will give you a right to the timber as per agreement.” Signed by defendant.</p> <p>“ P. S. I have enclosed the two notes to L. S. Webb for you to fill up.” J. H. B.</p> <p>“ I will be at home Saturday next, or any day this week, or you can write to me what day you will come, and I will be here. Signed, J. II. B.”</p> <p>The letter addressed to the plaintiff, with two blank notes, were, in a day or two, delivered to tbe plaintiff, wbo remarked, that be and defendant had made the trade as stated in the two letters. He said further, on the occasion, that he would have the notes signed, and return with them a letter from Mr. Webb as requested, or 'go over, and deliver the notes to defendant.</p> <p>On the 19th of February, in the same year, one Wynn called on the defendant and offered him one thousand dollars for the timber in question.</p> <p>On 22nd of the same month, (Feb’ry) the defendant wrote to Mr. Webb as follows:</p> <p>“ WilliaMstoN, 22d of February, 1853.”</p> <p>“ Sir : — I enclosed two notes to Mr. Mizell to sign, and di- ‘ rected him to let me hear from him. Not hearing from him, or seeing him, I promised it to another man, presuming from his conduct, that he has abandoned the trade. The other man has been waiting for some time, and has been urging me to say what I will do with Mm. I put him off for some time, until Mizell could come or write, and he has not not done either.” Signed by the defendant.</p> <p>This letter was received the day it was written. About twelve days aftqr it was received, the plaintiff called on Mr. Webb, with the notes signed, and the latter gave him a letter to the defendant, stating that the notes Were good beyond doubt. At the same .time, Mr. Webb communicated to plaintiff the contents of the defendant’s letter of the 22nd of February/not having had an opportunity of doing so sooner. The plaintiff, thereupon, stated as his reason for not returning sooner with the notes, that his wife had been very sick, and that there was, and had been, a freshet in the Eoanoke river, which prevented him from getting over to Williamston. The plaintiff thence proceeded to visit the defendant at his residence, going a circuitous way tb avoid the difficulties of the flood in the river. He lived in Bertie county, about, twenty-two miles, by the usual route, from the defendant, the latter took the letter containing the notes, and having read them, returned the notes to the plaintiff, and.put the letter in his pocket, refusing to make a title to the trees. No reason was given by bim, at the time, for refusing to complete the trade, but as soon as the plaintiff left him, he put his refusal, upon the ground, that the notes were not good.</p> <p>Mr. "Webb testified that the notes were abundantly good. Shortly after this interview and tender, the defendant conveyed the timber trees to Wynn.</p> <p>Defendant resisted the plaintiff’s recovery,</p> <p>1st. Upon the ground,- that the evidence showed only a proposition on the part of the defendant to sell, but no acceptance of the terms previously to the sale to Wynn.</p> <p>2nd. The defendant had the right, at any time, to withdraw his proposition before its acceptance by the plaintiff, and in his second letter to Mr. Webb, had done so.</p> <p>3rd. The plaintiff did not tender the notes in a reasonable time.</p> <p>4th. The contract was not written so as to comply with the statute of frauds.</p> <p>The Court, by agreement, reserved the foregoing points.</p> <p>The jury found a verdict in favor of the plaintiff for $200 with interest from the sale to Wynn, it being admitted that such was the proper amount of damages, if plaintiff was entitled to recover at all.</p> <p>Afterwards the Court decided the questions reserved in favor of the plaintiff, and gave judgment on the verdict, from which defendant appealed to this Court.</p>

This was a motion for j udgment on a ca. sa. bond, heard before his Honor, Judge Bailey, at a special Term, 1854, of Pasquotank Superior Court. The judgment upon which the ca. sa. issued, was in favor of Cohoon & McIntosh for sixty dollars, rendered by a justice of the peace. The ca. sa. issuing thereon pursued the judgment, which was in the name of Cohoon & McIntosh, as plaintiffs.

AotioN of debt on a constable’s bond, tried before bis Hon- or Judge Manly, at the Spring Term, 1857, of Martin Superior Court. Cobb, the principal defendant, was appointed constable, at October Term, 1851. The plaintiff declared for a breach of the bond of the year then ensuing. It was in the usual form, with the conditions required by law.

AotxoN of Assumsit, tried before his Honor, Judge Ellis, at the Spring Term, 1851, of Bertie Superior Court. The suit was begun by a warrant before a justice of the peace, and brought up by appeal. The plaintiff declared, in several counts, for the services of a boy about fifteen years old; whom he had hired to the defendant for the year 1856, at the price of fifty dollars. The proof was that the b oy served the defendant about seven months, and then left his employment.

<p>Under the 34th ch., section 36, and 10T ch., secs. 31, 32 and 34, of the Revised Code, the Superior Courts have not original jurisdiction of the offence of grand larceny committed by a slave.</p>

ActioN on the case for obstructing a cart-way, tried before Ms Honor, Judge Ellis, at the Spring Term, 1857, of Per-quimons Superior Court.

ActioN of assumpsit, tried before PersoN, J., at the Spring Term, 1857, of Bladen Superior Court. . One Rothwell was examined as a witness for the plaintiffs, who swore that he was the agent of the defendant to buy the machinery, for the price of which this suit was brought, and that he wrote to the plaintiffs, who lived at Wilmington, Delaware, ordering it.

