Volume 5 — North Carolina Reports

In Equity. — Samuel Holding, sen. the testator, on the 9th day of May, 1797, made and published his last will and testament, and therein, amongst other things, devised a tract of land to the defendant, and other tracts to the complainants, Arthur and John Holding, liis sons; and directed that the several parcels of land thereby given to his three sons, Frederic, Arthur and John Holding, should be valued by good men, as woodland unimproved, and that the valuation so made,…

The complainant’s intestate filed liisbillagainst the defendant’s testator; the object of which was, to set aside an award which had been made between the parties, ami to open accounts on which the award was founded ; and the Court, many years ago, passed an interlocutory decree to that effect. The defendant preferred a petition praying a re-hearing ; which was had, and his petition overruled.

From Newbern. Ejectment. — The Jury found a verdict for the Plaintiff, subject to the opinion of the Court upon the following Case, to-wit: « The plaintiff and those whose estate he hath, owned the lot mentioned in the declaration, distinguished in the plan ■^ewf,ern by the No. 122, extending on Grave-street one hundred and seven feet three inches, and back in depth two hundred and fourteen feet six inches : The defendant and those whose estate he hath, owned a lot…

The plaintiff a mV one George Parker, on the 2&th day of December, 179$, by articles under their hands and seals, agreed to run a horse-race, one quarter of a mile, on the first Thursday in May 1800, on Rice’s paths : Parker’s hag to carry one hiñidred and forty-five pounds, and Cr¡teller’s naa; one hundred and thirty pounds; for five hundred dol-0 larsj to be staked on the day of the race, in cash, good pro-pent or bonds ; the nags to be turned thirty feet from the _ •…

<p>This was an action on the case brought by the plaintiff against the defendant, as stake-holder at a course race.</p> <p>The plaintiff and one Chartres started their horses, and in running the last round of the first heat, at the commencement of the straight, the horse of Chartres left the track and run within the poles, but was rein d into the track in time to be within less than a distance of Moore’s horse when he passed the poles. The rider of Chartres’ horse then alighted, and, was sometime in the crowd before he was weighed. The plaintiff claimed the race upon two grounds: according to the rule of racing, Chartres’ horse was to be considered a distanced horse. 2dly. That the rider of Chartres’ horse having alighted without being immediately weighed, and being bound to carry a certain weight, he had thereby forfeited the race. And the opinions of many gentlemen well acquainted with the rules of racing, examined in court, were for the plaintiff on both those points, notwitnstanding it appeared that Charts’ horse had run a greater distance by running within the poles, than he would have done by keeping the track.</p> <p>The defendant shewed that it was provided by the 7th article in the rules of the turf, on which the race was run, that « The judges each day shall be chosen by the parties starting horses, or a majority of them, who shall determine all disputes and controversies that may take place respecting the race by them judged And by the 11th it was in like manner provided, that « the races shall he conducted agreeably to the rules of NeW-Market/ except where the cases are or shall be altered by the Jocky Club.”</p> <p>And that the judges chosen, according fo the 7th article, determined against the. plaintiff upon both the points above stated, and gave Ieav e to Chartres to start his hors"? for thfe second heat: the plaintiff believing he was entitled fo the race, refused to start his horse again; and Chartres’ horse being galloped around the ground aloiie, the judges directed the defendant to pay the money over to Chartres.</p> <p>The question submitted to the Court was, “ Whether by the seventh article aforesaid, the plaintiff is concluded, by the opinion of the judges, froth suing in a court of justice, and recovering upon the opinion of sportsmen and bye-standers, contrary to the opinion of the judges.”</p> <p>If the court shall be of opinion for the plaintiff, judgment to be entered lor him, otherwise a new trial to be awarded.</p>

<p>This was an action of detinue for a negro to which the plaintiff deduced the following title : The negro was the property of William Faircloth, deceased, at his death, and carne to the hands of his administrator.</p> <p>Benjamin Sheppard obtained two judgments against the administrator, in the county court of Lenoir, upon which writs of Fi. Fa. were issued to the sheriff of Glasgow, and levied on the negro in question amongst others, of which lévy a return was made, and the sale of the property was stayed by consent of the plaintiff, After this levy a distribution was made, and the negro allotted to defendant.</p> <p>At a subsequent term, writs of Venditioni Exponas issued, bearing test the first Monday in January, 1793-, and-returned the first Monday in March following: upon which Writs, the sheriff of Glasgow, after the test and before the day of return, exposed the negroes to sale, at public vendue,' and hid off, himself, the one in question. — On a subsequent day? before the day of return of the writs of Vend. Expo, the sheriff sold at private'sale, and delivered the negro in question to John Grimsley, for the full worth of him, Grimsly continued iri possession of the negro about four years, and delivered him to his daughter, wife of the plaintiff. The plaintiff had him in possession till the first day of May, 1802, when the defendant took him.</p> <p>Upon the trial, the Court instructed the jury, that the purchase of the sheriff, at his own sale, was void ; ami that the subsequent sale made by Him to Grimsley, could not operate as a sheriff’s sale, because it was not made at pub-!!c auction : Wherupon the jury found for the defendant.</p> <p>The plaintiff moved for a new trial, on the ground of misdirection to the jury, and obtained a ruje to shew cause.</p>

Ann Johnston by her last will, amongst other things dev’sed as follows : “ I give and bequeath unto my beloved nephew, Charles Earl Johnston, all my lands, as follows: One tract of land in Chowan county, lying on Indian creek, called and known by the name of Boydsborough, containing six hundred acres; the other tract lying on Chowan river, in the county aforesaid, containing two hundred acres, and known by the name of the Rice Banks.

<p>Action of debt on a bond, plea Non ést factum, payment set off, and the act of Assembly directing the manner in which bets on horse races shall be recovered.</p> <p>The subscribing witness proved the signing and sealing of the bond, and that it was given for money won on a horse-race, to-wit: The best two in three heats, one mile. The defendant’s counsel then asked, if the bond was delivered by the defendant to the plaintiff, or to any other person, upon conditions. To this question, the counsel for the plainfiff objected, on the ground that it was intended to shew the bond was delivered as an escrow, without pleading-that it was so delivered. The court over ruled the objection ; and the witness answered, that the bond wás delivered to one Copeland, to be the deed of the defendant^ if the plaintiff won the race. The plaintiff could not shew articles in writing containing the terms of the race, and that he bad won - the race; and, therefore, the defendant had a verdict.</p> <p>It was, in the course of the trial, contended by the plaintiff’s counsel, that this case being within the first section of the act of Assembly, and the race a course race, within the proviso of the act, he was entitled to a verdict.</p>

Appeal to Newbern Superior Court, on a guardianship. r¡r,j(e questions reserved for the opinion of this court were « Whether the choice of a guardian made by a person between the ages of fourteen and twenty-one years, is absolute so as to preclude the exorcise of the judgment of the county court, on any point not relative to the security to be given?” If this question be determined in the negative “ Whether the court, who rejects the choice, is not to give leave to the minor…

from Halifax. The bill charged that Judith Brinkley by her last will bequeathed “ to her daughter Elis&abeth Harris, a negro ^ iiamed Bob and a bay horse, and declared that if her daughter should depart this life without heir lawfully be- ^ her body, the said negro aiid horse should belong to Anne Daniel.” That the complainant James Matthews, with the said Elizabeth Harris, who some-time afterwards died, aiid complainant obtained letters of administration on her estate: JRat…

from Fayetteville. This was a writ of error brought to reverso a judgment recovered by Thomas Wade against John Colson and others in Anson county court, in the year 1782. The facts were, that Thomas Wade sued out an original attachment against John Colson.

