Volume 52 — North Carolina Reports

Action of assumpsit, tried before Saunders, J., at the Spring-Term, 1859, of Washington Superior Court. The plaintiff declared on a special contract for the hire of two slaves, to-the defendant, for the-year 1857, to which were added the common counts. The defendant lived in the county of Washington, and owned a saw-mill near the town of Plymouth.

Action of debt on a constable’s bond, tried before Saunders, J., at the Spring Term-, 1859, of Perquirimos Superior Court. The following receipt was adduced in evidence, viz : “1856, August 6th. Received of Francis Nixon, through the hands of Exmn Stokes, one note vs. Tlios. 13. Long, for the sum of ninety-seven 53-100'dollars, with interest from- 2nd of July, 1856, which I promise to collect or return, as an officer.

Action of Trotee, tried before Manky, J., at the last Fall Term of Camden Superior Court. The following facts were agreed on and submitted for the judgment of the Court: Jesse Eason, the plaintiff’s testator, in his last illness placed in the hands of the defendant a sealed note or bond, for $600, on one Malaehi Sawyer, with a special request that if he died, it was to be divided between said Malaehi and Josiah Eason.

Action of ejectment, tried before Manly, J., at the last term of Camden Superior Court.

Action of assumpsit, tried before Manly, J., at the last Superior Court of Currituck. Administration on the estate of Abner Robinson was granted in.1811, by the County Court of Currituck, to Samuel W. Eorbes, and he having died in the same year, administration on 1ns estate was granted to Samuel Ferebee. The latter (Samuel Ferebee) afterwards made a will, appointing the defendant his executor and died.

Action of assumpsit, tried ‘before Manly, J., at the last Fall Term' of Washington Superior Court. The plaintiff declared on two counts : 1st. For a cheat in the exchange of watch chains. 2ndly. For a false warranty of the defendant’s chain to be gold. The proof was, that the defendant represented a chain, which he had, to be gold, and imposed it as such on the plaintiff!, and thereby obtained from him two gold chains of a less size, worth $35.

Assumpsit, tried before Manly, J., at the last term of'Washington Superior Court. The action was commenced by a warrant, returnable before a justice of the peace, and brought to the Superior Court by appeal. The plaintiff, who was a physician, declared for medicines and medical services rendered to a slave, the property of a ward of the defendant.

Action of debt, tried before Manly, J., at the-last Superior Court of Perqnimons county; begun by a warrant of a justice of the-peace, and brought up by successive appeals.

Tins was an aetion of assumpsit, tried before Manly, J., at the last Fall Term of Pasquotank Superior Court. The Action was for money paid by the plaintiff as the surety of the defendant, and the only question was, whether the action could be sustained, without showing that the plaintiff had given the defendant notice previously to the commencement of the suit.

Motion to quash a bill of indictment, heard before Manly, J\, at the last Superior Court of Hertford county. The motion was made upon the calling of the case and before a plea was entei'ed by the defendant. The ground of the motion was, that it did not appear any evidence was before the grand jury, upon which it was found.

Action of trespass guarro clausum fregit, tried before Manía, J., at the last term of Hertford Superior Court. The act complained of was the putting of certain barrels of tar upon a landing, embraced in a grant to David O. Askew, dated 16th December, 1833, which land had been conveyed by proper assurances to the plaintiff.

<p>Indictment for trading with a slave, tried before Caldwell, J., at the last term of Columbus Superior Court.</p> <p>The indictment contained three counts. The first charged that the defendant, “ did unlawfully sell to Luke, a negro slave, one gill of spirituous liquor,” the said slave not having a permission to buy, &c.</p> <p>The second count, which is the more material one, from the view taken of the case by this Court, was as follows:</p> <p>“And the jurors aforesaid, upon their oath aforesaid, do further present, that Henry M. Long, late of the count}' aforesaid, on the day and year aforesaid, in the night time of the same da.y, between the hours of sunset and sunrise, at and in the county aforesaid, unlawfully did trade with Luke, a negro slave, centrar}1 to the form of the statutes in such cases made and provided, and against the peace and dignity of the State.”</p> <p>The third count charges that the defendant, “ did unlawfully deliver to Luke, a negro slave, one gill of spirituous liquor,” without the slave’s having a written permission.</p> <p>Nathaniel Soles, a witness for the State, testified that he was at the house of the defendant, on a certain night, about eight or nine o’clock ; that he heard a noise like a tap on the door; that the defendant opened it, and he saw a negro at the door, but who it was, he did not know ; that he know a slave named Luke, the property of James Beach, but whether it was Luke or not, he could not say ; that after the negro came to the door, the defendant went out, and shortly afterwards came back into the house with.a jug, that would hold a quart or more, which he filled with liquor, out of a barrel, and carried it out; that after a while, the defendant came back without the jug. ,v</p> <p>„ Daniel P. Beach testified, that he was the son of James Beach, the owner of Luke; that he went to watch, whether the defendant traded with the said slave ; that early in the night, he saw Luke go towards the house of the defendant with a jug, which held between two and three quarts; that he (witness) was about twenty-five yards from the house ; that the negro remained some ten minutes, and returned with the jug, which then had liquor in it. The witness stated, that he did not know whether the jug had liquor in it, when the slave went towards defendant’s house or not. It was insisted, by the defendant’s counsel, that there was no evidence before the jury, that the trading spoken of by the two witnesses, was one and the same tiansaction.</p> <p>The Court charged that there was evidence to submit to them, that it was the same transaciion, of the weight of which, they were the proper judges; that they had the right to convict on circumstantial evidence, and that men liad been hanged on that kind of evidence.</p> <p>The jury retired, and remained out till the next day, when they reported that they could not agree. Thereupon, the Court recapitulated the evidence, and then said, there were three kinds of presumptions as laid down by a great master of the law — a violent presumption, that weigheth much' — a probable presumption, that weigheth but little, and a slight presumption, that weigheth not at all; and he put a case of violent presumption, tó wit, where a man was seen rushing out of a room with a bloody sword in his hand, and on going into it, another was found weltering in his blood ; it was a strong presumption that he who came out with a bloody sword, was the perpetrator, and the Court left it to the jury to compare the two cases. Defendant’s counsel excepted.</p> <p>Verdict for the State. Judgment and appeal.</p>

<p>A note given to one in failing circumstances, in order to cheat his creditors, by giving to the maker a plausible pretext .for claiming his property, is void in the hands of one to whom it was endorsed for collection, after becoming clue..</p>

<p>Motion as to the taxation of costs, heard before Shepherd, J., at a Special Term, June, 1859, of Montgomery Superior Court.</p> <p>The question, in this case, arose in an action of detinue, ■which was tried at this term, wherein the plaintiff, as the administrator of Sarah Robinson, sought to recover from the defendant “ five slaves,” “ six parlor chairs,” and “ one bed and furniture.” The defendant claimed the slaves as a gift from' plaintiff’s intestate, and adduced in evidence a deed of gift, which the plaintiff attacked, on the ground, that his intestate was non compos mentis. Nine witnesses were offered and examined by the plaintiff, and a larger number by the defendant. Two of the nine were examined by the plaintiff as to all the property sued for, the other seven only as to the five slaves. The jury found that the defendant detained the parlor chairs and the bed and furniture, but did not detain the slaves.</p> <p>Upon this finding, the Court gave judgment that the plaintiff recover the said chairs and the bed and furniture and all his costs, to be taxed by the clerk, from which the defendant appealed.</p>

<p>Action of slander, tried before Caldwell, J., a¥ tke'J'L&áf!> Fall Term of Montgomery Superior Court.</p> <p>The plaintiff was a single woman. The words alleged in the declaration were, that “ he,” the defendant, “ would give any one twenty-five dollars that would get her (the plaintiff) a young one.” The words were spoken in October, 1856.</p> <p>Further, it was alleged and stated by two witnesses, that the day after Christmas, 1856, the defendant said of the plaintiff, “ she had got a new sweet-heart, Wesley Dean’s Pete ; it used to be Ben Lucas and sometimes Jake Calicoatthat all three of these persons, Pete, Ben and Jake, were slaves, belonging to persons of the surnames attributed to them, and lived in the neighborhood of the plaintiff.</p> <p>Another witness testified, that in June, 1857, after suit brought, he was asked by the defendant, whether he thought the plaintiff would injure him, and on receiving an equivocal reply, he said, “he would do her some,” for he had been told she had two or three black children.</p> <p>There was much contradictory testimony, as to whether the defendant had used the language ascribed to him by the plaintiff, as being used in December, 1856..</p> <p>The plaintiff offered to prove that before suit was brought, the defendant paid two persons by the name of Haltom and Northcott two hundred dollars, and they executed a bond, in the penal sum of $1000-, to indemnify the defendant against any judgment the plaintiff might recover against him. This was offered to confirm the plaintiff’s witnesses as to the speaking of the words in December, 1856, and as an admission that he was guilty of speaking the words. This testimony was objected to by the defendant and rejected by the Court. Plaintiff excepted.</p> <p>The Court instructed the jury, that the words spoken in October were not actionable. Plaintiff excepted.</p> <p>That as to the words spoken the day after Christmas, 1856, it was left to the jury to decide whether they were spoken or not, and if so, whether it was the intention of the defendant,, in the use of'the language, to charge the plaintiff with having had sexual intercourse with the said slaves, or either of them; that if such was the meaning, the plaintiff would be entitled to their verdict. Plaintiff again excepted.</p> <p>That as to the words spoken after suit brought, the jury-ought to regard them in aggravation of the damages, if they should find that the defendant intended to impeach the plaintiff’s chastity in relation to either of the slaves, but they were not the foundation of the action, and could not be heard to explain the testimony antecedent to the bringing of the suit. Plaintiff again excepted.</p> <p>Yerdict and judgment for the defendant. Appeal by the plaintiff.</p>

Action of ejectment, tried before Heath, J., at a Special Term (November, 1859) of Moore Superior Court. The plaintiff made out a ease, which, it is admitted, entitled him, jprima facie, to recover according to his lines as laid down in the annexed diagram, 14,15,18, &c. But the defend ant claimed under a grant to one Bettis, the land comprised in the quadrangle 14, B, C, D, dated in 1770, and older in date than plaintiff’s claim, which only went back to 1803.

Action of ejectment, tried before Caldwell, J., at the last Term of Robeson Superior Court. The defendant insisted against the right set up by the plaintiff, that although he claimed the premises, under a title, commencing subsequent to that of the plaintiff’s lessor, he was protected by a seven years possession under the color of title.

Ejectment, tried before Caldwell, J, at the last Fall Term of Anson Superior Court. The parties on both sides, claimed under one John Bailey, and the lessors of the plaintiff, and the defendant are heirs at law.

Trespass Q. C. E., tried before Shepherd, J., at a Special Term (November, 1859,) of Moore Superior Court.

Action of Debt, tried before Caldwell, J., at the last Term of Brunswick Superior Court. The plaintiff declared for the breach of the official bond of S. B. Everett, Clerk and Master in Equity of Brunswick. The bond declared on, was executed on the 26th October, 1847, at which time said Everett was appointed to the office. He never was re-appointed, and never gave any other bond.