ActioN of ejbctMEnt, tried before Caldwell, Judge, at Spring Term, 1856, of Stanly Superior Court. The plaintiff adduced title to the land in question, from the sovereign, by a grant from Gabriel Johnston, Esq., one ©f the provincial Governors, to Arthur Dobbs, and then introduced testimony to establish a possession of seven years, under color of title.

The case was an application for letters of administration on tbe estate of Alexander Clark, dec’d., beard before Peesok, J., at tbe Spring Term, 1857, of Harnett Superior Court. At tbe September Term of tbe County Court of Harnett County, Daniel McCormick claimed tbe right of administering, as the appointee of Catharine Clark, wife of Malcom Clark, she being, a sister of tbe deceased.

ActioN on tbe case, tried before bis Honor, Judge Peeson, at tbe Spring Term, 1857, of New-Hanover Superior Court. Case Ageebd. Tbe plaintiffs declared against tbe-'defendants for violating bis franchise by carrying persons over tbe nortb-east branch of tbe Cape Pear Eiver, from tbe town of Wilmington to Eagle’s Island. This Island is in 'the said river, opposite Wilmington, and is more than a mile across.

At the Spring Term, 1857, of Stanly Superior Court, a motion was made before PeesoN, Judge, by the heirs-at-law of Celia Easley, whose death had been suggested upon the record, to be permitted to make themselves parties defendant in lieu of their deceased mother, and a proper bond for that purpose was filed by them in the office of the Court.

AotioN of Assumpsit, tried before his Honor, Judge Bailey, at the Spring’ Term, 185J, of Hyde Superior Court. This was an action brought against the defendant, as the guarantor of a note made payable to him by one Jesse E.. Williams, which was passed by him to the plaintiff’s intestate, and guarantied to the said intestate. The defense, among other things, was that the defendant had no such notice of the default of Williams, as would make Mm liable.

This was an indictment for assault and battery, tried before Ilis Honor, Judge PeesoN, at the Spring Term, 1857, of Columbus Superior Court. The defendant pleaded not guilty, and former conviction.

Assumpsit, tried before Ellis, J., at tbe Spring Term, 1857, of Hertford Superior Court. The plaintiffs proved on the trial that they were co-partners in the business of cabinet-making, and jointly -owned all the stock in trade, including the bureau in question, which they had made. That this bureau was delivered to the defendant, and was worth thirty-six dollars. The action was brought for the price of the piece of furniture.

This was an action of tresspass qua/re clausiomfregit^'tried before Ellis, J., at the Spring Term, 1857, of Camden Superior Court. The plaintiff traced his title from one James Bray, who was in the habit, more than forty.years ago, of going yearly, for a few weeks at a time, upon the land, and getting rails and other timber; that in some years he would go more than once ; that he also would go upon the land as often as they were cut, and take off timber and rails.

This was an issue devisavit vel non, tried before Persoh, J., at the Spring- Term, L857, of Richmond Superior Court.

ActioN of TROVER, for the conversion of John, a slave, tried before Ellis, J., at the Spring Term, 1857, of Perquimons Superior Court. The slave in question, with fifteen others, was given by the will of one Kedar Felton to one Townsend, for his life, and after his death without children, to the plaintiff and his brother Elisha Felton.

This was an indictment against the defendant, who was a free negro, for furnishing liquor to a slave ; tried before his Honor, Judge Ellis, at the Spring Term, 1857, of Perqui-mons Superior Court. The indictment contained two counts ; one for selling spiritous liquor to a slave; and the other for giving it to him. Both counts concluded against the act.

(Same point as in the preceding case.) IndictmeNt against defendant, a free negro, for furnishing’ spirits to a slave, tried before Ellis, J., at the Spring Term, 1857, of Perquimons Superior Court. The indictment contained two counts, one charging that the defendant unlawfully did sell and deliver spiritous liquor to Sam, a slave; the other charging that the defendant unlawfully did give the spirituous liquor; both concluding against the statute.

This was a writ of eerfiorari, issued from the Superior to the County Court of Green County, heard before MáNly, J., at the Pall Term, 1856, of Green Superior Court. * The writ was issued on the petition of the defendant, Alle-good Jones, alleging that a judgment had been taken against him before a justice of the peace of Greene County, for a sum certain, from which he had appealed to the County Court •of that County, on giving hond, with the other defendants as bis…

ActioN of ejectment, tried before PeksoN, J., at the Spring Term, 1857, of Harnett Superior Court. The only question in the case was as to the correctness of his Honor’s instruction to the jury, in respect to a line in one of the conveyances produced in evidence. One of the calls in this deed was for “McNeil’s land.” The distance called for would not reach McNeil’s land, nor would the line, extended according to the course called for, touch this land.

<p>To make a tresspass for an entry on land indictable, it must be committed manuforti, in a manner which amounts to a breach of the peace; or (according to some authorities) which would necessarily lead to a breach of the peace, if the person in possession were not overawed by a display of force, and thus be induced to forbear from resistance.</p> <p>Where, therefore, one, having a right to enter on land in the possession of a tenant at sufferance, went with four others, and commenced building on the land outside of the tenant’s enclosure, without invading his dwelling, or molesting his enclosure, without any display of arms, or actual breach of the peace, it was held not to be indictable.</p> <p>Whether at the common law, one who has the right of entry may not use force, if necessary, to assert his right, is an unsettled question.</p>

ActioN of detinue for slaves, tried before his Honor, Judge' SaundeRs, at the Spring Term, 1857, of Eockingham Superi- or Court.