from Newbern. The Heath o.f defendant being suggested, an order wa£ made « that Sally Howard, administratrix of George Howard deceased, be made defendant in this case, unless cause . shewn to the contrary at next term.” A copy of this order having been served on Sally Howard, she appeared and shewed eause, to wit, that the said order was irregular raid not conformable to the provisions of the statute in such ca-made and provided; that the representatives of the de-lend ant…

<p>from Hillsborough.</p> <p>Joseph Landrum being seized in fee of a tract of land lying in Chatham county, constituted and appointed Samuel Landrum, his attorney in fact to sell and convey the same; and the said Samuel as attorney for the said Joseph conveyed the land to Matthew Jones, by deed bearing date the 20th day of April, 1775. This deed purported to be absolute and for a valuable consideration, in (he year 1777, Samuel Landrum executed another deed for the [and 'to Thomas Brooks, who conveyed to Joseph John Alston, and lie by his last will and testament devised the sa*c^ land to complainants, who filed their bill in the Court of Equity for Hillsborough District, against the devisees of the said Matthew Jones, ami therein charged that the conveyance from Samuel Landrum to Matthew Jones, was executed for no other purpose than to enable Jones to sell 1 A •• ‘ and convey the land for the benefit of Landrum j that no ... • . , , , . , valuable consideration was paid nor agreed to be paid : an(J that Jones held the legal estate in the land in trust for Landrum and his assignees. That Thomas Brooks was a purchaser from Landrum for a valuable consideration, and those claiming under him were entitled in Equity to have the legal estate decreed to them, &c.</p> <p>To this bill the defendants answered and alledged that it was expressly agreed between their testator Matthew Jones and Samuel Landrum, at the time of the conveyance aforesaid, tliat Jones might cither sell the land or hold it himself, he paying to Landrum the purchase money named in the deed; that Jones had elected to take the laud, and had paid part of the purchase money before the conveyance was made by Landrum to Brooks. It was further insistedthat various artifices wore resorted to, to induce Landrum to convey the land to Alston and that this conveyance was procured by false representations and without any valuable consideration either paid or secured to be paid to Lan-drum, &c. .</p> <p>The cause was set for hearing, and the court having ordered an issue to be tried, « Whether the conveyance to Matthew Jones was made to him upon a valuable consideration, as a purchaser, before the execution of the deed to, Thomas Brooks the defendants offered in evidence sundry depositions-, and among others, that of Samuel Lan-drum, which was admitted by the court, and the jury found that the conveyance to Matthew Jones, was made to him upon a valuable consideration as a purchaser, before the execution of the deed to Thomas Brooks — Whereupbn the court ordered the bill to be dismissed with costs. 'Upon motion of the Complainant’s counsel, the case was sent to this court upon the whole evidence, and upon the question, 11 Whether .Samuel Landrum was a competent witness upon the trial of the issue aforesaid ?”</p>

—from Fayetteville. Thomas Overton having recovered a judgment against John Hill, in Fayetteville Superior Court, execution was issued and the money levied, aiid on the return-day of the * , * execution, the money was paid into the office. On the same day the clerk of the court was summoned as a garnishee at the suit of Hector M‘A!ister against the said Overton, on an attachment returnable to the county court of Cumberland.

—from Hillsborough. This was aí¡ action of detinue for sundry negro slaves.

—Wilmington. This was an action of ejectment brought to recover the Possesion of certain escheated lands in the district of Wil-The defendants pleaded in bar the act of 1800, 5, entitled “ An act to… Held: 1 Bl. Com. 485. Then' it does not follow that because the Legislature could create, therefore it could destroy the Lniversity and take away its property.

r-from Wilmington. Henry Toomer made his wiil in the year 1789, in winch, after several devises and bequests, he directed that the remainder of his estate, real and personal should be divided among his four children, Anthony, John,Lewis and Elizabeth. The testator died in 1799, having, after the making of his will acquired other lands and real estate not mention* ed in his will.

—From Wilmington. The defendant was summoned as a garnishee, in a cause pending in the County Court,; he was examined and an issue was made up and tried between him and {he plaintiff, and the jury found in favour of the plaintiff at April term 1804). T^e defendant prayed for, an appeal to the Superior Court, but did not execute an appeal bond until July term following.

<p>abatement pialntíffhre-the Georgia, & defendant ¿e”district of°^eJu1^™ not tó^be to answer Fayetteville co“he ^uedutimt l°¿d beneficial interest in the that he re-Fayetteville a‘3triet' ■fiie ddeii* red to tins -Km-e?overruled</p>

-From Halifax. Willie Jones being seized and possessed of large real and personal estates, made his last will and testament, and there-¡n ¿ev¡get| a¡| [,js Jan(]s to his two sons in severalty, some ■ ‘ *• tracts †6 Inc one and some tracts to the other, and in a subsequent, seperate and distinct clause, devised the croj)either growing or in the granaries, together witli all the residue of his personal property, to be. divided between his said two' when the eldest arrived at…

—From Hillsborough. This was a writ oT error brought by the plaintiffs to reverse a judgment recovered against them by defendant in Granville county court'.

-From Newbern. This was a petition to the county court of Pitt, to set aside the probate of a paper writing which had been proved in said court as the- last… Held: and on the first day of the term was informed by John Spier executor, that he would have the said will proved on that day, which was accordingly done, and the court continued sit for four days afterwards. Dickenson neither caveated the probate nor during the term made any application to the court upon the subject.

from Halifax. On m°6°n dismiss the Supersedeas obtained in this cáse by Arrington, Administrator of Philips, it was ordered that the case be sent to the Court of Conference upon the question, whether an Administrator is liable for costs incur-by his intestate i:i carrying on a suit at law, before he (the administrator) became a party to the suit; and whet‘lcr he is liable for costs incurred in the time of his admi-Astral ion j and out of what estate or effects the said costs…

from Wilmington. . The plaintiff brought suit against the executors of John Howell in the county court, and obtained judgment; by which judgment assets were considered to he in the hands ° . * of… Held: that although executors were not obliged to give security in such cases, and were entitled to writs of error withbut security ; yet as he had given bond, it was binding upon all the parties, and judgment ■was given far the plaintiff. These cases are expressly in joint.

-From Halifax. The plaintiff instituted an action of trespass quare clau-sum fregit against the defendant and pending the suit he died. The suit was not revived by his representatives, and a fieri facias was issued against the property of the tiff for the costs. A motion was made to sot aside this execution, on tiie ground that no scire facias had issued a~ gainst the plaintiff’s representatives, to shew causo why the execution should not be issued.

<p>From Salisbury</p> <p>tj'j¡e jessor 0f plaintiff claimed the land in question 1 under the trustees of the University of North Carolina | he obtained a deed for tire land when Shearer the defendant was *n actual possession, claiming the land as his own. The question in the case was, whether this deed was valid ?</p>

—From Hillsborough. The defendant entered a tract of land lying in Person county; the plaintiffs caveated the entry, and by consent of parties the caveat was tried in court, when a verdict was fouud for the defendant.

s-From Hillsborough. Wilcox the ancestor being indebted to Morris in a large sum, confessed judgment for the amount of the debt, upon a sl)pc^ agreement that Morris should levy the execution on Pf°PerU» purchaso it in at the salo and hold it as a for the payment of his debt, and that Morris should the property when the debt was paid.

—From Hillsborough. ^10 plaintiff exhibited a petition to the County Court of Randolph, for the purpose of obtaining an order to lay out a Puhhc r0S(l in said county. The court, rejected the prayer of the petition and the plaintiff prayed an appeal to the Superior Court, The question submitted to this court, was whether the appeal ought to be sustained ?

n-From Salisbury. This was a bill in Equity brought by complainant Merril against the defendant Sloan for the purpose of having a tract of laúd conveyed to the complainant, upon thé ground that the defendant bad fraudulently procured a grant froth the state for the said land. The bill charged that one Thomas White under whom complainant claimed, had made the first entry of the land, and the defendant having notice of this entry, entered thó land and obtained grant.