Action of trespass guare clausum fregit, tried before Saunders, J., at the last Pali Term of Duplin Superior Court. The plaintiff being the proprietor of the land in question, let it to the defendant on the following terms, viz., the defendant was to have the land to build and clear for two years rent free, but after that he was to pay rent. He went into possestsion in 1848, and remained till March, 1855, when he left and went to a house of his own.

Indictment for assault and battery, tried before Saunders, J., at the last Pall Term of Craven Superior Court. The battery was alleged to have been committed on one Edward Hart. The defendant was a free negro, residing within the limits of the town of Newbern, and the said Hart was, at the time of the transactions in .question, a regularly appointed and qualified constable for the said town.

Action of trover to recover for the conversion of slaves, tried before Saunders, J., at the Fall Term, 1859, of Beaufort Superior Court. Drewry Lanier, by his will, made in 1843, gave all his property, real and personal, to his wife, Elizabeth, for her life, and at her death to his three daughters, and to a child m ventre sa mere, at the time the will was written.

Action of debt ordered out of the' Supreme Court, in aid of a suit in Equity, between the same parties, pending there, tried before Si-iepiierd, J., at the last Fall Term of Martin Superior Court. Held: that if the alteration described, was made by the obligee, or by those who represented him, it would avoid the bond. Eor this, plaintiffs’ counsel excepted.

Indictment for an assault and battery, tried before Dick, J-., at the last Eall Term of Randolph Superior Court. The offence was alledged to have been'Committed on the body of one Elizabeth Eoust.

Action for assault and battery, tried before Shepherd, J., at the last Fall Term of Martin Superior Court. The plaintiff obtained a verdict. Four exceptions were taken on the trial below and certified to this Court. 1st. The defendants offered to prove, on the question of “ vindictive damages,” that they had been convicted of an assault and battery, and bad been lined by the County Court of Martin, which the Court rejected as irrelevant. 2nd.

Indictment for an assault with intent to ravish, tried before Dick, J., at the last Fall Term of Davidson Superior Court. The defendant was a slave, belonging to one Delap, and the person alleged to have been assaulted, was a young woman by the name of Susannah Pickett.

This was a writ of habeas corpus, returned before Shepherd, J., and heard in open Court, Eall Term, 1859, of Wayne Superior Court. The bodies of Simon and Lucretia, colored children, were brought before his Honor upon the petition of the plaintiff, and the defendant showed as the cause for detaining them, that the petitioner, who is the father of these children, had executed a deed to the defendant, purporting to bind them to him as apprentices.

<p>Where the members of a firm gave a bond, individually, for a debt of the firm, and property was delivered by them and accepted as a payment thereof, it was Held that the bond was thereby discharged, and that It was not in the power of one of the obligors, by agreement with the obligee, to withdraw the- payment, and! thus again put the bond in force.</p>

This was a scire facias against a defaulting witness, tried upon the plea of mol tiel record before Shepherd, J., at the last Fall Term of Pitt Superior Court. The plaintiff, Ward, was charged, under the statute, as the father of a bastard child, in Pitt County Court, and made up an issue to try the paternity.

<p>Where one contracted with a dentist for a set of artificial teeth for his wife, and paid him the full consideration, and the husband afterwards absconded, it was Held that tho dentist was not liable, as garnishee, to a creditor for the value of the teeth.</p>

This is an appeal from the judgment of'the Superior Court for Pitt County, at a Special Term, July, 1859, Manky, J., presiding. The facts of the case are as follows: Ballard, the plaintiff, hi this action, obtained a judgment against the defendant Waller, befoie a justice for $39.19, principal debt and interest, and forty cents costs.

This was an action of assumpsit, tried before Shepherd, J., at the last Fall Term of Wake Superior Court. The case was submitted for the judgment of the Court, upon the following ease agreed,: James M. Towles executed a bond, payable to the defendant, one day after date, for nine hundred dollars, and the defendant endorsed the same, for value received, to the plaintiff on 15th of December, 1854.

This was a motion for a peremptory mandamus, tried before Shepherd, J., at the last Fall Term of Franklin Superior Court.

This was an action of replevin for a slave, tried before Caldwell, J., at the last Spring Term of Chatham Superior Court. 'The plaintiff, in making his title to the slave, gave in evidence a paper-writing, delivered by the defendant, Brooks, to the bargainors of the plaintiff, in the following words : “ Received from Jollie, Hanks & Holt three hundred dollars, in part payment for a negro man, by the name of Ned, which negro has runaway, and I hereby bind myself to deliver…

This was an action of assumpsit, tried before Ellis, J., at Spring Term, 1858, of Martin Superior Court.

This was a proceeding in bastardy, before DiCK, J., at the last Pall Term of Orange Superior Court. The action was commenced in the County Court, upon notice to the defendants; who are the administrators of the putative father, to show cause why they should not be charged with the maintenance of a bastard child. It was proved that at the time of the examination of the mother, defendants’ intestate, the person charged with being the father, was dead.

This was an action ON tub case for a deceit and false warranty in the sale of tobacco, tried before DicK, J., at the last Fall Term of Rockingham Superior Court. The plaintiff declared in two counts: first, a deceit, and secondly, for a false warranty in the sale of one hundred boxes of manufactured tobacco.

<p>This was an action of trespass, tried before Sadndees, J., at the last Ball Term of Jones Superior Court.</p> <p>The plaintiffs declared .for a seizure of a hog, and offered evidence of the incorporation of the town of Trenton, as is-hereinafter set out.</p> <p>Eirst, they gave in evidence an act, passed in 1784, entitled “ An act for establishing a town in the county of Jones, upon the lands of Thomas Webber ai d others.” The first section of this act recites, that “ whereas, it is represented to the General Assembly, that a town on the lands of Thomas Webber, Louis Bryan, &o., &c., on the south side of Trent river, in Jones county, where the court-house now stands, would tend to the promotion of commerce,'and the inhabitants of said county be greatly beneiitted thereby :</p> <p>II. Be it therefore enacted by the General Assembly of the State of North Carolina, and it is hereby enacted by the authority of the same, that the directors or trustees, hereafter appointed, or a majority of them, shall as soon as may be, after the passing of this act, agree with, and purchase from the said Thomas Webber, Louis Bryan, &c., &c., one hundred acres of land for the purpose aforesaid ; and after having so agreed for the said land, shall, as soon as may be, lay off forty acres in half-acre lots, exclusive of streets, with convenient streets, lanes and allies, and sixty acres for town commons, which lots, so laid off according to the directions of this act, are hereby constituted and erected a town, and shall be called by the name of Trenton.”</p> <p>The third and fourth sections of this act, proceed to appoint directors and trustees for the purchasing of the land and laying it off according to the direction of the second section ; they also prescribe the manner in which the lots shall be disposed •of and the terms of the sale. The fifth section is as follows: “ And for 'continuing the succession of the directors until the said town shall be incorporated, be it further enacted by the authority aforesaid, that in case of the death, refusal to act, or removal out of the county of any of the said directors, the surviving directors, or'a majority of them, shall assemble, and are hereby empowered, from time to time, by instrument of writing, under their respective hands and seals, to nominate some other person, being a freeholder of the said town, in the place of him so dying, refusing to act, or removing out of the county, which director, so nominated and appointed, shall, from thenceforth, have the same power and authority in all things, in the matters herein contained, as if he had been expressly named and appointed in and by this act.”</p> <p>They next introduced an act of Assembly passed in 1803, entitled “An act to amend an act for establishing the town of Trenton, in Jones county.” This act, after reciting that the commissioners are not fully authorised to lay a town tax to defray the necessary contingencies of said town, proceeds to invest them with full power to impose such tax, and to apply the money for the benefit of the town.</p> <p>The next act, in order of time, introduced by the plaintiffs, is one passed in the year, 1810, entitled “An act for the better regulation for the town of Trenton, in Jones county,” and it recites that, “ whereas, the commissioners, trustees and ■directors appointed in the year 1J84, for establishing a town in Jones county, are all dead or removed, and have failed to appoint successors for tlie regulation of the said town of Trenton :</p> <p>“ Be it enacted by the General Assembly of the State of North Carolina, and it is hereby enacted by the authority of the same, that "Win. IT. Conner, John McDaniel, Adonijah Perry, Henry Bryan and Thomas Simmons, be and the same are hereby appointed commissioners for the town of Trenton, in the county of Jones, who are hereby vested with the same powers and authorities for the regulation of the said town of Trenton, as those who have heretofore been appointed by law.”</p> <p>The plaintiffs further produced in evidence a certified copy of an act of Assembly passed in the year 1813, entitled “ An act for the better regulation of the town of Trenton, in Jones county, and for other purposes.”</p> <p>“ Be it enacted by the General Assembly of the State of North Carolina, and it is hereby enacted by the authority of the same: That an act passed in the year one thousand eight hundred and ten, entitled an act for the better regulation of the town of Trenton, in Jones county, and for other purposes, be and the same same is hereby repealed and made void.” The second section of this act proceeds to appoint commissioners, and constitutes them a body politic with all the powers incident thereto. The fourth section enacts, “ that if any of the said commissioners, hereby appointed, shall die, remove out of the county, or refuse to act, it shall be lawful for the rest, or a majority of those remaining, to appoint one or more (as the case may be) to fill such vacancy, who shall be vested with all the powers and authorities of those already appointed by-this act, any law to the contrary notwithstanding.”</p> <p>The plaintiffs further produced in evidence, a certified copy of an act of Assembly, passed in the year 1825, entitled “ An act to amend an act to incorporate the town of Trenton, in Jones county:</p> <p>Be it enacted by the General Assembly of the State of North Carolina, and it is hereby enacted by the authority of the same; that the free male inhabitants of the said town shall meet at the court-house on the first Saturday in April next, and on the same day annually thereafter, and shall elect three commissioners, who shall be freeholders in said town, which election shall be held by three freeholders, under the same rules and regulations as other elections.”</p> <p>“ 2d. And be it further enacted, that the said commissioners shall have power and authority to pass such by-laws and regulations for the government of said town, as shall not be inconsistent with the constitution and laws of the State.</p> <p>“ 3d. And be it further enacted, that all laws, and clauses of laws, coming within the purview and meaning of this act, be repealed.”</p> <p>The plaintiffs offered evidence, that under the last mentioned act, the citizens of Trenton liad from time to time elected commissioners, who had acted as such, as late as 1843 or 1844, since which time, no election was held until the 4th of April, 1857.</p> <p>It was admitted, that the election of the 4th of April, 1857, which was the first Saturday of April, was held after a notice had been put up at the court-house, some eight days before said election, but it w'as not shown, or admitted, by whom, or under what authority, the said notice was posted, or whether the same was required. And it also appears, that all the citizens of Trenton, except two, voted at said election, and that the commissioners elected on the 4th of April, 1857, acted in that capacity, from that time, until the bringing of this suit. It was admitted that plaintiffs, in this suit,- received the highest number of votes at said election, and that the said election was held by John Hyman, J. P., and ¥m. F. Huggins and Charles Gerock, inspectors; but it did not appear how they were appointed, and it was admitted they were.not appointed by the county court. The plaintiffs then offered in. evidence.a town ordinance, in the following words:</p> <p>“ At ti meeting of the commissioners of the town of Trentron, May the 27th, 1857, for the regulation of said town, it is ordered and decreed, that whereas, hogs being permitted to run at large, and range in the streets of said town, has become a nuisance, and disagreeable to the good citizens thereof ; now, to prevent the said nuisance, it is resolved by the board of commissioners, that all hogs, so permitted to run at large in said town, after due notice being given by public advertisement, at the court-house, shall be taken up by the town sergeant, and secured in a pen or lot, and kept confined at the expense of the owner of said hog or hogs, and if the same is not taken away in the space of three days, then the town sergeant is directed to sell them at public veil due, to the highest bidder, and after paying all charges and expenses, with all costs that may accrue on the proceedings, the residue of sale to be paid to the commissioners, to be disposed of by them, either by returning it to the owner, or applying it for the town. And it is further decreed, that for every hog-so taken-up, the owner shall pay the town sergeant the sum of twenty-five cents.”</p> <p>It was admitted that the hog in question, the property of the defendant, crossed the line of said town, (as the same has been known and used) and was found in the streets, and was impounded into the custody of the “ town sergeant,” out of whose custody, and without whose consent, the hog was taken by the defendant. Defendant offered no evidence.</p> <p>It was contended for the defendant:</p> <p>1st. That there was no act of incorporation of the town of Trenton, with defined limits and boundaries.</p> <p>2ndly. That the long nonusage of the right fo elect commissioners, worked a prohibition of the right.</p> <p>3rdly. That the said electiou was void, because no due notice had been given thereof, and because said election did not appear to have been properly held.</p> <p>And it was agreed, that if on the foregoing facts, the Court should be of opinion that the plaintiffs were entitled to recover, .that judgment should be rendered for them for sixpence and costs, and if not, then judgment should be rendered for defendant.</p> <p>The Court being of opinion with plaintiffs ; judgment was rendered accordingly; from which the defendant appealed to this Court.</p>