AotioN of debt, for a penalty commenced by a warrant, and brought to the Superior Court of Onslow County by appeal, where it was tried before Bailet, J., at the Spring Term, 1857. The action was brought for the penalty of $50, given by the Act of Assembly, Revised Code, ch. 16, for unlawfully setting fire to woods.

This was an action on the case, tried before Bailey, Judge, at the Spring Term, 1857, of Onslow. Tbe action was brought on the Statute, ch. 16, Rev. Code, for unlawfully bring the woods. The facts are as stated in the preceding case.

<p>Whether a verdict is against the weight of the evidence, is a matter solely to be determined by the Judge trying the cause, and the question of a new trial on that ground, must be conclusively decided by him.</p> <p>If a Judge omits to state the testimony as fully as counsel wish, he ought to be requested, before the jury retire, to make his statement of the evidenoe more full, but it is not a ground for excepting to the charge where no request of that kind has been made.</p>

<p>ActxoN on tbe Case for a libel and for slanderous words spoken, tried before Manly, Judge, at the Spring Term, 1857, of Martin Superior Court. '</p> <p>Pleas, “ general issue” and “ privileged communication.” Miss Bridgman was the proprietor of two schools, one at Plymouth and the other at "Williamston. She had employed the plaintiff to teach at the latter place, apd while she was attending to her school at Plymouth, she left the plaintiff to board in the family of the defendant, and under his care and protection. "While the plaintiff was thus boarding at his house, the defendant wrote to Miss Bridgman of, and concerning the plaintiff, the following letter, viz :</p> <p>“ Williamston, 22nd February, 1853.</p> <p>“ Miss Bridgman — Madam: I deem.it my duty to inform you that I have discharged Miss Wakefield from boarding at my house, her conduct, as I thought, was unladyfied, and as such, I told her unless it .altered, she must look another boarding house ; so she ha^ left and gone to Mr. Jordan. I think, Madam, that your School will shortly be broken up unless there is a change. Her conduct was, that she was walking the streets at a late hour of the night with a young man in this place, and would meet at Jew Cohen’s, and the curtains would be dropped, and they left by themselves. Such conduct I could not stand at my house, so she and Mr. Ward has both left my house. I am assured, madam, that you cannot get five scholars to the next session, if she is to be the teacher. I want you to come up as I can tell many than I can write.</p> <p>Tour ob’t. friend, &c.”</p> <p>The letter was mailed for transmission to Plymouth, where Miss Bridgman was superintending the school at that place. She arrived at "Williamston on the evening of the day on which the letter was mailed, and without having received it, she, on the same day, discharged the plaintiff from teaching in the school. Miss Bridgman testified that she received the letter at the defendant’s house, within two days after it was written ; that she did not remember by whom it was delivered to her; that she might have known that the defendant had sent her a letter, but she had not seen it, and it did not influence her in discharging the plaintiff.</p> <p>It did not appear whether the 'defendant knew of plaintiff’s discharge from the school when the letter was put into Miss Bridgman’s hands.</p> <p>There was evidence tending to show that the allegations in the letter were untrue. The plaintiff also proved the utterance, by the defendant, of the language of the letter, and other words of similar import to several other persons. This was after writing the above letter, and in reply to enquiries made of him, why he liad turned off the plaintiff as a boarder.</p> <p>The defendant offered no testimony, but contended that the circumstances under which the letter was written, and the words spoken, repelled the idea of malice; that they were privileged communications; and, moreover, that they did not constitute a charge of incontinence.</p> <p>The plaintiff’s counsel contended that the letter was not a privileged communication; that if the relation of the parties justified a privileged communication, it did not justify such a one as was made; that it appeared from the proof, that the .statements in the letter were false, and the communication being prim,a facie actionable, malice was an inference of law, which the defendant had not rebutted.</p> <p>His Honor charged the jury that it was not necessary for the language of the libel to import incontinence in order to make it actionable. If it were calculated socially to degrade the plaintiff, and if it were untrue, it would be libelous.</p> <p>Upon the point of privilege, the Court instructed the jury that, if Miss Bridgman, to whom the letter was addressed, and in whose employment plaintiff was, gave the defendant charge over her as stated, and the defendant wrote the letter in fulfillment of that charge, communicating what he had heard and believed to be true, the defendant would not be liable in damages ; the presumption of malice arising from the publication of untrue, libellous matter, would, iu that case, be rebutted. But if the defendant had no such charge ; or having it, if the publication was made out of malice, he would be liable. Plaintiff excepted.</p> <p>With respect to the words spoken, they were left to thfe jury to enquire whether they imported an allegation of incon* tinency against the plaintiff, with instruction, if they believed they did, to find damages for the plaintiff, as there was no question of privilege applicable to this count in the declaration.</p> <p>The jury found in favor of the defendant. Judgment and appeal by plaintiff.</p>