—From Hillsborough. The defendant was indicted for Perjury and found guilty, subject to the opinion of the Court on the following case. The defendant prosecuted one ¡Eephariah Tate and others fora riot. On the trial of the indictment the defendant was examinad as a witness, and was asked, whether he did not present á gun at Zephariah Tate, or threaten to shoot him? He was cautioned by the Counsel who propounded tins question, to take care how ho answered it.

—From Salisbury. This was an action on the case for money had and received to the use of the plaintiff. — Adarii Windows the father of the plaintiff on liis death bed gave directions to the de- ^ fendant to go i^o his cornfield to a particular place therein pointed out and get a certain sum of money which he had deposited there, and in the event of his death, to divide the money among Iris six children, the plaintiff being one, Mitchell the defendant went to the place…

<p>The Judgement óme County Court not bei!’? !e?s'' Superior ten per cent tou^'tinfe meat in the Superior1 Court»</p>

From Halifax. John Branch, by his last will, gave to his wife Mary >c one negro fellow by the name of Curtain, also one negro girl by the name of Queen, during her natural life, and no longer and by a subsequent clause in his will he directed “ that the negroes therein mentioned, Patty, King, &e. (not mentioning either Curtain or'Queen) should be divided between his children, X'olly, Bowen, Thomas, Norman and Rebecca, when they should arrive at age or marry, adding «• that…

—From Hillsborough In this case the only question was, whether the defendant, who was convicted of grand larceny, was entitled to the benefit of Clergy ? And °

Edenton district. The testatrix, Penelope Winaut, duly published her last • ' . 1 will and. testament m writing, in the presence of James Ward and Margaret Háiighton, the only subscribing witnesses thereto : in which will was contained the following , „ , , , ° danse, to wit : «I give and bequeath unto Margaret Haughton one woolen wheel, one white round table, all chairs, and six months to live in the bouse, if she chooses.” M argaret Haughton was one of the subscribing…

FromHalifax district. The Jurv found a verdict for the plaintiff subject to ' J opinion of the Court upon the following case. The bankrupt, Henry Baker, on the 24th dav of A q. , . „ , „ _ ' „ . g' st, 1803. was arrested on a writ of capias ad satisfacien-(him, hearing teste the third Monday of August, and com-miffed io tail. Two days afterwards a writ of fieri facias, ° ’ bearing equal teste with the aforesaid writ of Ca.

From Newbern district. Upon the trial of this action of ejectment the plaintiff of-feral as evidence to the jury a registered copy of a deed j\/Jaftin ami Edward Franks, to the plaintiff’s grandfather, also called Edward Bryam — -From him the land by '3aid deed conveyed as it \v¿s alledged, descended to Bryon, the plaintiff’s father, -who, bn the 25th September, Í786, conveyed the samo to Edward Bryan, the plaintiff.

<p>e the plea of sett* pff ,l,e7T ¿outlet-' ?u<iati0'1,</p>

<p>—From Hillsborough ough district.</p> <p>The defendant was indicted for perjury .j and the indict-meat charged « that at a certain Superior Court begun for the district of Hillsborough on the sixth day 0f October, in the year of our Lord one thousand eight • <p hundred and five, in the town of Hillsborough, in the coun-ty Orange, in the aforesaid district, before the Honora-Francis Lockp, Esq. Judge of the said Court, on the ®*Veen$ day of the said month in said year a certain issue joined in the said couft between the state and Ze-pbanah Tate, and others, in a certain prosecution for a riot, came to be tried in due form of Jaw, and was then and there tried by a certain Jury of the country in that behalf duly sworn and taken between the parties aforesaid ; and that upon the trial of the said issue so joined as aforesaid one Joseph Street, late of the county and district aforesaid, yeoman, appeared as a witness for and on behalf of (he state, and was sworn, and then and there did take his corporal oath upon the holy Gospel of God, before the said Francis Locke, Esq. Judge as aforesaid, to speak the truth, the whole truth, and nothing but the truth touching and cop. cerning the matter in question in the said prosecution & issue aforesaid, (the said Francis Locke, Esq. then and & (herejhaving sufficient and complete power and authority to administer an oath to the said Joseph Street in that behalf.)1* indictment then assigned the perjury, &c. the defendant convicted, and Duffey, counsel for the defendant, filed following reason in arrest of judgment, to wit: « thgt stile of the Court or of the Judge presiding therein when the perjury is alledged to have been committed, i» duly or legally set forth ; nor any jurisdiction shewn administer such oath as is alledged to have been taken falsely and corruptly” — and the case was ordered to be to this Court for the opinion of the Judges.</p>

Street Newbern district. On the iOth day of May, 1774, Spiers Singleton for him-?elf and Benjamin Caswell, his partner in trade, gave a bond to Samuel Caswell, then of Newbern in N. Carolina, for the penalty of Li.080, proclamation money, conditioned for the payment of Z540 like money, ontheiOthday of March ensuing ; and on or about the 23d day of Novem-her, 1774, for- himself, another bond for the penal sum of 1,2796, proclamation money, conditioned for the payment X1397 13…

—From Wilmington district Richard Qiiince the elder diet! ih the year 1778, leaving h last will and testament, in which his sons, Parker Quince Richard Quince, jün. were named Executors, who a£-ter his death proved the will and qualified as Executors. Richard Quince, juri. died in the year 1780, intestate. Parker Quince died in the year 1785, leaving a will which Thomas Callender was .named Executor, who qualified as such. The present bill was filed by John Da-Vis?

<p>—From Beaufort</p>

y—From Morgan. This was an ejectment for lands lying within the bounds J 0 of the lands allotted to the Cherokee Indians by the Act of ^783, Tho lessor of the Plaintiff claimed title under á gpant from the state, issued 19th May, 1803, upon an entry ° made in 1791. The defendant claimed title under a grant from the state issued 8th December, 1787.

—From Newbern district. The defendant sailed from the port of Wilmington to that of Topsail, both in this state, in a small schooner owned and commanded by himself and on a voyage for his own benefits, having on board property belonging to himself. At Topsail be was induced by request of plaintiff to proceed with his cargo to Swansborough, and to take on freight for the plaintiff two hundred and seventy bushels of corn.

From Halifax district. Tois bill was filed in the Court of Equity for Halifax .. ... ■ . - . „ rt . district, against tho representatives and devisees ot Samuel Weldon, deceased, praying that, they might be decreed to to complainants the amount of a debt which the said * Samuel owed to them at the time of his death, Tho court ijaving directed an account to be taken by the master, of tlie principal and interest of the debt due to complainants, and also tfie value of the…

From Edenton District. The testator signed this will'and it was attested in Ins hy jLevi Bateman.

—From Rowan. The plaintiff prayed and appealed from the judgment of County Court of Rowan, hut did not execute an appeal bond l|ot’l after the rise of said court. The transcript of j|)e record was fifed with the clerk of the Superior Court and the defendant’s council moved to dismiss the appeal, » a 7 upon flu* ground that (he appeal bond had not been legally executed ; and the plaintiff moved for leave to execute an aPPCi(J bond in that court.

-From Rowan. This was on action brought to recover money had and received by defendant to the use of the plaintiff. Defendant being deputy sheriff of Rockingham county, received an execution at the instance of the plaintiff against one Pat- * ° terson, upon which he received die money claimed by the plaintiff iu this action.