<p>Where a prisoner was put upon trial for larceny, and the term expired before the jury could agree upon their verdict, and they left their room and dispersed without agreeing, and the defendant was suffered to go at large, it was Held that the solicitor might, without leave of the court, cause a capias to issue against defendant, and cause him again to be put on trial.</p>

Motion to dismiss an attachment, heard before Dick, J., at the Eall Term, 1859, of Chatham Superior Court. The affidavit, bond and attachment, in this case, are as follows : “ State of North Carolina, j Chatham County, j Peter G-.

This was an indictment for murder, tried before Heath, J., at the last Eall Term of Gaston Superior Court. On the trial, one Pegrarn was called as a juror and challenged for cause by the prisoner, and it was agreed that the Judge should act as trier, not only in this instance, but throughout the trial.

Motion made before Shepherd, J., at Fall Term, 1859, of Johnston Superior Court, to tax certain costs against the plaintiff. The facts of the case are as follows: in a suit for slander, the plaintiff recovered of-defendant five cents in damages, and thereupon, the Court gave judgment that the plaintiff recover against the defendant the damages aforesaid, and five cents in cost to be taxed by the clerk.

<p>Tins was an action of debt on an administrator’s bond, tried before Ellis, J., at Spring Term, 1858, of Edgecombe Superior Court.</p> <p>The plaintiff declared on a bond executed by Benoni M. Wilkerson, the defendant’s testator, as administrator of one Winefred Wilkerson, in the sum of $500, dated in the year 1833, the execution of which is admitted.</p> <p>Winefred Wilkerson resided in the county of Pitt, and died intestate in the year 1833, and at November Tefm, in the same year, of the County Court of that county, the said Benoni M. Wilkerson was duly appointed her administrator, and 'executed the bond declared on. The next of kin of the Said Winefred, were her four children, viz: the said Benoni M., the relator, Abner C., and Cockburn Wilkerson, and Nancy Brown, wife of one Lemmon Brown, and her three grand children, viz: John Wilkerson and Wm. Wilkerson, the only children of John Wilkerson, a deceased son, and William W. Stringer, an only child of-Stringer, daughter of the said Winefred. The said John, the elder, and Mrs. Stringer, both died in the life-time of their mother. All the next of kin lived in the State at the time of Mrs. Wilkerson’s death.</p> <p>The said Cockburn Wilkerson, Lemmoin Brown and wife, and William W. Stringer, afterwards left the State, in, or before the year, 1837, and have remained away ever since; the latter was a minor when he left the State, and has not been heard of in twenty years.</p> <p>John and William Wilkerson both died intestate during their infancy, and at November Term, 1843, of Edgecombe County Court, the said Abner C. Wilkerson was duly appointed administrator on their respective estates. #</p> <p>The said Benoni returned an inventory and an account stated to February Term, 1834 of Pitt County Court, also an account current to February Term, 1836, of said County Court.</p> <p>The account current exhibits a balance in his hands for distribution of $206.86, principal, and interest to .the first of February, 1836, after retaining for commissions the sum of $32.80 as charged therein.</p> <p>The inventory omits the sum of $80 in money received by him from one Nancy Brown on the 30th of November, 1833, as of the estate of his intestate; also, a bed and furniture belonging thereto, worth $25, which he purchased at his own ■sale, nor did he charge himself with either in the account current.</p> <p>Said Benoni M. paid Lemmon Brown and wife $34.00 on the 7th of January, 1837, and took from them a receipt of which the following is a copy:</p> <p>“Rec’d January the 7th, 1837, of Benoni M. Wilkerson, administrator of Winefred Wilkerson, $34.00 in full for our share of said estate as heirs at lawn Signed,</p> <p>Lemmon Brown, Nancy Brown.</p> <p>Test — Wm. C. Leigh.</p> <p>On the same day, Brown and wife executed a refunding bond under their hands and seals, which recites that Benoni M. Wilkerson had paid them $34.00 as their distributive share of the estate of Winefred Wilkerson, and that the payment was in full of all demands against the said Benoni M. as administrator of Winefred Wilkerson. On the first day of April, he paid Abner C. Wilkerson $41.00 as his distributive share, and took a receipt from him, acknowledging the payment to be in full of all demands, and releasing all right, title and interest in and to said estate. This was signed Abner C. Wilkerson.</p> <p>On the 24th of February, 1844, he paid him as administrator of John and William Wilkerson $55.90, and took from him a receipt acknowledging the payment, releasing and discharging the said Benoni M. from all claim on him as administrator, in respect of the distributive shares of the said William and John. (Signed) Abner Wilkerson.</p> <p>Said Benoni M. Wilkerson died in the month of January, 1855, and the defendants are his executors.</p> <p>The relator, Abner C. Wilkerson, became administrator de bonis non of the said Winefred Wilkerson, at May term, 1856, of Pitt County Court, and commenced this action on the 10th day of November, in the same year, in the County Court of Edgecombe. It was referred to a commissioner to state an account of the estate of Winefred Wilkerson, and he reported to May term, 1857, of said Court. The commissioner charges the said Benoni M., with every thing that came to his hands as administrator, and the interest thereon, to the 30th of May, 1857, and credits him with his disbursements made in discharging the debts of his intestate, and interest on the same to the 30th of May, 1857, and with the necessary expenses of administration, including an allowance of commissions at the rate of 5 per cent, on his actual receipts and disbursements, such commissions amounting to the sum of $12,81, instead of $32,80, as charged in the account current filed by him, February, 1836, leaving a balance to his debit of $720,85, making a distributive share thereof $120,31. He then credits him with the several payments made to Lemmon Brown and wife, and to the relator, Abner C. Wilkerson, in his own right as above stated, and the interest on each to the 30th of May, 1857; with $120,31, the full share of John and William Wilkerson, deceased, treating the receipt of their administrator for $55,90, as a release ; also, with the like sum of $120,31, being the said Benoni’s owm distributive share, leaving still a balance to his debit of $307,50, of which sum $141,07 is principal money ; of which said balance of $307,50, the said Cockburn Wilkerson ’and William W. Stringer’s distributive shares are each $120,31,’ Lemmon Brown’s in right of his wife, Nancy, $44,70, for residue of his distributive share, and the relator’s, Abner C. Wilkinson, is $22,18, for residue of his distributive share.</p> <p>It is agreed that if the plaintiff is entitled to judgment at all, and there is no presumption of satisfaction, or that presumption is rebutted, then that said report correctly states the amount due, the several parties.</p> <p>The defendants rely on the pleas of release — payment and accord and satisfaction, and contend that a presumption of a satisfaction arises from the lapse of time and other circumstances.</p> <p>If the Court shall be of opinion with the plaintiff, judgment is to be rendered in his favor for $500,00, the penalty of the bond declared on, to be discharged upon the payment of $307,50 to the relator as damages for the breaches assigned, of which sum, $141,17 is principal, and to carry interest from the 30th of May, 1857, or for as much as the Court shall think the relator entitled to recover by reason of the breaches of the condition of the bond, and for the costs of suit, including $15,00 to the commissioner for taking account and making report — otherwise judgment to be entered for the defendants.</p> <p>The Court adjudged on the foregoing ease agreed, that the plaintiff do recover the sum of $500, the penalty of the bond declared on, of the goods and chattels of the said testator, Benoni M. Wilkerson, in the hands of the defendants as his executors, and further, that the relator recover his costs of suit, to be taxed by the clerk, includingan allowance of $15,00 to the commissioner for taking account and making report— the whole to be discharged, however, upon the payment to the relator of $300,57, as damages, for the breaches assigned, of which sum, $111,07 is principal money, and to. carry interest from the 30th May, 1857, and his costs of suit. From this judgment defendants appealed..</p>

<p>A certificate, in writing, by one still living, stating the payment of money, is not admissible evidence of the fact of such payment.</p>

This was an issue of devisavit vel non, tried before Saunders, J., at Spring Term, 1859, of Camden Superior Court. On the trial, the propounders proved by three credible witnesses, that the paper-writing offered for probate, and every part thereof, was in the hand-writing of the decedent, S. W. Sawyer, as well as the signature thereto, and was found, after his death, among his valuable papers and effects.

This was a motion to quash proceedings in an attachment, before Manly, J., at a Special Term of Pitt Superior Court, (July, 1859.) The affidavit was in the usual form, stating the defendant’s indebtedness, &c., except that it was not signed by the plaintiff, or any one for him, and was not certified by any one. This was the first ground on. which the motion to quash was predicated. The writ of attachment was issued by the clerk of the County Court of Pitt.

Action of trover, tried before Dick, Judge, at the Spring Term, 1859, of Johnston Superior Court.

Action of detinue, tried before Manly, J., at a Special Term (January, 1858,) of Beaufort Superior Court.

This was an action of assumpsit for money liad and received, tried before Shepherd, J., at the Spring Term, 1859, of Lenoir Superior Court. The plaintiff proved that he had purchased from the defendant an unendorsed note, produced by him on the trial, payable to Mrs. O. E. Oustia, made by Nelson & Clark, which was given for the hire of two slaves.

Action of debt upon a constable bond, tried before Shepherd, J., at the last Fall Term o-f Edgecombe Superior Court.

Action of assumpsit for money had and received, tried before Caldwell, J., at the Spring Term, 1859, of Person Superior Court. In 1826, Wm. Baird married Mrs. Lucy Jones.