<p>AotioN of trespass, q. c. f., tried before Manly, Judge, at the Spring Term, 1857, of Wake Superior Court, to which the defendants pleaded general issue and license.</p> <p>The plaintiff showed title to the locus in quo, which consisted of four acres, with a mill and dam, which had been broken since 1852, and washed out, leaving the mud-sill exposed and the water low. The defendant Eowler, resided in the miller’s house, on the premises, by leave of the plaintiff, but whether as a tenant at will or as a servant or agent, did not distinctly appear; nor did it clearly appear to what extent his occupation reached; there was, however, no other occupation of the premises.</p> <p>In the month of August, 1851, the defendants Blake and Sorrell, went to the premises in a Buggy, and the defendant^ Eowler, in their presence, cut away a portion of the mud-sill, to fish the pond more conveniently, and then, with a sein, assisted by Blake, fished the pond and caught fish. The fish were put into a buggy, in which Sorrell and another person, not a party to this suit, rode, and were carried off.</p> <p>There was evidence tending to show a common custom and consent on the part of the public, and the owners of such streams and places, to fish in the same without let or hindrance. The plaintiff contended, 1st, that a license to acts of the kind complained of could not be inferred from usage.</p> <p>2nd. That if Eowler were guilty, the others were so, 'provided they took a benefit from his trespass, and</p> <p>3rd. That by cutting the sill, the defendants became trespassers,-«5 iniUo.</p> <p>The Court instructed the jury that the action depended upon the possession of the locus,in quo by the plaintiff. If he had possession so as to support the action, the defendant Eowler, would be guilty of a trespass, at any rate, in cutting the sill, and if the others aided and abetted, advised or coun-celled it to be done, they would also be guilty of that act of trespass.</p> <p>With respect to the fishing, the Court instructed the jury that a license might be presumed from common custom and consent, until it was withdrawn, but if there was no common usage, they would all be guilty of the trespass in going upon the land- to fish. Plaintiff excepted to the charge.</p> <p>Yerdict for the plaintiff, as to Eowler, and in favor of the other defendants. Judgment and appeal by the plaintiff.</p>

AoTioN'of assumpsit, tried before MaNly, Judge, at the Spring Term, 1857, of Wake Superior Court. The plaintiff, in the month of January, 1852, sold a slave to the defendant, at the price of $670, to be paid in two bonds executed by E. P. Guión, and transferred without endorsement, amounting to the price aboye stated.

<p>This was an action, of assumpsit, tried before bis Honor, Judge MaNly, at the Spring Term, 1857, of Johnston Superior Court.</p> <p>The declaration was upon the following written contract, which it was admitted was signed by the defendant in the presence, and at the instance of Linn B. Saunders, one of the commissioners appointed to take subscriptions to the stock of the North Carolina rail-road company, viz:</p> <p>“The North Carolina Rail Road.”</p> <p>“According to the provisions of the act of the General Assembly, entitled an act to incorporate the North Carolina Rail Road company, the subscribers do hereby severally promise and agree to, and with the said company, to take the number of the shares of the stock of the same affixed to our names respectively.”</p> <p>Names. j Number of Shares.) *qq0 J. T. Leach. { No. 5. j ®</p> <p>It was admitted that five _£><??* cent, upon the said subscription, to wit, $25, was paid by the defendant at the time of making the same. The subscription was made in March, 1850, and the defendant was present, by his proxy, at the general meeting- of the stockholders, on 11th of July, 1850, when the company organised by appointing a directory and other officers. It was admitted that calls were made for instalments, embracing the remaining amount of the defendant’s shares, (deducting the 5 per cent.) and that being unpaid, the shares owned by the defendant were sold at auction, and the amount insisted on is the remainder after deducting the price for which said stock was sold.</p> <p>There was !a count upon an indebitatus assumpsit.</p> <p>The defendant filed his special pleas as follows: General issue as to both counts. Plea the first as to the first count.</p> <p>1. AeUo non, &c.; because he saith that before the alleged subscription for stock in said North Carolina rail-road company he was informed, assured, and promised by the agents of the said rail-road company, that the line of the said railroad should be so located and established as to run through the town of Smithfield, in the county of Johnston, within a short distance, not exceeding half a mile of the said town; upon which said promise and assurance this defendant relied, and upon the faith thereof, and in the belief that the said road would be so located as aforesaid, and upon that condition he, this defendant, subscribed for the stock mentioned in the said count; and this defendant avers that, but for said assurance and promise, and his reliance thereon, he would not have subscribed for said stock as aforesaid ; and this defendant further saith, that the said rail-road hath not been located and established so as to run through said town of Smithfield, nor within the distance thereof as aforesaid, but the same hath been located so as to run more than two miles from the said town of Smithfield, that is, at the distance of miles therefrom ; wherefore, this defendant saith that he has been deceived and defrauded in his contract of subscription, and that the condition aforesaid hath not been performed, but hath been violated and broken, wherefore, he saith, that he is not bound to perform the said contract of subscription, but that the same is of no force, or legal validity, and this he, the said defendant, is ready to verify, &c.</p> <p>2nd. And for farther plea, in this behalf, to the said* count, this defendant saith, that by the terms of the charter of the said company, granted by the General Assembly of the State, the said company were required to construct a rail-road from a point on the "Wilmington and Raleigh rail-road, where the same crosses the Neuse river, in the county of Wayne, via Raleigh, &c., to Charlotte ; and this defendant saith he subscribed, as mentioned in the plaintiff’s declaration, in the faith and belief, that the said road would so be constructed as to commence at said point, and that said point would be a terminus of the said road, and he says that the said company have deviated from the charter by neglecting and failing to construct a road, having the said point as a starting point or terminus, but have varied therefrom, materially and essentially, by constructing a road commencing and having a terminus moi’e than a mile from the said point; which this defendant says is not the road contemplated and authorised by the said charter : Wherefore, &c.”</p> <p>There was other special matter pleaded, but as the same is not involved in the view taken of this cáse by the Court, it becomes unnecessary to state it.</p> <p>The plaintiff objected to the admissibility of the evidence ■upon the first special plea, but admitted its truth, if competent.</p> <p>The Court decided it incompetent, and the defendant excepted.</p> <p>The plaintiff admitted the truth of the second plea, but contended that it was no bar to the action. ■</p> <p>All error was waived as to informalities in the pleadings.</p> <p>His Honor, upon consideration of the case agreed, gave judgment for the plaintiff, and the defendant appealed.</p>