-From Orange ^I1S waa aK action brought by the plaintiff as keeper of the public jail of Orange county to recover of defendant amount of certain prison charges which had accrued ^ ^c detention in prison of one Joseph Street, confined at the instance of the defendant apon a writ of capias ad sa- . . r ti$faci>endum. It was agreed that Street was at the time °f his commitment and still continued to be possessed of property more than sufficient to pay for his own mainte. oance.

<p>A witness summoned faiiwUo^t-^"'caiied °i‘í>h!s for* eonied, suit niS'mueííd K^pariy was sum. tS 'luemTat4 his tés. Íbr°f"¡tm-eft a£airnt3t hi“ attend, imt ul-e wa/eiv tm eco, ver d images for breach oP mise. T!°e promise is with »^ ie was his fluty td°¿ except .sueú as, is allow# edto wíí-nesses tor. then- av. totdanoj.</p>

<p>Support ^on'wWdf die writ was granted ÜS "(0 contradict Cendant ti<ws «aten is»u ’tíie ^cTead'uT on ¡1 motion ft”' c-eitio-</p>

t From Iredell. J The bill charged, that the Complainants were members of the unitas fratrum of this State, and instituted this suit on behalf of themselves and all other the members of the said unitas fratrum. That in the year 1754, the Earl of Granville granted two tracts of land lying in the county of Wilkes, to Henry Cossart, in trust for the unitas fratrum.

1 VFrom Chowan, J This was an action of covenant in which the Jury found a special verdict, setting forth, that Mary Blount, widow, being seised and possessed of an estate for life in certain lands in Pasquotank county, with Sylvester Hosiner, on the 23d day of December, in the year 1790, executed- a certain indenture, whereby ike said Mary “ demised, leased, and to farm let to the said Sylvester, Ms executors, administrators and assigns, the said lands with…

From Wilmington District, On the 19th March, 1799, M’Alister demised part of a lot in the town of ’Wilmington, to Hartman, to hold for the term of five years, at an annual rent of thirty dollars; and in the indenture of lease, covenanted and agreed witlí Hartman, “ that if he the said Hartman, or his heirs or assigns, should at any time before the expiration, or upon the expiration of the lease, be willing to purchase the said piece of land, that he, the said M’Alis-ter, his…

I I From Rowan. This was an action of debt to recover the penalty of one hundred pounds, for bringing a negro slave into this* State, contrary to the act of 1794, ch. 2.

T > From Wilmington District. This case was sent to this Court for the opinion of the Judges, upon a motion to quash the following indictment. «STATE OE N ORTH-C AROLINA, > «.wiMnsoTON district. 5… Held: that the Defendant being a public officer, and appointed for public purposes, any departure from the duties of his office, was a misdemeanor, although no particular injury to the community resulted therefrom.

1 y From Fayetteville District. J On the 4th January, 1792, Marmaduke' Maples obtained a grant for the lands in dispute, and on the 10th November following, he conveyed them to Thomas Ma-pies, the Complainant. On the 3d March, 1793, the Defendant, John Ray, and one Malcolm MacNeil obtained judgments before a justice, of the peace against Mar-maduke Maples ; but it did not appear that any execution was issued or was levied by virtue of either of these judgments, till 1795.

j* From Fayetteville District. J The bill charged, that Branton and -Shcpperd gave their joint obligation to Dixon, and thereby bound themselves to deliver to Dixon forty barrels of merchantable pork : that failing to deliver the pork by the day mentioned in their obligation, Dixon pressed them for payment, and to procure a forbearance for eight or nine months, they agreed to deliver to Dixon, twenty additional barrels of merchantable poi k, and thereupon their first…

1 From Currituck. J Brumsey was appointed guardian to the Plaintiffs by the County Court of Currituck. Some time afterwards, the Plaintiffs moved the Court for leave to choose another guardian, which was granted ; and Wallis Bray being chosen by them, he was appointed by the Court, and entered into bond with security.

<p>The words in a deed of trust, “ to pay, satisfy and detain to themselves the sum of £500, together with all costs which shall arise against them for their being security for A, for several different sums of money, also being common and special bail in several.^uits,” do not ex. tend to securityships entered into subsequent to tire execution of the deed : and paro1 evidence is not admissible» to prove that the parties intended the deed to extend to subsequent securityships.</p>

From Halifax Whitaker was appointed guardian to the Plaintiff, by the County Court of Halifax •, and afterwards the Plaintiff being of the age of seventeen years, came into Court and made choice of Thomas Bustin as his guardian.&emdash; And it was referred to this Court, whether an infant of the age of fourteen years and upwards, may not choose a guardian $ and whether the County Court is bound, to confirm such choice, or exercise a discretion independent of any choice which…

<p>\ posthumous child, is entitled to a distributive share under the statute of distributions.</p>

> From Tyrrell. J After verdict, the Defendant moved to arreátthe judgment, for that the warrant was not made returnable within thirty days, Sundays excepted, nor was the time or place of trial mentioned therein.

<p>"J V From Stokes. J</p> <p>It was charged in the indictment, that the Defendant swore several oaths in the Court-yard, during the sitting of the Court, to the great disturbance and common nuisance of the citizens necessarily attending said Court. The Defendant submitted, and a motion was made to arrest the judgment, on the ground that the facts thus charged do not constitute an indictable offence.</p>

1 From Halifax. The Sheriff returned upon an execution which came into his hands, that it was satisfied, but did not return-into Court, nor pay to the party, or his attorney, the money due thereon. Whereupon, the Sheriff was fined nisi. A scire fiadas issued, .which being, made known and returned, it was moved that Judgment be entered against the Sheriff according to sdre fiadas.