Motion as to costs, before Dick, J., at the Fall Term, 1859, of Rockingham Superior Court. The defendant, in this motion, Richard Allen, had brought a suit and recovered against one Summers, but was ordered to pay the costs of the attendance of certain witnesses, also the clerk’s costs for issuing the subpoenas and the sheriff’s for serving them, and execution was ordered to issue therefor.

This was an indictment against the defendant and one Jane May, for fornication and adultery, tried before Heatii, J., at tlie last Pali Term of Bowan Superior Court.

This was an action of ejectment, tried before Heath, J., at the last Fall Term of Union Superior Court. The case was submitted upon the following facts agreed upon by the counsel: The defendant in the year 1854, was married to one Eleanor L. Houston, who, at the time of the marriage, was seized in fee of the land in controversy. On the 14th of September, 1855, she gave birth to a child, born alive, and she died within a few hours after that event.

This was a motion before Heath, J., at the last Pali Term of Ashe Superior Court, for the application of certain moneys paid into Court, under various exeutions against one John McMillan.- The motion was originall}' made in the County Court, to which the executions were returnable, and came up to the Superior Court by appeal. The contest arose among the creditors as to the proceeds of the sale of his land.

This was an indictment for arson, tried before Heath, J., at the Fall Term, 1859, of Gaston Superior Court. The house, which the defendant was charged with burning, was built for a dwelling-house, and had once been occupied as such, but was untenanted at the time of the burning.

This was an action of deb®, on a sheriff’s bond, tried before Heatii, J., at the last Eall Term of Rowan Superior Court. The exeeution-of this bond by the defendant, Troutman, as the sheriff of Iredell-county, and the other defendants, as sureties, was proved by the subscribing witness. The breach assigned, was the failure on the part of Troutman, to arrest one Jalias W. Houston, on a capias ad respondendum.

<p>Where one borrowed of a master certain monies, given by him as a gratuity to his slave, and gave his bond therefor, payable to the master, expressed to be for the use of the slave, it was Held that it was not against public policy to allow the master to recover this money, and that the Court would not enquire what disposition would be made of it.</p>

Action of assumpsit, tried before Dick, Judge, at a Special Term, July 1859, of Mecklenburg Superior Court: The plaintiff’s counsel introduced a witness, who testified that he was present when the plaintiff presented the account, then before the Court, to the defendant; that the latter, after examining the account, said, that it was all correct, although larger than he expected, and that he would pay it, or arrange it with the plaintiff.

This was an action on the case, tried before Heath, J., at the last Spring Term of Cumberland Superior Court. The plaintiff declared : 1st. For wrongfully and improperly suing out a writ against the plaintiff, to recover a penalty, due by statute, not then in existence. 2ndly. For wrongfully and improperly setting the law in motion against the plaintiff, whereby the said plaintiff was held in duress, and lor damages consequent thereon.

<p>Where one owned a'tract of land, whereon there was a mill, and afterwards sold a part of the land, including the mill, it was Held that an easement in the lands reserved, passed to the purchaser, entitling him to flood them to the same extent as they were at the time of his purchasing the mill; and in a suit against the purchaser for overflowing the reserved land, it was Held further, that it devolved upon the plaintiff to show that the dam had been since raised.</p>

Scire nacías to revi ve a j udgmeut, tried before Heath, J., at the last Term of the Superior Court of Rowan. The sci. fa. was brought first in Rowan County Court, at the instance of D. W. Hunnicutt and the administrator of one Holshouser, who had been the sureties of the defendant, Boyden, and was brought to the Superior Court by appeal; it recited the judgment against the three correctly.

This was an indictment for bubgílary, tried before Manly, J., at the Fall Term, 185-9, of Chowan Superior Court. On the trial it appeared that a cabin, the dwelling-house of one Judy Ross, was entered on the night of the 8th of April, 1859, and her meat, consisting of several pieces of bacon, forcibly taken from her.

This was a motion to grant letters of administration on the estate of James G. Wallace, deceased, made before the ¡Superior Court of Onslow, at 'its last Spring Session, Shepherd, J., presiding. The facts of the case are as follows: In February, 1858, James G. Wallace, being then under twenty-one years'of age, but over sixteen, was married to Caroline Tilghman, then under fourteen years.

<p>Where a deed called for a stone, and in the designated course, pointers, corresponding in age with the deed, were found around a spot, (no stone being there) and a marked line of trees was also found, corresponding in age with the deed, and corresponding with the next course, called for, and leading from the spot, so designated by the pointers, it was Held that the deed should be construed as if it read, “ a stone marked as a corner by pointers,” and such point was to be gone to, irrespective of distance.</p> <p>Where the first line, running from an admitted beginning corner, is established, and there is a line of marked trees corresponding in age with the deed, and with the course called for, running to the third corner, which is established, the second comer may be fixed by reversing the second line, and the point of intersection of the latter line with the former, will be adopted irrespective of course and distance.</p>

Indictment for the murder of one Nimrod Elliott, tried before Bailey, J,, at the Fall Term, 1859, of McDowell Superior Court.

<p>This was an action on the case, in the nature of an action of waste, brought by one tenant in common against another, and tried before MaNly, J., at Pall Term, 1859, of Hertford Superior Court.</p> <p>The defendant’s testator was in sole possession; and it appeared that the lands, held in common, consisted of a tract of about five hundred acres, four hundred of which, were valuable for tillage, the residue, a swamp, with little or no timber, and of no value. Of the tillable land, when defendant’s testator went into possession, two hundred and fifty acres were under fence and in cultivation ; the residue was in the primitive forest, and well covered with timber. The defendant’s testator, in his use of the lands, proceeded to cut down and clear up, and reduce to cultivation, the entire one hundred and fifty acres which he found in forest, not leaving timber on the lands for repairing fences, or for other necessary purposes ; and declared bis purpose to be to mea/r it out, and then remove his slaves to the south-west. He accordingly removed, after having cultivated the land, every year, until it was exhausted. By the defendant’s use of the land, and especially by his destruction of all the timber suitable for fencing, 'ifec., it was proved that a permanent and irreparable injury had been done to the land, by depreciating the value of it, either for sale or for use.</p> <p>■ The Court was of opinion that inj uries to the extent, and of the kind proved, permanent and irreparable in their nature, constituted waste, and would sustain an action by one tenant in common against another.</p> <p>Yerdict for plaintiff.- Judgment. Appeal by defendant.</p>

Tins was an action of beplevest, submitted to Heatii, J., at the last Fall Term of Cabarrus Superior Court, on the following case agreed; Robert L. Cochran, late of the county of Cabarrus, died in 1853, leaving a last will and testament, which was admitted to- probate at the October session of 1853, of Cabarrus County Court.

This was a soire eacias tried before SaüNders, J., at Spring Terni, 1859, of Perquiinons Superior Court. The following are the facts of the case: The assignor, Martin Towe, at November Term, 1856, of the Court of Pleas and Quarter Sessions, for Perquimons county, obtained judgment by default final, against James L. Ball and the defend? ant, William. Eelton, as administrator of one Thomas B. Long, upon a parnership debt due by Long and Ball.

• This was a motion to dismiss an appeal, beard before Caldwicll, J., at the last Fall Term, of Bladen Superior Court. The suit was commenced before a justice upon a note; and the judgment of the justice is in the following words : “The plaintiff produces a note for the sum of sixty dollars. The defendant pleads a set off, which is allowed. Judgment against the plaintiff for costs.

This was an action of Debt upon a constable’s bond, tried before Manly, J., at Fall Term, 1859, of Currituck Superior Court. The bond contained the usual conditions, and was. executed by Jesse L. Doxey, as principal, and the other defendants as sureties, at February Term, 1857, of Currituck County Court.

Tins was an action ON the oase, tried before Maitly, J., at the last Fall Term of Pasquotank Superior Court. conveyed to plaintiff a parcel of land in November, 1853, being a portion only of a larger tract, which he owned at that time. It further appeared in evidence, that the part sold, was the upper part, and drained, naturally, through a portion of the land reserved by the defendant, and could only be drained in that way, except at great expense.

Action of Ejectment, tried before Heath, J., at the last Fall Term of Wilkes Superior Court.

This was an action of trover, tried before Saunders, J., at the last Fall Term of Lenoir Superior Court. The action was originally commenced by the executor of Windall Davis, for the conversion of certain slaves, Chaney and her children, and on the suggestion of the executor’s death, was carried on in the name of the plaintiff, as administrator de bonis non. The following case was agreed on, and submitted for the judgment of the Court below.

<p>It is not necessary for a creditor of an estate, to obtain a judgment against the administrator alone, before bringing an action on the administrator’s bond for the same debt.</p>

This was an action of trover, tried before Manly, J., at the last Fall Term of Currituck Superior Court. The action was brought for an anchor and chain, in which it appeared, they had belonged to aman by the name of Sawyer; and were lost from his vessel in Currituck sound in a gale of wind. Sawyer owed plaintiff’s testator some amount, (not disclosed,) and told testator if he could find the anchor he might dispose of it and pay himself.

This was an action of debt upon a clerk’s official bond, tried before Heatii, J., at Pali Term, 1859, of Gaston Superior Court. The bond declared on was executed 1856, by Robert Williamson, as clerk of the Superior Court for Lincoln county, and signed by the defendant, Thompson, as his surety. The facts of the ease agreed, are these : In April, 1856, Slade and Barrett, sued the plaintiff, H. C. Fite, in an action of covenant, for a breach of warranty in the sale of a negro.

<p>As against wrong-doers and trespassers, a paramount right of property is not necessary to support an action of replevin, but a naked possession, or a right of possession coupled with the beneficial interest, will do.</p>

This was an action of detinue, tried before Saunders, J., at Pali Term, 1858, of New JIanover Superior Court. The facts of this case are almost identical with those set forth in Freshwater v. -Nichols, decided at this term and reported, ante 251. The negro in question, Henry, is the son of Orrice, one of the slaves mentioned in the deed of Unity Cruise, John Cruise, and Caleb L. Nichols, to Mrs. Freshwater, then Mary Jane Lee.

Tms was a petition for a public road, heard before Caldwell, J., at Fall Term, 1859, of Bladen Superior Court.

This was an action of Debt, on a bond purporting to be a constable’s bond, tried before Saunders, J., at Spring Term, 1859, of Camden Superior Court. The bond declared on, bears date the 11th of March, 1851, Is payable to the Governor of the State, and is in the usual form of constable’s bonds.

Action of trespass Q. C. P.. tried before Heath, J., at the Pall Term, 1858, of Beaufort Superior Court. The action was brought for a trespass, alleged to have been committed just west of the line 4, 5. The plaintiff introduced a grant from the State to J. G. Blount, for 8960 acres of land, lying in Beaufort county, dated 22nd December, 1798; the several lines of which, as first called for, are not material to this controversy.

This was a motion to consolidate, heard before Caldwell, J., at the last Pall Term of Bladen Superior Court The plaintiff in this suit, had sued out attachments against the defendant, for seven different causes of action: 1st. Upon a note dated the 4th of February, 1848, due one day after date, for $11.50, and payable to plaintiff as guardian of John Campbell’s children. 2ndly.