This was an indictment for bueglaey, tried before Ellis, Judge, at the Spring Term, 1857, of Chowan Superior Court. Upon the trial, Doctor .Charles Smallwood swore that he lived in Bertie county; that his smoke-house was about twenty-four yards from his dwelling, which was his usual place of residence.

INDICTMENT for MURDBR, tried before his Honor, Judge Manly, at the Spring Term, 1857, of Pitt Superior Court. The charge in the bill was, that a female slave, Fanny, feloni-ously assaulted and killed one Abner E. Griffin, and that the prisoner and another slave, Mack, were present, aiding in the homicide.

This was an action of assumpsit, tried before Mauly, Judge, at the Spring Term, 1857, of Edgecombe Superior Court. The plaintiff declared, 1st, upon an oral warranty of the merchantable character of certain turpentine bought from the defendant. 2ndly. Upon a failure to perform an award.

AotxoN of AssuMPsrr, tried before his Honor, Judge Manlt, at the /Spring Term, 1857, of Hyde Superior Court. The plaintiff declared on a special contract made with the defendant, that the latter was to “ take a raft of timber at $7,50 per thousand, which was to be prepared by the plaintiff in Grennanton Bay, and thence towed by the defendant’s steamer to the town of W ashington, and that it was to he Tea-dywhm corn was done” The contract was made in the month of March.

ActxoN oe assumpsit, tried before Saundees, J.-, at the Spring Term, 1857, of Stokes Superior Court.

This was an action on the case for slaNder, tried before Bailey, J., at the Spring Term, .1857, of ITyde Superior Court. The. charge was, that the defendant said that the plaintiff had sworn falsely, in a trial before á justice of the peace, to an account in favor of himself against the' defendant.

This was an actioN of trespass, A. B., tried before Calb-avell, Judge, at the Eall Term, 1856, of Cabarrus Superior Court. , The plaintiff’s declared for an assault and battery upon the wife.

AotioN of EJECTMENT,'tried before DiCK, Judge, at the Spring Term, 1857, of Mecklenburg Superior Court. The def’t. entered into the common rule and pleaded not guilty. The declaration in this case bore date, and was filled up by the plaintiff’s counsel on the 7th day of December, but was not placed in the hands of the sheriff until several days thereafter, and was not served on the defendant until the month of March following, he than being off of the land.

This was an ¿otioN of teespass, q. c. f., tried before MaNly, J., at the Spring Term, 1857, of Halifax Superior Court. The defendants bad, under the authority of an Act of the Assembly, proceeded to lay off a rail road from Weldon to Gaston, and had let out the construction of the same to certain contractors who were occupied during the year 1852, in grading the road bed. While so working, the contractors above mentioned committed the trespass complained of.

Tjiis was a soibe facias, tried before Mahxy, J., at the Spring Term, 1851, of Johnston Superior Court. It was issued for the purpose of subjecting the defendant as special bail of ¥m. G. Parish, Matthew Boykin, and Augustus Parish, against whom a judgment was rendered in the County Court of Johnston.

Actiow of tbesRass, m et armis, fried before Manly, J., at the Spring Term, 1857, of Edgecombe Superior Court. Tlie declaration was, for forcibly taking away a quantity of cotton.

This was an actioN of ejeotmeiít, tried before SauN-dees, J., at the Spring Term, 185T, of Orange Superior Court. J. M. Palmer made a deed of trust of the property in question to N. J. Palmer, trustee,- dated 21st of March, 1853, to secure various creditors therein mentioned, upon conditions, and provisions which, the plaintiif contended below, were fraudulent and void as against creditors.

Teespass on the case in the nature of waste, tried before MaNly, J., at the Spring Term, 1857, of Edgecombe Superior Court. The land in question was devised by Willis Dupree to the plaintiff and James Dupree, in fee, and the latter assigned his estate to the plaintiff before the commission of the alleged waste'.

This was an actioN of ejectment, tried before SauNDers, J., at tlie-Spring Term, 1857, of Orange Superior Court.

AotioN of debt, tried before his Honor, Judge Saustdees, at the Spring Term, 1857, of Alamance Superior Court. The plaintiff declared on a bond executed by the defendant in the State of Yirginia, more than ten years before the bringing of this suit, and less than twenty years.

Debt on a BOND, tried before SauNdees, Judge, at the Spring Term, 1857, of Chatham Superior Court.

<p>To work a hired slave at the business of blasting rook, in the night time, when fragments of falling rooks could not be seen, would not be taking ordinarily reasonable care of such property.</p> <p>But if a hired slave of his own accord, against the directions of the hirer, without his knowledge or consent, in the twi-Iight, when his presence was not easily discovered, took the place of one of the regular hands at that business, and was killed by a falling rock, the bailee would not be liable for the loss. Pearson, J., dissentiente.</p>

This was an action of debt, tried before Bailey, Judge, at the Pall Term, 1856, of the Superior Court of Granville. It had been commenced before a justice of the peace, on a warrant, and was brought against the defendant as administrator of one Hester, on a bond made by the intestate. The justice of the peace, who tried the warrant, rendered a judgment against the defendant, in his individual capacity, with a stay of nine months.