<p>I Fi’om Hertford*</p> <p>This was an action of ejectment for lands in Hertford county i and upon the trial, the Jury found a special verdict, stating that Lewis Meredith, on the 4th day of May, 1798, made a will, and thereby devised his estate, both real and personal, to those under whom the Defendant claims : that after the date of said wall, he purchased the lands in question, and died in October, 1803, seised thereof: that the said will was admitted to probate in Hertford County Court, it being proved by at least three credible witnesses, that the same and every part thereof was in the hand-writing of Meredith, with</p> <p>his name subscribed thereto in his own hand-writing’, and that it was found after his death among his valuable papers. The lessors of the Plaintiff were the heirs at law of Meredith, and the question arising upon the special verdict was, whether the lands purchased after the date of the will, passed by the will l The question being sent to this Court, was argued by Cherry for the lessors of the Plaintiff, and by Browne for the Defendant.</p> <p>urged, that na position of Law was more certainly established, or more universally admitted, than that lands purchased after the date of a will, cannot pass under that will without a republication thereof. The reason of the principle is plain and obvious. In the first place, a man cannot give that which he hath not: and secondly, the form of pleading such an estate, (which is evidence of the law) is, “ that the testator being seised of such an estate at such a time, devised,” &c. Either of these roasons is sufficient to conclude the question ; and of the great number of authorities which might be produced to establish this point, one only will be cited, although the same doctrine is clearly maintained by every writer on the English Law who hath treated of this subject. The case alluded to is that of Bunter and Coke, 1 Salk. 106, where the Law, and the reasons upon which it is founded, are clearly and explicitly stated. Unless, then, there be some circumstance to distinguish this from the ordinary case of wills, the Plaintiffs are certainly entitled to recover.</p> <p>A will of this description, it is admitted, is unknown to the Common Law, or to the Statute Law of England. But-it is contended, that the intention of the Legislature of North-Carolina, in passing a law declaring that a will of the description of the one now before the Court, should be good and sufficient to convey lands, was to give,to such will-the effect and validity of a will attested by subscribing witnesses. The act of 1784, ch. 10, sec. 5, declares, “ that when any last will shall be found amongst the,valuable papers' or effects of any deceased pers011j or s|ja]| have been lodged in the hands of any person for safe keeping, and the same shall be in the hand-writing of such deceased person, and his name subscribed thereto or inserted in some part of such will, and if such hand-writing is generally known by the acquaintances of such deceased person, and it shall be proved by at least three credible witnesses, that they verily believe such will and every part thereof is in the hand-writing of thp person whose will it appears to be; then and in that case such will shall be sufficient in Law to give and convey a sufficient estate in lands, tenements and heredi-taments,” &c. The situation of the country, and the occasional difficulty of procuring witnesses to attest wills, might and probably did render such a law necessary and proper. But it must be a very peculiar kind of Legislative magic which enables the Legislature of this State to empower any person to will lands effectually, and yet have no interest in them.</p> <p>It is, however, contended, that this will became such and had effect only when found after the testator’s death among his valuable papers ‘, that the publication of it relates to that time; or if previously published, yet remaining unaltered in the testator’s possession until his death, amounts to a republication, and so in either case the lands pass under the will. To this it is answered, ■ that to suppose a man capable of publishing or republishing a will after his death, is an idea absurd and preposterous. By death we are deprived of physical energy and intellectual power, and a will can only be published or republished by some act performed or declaration expressed by the testator in his life-time. It will appear from the learning on this subject, collected by Powell in his Treatise on Devises, 80-1-2-6, 652-8-6-7,- that a will can neither be published nor republished, but by some act done or expressions used, whether before or since thp statute of frauds. It is therefore contended, that there is no circumstance in this case amounting to a republication after the date of the will, and that the period of its publication cannot he referred to any time posterior to the testator’s death. The consequence is, that the lands belong to the lessors of the Plaintiff, as the heirs at law of the testator.</p> <p>The date of. a deed or other instrument is immaterial; it may be false, impossible, or there may be no date, and yet the deed is good. Com. Big. Fait. B. 3. The statutes of 32 and 34 Henry 8th, say, “ a man having lands may devise,” and there-foi’e, lands purchased after the devise is made, do not pass — Com. Big. Bevise, M. But they pass by a new publication — Ib. E. 2, 3, and a small inatter would have amounted to a new publication, as testator’s saying, “ that his will lies in his box in his study.” — Ib. E. 2. By the statute of 29 Charles-2d, it is necessary that this publication should be made before three or more witnesses. Our Legislature, in April 1784, ch. 22, did not think it necessary to adopt this cautious ceremony in its full extent, hut enacted that a publication before two witnesses should be sufficient. Before the passing of these acts requiring the attestation of witnesses, if a man had made his will, and twenty years afterwards on his death-bed, said “ It was in a box in his study,” that would have been a sufficient republication to pass all lands which he had at that time. It was not then, nor is it now, the date, the time of writing, nor the signing, but the time of publication or republication which the law regards. The act of October, 1784, ch. 10, sec. 5,‘professes to except and does except some cases out of the act requiring a publication before witnesses, and declares the wills in those cases good without such publication j but substitutes another requisite in place of such publication, namely, “ being found among the testator’s valuable papers or effects.” And as the wills in the cases under the act of April, 1784, operate not from the date, nor 0f writing, nor of signing, but from the publication before witnesses, so in those under the act of October, of that year, they ought to operate, not from the daté, &c. but from their being found “ among testator’s valuable papers or effects.” A man may make his will in his own hand-writing and sign it, but if he leave, it on his table, or throw it aside among waste papers, that does not make it his will, because “ it lias neither been found among his valuable papers or effects,” nor “ lodged in the hands of some person for safe keeping f* one or the other of which circumstances is required to give it force and operation.</p> <p>The words of the act necessarily require this construction. “ Then (at that time) and in that case,” necessarily originate the question, When (at what time) and in what case ? The act itself answers this question: <{ When any last will shall be found,” &c. or “ shall have been lodged,” &c. This answers the question as to the time. Vide Johnson’s Diet. When. Now “ in what case ?” The act answers this also : “ and in case the same shall bo in the hand-writing,” &c.</p> <p>It is natural to man to wish to dispose of his property after his death, and there is no period in the history of our Law, in which our forefathers did not enjoy it at least as to personal property. Although the spirit of the feudal system prevented it for some time as to lands, yet, as the rigour of that system began to abate, men asserted their right of disposing of their lands ; first of two-thirds, then of the whole. Men often deny themselves the comforts which they could otherwise afford, in order .to increase the stock which by their wills they are to distribute among their favourites. For this purpose they continue to labour, to exert their talents, their patience in supporting hardships, and their fortitude in encountering dangers and surmounting difficulties, much longer than they otherwi.se would do. This motive sets all their faculties in operation, and continues to invigorate and propel them ; and as all public benefit is derived from the exertion of individual industry and talents, the public ought surely to encourage the motive from which that exertion springs. The public do encourage it, by permitting men to dispose of their property by will, and the Courts of J ustice have adopted many rules cherishing this motive, particularly two : “ That wills shall be favoured j” and “ That the intention of the testator shall be the polar star to guide the decision.” Under the influence of these rules and this disposition, it has always been clearly held, that if a man make his will, devising “ all his property,” personal property afterwards acquired shall pass. Why not lands likewise ? The only reason assigned is, that the Legislature used the word “ having,” in the statutes of 32 and 34 Hen. 8th. But here is a case under a very different statute, the words of which seem to require that all the lands of which the testator was seised at the time of his death should pass by the will. If, however, there could be a doubt on the words of the will, the Court will adopt these general rules ; they will favour the will j they will be guided by the intention of the testator \ they will say the same words in the same will shall have the same meaning when applied to real as to personal estate.</p>

[- From Stokes. J Lash and others recovered judgments against John Moore, before a justice of the peace, and sued out their executions, which were levied on a tract of land belonging to Moore, no personal property being found. The executions so levied, were returned to December term, 1807', of Stokes County Court.

From Wake. . The Defendants were bound in recognizance to give qvidence in behalf of the State against George Evans, upon.an indictment in Wake County Court, and being called, failed to appear j whereby they incurred the forfeiture of twenty pounds each, and judgment nisi was entered against them. During the same term at which they were so called out, they came before the Court personally, and made application for a remission of said forfeiture.

From Lincoln. This was an action of ejectment for lands in Lincoln, of which Bickerstaff, the lessor of the Plaintiff, was seised on the 17th February, 1787, when Henry Dellinger having obtained a judgment against Bickerstaff, in Lincoln County Court, and sued out his execution, the lands were levied on and sold by the Sheriff, and said Dellinger the Plaintiff in execution, became the purchaser; whereupon the Sheriff executed to him a deed for the lands, bearing date the…

From Burke This was an action of debt, hroughtupon a penal bond given by the Defendant to the Plaintiffs, merchants in Philadelphia, on the 6th day of November, 1774, payable 1st day of February, 1775. The Defendant removed from Pennsylvania, and settled in this State. On the 15th May, 1794, the Defendant wrote to the Plaintiffs, acknowledging the debt, and praying further time for payment.

From Bertie. The County Court of Hertford, granted to Raynor, thé Plaintiif, the privilege of erecting and keeping a ferry on Wicacon Creek, The Defendants brought an ejectment against Raynor for the land whereon the ferry was erected, recovered a judgment, and the Sheriff of Hertford County put Benthall in the possession of the land, but refused to put him in possession of the ferry.