Tms was an action of assumpsit, tried before Saunders, J., at Spring Term, 1859, of Perquimons Superior Court. The following case agreed was submitted to the Court: The intestate of the plaintiff and one Ball, were in co-partnership in trade, up to the 13tli of November, 1855. During the years 1851 and 1855, an account was contracted by the defendant with the firm.

This was an action of trespass, quake clausum eregit, tried before Manly, J., at Fall Term, 1859, of Hertford Superior Court.

Tins was a petition for a peremptory mandamus, beard before Siiepiierd, J., at Spring Term, 1859, of Craven Superior Court. The petition sets out an Act of Assembly incorporating the Neuse River Navigation Company, and also an act amending its charter, and authorising the company to increase their capital stock to an amount not exceeding four hundred thousand dollars.

This was an action for a violation of a town ordinance, brought by appeal to the Superior Court for Franklin county, and tried before Shepherd, J., at Fall Term, 1859.

This was an action of debt on a single bill, tried before Bailey, J., at Spring Term, 1859, of Union Superior Court. ■ The bill was executed by the defendant and payable to one Parrot Williams and his wife, Charity. A suit was brought upon the note in the name of Williams alone, and while the suit was pending he died, and it abated. The widow of Williams then married one Crowell, and he died, and the present plaintiff is his widow and one of the obligees.

This; was a Scire Facias against a sheriff” for failing to return process in due time, tried before Bailey, J., at Spring Term, 1859, of Surry Superior Court. The defendant, Baber, was sheriff of the county of Ashe, and the process, in reference to which, the failure to return is alleged, was issued by the Superior Court of Surry and directed' to defendant, returnable to Spring Term, 1858, of that Court-, which Court commenced on Monday, the 22d of February, 1858.

<p>Where a party had agreed to deliver a certain quantity of pork, and having delivered a part, refused to deliver the balance, it was Held that he could not recover for the part delivered.</p> <p>What amounts to an abandonment of a contract, so as to enable the opposite party to sue on the common counts in assumpsit for the value of a part performance, is a matter of law to be determined by the Court, and it is error to leave it to the jury.</p>

Tnis was an issue of devismit vel non, tried before Bailey, J., at Spring Term, 1859, of Rowan Superior Court. The following statement, in the nature of a bill of exceptions, was drawn up by the counsel in the case, and certified to this Court by his Honor. A paper-writing, purporting to be the will of Elizabeth Cowan, deceased, was produced by J. IT. Jenkins, the propounder thereof, the executor named in the said paper-writing.

This was an action of trover, tried before Caldwell, J., at Fall Term, 1859, of 'Stanly Superior Court. The plaintiff declared for the conversion of three negroes and a wagon.

It was Held to be error in a Judge, on the trial of a capital cdse, to state to tho jury that “to exclude rational doubt, the evidence should be such as that men of fair ordinary capacity would act upon it in matters of high importance to themselves.” The prisoner was found guilty, and appealed' upon exceptions taken at the trial.

This was a motion for judgment upon a scire faeias against the defendant, as bail of Nathan King, heard before Shepheed, J., at Spring Term, 1859, of Wilson Superior Court.

<p>A deed of trust, made by a corporation, or an individual, for the purpose of gaining time at the expense of creditors, in order to dispose of property to advantage, and prevent a sacrifice by a sale for cash, where the company -or individual has the means and resources from which enough might be realized to pay all of the debts, is fraudulent and void, as against creditors.</p>

<p>All water courses, not navigable for sea vessels, but capable of being navigated by boats, flats and rafts, technically styled unnavigable streams, are the subject of special grant by the State under the entry law.</p> <p>Rights acquired by special grants from the State, in water courses, technically styled umnavigdble, cannot be taken from the grantees, by the government, except in the exercise of the power of eminent domain, and then only for public use, with a provision for a just compensation.</p>

Action of trover, for several slaves, tried before Dick, J., at the last Spring Term of Washington Superior Court. In June, 1859, Thomas Wynne intermarried with Sarah Slaughter ; but before the marriage, they e.xecuted to the defendant, in trust, for the separate use of the wife, a deed of marriage settlement, conveying all her estate, which consisted of slaves, to the defendant.

Tins was a Petition, for a. drain or canal, tried before Dick,. $•., at the last Spring. Term-of PerquiiKon-s Superior Court.

This ivas an action of trover for the conversion of a negro woman and her child, tried before Dick, J., at the last Spring Term of Camden Superior Court. The plaintiff claimed title to the slaves in question, by purchase from one Thomas F. Grandy, and produced a bill of sale, dated 14th of February, 1859, purporting to convey the mother to the said plaintiff, the child being born afterwards.

<p>This was an action of trespass m et armis, tried before Dick, J., at the last Spring Term of Pasquotank Superior Court.</p> <p>It was proved that on the night of the 22nd of September, about tlie hour of 2 o’clock, A. M., the defendant shot a person near the shelter of one E. Leigh, in the county of Perquimons, whom he supposed to be a certain runaway slave, named Tony; that he first hailed the person shot, and commanded him to stop, which he refused to do; that the person alluded to was shot about three-fourths of a mile from the residence of the plaintiff; that it was so dark as to make it impossible to distinguish one person from another; that about 4: o’clock of the same morning, the overseer of the plaintiff was aroused, and found the boy, Jeff, (the slave in question) badly shot in the back part of the left thigh, just above the knee-joint; that on the next morning, the premises of Leigh, and the neighboring swamps were searched for the wounded person, but no trace of any one could be found ; that on the same day the defendant remarked to the overseer that “ he understood one of Newby’s negroes was shot,” to which the other replied, “ yes, and badly shot.” To this, the defendant rejoined, that “ he shot him, but supposed he was a runaway; that he hailed him, but lie ran the faster, and that when shot, he never saw a negro jump so high in his life.”</p> <p>The plaintiff’s counsel then asked the witness, whether he had heard of any other person’s being shot in the neighbor» hood, and at that time ; which was objected to and ruled out. Plaintiff excepted.</p> <p>It was in proof that the slave died of the inj ury received in a few days thereafter.</p> <p>Yerdict for the defendant. Judgment and appeal by the plaintiff.</p>

Petition for a cart-way, tried before Hick, J., at the last Spring Term of Bertie Superior Court. The petition, in this case, was filed in the County Court of Bertie, and brought to the Superior Court by appeal.

<p>The sale, privately, of a horse on Sunday by a horse-dealer to one knowing of the calling of the seller, was Held (Batjxb, J. dissmtienfe,) not to be such a violation by the buyer of the 118th ch. sec. I, of tlie Revised Statutes, as to prevent him from recovering io an action for a deceit and false warranty against the seller.</p>

Tnis was an action of covenant, on a .poliey of insurance •against fire, tried before Dick, J., at the last Spring Term of Washington .Superior Court The plaintiff having proved the destruction, by fire, of the house insured, and the execution of the .policy by the defendant, the defendant moved that the plaintiff be nonsuited, on the .ground, that the plaintiff had not complied with the stipulation of the contract of insurance as contained in thoeompa “ All persons insured…

Action of ejectment, before Hick, J., at the Spring Term, 1860, of Chowan Superior Court. The following case was agreed by the parties : Alexander Cheshire, junior, executed his last will, and died in Chowan county in 1858. At December Term, 1858, of the County Court, the will was admitted to probate, and James E. Nor-fleet, the executor named therein, was qualified.

ActioN of TROVER, tried before Shepherd, J., at the last Spring Term of Harnett Superior Court.

This was AN actiok ON the oase, fried before Shepherd, J., at the last Spring Term of Brunswick Superior Court. On file return of the writ, the defendant pleaded an abatement; ihat he is a citizen of the county of Monmouth, in the State of New Jersey, and that the-plaintiff is, and was, at the time of bringing suit, a citizen of the county of New Hanover in this State.

ActioN of debt, tried before Shepherd, J., at the last Spring Term of Stanly Superior Court. John F. Stone was appointed superintendant of common schools, by the County Court of Stanly county, and gave the bond sued on, at its February Term, 1853, with the other defendants his sureties, in the sum of $3000.

This was an action on the case for unskillful and negligent treatment of the plaintiff by the defendant as a physician, tried before Dick, J., at the last Spring Term of Chowan Superior Court.

This was an action -of debt on -a bond tried before Shepherd, J., at the last Spring Term of Robeson Superior Court. Pleas — Won estfactum, and specially, that the bond is void, as being against public policy; also, that the bond has been discharged by a material alteration of the‘charter‘subsequent to its execution. The plaintiff declared on a bond which had been given for an instalment of the stock subscription.

Agtign of EJECTMENT., tried before Sheí>hebi>,, Judge, at the Spring Term, I860, of Richmond Superior Court.

This was a scire facias ((issued -on motion in this 'Court,) to ■subject bail. The defendants became the bail of one John McLeran toa writ, issued in favor of the plaintiff, returnable to the Superior Court of Cumberland. The original cause came to this Court by an appeal from the said Superior Court -of Cumberland, and a final judgment was rendered here against the principal for $995,87, with interest and costs, which is-still unsatisfied.

This was a motion to dismiss ¡an appeal before Caldweü, J., at the last Fall Term of Bladen Superior Court. The judgment was rendered against the plaintiff as to one of the defendants, and in bis favor as to the other on the 30th day of November, 1857, mwl aw appeal was prayed by him and granted on (lie 9th of December, 1857.

This was a petition heard before Shepherd, J., at Spring Term, 1860, of Cumberland Superior Court.

Motion to amend, and for an enquiry, heard before Shepherd, J., at the last Term of New Hanover Superior Court. The cause in which this motion was made, was originally tried before Saunders, J., at the Eall Term of that Court, and a verdict was taken subject to- the opinion of the Court on the questions of law governing the case. These questions came to this Court by appeal, and were disposed of at the last term, ante 255.

Action of trespass, Q. C. F., tsied before Shepherd, J., at tbe last Fall Term of Washington Superiot Court. WRIT OE ERROR, On the following Case, 6 Jones’ Eep. 210 : Tbe action was brought for cutting cypress trees and making them into shingles.