ActioN of TROVER, tried before Saunders, J., at the Spring Term, 1857, of Chatham Superior Court The action was brought for the conversion of Peggy, a slave, and her two children. The mother of Peggy had been placed by Roderic Cotten in the possession of his son, R. C. Cotten, upon the marriage of the latter in 1815. R. C. Cot-ten never had any written title to the slave in question, and did not claim that she belonged to him.

, at the Spring Term, 1857, of Robeson Superior Court. The defendant was arrested under a ca. sa., issued by a single justice of the peace, at the instance of the plaintiff, and gave bond for his appearance at the next term of the County Court of Robeson County, to take the oath under the insolvent debtors’s act.

This was an ikdiotmeNt, tried before bis Honor, Judge Dick, at the Spring Term, 1857, of Rowan Superior Court. The charge was for selling spirituous liquors by a measure less than fire gallons, against a statute regulating the town of Salisbury.

Before SauNdebs, Judge, at tlie last Fall Term of Caswell •Superior Court.

This was an actioN of ejectmeNt, tried before SauNdbes, J., .at the lást Spring Term of Guilford Superior Court. Case A&eeed. The lessors of the plaintiff claim title as heirs and devisees of Andrew Gibson.

This was an action of assumpsit, tried before SauNdeks, J., at the Spring Term, 1857, of Eorsyth Superior Court.

<p>The killing of a cow, or other animal on a rail road, by the train's running over it, is not, of itself, proof of negligence.</p>

ActxoN of COVENANT for a breach of warranty, tried before Dick:, Judge, at the last Spring Term, of Mecklenburg Superior Court. The only question in this case was, whether the declaration of Mary, the slave, whose ill health was alleged as the breach of the covenant declared on, was admissible.

ActioN of ejectmeNt, tried before Manly, Judge,, at the Spring Term, 1857, of Warren Superior Court.

This was an INDICTMENT for petit larceNY, tried before SatwdeRS, Judge, at the last Uockingham Superior Court. There were several witnesses examined in support of the prosecution.

This was an action of debt, tried before his Honor, Judge DiCK, at the Spring Term, 1857, of Union Superior Court.

The order appealed from is in these words, viz : “ James Mott is ordered by the Court to be imprisoned till nine o’clock on to-morrow morning, for a contempt of Court, by making a- loud noise within the hearing of the Court, and to the disturbance of the same, and offering resistance while under arrest, in the presence of the Court.” Erona this order the Court allowed the defendant to appeal.

ActioN of KjeotMbnt, tried before Ellis, Judge, at the Eall Term, 1856, of Jackson Superior Court. The plaintiff showed title in himself, by the production of a grant from the State, for the land in controversy, bearing date 14th of August, 1843. He showed the defendant in possession at the time of the service of the declaration.

This was an-action of ejectment, tried before Caldwell, J., at the Spring Term, 1857, of McDowell Superior Court.

This was an action of assuMpsit, for the price of a mule, tried before Bailey, J. at the Pali Term, 1856, of the Superior Court of Jackson County.

AotioN of ejicCtment, tried before Manly.» L, at the Fall Term, 1855, of Macon Superior Court. The lessor of the plaintiff claimed title through a person by the name of Leonard Higdon, and showed a regular conveyance from him. The defendant claimed the same land by virtue of a sheriff’s sale, under a venditioni exponas*, founded on certain levies, made by a constable under justices’ judgments and executions.

<p>This was INDiotment for CHEATING by false tokens, tried before Caldwell, Judge, at the Spring Term, 1857, of Taney Superior Court.</p> <p>Tlie indictment was as follows :</p> <p>“ The jurors for the State, upon their oath, present, that Samuel Boon, late of the county of Taney, being an evil disposed person, and wickedly designing, and intending to cheat one Mary Wilhite, on the 18th day of October, in the year 1856, with force and arms, at, and in the said county knowingly and designedly, by means of a certain false token, to wit, by means of a quarter of a dollar, which the said Samuel well knew to be counterfeit, did, then and there, obtain .from the said Mary Wilhite, one piece.of gingerbread, with intent to cheat and defraud the said Mary Wilhite, against the form of the statute, in such case made and provided, and against the peace and dignity of the State.</p> <p>“And the jurors aforesaid, upon their oath aforesaid, do further present that the said Samuel Boon, on the day and year aforesaid, .with force and arms, at, and in the county aforesaid, .feloniously, knowingly, and designedly did obtain from the said Mary Wilhite,. by means of a false token, to wit, by means of a counterfeit quarter of a dollar, which the said Samuel Boon well know to be counterfeit, one piece of gingerbread, with intent to cheat and defraud the said Mary Wilhite, against the form of the statute in such case made and provided, and against the peace and dignity of the State.</p> <p>“ And the jurors aforesaid do say, that the said Samuel Boon, in manner and form aforesaid, was guilty of fraud and deceit, against the form of the statute in such case made and provided, and against the peace and dignity of the State.”</p> <p>The defendant was convicted, and moved in arrest of judgment for defects in the bill of indictment, which motion, was overruled by bis Honor, and judgment pronounced, from which the defendaut appealed. The points discussed in this Court, are stated in the opinion of the Court.</p>

This was a soiee eacias, to make absoluto a judgment nisi/ beard before his Honor, Judge Dice, at the Eall Term, 1856, of Surry Superior Court. The defendant, as sheriff of Burke County, was amersed at Spring Term, 1856, of Surry Superior Court, in the sum of one hundred dollars, nisi, for failing to make due return of an execution, which had issued from that Court, in favor of the plaintiff, against one Gaither.