~l {.From Cabarrus. J The Plaintiff prayed an appeal from the judgment of the County Court of Cabarrus, and executed an appeal bond with one security only. At October Term, 1808, of Cabarrus Superior Court, Defendant’s counsel moved to dismiss the appeal, on the ground that the act of Assembly regulating appeals required the appellant to enter into bond with two securities j and the case being sent to this Court upon the motion to dismiss the appeal,

From Bertie. The Defendants being convicted upon an indictment for a riot, their counsel moved in arrest of judgment, “ that in the caption of the indictment upon which the Defendants had been found guilty, there was no description of the Court before which the indictment was found.” The caption of the indictment was in the following words and figures: “ State of North-Carolina. i . .. Bertie County.

From Chowan. This was an action of debt, brought upon a promissory note in the words and figures following, to wit: “ Five days after date, I promise to pay to Henry Gardner, or order,' one hundred and seven dollars 75-100, value received. Edenton, July 31st, 1805. Ws. CLARK.” The case was referred to this Court, upon the question, “ Whether an action of debt can be maintained on this note i”

<p>A. conveyed to B. a tract of land, containing 221 acres, more or less.Some years afterwards it was mutually agreed to have the land surveyed, and if it were found to Contain more than 221 acres, the defendant should pay the Plaintiff ten dollars per acre for the excess if it fell short, Plaintiff to refund to Defendant at the same rate. Here are mutual promises, and one is a good consideration, to support the other.</p>

1 From Craven. This was an action of 'trespass, to recover damages from the Defendant for haying taken out of tfye possession of the Plaintiffs a billiard table. The Plaintiffs were the owners of the table, which, previous to the first day of April, 1807, they caused to be erected in the town of> Newborn, at their own expense; not for any purpose of emolument, or to be employed as a gaming table, but for their private and individual amusement.

From Richmond. Moses Knight and Richard Knight executed their joint bond to John Hardwick, executor of the last will of Richard Edgeworth, deceased, and William Johnston, the Plaintiff in this cause, became the subscribing witness to the said bond. Hardwick afterwards assigned the bond to Johnston, and Johnston brought an action of debt against Moses Knight, one of the obligors. The Defendant pleaded the general issue.

1- From Halifax. In 1799, Airland Parker filed bis bill in Chancery, in Sussex County Court, in Virginia, against Richard Parker, executor of the last will of Frederick Parker, deceased, praying for a discovery and an account, &c. To this bill Richard Parker put in his answer, and at September term 1801, the following entry was made in the cause : “ By consent of parties, this cause is referred to William Hines, Robert Goodwyn, Benjamin Tate, John Chappell and Jatf,es C.…

This was an action of debt, to recover a by-bet on a horse-race. The Jury found a verdict for the Plaintiff, subject to the opinion of the Court upon the following case.

} V From New-Hanover. . J This was a petition filed in the County Court of Brunswick, for partition of certain lands, lying in Eagles’s island, in the river Cape-Fear.

<p>Sale of lands for taxes.</p> <p>It is not incumbent on a purchaser of lands sold for taxes acknowledged to be due, to''shew on the trial of an ejectment brought against him by the person who was bound and who failed to pay the taxes», any thing more by way of defence, than the Sheriff’s deed for the lands so sold.</p> <p>. If such purchaser be Plaintiff in the ejectment, he must also shew that the title to the lands is out of the State.</p> <p>The title being out of the State, the taxes are a lien upon the lands, into whosesoever hands they may pass; and it behoves the present holder of the lands to see that the taxes have been paid; for</p> <p>■ IF the Sheriff, in Ids advertisement of sale for the taxes, mistake the name of the owner of the lands, or then' local situation, the purchaser at such sale shall hold the landsi</p> <p>The acts which make it the duty of the Sheriff to advertise the sale in some newspaper printed in the State, and at three public places in the county, and set forth the names of the owners of the lands, the water courses on which the lands are situate, &c. are merely direc-, tory to tile Sheriff in the discharge of his duty. His neglect to ob-„ serve these directions may subject him to a suit for damages at the ■instance of the party injured by the neglect; but it will not affect the title of the purchaser, unless there be collusion between him and the Sheriff.</p> <p>The Sheriff’s authority to sell, rests upon the fact, that the taxes have not been paid. If, therefore, it appear that the taxes haye been paid, the' purchaser at the Sheriff’s sale gets nothing by his purchase.</p>

1 From Hillsborough. Catharine Jones was delivered of two base-begotten children, and several years afterwards she intermarried with Wilkie. Soon after her intermarriage, she upon oath charged West with being the father of said children. West was arrested and bound over to the County Court, and application was made to the Court for an allowance for the maintenance of the children.

The bill charged that Jackson, in order to the more convenient settlement of his estate at a future day, so as to answer the exigencies of his family, concluded to raise a trust in fee on his estate, and to make such divisions and provisions out of the same, as a trust is capable of according to the rules of Equity, and which an estate at Common Law is not.

1 From Hillsborough. Allison being indebted to Gregory Sc sons, of Charleston, mortgaged to them a house and lot in the town of Hiílsborough, to secure the payment of the debt: and being also indebted to one Armstead, he was sued by Armstead in Edenton Superior Court, and judgment was obtained .against him; upon which., judgment an execution was Issued, directed to the Sheriff of Orange county, who levied it upon the aforesaid house and lot, and at. the sale, Kirkland became…

~f k From Fayetteville. J This was a bill of revivor, and the original bill which it was the object of the present bill to revive, was brought to recover a legacy bequeathed by the last will and testament of Dushec Shaw, the elder, of, which; Duncan Sháw, Niel Shaw, and one Buie, were appointed executors.

<p>Under the act of Congress regulating the enlistment of soldiers in the army of the United States, where the father is dead and the son is without a guardian or master, “ the consent in writing” of the mother, if she be alive, is necessary to make valid thfenlistment of the son, if he be a minor — and such minor, enlisted without such consent, was discharged upon a writ of habeas corpus.</p>

This case was sent up from the Superior Court of Law, for the District of Wilmington, to June Term of this Court, 1806, upon reasons filed in arrest of judgment.

<p>In a deed of bargain and sale, the words “ grant, bargain, sell, &c.” do not imply a warranty of title: nor do the words of a deed describing the length of lines and boundaries, &c. and concluding with the words “ containing so many acres,” import a warranty of quantity.</p> <p>Tlie action of covenant will lie upon the words of a deed “ will warrant and detend the premises to A. B. and his heirs forever.” And this from necessity, as otherwise a vendee would be without areme-dy in many cases; for the writ of warrantia chartse is not in use in this State, nor are real actions, in which voucher is used.</p> <p>Plea, “that the Plaintiff before the commencement of the action, had sold and conveyed to another in fee, the lands mentioned in the deed,” overruled, and demurrer to said plea sustained.</p>

I >• From Wake. J This was an action of covenant brought on the following deed, to wit: “ This Indenture, made this twenty-first day of January, eighteen hundred and seven, between Samuel Lyles, of the County of Wake, and State of North-Carolina, of the one part, and Caswell Powell, of the County and State aforesaid, of the other part, witnesseth, that the said Samuel Lyles, for and in consideration of the sum of five hundred pounds, lawful money, to him in hand paid by the…

V From Hertford. This Avas an action of debt, brought upon a note given by the Defendant, Joseph Jones,' and one Lazarus Carter, for the sum of .£18 10s. and made payable to f( Eli Moore, administrator of the estate of John Anderson, deceased,” dated 15th November, 1797, and indorsed in |)jan|c with the name “ Eli Moore.” The Defendant pleaded a set-off, and offered in evidence two notes; one given by the said Eli Moore to Matthiás Jones, “ or his order,” for the sum of…

> From Halifax. Micajab Thomas, late of Nash county, deceased, by his last will and testament, devised and bequeathed to his three illegitimate daughters, Mourning, Margaret and Temperance Jackson,… Held: that when the estate of one of the first devisees hath been clearly spent, by his death, or the extinction of his issue, then the survivor or survivors, or liis or their issue, should take by cross-remainders, by implication.