<p>Issue of devismit vel non, tried before S:uepherb, ¿T., at the last Spring Term of New Hanover Superior Court.</p> <p>The maker of the will was an aged person o'f color, living in the town of Wilmington ; and it was proved that she looked to Mr. Wright, the sole legatee, for counsel as -a lawyer, and for protection, habitually, and, occasionally, for small sums of money — it was proved also, that be had the collection of moneys due her for rents. ’The decedent bad no relation except one .niece, tor whom she had .provided, by a deed of gift, for a house and lot in the said town. It was proved that Mr. Wright earned the message to Mr. Davis, a gentleman •of the bar, also in Wilmington, from t.he decedent, Mary Green, as to writing her will, and gave him the instructions how -it was to be done. There was -much corroborating testimony as to the decedent’s purpose of making her will in favor •of Mr. Wright, particularly, that the witness had said her husband’s wish was, that she should give her property in that way, and that she had got the whole property from her husband, which was shown to be true ; also, that her niece had been provided for, which was shown by the deed of gift, and many declarations to the same effect, as tending to show that it was her deliberate intention so to dispose of her property. Her testamentary capacity was established beyond dispute, and the ground of opposition insisted on, was certain declarations of the decedent disclaiming the act as her will, and complaining that she did not understand it, and was unwilling that it should stand as her will. These, and various other facts, of the same tendency, w7ere left to the jury, with the following instructions from the Court:</p> <p>After explaining- to- the jury, that by an- undue influence is-meant a fraudulent influence, over-ruling-and controlling th-e mind of the person operated upon, directed the jury further, that if they should become satisfied that the propounder was in the relation towards the decedent as her attorney, the relation was one of confidence, and their dealings, where the attorney took a benefit from-the act of his client, as in this case, were regarded with suspicion, and were to be scrutinised with a degree of care and closeness, such as would not be required in dealings between those who stood in no such relations. The Court further charged the jury, that an undue influence, fraudulent and controlling, must be shown, and if they were satisfied that it existed in this case, they must find for the defendant, even though Mary Green might have had capacity, but if they were not so satisfied upon all the facts proven,, then, they would find for the propounder. The caveator excepted.</p> <p>Verdict for the propounder. Judgment and appeal.</p>

<p>This was an action of ejectment, tried before Shepherd, J>, at the Special Term, June, 1859, of Montgomery Superior Court.</p> <p>There was a verdict for the defendant, and the following are the exceptions taken to the ruling of his Honor in the progress of the trial.</p> <p>The plaintiff offered, as part of his \itle, a deed for the land in dispute, from one A. H. Saunders, who had been appointed by the County Court a commissioner to sell certain lands belonging, to the heirs-at-law of one Burgess Goings. Saunders was the administrator of Goings, and filed a petition in 1849, to make the real estate assets for the payment of debts. He was also sheriff of the county, and, as such, served the notices issuing in the cause, upon the lieirs-at-law, who were made parties defendant, and the returns were made in his own name, as sheriff. The Court held that this service by the plaintiff in the cause, ivas void, and could not support the deed from Saunders, offered by the plaintiff. Eor this, the plaintiff’s counsel excepted.</p> <p>There was no affidavit to the petition as required by the statute. The Court held the order of sale to be void on that account. For this, the plaintiff’s counsel excepted. The plaintiff then offered a deed from the widow of Goings for a tract of land, allotted to her as dower, and it became a question whether the locus in quo was within the boundaries of the said deed upon which, questions as to the principles of law regulating boundaries arose, and were decided against the plaintiff, and exceptions taken, but as this Court did not proceed to their consideration, it is not deemed necessary to state them.</p> <p>Appeal by the plaintiff.</p>

This was a petition, filed in the County Court of Edgecombe, for damages for obstructing plaintiff’s ditch or canal, which came to the Superior Court by appeal, and was tried before Saunders, J., at the last Spring Term.

Aotion of ejeCtment, tried before Dice, J., at the Spring-Term, 1860, of Perquimons Superior Court.

ActioN of TROVER, tried before Dios, J.. at the last Spring Term of Gates Superior Court. The plaintiff offered in evidence, as part of his title, a deed of trust made to John W. Hinton, by one Gilbert Harrell. The deed is in the common form, conveying land and slaves, including the one in question, and other property, to secure certain debts therein enumerated, with power to sell the same, on certain specified terms.

AotioN of assumpsit, tried before SiiepheRd, J., at the last Spring Term of Sampson Superior Court.

ActioN of coveNant, tried before Shepheed, J., at the last Spring Term of New Hanover Superior Court.

This was an action of ejectmeNT, tried before ShepheRD, J., at the last Spring Term of Montgomery Superior Court. The lessor of the plaintiff, in order to show title to the land, described in the declaration, gave in evidence a deed from the defendant to Murphy McRae, dated October 21st, 1845, then a deed from Murphy McRae to James M. Lilly, dated in 1854, and a deed to the lessor, William McRae, in 1857. The demise is laid on the 1st day of May, 1S57.

MotioN to subject a sheriff as bail, heard before Siiepiieed, J., at the Spring Term, 1860, of Montgomery Superior Court. The plaintiff sued out a capias ad respondendwn against James T. Foster, returnable to the Spring Term, 1858, of Montgomery Superior Court, which came to the hands of 'Winbourne, sheriff of Guilford county, and by him was executed and returned to that term, and a bail-bond filed.

ActioN of COTENANT, on a policy of insurance against loss by fire, tried before SauNdees, J., at the last Spring Term of Craven Superior Court. covenant declared on, and the loss of the building insured, by fire, were proved, and the defendants, for defense, alleged that the plain tiff had not complied with the stipulation contained in the contract, to give the company no-of the destruction of the property, also, a statement of the particulars of the destruction ; and they…

AotioN of TRESPASS, Q. C. F., tried' before Howard, J., at last Spring Term of Duplin Superior Court. The land was and possessed, and the lessors of the plaintiffs, are his-heirs-at-law. The years ago, leaving a widow.

This was a petition for the recovery of a legacy, tried before IIowaed, J., at the last Superior Court of Craven county. The matter was referred to a commissioner to state an account of the estate in the hands of the administrator with the will annexed, and the only question, in the case, arises on an exception to the report as to the charge of $731,50, due by a note on an individual, who became insolvent before the defendant qualified as administrator with the will annexed.

AotioN of TROVER, tried before Shepherd, J., at the Special Term, January, 1860, of Cumberland Superior Court. The plaintiff claimed title to a slave, the property sued for, by a bill of sale from her son, James D. Buie, reciting the payment of $730, as the price given. One Murphy, a brother-in-law of James D. Bnie, was the attesting witness. James D. Bue was largely indebted at the time of making this deed, and was then sued on some of his debts.

This was-an action of debt on a former judgment, coming ¡up by appeal from a justice of the peace, tried before Bailey, J., at last :Spring Term, of Eorsythe Superior Court.

<p>Where a female suddenly disappeared from the neighborhood where she lived, and the hypothesis was that she had been murdered, and her body consumed by fire, certain metalic articles of a female dress having been found among the ashes, where a large quantity of wood had been burned, it was Held to be competent for the purpose of showing her identity, to show that the deceased had worn such things previously to her disappearance, and that the length of time elapsing between the period of her wearing such articles, and of her disappearance, though it would proportionally weaken the force of such testimony, yet, could not destroy its competency.</p> <p>The rule which seems at one time to have prevailed in England “ that upon charges of homicide, the accused shall not be convicted unless the death be first distinctly proved, either by direct evidence of the fact, or by inspection of the body,” Held not to be of universal application, but that where the identity of the bpdy is completely destroyed by fire or other means, the corpus delicti, as well as other parts of the case, may bo proved by presumptive or circumstantial evidence.</p> <p>It was Held sufficient, in & bill of indictment, for murder, to charge that it was done “in some way and manner, and by some means, instruments and weapons to the jury unknown.”</p>

This was an action of assumpsit, tried before SauNdees, J., at the last Spring Term of Edgecombe Superior Court. The plaintiff declared in two counts, first: on a promissory note, and secondly, for goods, wares and merchandise sold and delivered.

This was an action of ejectment, tried1 before SauNders, J.,„ at the last Spring Term of Johnston Superior Court. Eolh parties admitted that the title to-the premises was fa one Calvin Simpkins. On the 27th of January, 1855, be entered into a contract, in writing, to convey the same to one Richard Hamlet, on the payment of the’ last of five certain bonds of $600 each, given for the purchase-money, which would fall due on the 1st of January, 1860.

This was an action on the oase for a deceit in the exchange of horses, tried before SauNdees, J., at the Eall Term, 1859, of Lenoir Superior Court. The following bill of exceptions is sent up as part of the record : “ Smith, a witness for the plaintiff, testified that he was present at the trade. Defendant said she was the Davis mare. Witness asked why she was so poor? Defendant replied, she bad been hauling turpentine with mules.

ActioN of COVENANT, tried before Báiley, J., at the last Spring Term of Orange Superior Court. The defendant, Cornelia Morrow, by her deed of bargain and sale, conveyed to the plaintiff and- his heirs certain land, lying in the counties of Orange and Alamance, being the same mentioned in the plaintiff’s declaration, and by the said deed covenanted as follows : “ And the said Cornelia Morrow, for herself and her heirs, doth covenant with the said II.

Action of debt, tried before Howard, J., at the last Spring Term of Craven Superior Court. The action was brought against the defendant for making a false return as sheriff, on a declaration in -ejectment, retnrnaable on the second Monday of March, 1859, the return day of the next County Court. It appeared that, the paper in question, was received on the 8th day of March, 1859, and the defendant, as sheriff, endorsed thereon, truly, the day of its coming to hand.

This was an action of trespass vi et armis, tried before Dick, The action was brought to recover the value of a cow which ' was killed on the defendants’ railroad, by running-over it with a locomotive. It was agreed' that judgment should be rendered for the plaintiff for $30 and costs of suit, unless upon the further facts stated, the Court should be of opinion in favor of the defendant.

This- was a», action on the case, tried before Bailey, J., at tile last Spring Term of Gnilforcl S-n-perior Court. The declaration was against the defendant as a common carrier, and for negligence iti not delivering at Raleigh certain- boxes, containing parts of a steam engine which the plaintiff was sending-to New York, to be altered and re-adjusted.

This was .an action of ejectment, tried before Saunders, J., at the last Spring Term of Edgecombe Superior Court. CASE AGREED.

Action on the case, tried before Shepherd-, at the last Spring Term of Brunswick Superior' Court. The plaintiff declared in two counts — one for the negligent use of fire by the defendant, whereby his woods were burned, and, secondly, in case upon the statute, for injury to his trees by defendant’s setting fire to his own woods, without giving notice in writing.

Tras was an action of assumpsit, tried before Shepherd, J., at a Special Term (January, I860,) of Guilford Superior Conrh Nankin and McLean were indebted to the defendant, as guardian of certain minor heirs, and afterwards, upon ap-pointment of Gilmer to that office, the note of Nankin & McLean was transferred to him by the defendant’s endorsement.

Action of assumpsit tried before Bailey, J., at the last Spring Term of Chatham Superior Court.

This was an action of debt, commenced* by a warrant before a justice of the peace, and brought, by appeal, to the Superior Court of Edgecombe, where it was tried last Term, by Saunders, J. The plaintiff declared on the following sealed instrument: “ Due J. Fisher, forty-five dollars, for value received, 12th October 1854. Pender & Bryan, {seal.)” The execution, by the defendant, Pender, was admitted.