From Alexander county. The plaintiff was the'widow of the intestate, William Stephenson, and as such, made an application to the County Court of Alexander, at the first term after her husband’s death, for administration upon his estate. Her appointment was opposed, upon the ground of incompetency, and the defendant, who was the appointee of the next of kin, (though not himself related to the intestate) was appointed.

This was an action for a PENALTY, brought to the Superior Court of Caldwell, by appeal from the judgment of a justice of the peace, tried before Ellis, J., at the Pali Term, 1856. The action was brought against the defendant for the failure of Ms son, Sion, to work on a public road, and the following CASE AGREED, was submitted for the judgment of Ms Honor.

<p>This was a sciee eacias to subject the defendant as special bail, tried before Caldwell, J., at tbe Spring Term, 1857, of En.ncom.be Superior Court.</p> <p>Tlie scire facias recited that a writ in behalf of the plaintiff, against one P. Hawkins, came to the hands of the defendant as sheriff of Eandolph County, which he executed on the said Ilawkins, and took- a bail-bond for his appearance at the term to which the said writ was returnable, but that he failed to assign the same to the plaintiff, according to the provisions of the act of Assembly, and summoned the defendant to show cause why he should not be made liable as special bail.</p> <p>The defendant pleaded that he assigned the bail-bond taken by him, to the plaintiff by an assignment in the following words, to wit: “I, Hezekiah Andrews, sheriff of Eandolph County, do hereby assign over the above obligation and condition to J. E. E. Hardy, the plaintiff therein named, his executors, and administrators, according to the statute in such cases made and provided. In witness whereof, I have hereunto, set my hand and seal, 29th day of March, 1849.</p> <p>* * * * * .(seal,)”</p> <p>which he alleged and insisted was, in law, a good and sufficient assignment of the bond and conditions therein contained.</p> <p>The plaintiff demurred to the said plea on the ground, that it was not sufficient in law to bar the plaintiff’s right to recover.</p> <p>The question raised by these pleadings was, whether the name of the defendant, as sheriff, being in the body of the assignment, and a scrawl appended in the usual form of a seal without any name affixed, was a good and proper execution of the assignment.</p> <p>His Honor being of opinion that it was not, sustained the demurrer, and gave judgment for the plaintiff, from which the defendant appealed.</p>

ActioN of bjectMent, tried before Ellis, Judge, at the Fall Term, 1856, of Cherokee Superior Court. A deed to tbe lessor of tbe plaintiff, for tbe land in controversy, was offered in evidence, and objected to by tbe defendant’s counsel, upon tbe ground, that it had not been duly proved and registered.

This was an action of tbover, with a count in case, tried before Ellis, Judge, at the Fall Term, 1856, of Cleaveland Superior Court. The action was brought to recover the value of several slaves, which it was alleged he had an estate in, and which had been sold and converted by the defendant.

This was an action of ejectment, tried before Caldwell, J. at tbe Spring Term, 1857, of Taney Superior Court. Tbe plaintiff, as sheriff of Taney County, bad in bis bands a venditioni exponas, founded upon tbe levy of a justice’s execution, in favor of Isaac A. Pearson, against one Keller, under which the land in dispute, was sold to one Brayles at the sum of 03,50.

This was an action of debt, brought originally before a single magistrate, and by successive' appeals, taken to the Superior Court of Aslie, where it was tried before Elijs, J., at the Special Term, June, 1857.

This was an action by attaoiimeNT, tried before Caldwell, J., at the Spring Term, 1857, of Caldwell Superior Court. The heirs-at-law of Peter Ballew, sen., filed a petition in the Court of Equity of Caldwell County, describing certain lands descended to them, as tenants in common, from their ancestor, the said Peter Ballew, and praying that the same should be sold for partition.

This was an issue devisavit vel non, tried before Bailey, J., at a Special Term, June 1857, of Lincoln Superior Court. The script, in question, was 'propounded as the holograph will of William Little, and it was proved by three witnesses, to be in the hand-writing of the decedent.

ActioN of assumpsit, tried before bis Honor, Judge Ellis, at the Eall Term, 1856, of Cherokee Superior Court. The plaintiff declared on the defendant’s promise, made in the city of Washington, for board and lodging there furnished him. The defendant pleaded the general issue.

AotioN of assumpsit, commenced by a warrant, and tried before bis Honor, Judge Ellis, at the Eall Term, 1856, of ATatauga Superior Court. The plaintiff declared for a balance due for money bad, and received by bim, for the sale of a quantity of bacon.

This was an action of trover, tried before Dior, Judge, at the Spring Term, 1857, of Davie Superior Court. Pleas, general issue, and statute of limitations. The action was brought for the value of two slaves, Kerr and Amy. It was admitted that the slaves, in controversy, were part of the estate ofWm. F. Kelly, who died in 1848, and that as such, they come to the hands of the plaintiff, who was appointed his administrator at February court, 1849.