Ejectment for lands in the' county of Pitt. Special verdict.

<p>This was a petition brought in Camden County Court by Frederick Whitehurst and others, children of Elizabeth Whitehurst, deceased, against Jeremiah Bright and Timothy''Cartwright, executors of the last will of Epoch Pritchard, deceased, for a legacy, which the petitioner^ claimed under said.will. The testator, after devisinghbs tract of land whereon he lived, to his wife, and bequeath-ins? one negro slave to his wife, and another to Jeremiah *, Pritchard, devised “ all the remaining part of his estate within doors and without, to be equally divided between Hugh Pritchard, Benjamin Pritchard, Lydia Taylor, Elizabeth Whitehurst’s heirs, and Jeremiah Bright, to them and their heirs forever.” The petitioners contended that the residuary part of the estate was to be distributed per capila, and each of them entitled to a twelfth part thereof. The executors insisted that the residuary part of the estate was to be distributed per stirpes, and that the petitioners were jointly entitled to one-fifth thereof. The County Court were of opinion, that the residuary part of the estate should be divided into fi\ e equal parts, and «that the petitioners were entitled to one of these parts to be equally divided among them. A decree was entered accordingly, from which the petitioners appealed to the Superior Court; and the case coming on to be heard before his honor Judge Tayxoii, he gave judgment for the petitioners; but at the request of the Defendants’ counsel, ordered the case to be sent to this Court for the opinion of all the Judges thereon.</p>

From Craven. This was aii action of trover, and the case was sent to this Court upon the question, Whether an agreement made for a valuable consideration, to deliver to the Plaintiff, the first female colt which a certain mare owned by the Defendant should have, did, upon the foaling of such colt, vest in the Plaintiff a property to maintain this action ?

I From Dupliit. J This cause was brought up to the Superior Court of Law for Cumberland County, by a writ of recordari, directed to two of the justices of said county, commanding1 them to certify tiie proceedings had before them relative to an inquisition of forcible detainer.

[• From Lincoln. J This was a motion for judgment upon a penal bond given by the Defendants, conditioned to be void if a debtor who had been arrested upon a capias ad satisfa-ciendum, should keep within the prison bounds.

From Rutherford. Upon the trial of this ejectment, evidence was offered on behalf of the lessor of the Plaintiff, to prove that the person under whom the Defendant claimed, was enfty-taker of the county of Rutherford, at the time the entry 'was made upon which the grant issued, under which the Defendant claimed title to the lands in question j and that in making his entry, lie did not comply with the provisions of the act of 1777, ch. 1, which act in the 9th section…

From Chowan. Assumpsit for goods sold and delivered to Defendants hy Plaintiff’s testator. Plea — the general issue. The Plaintiff offered as a witness to prove the delivery of the articles, one Charles Learey, the son of the Plaintiff’s testator, and a specific legatee under the will of his father, but not entitled to any share of the residuum of the estate. This witness was objected to by the Defendants’ counsel as incompetent on the ground of interest.

j-From Chowan. This was a motion to set aside an execution. The Plaintiff brought an action of debt against the Defendant in Chowan County Court, and obtained judgment, from which the Defendant appealed to the Superior Court, and entered into bond with two securities for prosecuting his appeal and performing the judgment of tlie Superior Court. At March term, 1808, of the Superior Court, the Plaintiff was nonsuited.

[-From Stokes. J IN EQUITY. The bill charged, that in February 1805, Joel Mann, ©f the State of Virginia, came into State,. having in his possession a stud-horse, which, he said belonged to John Black, of Virginia, and that Black bad authorised him to sell the horse.

<p>IFrom Chowan. J</p> <p>The question in this case was, Whether a devise be such colour of title, that seven years possession under it bars the right of entry. The facts were, that Thomas Haskins being seised of the lands, in the year 1762, devised them to his> wife Mary Haskins for life, remainder to his sou William in fee. William died without issue, and the estate in remainder descended to his nephew Thomas Haskins, who also died without issue, and the estate descended to his nephew Thomas Haskins, who in 1782, conveyed to John Coffiehl, jun. ‘, and he, in 1787, Conveyed to John Coffield, senior. He devised the land to his son Jeremiah, then of /ullage, who died in 1797, intestate, leaving a son named John, and twro daughters, Nancy and Betsey. Nancy died at eleven years of age ; Bet-sey intermarried with Evans, the lessor of the Plaintiff, and was under age when this suit was brought, as was also her brother John.</p> <p>Mary Haskins, the devisee for life, died in 1792, having devised the lands to her son John Haskins in fee. John Haskins (lied in 1793, having devised the lands to his daughter Anne, since intermarried with Thomas Sat-tcfficld, the Defendant, who had been in possession of the lands from 1793, to the bringing of this suit in 1808.</p>

¡>B’rom Sampson. The principal question in this case was, Whether, under the act of 1791, ch. 13, a constructive possession,of lands for twenty-one years, under known and visible boundaries, bars the right of entry under the State? Upon the trial of the ejectment, the lessors of the Plaintiff gave in evidence a deed bearing date 3d November, 3.761, executed by Felix Kennon, Sheriff of Sampson county.

~i > From Moore, j This was an action on the case, to recover damages of the Defendant for the loss of a hogshead of sugar. The case was, that the Defendant was the owner of a boat that carried freight on the Cape-Fear River', between Fayetteville and Wilmington.

1 From Hertford. J The Plaintiff having recovered a judgment against Frazier, sued out a capias ad satisfaciendum, upon which Frazier was arrested, and he entered into bond, with Barnett Pulliam his security, for keeping within the rules of the prison. The bond was taken by the Sheriff, and by him assigned to the Plaintiff, in the manner prescribed by the acts of 1741, ch. 18, and 1759, ch. 14.

T From Duplin. This wad an action of trover for a negro slave. The Plaintiff offered in evidence a certified copy from the registry, of a bill of sale for the slave, upon an affidavit by iiim made, that the original was not in his possession or power j that he had delivered it to the register to be registered, and had afterwards applied for it, and it could not be found.

<p>A. having sold a slave to B, and given to B. a written instrument, setting forth “ that for the consideration of $300, he had sold the slave to B, and that he would warrant and defend the slave against the claims of all persons,” but setting forth nothing as to the soundness of the slave; B. shall not be permitted to set up a parol warranty of soundness, and recover on it against A : for</p> <p>This would be to add by parol to a written contract.</p> <p>The parties, by making a written memorial of their transaction, implicitly agree, that in the event of any future misunderstanding, tha^ writing- shall be referred to as the proof of their act and intention ; that such obligations as arise from it by just construction or legal in-tendment, shall be valid and compulsory on them, but that they do not subject themselves to any stipulation not set forth* in the writing. Tor if they meant to be bound by any such, they might have added them to the writing, and thus have given to them a clearness, a force, and a direction, which they could not have by being trusted to the memory of a witness.</p> <p>Where any tiling forming part of the contract, is left out ofthe vvrilingby fraud or accident, or any thing forming no part of the contract, is inserted by fraud, parol evidence may be received to prove these facts.</p> <p>But where nothing is omitted or inserted in the writing, through fraud, acci ’ent or mistake, parol evidence shall not be received to shew that the agreement of the parties was otherwise than the writing sets forth.</p>

1 ' V From Burke. J The question submitted to the Court in this case, was, Whether the prosecuting officer for the State has a discretionary power to indorse the Governor as prosecutor on bills of indictment, whenever he may think the public interest may require it.