<p>This was an indictment, tried before Bailey, J., at the last Spring Term of Guilford Superior Court.</p> <p>Tbe defendant was indicted under the 16th section of the 84th chapter of the Nevised Code, for the publication and circulation of a book, known and styled “The Impending Crisis of the South, by Hinton Nowan Helper of North Carolina.” The indictment contained two counts; first, that the defendant published and circulated the book, setting forth extracts from the same. Secondly. The second count is as the first, except that therein it was charged that the defendant sold and delivered a copy of the said book to George W. Bowman. The extracts compare the existence of slavery to the introduction of small-pox into a community, putting strychnine into a public well, and the turning loose of mad dogs upon a community, and that it is the imperative duty and the determined purpose of the author and his associates to abate the nuisance and exterminate the evil, even at the cost of blood, if it be necessary. In the said book it is asserted that slavery leads to murder, and has produced murder ; that “ slave owners are more criminal than common murderers;” that masters of slaves are worse than thieves, and with many inflamatory epithets and much ranting, a purpose is declared to effect the abolition of slavery; and unless the owners will consent to do this voluntarily, and to give each slave sixty dollars, it is threatened in the said book that this is to be effected by the abolitionists at the north with the assistance of the slaves, whp, it says, “ in nine cases out of ten, would be delighted with an opportunity to cut their masters’ throats.”</p> <p>On the trial, it was proved that-defendant sold and delivered a copy of the book in question to George W. Bowman, and evidence was offered to show that the defendant had sold and delivered copies, in bound volumes, toother persons than to George W. Bowman; this evidence was objected to, but admitted by the Court, and the defendant’s counsel excepted^ 1</p> <p>It was insisted on behalf of the defendant,</p> <p>1st. That a bound volume, or book, was not a pamphlet or paper within the prohibition of the statute. .</p> <p>2. That the sale and delivery of a copy to George W. Bowman, was not a publication or circulation within the meaning of the statute.</p> <p>3. To constitute the offense, the publication or circulation</p> <p>should be in the sale and delivery of a copy to a slave or free negro, or the reading the same in-their presence. „</p> <p>The Court declined so to instruct the ju>y,*feut told them that the sale and delivery of a bound volume was within the prohibition of the statute, and that the sale and delivery of a volume to George W. Bowman, if done with a wicked intent, was a publication and circulation within the meaning of the statute. Defendant’s counsel again excepted.</p> <p>Yerdict for the State. Judgment and appeal.</p>

This was an issue of clevisavit ml non, tried before Bailey, J., at the last Spring Term of Caswell Superior Court. The script was propounded as the will of one Ellis Wade. It was in the ordinary form of a will, with two subscribing witnesses. The probate was opposed, on the ground, that the decedent had not sufficient capacity to make a will, and, secondly, on the ground of undue influence exerted over him by Elizabeth Warren, the propounder.

Action of assumpsit, tried before Osborne, J., at tbe last Spring Term of Surry Superior Court. In 1855 the defendant covenanted to convey to tbe plaintiff a tract of land, on the payment of certain notes given as the price thereof. The plaintiff paid towards the land $106 79 ; but becoming involved beyond his ability to make further payment, the contract, in 1856, was rescinded ; the plaintiff giving up his bond for title, and the defendant surrendering the notes.

<p>A corporation may be sued in the county court, in any county in tbe State,, where the plaintiff resides.</p> <p>Where the defendant, in a county court, pleaded in abatement to the jurisdiction of the court to which the plaintiff demurred, and the court overruled the demurrer and sustained the plea, on an appeal to the Superior Court, where the judgment below was properly reversed and the jurisdiction of the County Court sustained, it was Held that was error to order a procedendo to the County Court, for that, the whole case was brought up to the Superior Court.</p>

Action of ejectment, tried before Osborne, J., at Spring Term, 1860, of Wilkes Superior Court. Tbe plaintiff produced a grant for tbe land in question to James Gray, the father of the lessor of the' plaintiff, dated in 1199, and showed that the said grantee died some ten or twelve years ago.

Tins was an action brought by a warrant before a j ustice of the peace, for an amount “ due by account rendered by arbitrators,” tried before Saunders, J. The defendant had employed the plaintiff as an overseer, at the price of $125 for the year, and to find his family. The plaintiff remained in the defendant’s service eight months, and upon some disagreement occurring between them, left the defendant’s service.

Tins was an action of debt, tried before Osborne, J., at the last Spring Term of Rowan Superior Court. The declaration was upon a promissory mote, payable ninety clays after date, at the bank of the Republic, New York City. The defence relied on, was the plea of usury.

Action of debt, tried before Shepherd, J., at a Special Term, (January, I860,) of Guilford Superior Court. The action was brought against the defendant as the administrator of one Othnial Hiatt. The defense relied on, was the plea of fulhj admimstered and no assets. - A reference was made to Mr. Bwaim, a commissioner, to state an account of the assets, and the only question in the case arises on an exception to his report.

Action of debt, tried before Osborne, J., at the last Term of Cabarrus Superior Court. The action was brought on a sealed instrument, dated in 1842, the signature to which was rudely made — so much so, that no one could read it. At the time of its execution it was proved that Mr. Barnhart, who became the subscribing witness, with the assent of the' obligor wrote his name plainly under his signature.

<p>The Yadkin river not being a navigable stream, a grant from the State of the bed of the river passes it as does any other grant of land, and the Legislature has no power to take it way, either for private or public purposes, without making compensation to the owner.</p>

<p>A bequest of slaves to a daughter, with a provision that if she should have issue living at her death, then to such issue, but if she should die without leaving lawfulissue, then over, was Held, upon her dying without leaving children, to be a good'limitation in remainder.</p>

This was an action of trover, for the conversion of a negro boy, named Stokes, tried before Osborne, J., at the Spring Term, 1860, of Yadkin Superior Court.

<p>This was an action of trespass for an assault and battery and ealse imprisonment, tried before Osborne, J., at the last Spring Term of Cabarrus Superior Court.</p> <p>The defendant, Moss, was a magistrate, the defendant Marshall, sheriff of the count}' of Stanly. A number of citizens were gathered together in the said county for the purpose of paying public taxes, where the two defendants were present, attending to that business. During the day, one Linker became very disorderly, and committed a breach of the peace by assaulting one Parks, to which he was encouraged by the plaintiff. The defendant, Moss, ordered the defendant, Marshall, to take Linker into custody, and tie him, which he did, and taking Linker outside of the assembly, tied him to a tree, where he remained tied for the space of ten minutes. The defendant, Moss, was engaged in writing a warrant against Linker, when the plaintiff’s demeanor and conversation afforded the occasion for the acts complained of. .The evidence was somewhat contradictory as to the deportment of the plaintiff on the occasion, the plaintiff’s witnesses representing that he was taken up and tied because he questioned the legality of the treatment Linker was receiving from the defendants, while the defendants witnesses stated that the plaintiff violently interfered and abetted the attack of Linker on Parks, and that after he (L.) was tied, grossly abused, derided and insulted the magistrate while engaged in writing the warrant against Liner; that for this, the magistrate, Moss, ordered Marshall, the sheriff, to take the plaintiff into his custody, and to tie him, which was done without violence or disorder, the plaintiff submitting quietly to the act, but protesting against its legality, and declaring that he would have redress from the law; that after having been thus confined for a short space of time, he was released by order of the defendant, Moss.</p> <p>The Court charged the jury that the facts deposed to by the witnesses, either on the part of the plaintiff or defendant, formed no justification for the acts of the defendants in seizing and tying the plaintiff as described; that it was the duty of the jury, on the evidence adduced, to find for the plaintiff, and that the amount of damages which they should give, ought to be governed by the view which they should take of the circumstances of the transaction; that if they believed the defendants acted in good faith, believing they had the right to tie the plaintiff, and from a desire to keep the peace, and preserve order, and the plaintiff’s conduct and language was disorderly and insulting to the magistrate while engaged in the performance of a public duty, these were circumstances to be considered by them in the mitigation of damages. Defendants’ counsel excepted.</p> <p>Yerdict for the plaintiff. Judgment and appeal by the defendants.</p>

This was an action on the case for slanderous words, tried before Saunders, J., at Spring Term, 1860, of Johnston,. Superior Court.

<p>This was an action of debt, for the penalty of two hundred -dollars, brought against the defendant as clerk of Lenoir Superior Court, for issuing a writ without taking a prosecution ■bond, and tried before Howard, J., at Spring Term, 1860, of ■Jones Superior Court.</p> <p>The Court reserved the question of law upon which the ex•ception is taken, and submitted the facts to the jury, wbo found that the defendant issued a writ in November, 1857, against the plaintiff and his sureties upon his bond as sheriff, in the name of the 'State, on the relation of the county trustee of Lenoir county, and failed to take a bond for the prose■■cution of the suit, as required by statute. The writ was returned to the spring term, 1858, and at the spring term, 1859, the 'county trustee was permitted by the Court to file a prosecution bond in the cause.</p> <p>Upon the question reserved, the Court, being of opinion that the county trustee, suing upon the bond of the sheriff, in the name of the State, was required by the statute to give bond for the prosecution, gave judgment for the plaintiff. From which judgment the defendant appealed.</p>

Action of debt, upon a bond given to abide by and perform.an award, tried before Saunders, J., at the last Spring Term of Pitt Superior Court. Breach, that defendant failed to perform the award.

This was an action of trover, brought in tlie Superior Court of Pitt county. At September Term, 1859, the cause was submitted to the jury, and there was a verdict for the defendant. At said term, the Court made the following order, viz: “ Yerdict set aside and new trial granted on paying the costs of this Court.

This was an action of trespass, tried before Saunders, J., at Spring Term, 1860, of Martin Superior Court.

This was a petition for an alternative mandamus, heard; before Bailey, J., at Spring Term, I860-, of Chatham- Superior Court. The petition sets out, that tlie petitioner had- been appointed on the 1st of April, 1857, to the offi.ee of Adjutant General, by Thomas Bragg, then governor of North.

Action of ejectment, tried before Howard, J., at the last Spring Term of Carteret Superior Court. The land claimed by the plaintiff is the area contained between Hunter’s Creek, White-oak Biver, and the lines described by the letters C, D, E, E, G, H, L, M, N, X, O, P,Y, T. The loci in quo are the spaces between Y, Z and White-oak Eiver and the triangle O, P, Y, which were proved to be in the defendants’ possession at the commencement of the suit.

<p>Tins was an action of trespass, tried before Heath-, J., at the Spring Term, 1860, of Caldwell Superior Court.</p> <p>The plaintiff declared for, that the defendant so carelessly and negligently kept his horses, mules and other cattle-, that they escaped from his land, went thence upon the plaintiff’s land, then in cultivation, and there injured and destroyed a large quantity of plaintiff’s corn and peas, then in his field maturing.</p> <p>The plaintiff offered evidence to show, and did show, that lie was the owner of a plantation on one side of the Yadkin river, and that the defendant was the owner ©f another plantation on the opposite side of the same riyeiyitbeing the dividing boundary between the respective tracts of land ; that both plantations were surrounded by good and legal fences on all sides save where the river was the -dividing line; while along that and between the two plantations, there was no fence whatever, and that the Yadkin, at this point, was-a narrow shallow stream, easily forded by cattle, horses or mules. The plaintiff further proved, that in the summer of 1858, he had in his field, bordering on the river as aforesaid, a-crop of corn and peas then maturing and nearly matured; that the defendant, at that time, turned his horses, mules and other cattle into bis own field, situated as above described, (which was in grass,) and that they, several times, escaped and passed over the river into the plaintiff’s field, and ate, and destroyed the plaintiff’s growing crop of corn and peas. Eor this, the action was brought. The question ®f damages was submitted to the jury, and the question, whether the plaintiff was entitled to recover on the state -of facts above described, was reserved by his Honor. A verdict was taken for the plaintiff) subject to his Honor’s opinion upon the point of law reserved, with leave to set aside the verdict and enter a nonsuit, in case the Court should be against the plaintiff on the question of law.</p> <p>The Court being of -opinion that the plaintiff could not recover, set aside the verdict and directed a nonsuit, from which plaintiff appealed.</p>

This was an action of slanber, tried before Heath, J., at the last Spring Term of Henderson Superior Court.