This was an action of debt on a former judgment, tried before Ellis, Judge, at tbe Eall Term, 1856, of Jackson Superior Court, and brought to this Court by direct appeal from tbe judgment of a magistrate. Tbe plaintiff offered, in evidence, tbe former judgment sued on, from which the defendant bad appealed, and upon which was an endorsement of such appeal, and subsequently a withdrawal of the appeal by the appellant.

Tins was an aetion of assumpsit, tried before Ellis, J-, at the Fall Term, 1856, of Taney Superior Court. The defendant relied on the statute of limitations. The claim of the plaintiff was for the recovery of money which the defendant’s intestate owed for a note of $75, which lie had bought of the plaintiff. There was evidence tending to show the indebtedness of tbe defendant’s intestate, and his agreement to pay for the paper in good, cash notes.

ActioN on the oase for á malicious prosecution, tried before Caldwell, Judge, at the Spring Term, 1857, of Madison Superior Court. The defendant JI. B. 'Deaver had been prosecuted for forgery, in altering the date of a certain note, executed by one Bradley to one Carter, on which a warrant had issued in the name of Carter to the use of said Deaver.

<p>If water be ponded back on the land of another by the erection of a mill-dam, he is entitled, in the remedy by petition, to nominal damages, whether there be actual damage or not.</p> <p>A witness is not competent to testify to what a deceased witness swore on a former trial, unless he says he is able to state the substance of all that was deposed to by the deceased witness.</p> <p>An exception to the competency of the witness, need hot set out the testimony which the witness was called to give. (IGmel v. IGmel, 4 Jones’ Eep, 121, reviewed.)</p>

Tms was an action of assumpsit brought up by direct ap. peal from the judgment of a justice of the peace, to the Superior Court of Wilkes, where it was tried before Dice, Judge, at the last Spring Term. The suit was brought for two parcels of pork and some articles delivered by the plaintiff to the defendants.

This was an action of repleyiN, for slaves, tried before Bailey, Judge, at the Pali Term, 1851, of Union Superior Court. The plaintiffs derived title from one Jane Moore, by a bill of sale, executed by her to the plaintiffs’ intestate, in which was expressed a consideration of $500. The slaves in question were taken possession of by plaintiffs’ intestate, and while in possession of an agent of his in South Carolina, were taken possession of by the defendants.

<p>Where A won a justice’s judgment from B at a game of cards, unfairly played, and took from the defendants in the judgment, a bond payable to himself for the amount, upon which he brought suit, and to which the statute against gaming was pleaded, it was Held that he could not recover.</p>

ActioN of assumpsit, tried before Bailey, J., at a Special Term, July, 1857, of Lincoln Superior Court. The evidence, was that defendant said he wished to employ the plaintiff to superintend the iron-works at Madison Forge ; that if he would undertake the business, he would give him §12,50 per month, as long as he continued to work ; to which the plaintiff agreed.

AotioN of assumpsit, tried before Ellis, J., at tbe Fall Term, 1856, of Caldwell Superior Court. Tbe plaintiff declared for tbe breach of a parol warranty of a jackass.

This was an action on the oase, tried before Caldwell, J., at the Spring Term, 1857, of Butherford Superior Court. The declaration in this case contained two counts, one for a false warranty, and one for a deceit. On the trial of the case, the plaintiff offered evidence tending to show that, in the exchange of horses, the defendant warranted the horse, traded to the plaintiff, to be sound, and a first-rate work nag.

<p>Aotiok of TROVER, tried before Ellis, Judge, at the Eall Term, 1856, of Eutherford Superior Court.</p> <p>The plaintiff, to prove title in himself, offered a duly certified copy, from the register’s book, of a bill of sale from one Norton to the plaintiff. He filed an affidavit of the loss of the original; that due search had been made, and that it could not be found. He proved the contents of the bill of sale by the subscribing witness, and that'the paper produced was a true copy. The defendant objected to the reception of this evidence, but the court admitted it, and the defendant excepted.</p> <p>The defendant then prove$, by the same witness, that at the time of this transaction, the plaintiff was an infant, in his nurse’s arms, and that the slave, in question, was paid for with the means of W. "W. Morris, the plaintiff’s father, and that the same went into his possession, and remained in it for some years; that the trade was made before they came to the witness; that the consideration was land, not money ; and that the deed was made at the same time that the bill of sale was executed. The defendant also proved that W. W. Morris, the father, was indebted beyond his means at the time of this trade between him and Norton, and that he was in fact, at that time, insolvent; that the defendant caused an execution to be levied on the slave in question, under which he was sold at sheriff’s sale, and purchased by one Hamrick, as the property of the father; that the plaintiff brought suit against the purchaser ITamrick, and failed to recover.</p> <p>The defendant insisted that this judgment was a bar to the plaintiff’s action; and, at least, was a ground why he should recover but nominal damages, and called on the court so to instruct the jury. The defendant also contended, that the property passed to the father, Morris, before the bill of sale was executed to the son, and was liable to the debts of the former; and asked the court so to charge.</p> <p>The court declined to give this instruction, but was of opinion that neither of the defenses relied on could avail the defendant. To which he excepted.</p> <p>The suit was brought in forma pauperis by the plaintiff; and in addition to the general judgment on the verdict, he moved, that in the taxation of costs, the clerk be directed to include in the bill the amount of the attendance of the plaintiff’s witnesses, which was ordered by the court; for which the defendant also excepted.</p>