> From Wake. J A paper writing, purporting to be the last will of William Martin, deceased, was offered for probate in Wake County Court, and a caveat was entered to the probate thereof. An issue of devisavit vel non was made up under the direction of the Court.

1- From Warren. John Witherston having died intestate, letters of administration were granted to Nancy Witherston, who entered into bond, with John Hicks her security, for her faithful administration of the estate of her intestate. She returned to the County Court an account of sales of the estate, and then removed out of. this State to parts unknown, having made no settlement with the Court, nor returned an account current of her administration.

1 I From Rowan. j Upon the affidavit of Henry Vervell, a writ of certi-orari was granted, directed to the Clerk of the Court of Fleas and Quarter Sessions for Rowan County, commanding him to certify the record of certain proceedings had in a cause depending in the said Court, wherein John Trexler was Plaintiff, and the said Yervell was Defendant.

1 > From Halifax. J IN EQUITY. The death of Thomas Stuart, who had been appointed guardian to the Defendants in this case, being suggested, a motion was made by Complainant’s counsel, that the Clerk and Master of the Court be appointed guardian to the infants, to appear and answer for them. The Master refused to accept the appointment, and it was submitted to this Court to decide, Whether the Court could make such appointment without the consent of the Master ?

} From Halifax. The question in this case was, Whether an order entered of record for a scire facias to issue to make the representative of a deceased Defendant a party to the suit will prevent an abatement ? The facts were, that the death of Lunsford Long, the Defendant, was suggested at the first term after his death, and application was made to the Court at the same term for a scire fadas to nir; yep’.-tative to make him a party.

From Cabarrus. This was an indictment for a riot 5 and the riot was charged to hare been committed in the county of Meck-lenburg. The Defendants pleaded to the jurisdiction of the Court, the bill having been found in the Superior ’ Court of Cabarrus. The prosecuting officer for the State demurred to the plea, and the Defendants having joined in demurrer, the Case was sent to this Court.

iFran Rowan. This was an issue of “ devisavit vel non,** made up muler the direction of the Court, upon a paper writing offered for probate as the last will of the late Judge M’Cay.

1 j- From Wake, J IN EQUITY. Complainant charged in the bill, that in the year 1799, die Defendant, Nathaniel Jones, advanced to him on loan, the sum of eight hundred dollars •, and that for securing the repayment thereof, with 25 per cent, interest, on or before the expiration of that year, he executed to the Defendant an absolute deed for divers tracts of land.

T i- From Wake. The Defendant being found guilty of the offence changed in the following bill of indictment, it was submitted to this… Held: the said Patrick Conway, in and upon the head and face of him the said Patrick Conway, then and there felo-' niously, wilfully, and of his malice aforethought, did strike and heat, giving to the said Patrick Conway, then and there, with the pine stick aforesaid, in and upon the head and face of him the said Patrick Conway, several…

1 I From New-Hanover. J This was an action of debt, to recover the sqm of onfe hundred pounds, as a forfeiture for having bought a slave, knowing the same to have been imported into this State, contrary to the act of 1794, ch. 2. Pending the suit, and after issue had been joined therein, the act of 1794, ch. 2, was repealed; and at the next term of the Court after this repealing act was passed, the Defendant pleaded it in bar, by way of a plea since the last continuance.

1 > From Chatham. J Parish Self made a gift by parol of a negro girl slave, to his daughter Elizabeth, reserving to himself the said negro during his life. He kept the said negro in his possession until his death, and his daughter survived him. She having intermarried with James Duncan, this action of detinue was brought by them against the administrators of the estate of Parish Self, to recover the said negro girl.

<p>A person- summoned as a garnishee may avail himself of any defence which he could make, were he sued by his creditor.</p> <p>A. summoned as a garnishee in a suit between B. and C, declared that he had given his bond to C. for £8/0 ; that the debt really due at the time was only £801 15s; that the bond was given upon an usurious consideration, and therefore void. B. urged A. to make some, contract with C. for taking up this bond, assuring him that he might have confidence in C’s integrity, and that if he would make such contract, C. would certainly p'ay to him B, the debt which he owed • to him; and A. believed from B’s representations, that if. he made this contract, he would not be called upon by B. as a garnishee. A. agreed by a day certain to take up his bond and make payment to C, upon his deducting 12 1-2 per cent, from the amount thereof. After this contract was made, but before the day of payment agreed on, B. sued out an attachment against C, and A. was summoned as garnishee. Notwithstanding this summons, A. complied with his contract with C. and paid the money on the day. On this garnishment, no judgment of condemnation will be entered, and the garnishee shall be discharged.</p>

)>From Granville. This was an action of debt, brought to recover the penalty of fifty pounds, imposed by the act of 1808, ch. 32, s. 3, which declares, that “ the following appointments are declared to be incompatible with the office of a justice of the peace, that is to say: clerk of the court of pleas and quarter sessions, deputy clerk thereof, deputy sheriff, constable and county trustee, and any person who now holds, or may hereafter accept the office of justice of the…

1 >- From Granville-J The bill charged, that Complainant, being in want of money, applied to the Defendant, in tiie year 1785, to loan to him the sum of £70, Virginia currency, and that the Defendant agreed to loan the money, provided Com-t plainant would place in his possession a negro woman named Mag, as a security for the money, and to work ■for the interest thereof: that Complainant thereupon re-■eelvcd the money, and delivered the negro woman to Defendant, and at the…

<p>A. being seised of lands, dies intestate in 1802, leaving a brother and sister, also a widow and two children; each of the children dies intestate and without issue. The lands do not go to the mother, but • to tlfé uncle and aunt of the father.</p>

} From Camden. The question in this case arose upon the will of Robert Burfoot, who being’ seised of the lands mentioned in the declaration, devised them with certain personal estates “to be divided between his daughters, Amey and Jaca }, and if either of them died before thetj became of age or married, the share of the one so dying’ should vest in and belong to the other.” Jaca married and died before she came of age, in 1792.

<p>A. having recovered a judgment against B. in the County Court, B. prayed an appeal to the Superior Court, which was granted, upon his entering into bond with one security only. On motion of A, in the Superior Court, the appeal was dismissed; for,</p> <p>The act of 1777, c. 2, declares that “ before either Plaintiff or Defen. dant shall obtain an appeal to the Superior Court, he shall enter into bond with two sufficient securities.” Giving bond with two sufficient securities, is a condition precedent, which must be complied with before the County Court have the power to grant an appeal.</p> <p>And the motion to dismiss may be made at any time. Therefore, B. having filed with the Cleric of the Superior Court a transcript of the record, at April term, 1807, and the case remained on the doclcet un. til April term, 1810, during which time, sundry orders were made in it. A motion to dismiss, was allowed.</p>

} From Warren j This was a motion that the Plaintiff be laid under a rule to give other and further security for the prosecution of the suit, or that the suit be dismissed. The Plaintiff had given bond with security, for the prosecution of the suit, at the time the writ was sued out, agreeably to the directions of the act of 1787, ch. 19 -, but the security had removed out of the State since that time.

>From Sampsom This was a motion made under the act of 1808, ch. 21, for judgment against the Defendant, for arrearages due from him as Sheriff for the years 1807 and 1808. Two questions were made : 1st. Whether the summary remedy given by that act applied to arrearages due before the passing of the act ? and, 2d. Whether this remedy could be enforced against a man whose Sheriffalty had expired.

1 ‡- From Wilkes. J In this case the Plaintiff established his claim against the estate of the intestate, and obtained a verdict for the same: but the Defendant supported the plea of “plene administravit;” upon which1 the counsel for the Defendant moved for judgment of execution against the Plaintiff for his costs.