This was an action of debt on a note without seal, tried before Heatii, J., at the Spring Term, 1860, of ITaywood Superior Court.

<p>The purchase by a ministerial officer at his own sale, under an execution, passes no property, and the case is not altered by the fact that the sale is conducted by another officer in concert and joint interest, with the purchaser.</p>

<p>AotioN of debt on the official bond of a sheriff, tried before Heath, J., at the Spring Term, 1860, of Polk Superior Court.</p> <p>The declaration is against Allen as the principal, and the other defendants as sureties, on the sheriff’s official bond for the year 1856, and the breach alleged was the misapplication of several sums of money paid by the-relator, Mills, on a judgment rendered in the Superior Court of Eowan, against William F. Jones and others, embracing the relator. The defendants, in that judgment, lived in Polk county, and several ex-cutions of fi. fa. had issued, directed to the sheriff of that county, but he had failed to make return thereof. At the Spring term of Eowan Superior Court, on an affidavit as to the delinquency of the sheriff of Polk, the Court made an order that a fi. fa. should issue, directed specially to the sheriff of Eutherford, commanding him to go into Polk county and make the money ealled for in the said writ. Which fi. fa. was accordingly issued, returnable to the Fall Term, 1856, ■of Eowan Superior Court, and no writ ot‘fi. fa. or other process issued on the said judgment directed to the defendant, Allen, 'between these terms, nor had he ever levied either of those formerly issued on the property of the defendants in said judgment. ' Between the Spring and Fall Term, 1856, of Eowan Superior Court, the relator supposing Allen had the execution, paid the sums in ‘question to him, and took his receipt therefor. Shortly thereafter, the sheriff of Eutherford made the whole of the money, due on the execution, without allowing these payments and returned it to fall term of Eowan. according to the exigency of his writ The relator demanded the money thus paid by him, and on payment being refused, this suit was brought.</p> <p>Iiis Honor intimating an opinion that the plaintiff could mot recover, he took a nonsuit and appealed.</p>

AotioN of coteNANt, tried before Bailey, J., at a Special Term, (July, I860,) of Buncombe Superior Court.

This was an action of assumpsit, tried before Heath, J., at the last Spring Term of Macon Superior Court. Tlie plaintiff produced an order in the following words: “ Mr. ~W. T. Coleman, please pay John Brown thirteen dollars, 31 cents, and by so doing yon will oblige your friend, this 21st February, 1851. J. W. Teague.” The plaintiff declared on this order, and on a new promise to pay the same.

This was an' action of trespass, tried before Osborne, J., at the last Spring Term of Ashe Superior Court. The action was brought for taking with force from the plaintiff a quantity of whiskey and a sack of salt. The defendants justified under a fi. fa. on a judgment, in favor of the defendant Warden, which was in the hands of the defendant Beeves, who acted on the occasion as an officer.

This was an issue of bastardy, tried before Osborne, J., at the last Superior Court of Alexander county. The counsel for the State introduced the examination of one Elizabeth Wilson, a single woman, wherein the defendant is ■charged with being the father of her bastard child.

Tms was an action of assumpsit, brought to the Superior 'Court of Ashe County, by appeal from a Justice of the Peace, and tried before Heatii, J., at the Fall Term, 1859, of that Court. Franklin Baker .gave bis promissory note to Morrison, Gaither cfc-Co., as follows.: “ $70.87 April 6th, 1853. Ninety- -days -after date, I promise to pay to the order of Morrison, Gaither & Co., Seventy dollars and eighty-seven cents.

Action of. ejectment, tried before Bailey, J., at the Pall Term, 1859, of Macon Superior Court. The plaintiff exhibited a grant from the State, bearing date in 1842, which called for a chestnut in the west boundary of No. 122,,as the beginning.. No. 122 was one of several, tracts of land surveyed and sold under the direction of commissioners appointed to sell the Cherokee lands in the year 1827, and the main point in controversy was' as to its location.

Action of detinue for slaves, tried before Heath, J., at the-last Eall Term of Eutherford Superior Court.. Tbe plaintiffs and defendant botli claim under the- will of Busbrod Doggett, which was made in tbe year 1829-. The clauses of said will,, material to the- questions considered by tbe Court, are as follows : 1st. “ In the first place, it is mj will that my beloved wife, Susannah Doggett, shall be well provided for.

This was an issue of devisavit vel non, tried before Osborne, J., at the last Spring Term of Catawba Superior Court. As tliere is no point of law arising on tbe exceptions made on the question, whether there was any evidence as to undue influence and as to the testamentary capacity, it is not deemed expedient to state them at large. The main question, debated in this Court, was, as to the conformity of the attestation to the requirements of tbe statute.

This was a motion to quash the proceedings on an attachment returned before the County Court of Eutherford, and brought up by appeal before Heath, J., at the Spring Term of the Superior Court. This action was assumpsit for money due on account for $265.

Action of ejectment, tried before Bailey, J., at the Fall Term, 1859, of Polk Superior Court. The land in question was a 200 acre tract, granted in 1802 to one Franks. David Hipp, the lessor of the plaintiff, having cleared a few acres on the eastern part of the tract, remained in possession at that place for a short time.

This was an action of debt, on a sealed obligation, tried before Bailey, J., at the Fall Term, 1859, of Cherokee Superior Court. The instrument declared on, which was for the payment of $100, was produced and proved.

Action of ejectment, tried before Bailey, J., at the Pall Term, 1859, of Buncombe Superior Court. The plaintiff’s lessors derived title by a grant to Robert Patton, for the land described in the diagram, ADCB, and by showing that they are the heirs at law of the said Robert Patton.

This Was action of assumpsit, tried before Heatii, J., at the last Spring Term of Rutherford Superior Court. The plaintiff declared on the following instrument of writing: “Six months after date, I promise to pay James P. Poster or bearer, four hundred and seventy-three dollars, for value received of him; after deducting the bill of expenses that Govan Mills has against Columbus Mills and James P. Poster & Co. 20th Dec. ’53.

Action of ejectment, tried before Heath, J., at the last Fall Term, of Ashe Superior Court. The lessor of the plaintiff claimed title under a judgment and execution against one Long, and a sheriff’s sale and deed, made thereon, all of which, with the defendant’s possession, were admitted.

<p>Action of trespass Q. C. E., tried before 'Osborne, J., at tbe last Spring Term of Ashe Superior Court.</p> <p>Sidney Maxwell, by his last will and testament, duly executed and admitted to probate, devised the land, embracing the locus m quo and some personal property, to his grand-son, Calvin J. Jenkins, in full estate. Afterwards he made a codicil, in which he devised as follows: “ And inasmuch as my grand-son, Calvin J. Jenkins, has left me and no longer attends to my domestic concerns, * * I do, by this codicil, * * * direct that all my lands, wherever situated, * * * heretofore devised and bequeathed to my grand-son, Calvin J. Jenkins, his heirs and assigns, also, all my stock, &c., be gold by my executor, to the highest bidder, and the proceeds arising from the sale of said lands tobe equally divided, share and share alike, between my wife, Catharine, and children, (mentioning six by name,) instead as heretofore directed.” The testator had also, by tbe body of his will, given land in fee to one of Ms sons, Larkin Maxwell, and by the same codicil, which is partly above recited, be continues : “ Also that tract of land heretofore devised to my son, Larkin Maxwell, his heirs and assigns, whereon he now resides, to be sold as above mentioned, and the proceeds to be equally divided, share and share alike, among my wife and children as above jnentioned, instead as heretofore directed.”</p> <p>The plaintiff is one of the heirs-at-law of Sidney Maxwell, and the act complained of (cutting timber) was done on that part of the land devised in the body of the will to Calvin J. Jenldns, between tbe death of Sidney Maxwell and the sale of the premises by the executoi — no person being actually living on the land at the time.</p> <p>The defendant pleaded a license, and proved that Sidn'ey Maxwell, in his life time, had given defendant leave to cut ’timber on this land. ' -•</p> <p>By consent of parties a Verdict was rendered for the plaintiff for a penny, subject to the opinion of the Court on the Whole case, as to the plaintiff’s right to recover, with authority to set aside the verdict and enter a nonsuit, if the' Court should be of opinion against the plaintiff.</p> <p>Afterwards the Court gave judgment for the plaintiff, and the defendant appealed.</p>

Scire Facias to revive a judgment, tried before!Osborne, J., at the last Spring Term of Ashe Superior Court. ■-Murchison held a note on defendant Yates, for $138, and transferred the same by endorsement to the plaintiff Bartlett, as the price of some lots in the town of Jefferson.

This was an action of trespass, Q. C. F., tried before Manly, J., at the Fall Term, 1858, of Gaston Superior Court. Peter Eddleman was the owner of a parcel of land on the west side of Leeper’s creek, (see diagram) which he, in 1832, conveyed to Jacob Forney, and he, in 1835, to the defendant, Carpenter.

ActioN of bjeCTMent, tried before Osboene, J., at the last Spring Term of Alexander Superior Court.

This was a proceeding by a petition to recover damages for overflowing plaintiff’s land, tried before Heath, J. The jury gave for several successive years less than $8.00, whereupon the Judge ordered that no more costs than damages, should be recovered, from which the plaintiff appealed to this Court.

Action on the case, on a warranty of the soundness of a slave, tried before Heath, J., at the last Pall Term of Lincoln Superior Court. To prove that the slave in question was unsound at the time of the warranty, (June, 1858,) the plaintiff offered evidence of the acts and declarations of the slave before, at, and after the sale, which, if believed, tended to show that he had chronic rheumatism at that time.

<p>This was an appeal from a justice’s judgment, which came before Heath, J., upon a motion to dismiss.</p> <p>Tbe proceedings of tbe magistrate showed a regular judgment against tbe plaintiff, an entry below such judgment, that the plaintiff prayed an appeal to tbe Superior Court, and ci^aved ten days to give security, and a regular appeal on security given within tbe ten days. The defendant moved, in the' Superior' Court, to dismiss the appeal, on the ground, that when the above entry was made, no affidavit was made by the plaintiff, that he was not then prepared with his security.The defendant then introduced the justice of the peace, before whom the warrant was tried, who stated that the plaintiff and defendant were both present at the trial; that when the ten days were asked for by the plaintiff, nothing was said by Mm, or either party, about an affidavit, and that he did not himself know that an affidavit was required by law; that the defendant said nothing- about it. This evidence was -objected to by the plaintiff, but admitted by the Court.</p> <p>Whereupon his Honor dismissed tire appeal, and the plaintiff appealed.</p>

Motion to cancel a bail-bond, discharge the bail and dismiss the suit, heard before Heath, 'J., at the Eall Term, 1859, of Lincoln Superior Court. The plaintiff had sued the defendant to Catawba Superior Court and recovered a judgment at the Eall Term, 1859, of that Court.