Volume 53 — North Carolina Reports

Scire Eacias against bail; tried at the last Term of Hertford Superior Court, before Howard, J. The following case agreed was submitted for the judgment of the Court. At May Term, 1856, of the County Court of Hertford, the plaintiff recovered a judgment in assumpsit against one S. S. Simmons, for $375 and costs.

This was an attachment, tried before Howard, J., at the last Term of Washington Superior Court. The attachment was taken out under the 27 and 28 sections of the 7th chapter of the Eevised Code, and levied upon the Schooner Hugh Chisholm, for repairs done on that vessel. The repairs were done in the county of Washington, in this State, during the year 1857; and the attachment was taken out on the 4th day of May, 1858. The vessel was owned by one Gr.

<p>Tins was an action of assumpsit, tried'before Dick, J., at the Spring Term, 186 ■. of Washington Superior Court. -</p> <p>The plaintiff produced in evidence the following paper-writing, viz: “This is to say if Mr. John T. Phelps and Mr. John B. Golett should wish to hire any negroes for the noxt year, that I will assign as their security for such hire. December 26th, 1855. Joshua Watson.”</p> <p>This instrument was written at ITilliardstown, in the county of Nash, on the day it bears date, and sent by mail to J. B. Goletfc.</p> <p>The plaintiff then showed that on the 1st day of January, 1856, she hired to Phelps and Golett three slaves for the ensuing year, at the price of $495 ; that at the time of hiring said slaves, the above instrument was shown to her, and that she hired the slaves on the faith of it.</p> <p>In the month of'January, .Phelps and Golett prepared a bond, of which the following is a copy :</p> <p>“ $495. On the first day of January, 1857, we promise to pay Frances Sleight or order four hundred and ninety-five dollars, value received in hire of negro men, Jordan, Nelson and Harry, for the year 1856, and we promise to furnish said negroes with the usual clothing. Witness our hands and seals this 1st of January, 1856. John B. Golett, [seal.]</p> <p>John T. Piielps, [seali\”</p> <p>Some time in the same month, (January) the defendant wrote his name on the back of this bond, bnt on the next day, hearing that Phelps had made a deed of trust, he obtained the paper from Golett and erased his name. Afterwards, during; the same month, the note was tendered to the plaintiff,, who objected to receiving it on account of the erasure of the defendant’s name, but on hearing from her son that a gentleman of the bar had said the defendant was liable, she took it. Golett paid on this bond $195.¿ When the «ote fell due, it appeared that Phelps and Golett had both become insolvent, and have remained so ever since.</p> <p>William G. Sleight, the agent of plaintiff, testified that he told defendant before this suit was brought, that neither Phelps or Coletthad paid plaintiff, and that he would have to do so ; to which he replied,. “ plaintiff must get it by law.” The defendant contended,.</p> <p>1. That in order to entitle plaintiff to recover, she had to prove a demand for the money on Phelps and Golett.</p> <p>2. That no sufficient demand on the defendant had been made.</p> <p>3. That the note given by Phelps and Golett should have been tendered the defendant before suit.</p> <p>4. That plaintiff had not shown that she had called on the defendant to sign the paper as surety for Phelps and Golett, and that he refused.</p> <p>5. That there was no consideration for the promise sued on.</p> <p>6. That the taking of the bond with the name of the defendant erased, discharged the defendant.</p> <p>These objections were over-ruled by the Court, and the defendant excepted.</p> <p>Yerdict .and judgment for the plaintiff, and appeal by the defendant.</p>

This was an action of assumpsit, tried before Howard, J., at the last Pall Term, of Chowan Superior Co lift. There were several exceptions to the ruling of Ms Honor in this case, but as only one, to wit, the 4th. stated in the bill, i» considered by this Court, the others are omitted.

<p>This was an action of assumpsit, tried before French:, J., at the last Fall Term of Harnett Superior Court.</p> <p>The plaintiff declared for money paid by his intestate as co-surety with defendant for one Strickland. A judgment had been obtained on the debt against Strickland and the two sureties, Matthews and Parker, (plaintiff’s intestate and the defendant) and execution thereon was levied, on.- Matthews-’ land, which was sold and bid off by Parker and one Stewart. They, after this, came to an agreement, that Matthews should take the whole debt on himself and; should satisfy the execution ; in consideration of which understanding, they assigned their bid for his land to him.</p> <p>The counsel for the plaintiff requested the Court to charge the jury:</p> <p>1. That the agreement of the intestate (Matthews) to satisfy the execution upon the assignment of the bid of Stewart and the defendant, not being reduced to- writing, was void under the statute of frauds. The Court declined to give this instruction.</p> <p>2. The plaintiff then asked his Honor to instruct the jury, that if they believed the evidence for the defendant,.there was combination, and fraud on the part of Stewart and the defendant, and that the plaintiff conld not recover.</p> <p>3. That if the jury believed that the promise-of the-plaintifif was merely to satisfy the execution and not to discharge the defendant from his liability as suretjq the plaintiff was entitled to recover.</p> <p>The hist two instructions the Court declined giving, for the reason, that there was no evidence to sustain them. Plaintiff’s counsel excepted.</p> <p>Yerdict for defendant. Judgment and appeal by. plaintiff.</p>

<p>The inference arising against the truth of a charge of rape, from a íó'ng silence on the part of the female, is not a presumption amounting to a rule of law, but is a matter of fact, to be passed on by the jury.</p> <p>The word, “person,” in the 5th section, of the 34 ch. of the Revised Oode, (punishing rape) includes slaves, free negroes and free persons of color, as well as white men.</p>

Indictment for murder, tried before French, J., at the last Fall Term of Montgomery .Superior Court. The defendant in this case was indicted with her son Jim, a slave, as an accessory before the fact, for killing their master, John E. Chambers; and they were put on trial together.

This was ,an action of assumpsit, tried before French, J., at' the last Fall Term of Harnett Superior Court. The plaintiff declared on the following promissory note: “ $545.

Tins was a scire eaoias to revive a judgment, tried- before Saunders, J., at the last Term of Richmond Superior Court. The material question arose upon the plea of payment.

<p>In an action against a ferryman for negligently carrying plaintiffs wife across his ferry, whereby she was injured, it is not necessary that the wife should be made a party plaintiff.</p>

This was an action of trespass m et curmis, tried before French, J., at the last Fall Term of New Hanover Superior Court. Pleas — General issue — Justification’. It was in evidence that a sow, belonging to the plaintiff) was seen with a dock in her mouth in the public road near the residence of the defendant. The witness chased the hog and she dropped if. The hog immediately chased the duck again, and while in hot pursuit the defendant shot her.

This, was an action of trespass, q. c. f., tried beforeFbesgb> J., at the- last Pali Term of Harnett Superior Court.. Tbe plaintiffs claimed title to the land in- dispute, under a grant to one Morrison, and by him conveyed to their ancestor, so much of their claim as is necessary to the understanding of this case is represented by tbe lines A, B, C, D, E, FV X, Y,, Z, 1, 2.

<p>A registered copy of a clerk’s bond may be read without other proof, and, of course, the original, when proved and registered as the acts proyide, may also be read thus without being proved at the trial.</p> <p>It seems at common law,.official bonds were not subjected to the same tests of strict proof and cross-examination as instruments between private persons.</p>

<p>Where one owned and possessed slaves for 15 years, and they were run out of the State secretly, by the owner, into another State, and then taken in hand by the defendant, who carried them into a distant State and sold them, and received the money about the time the plaintiff’s judgment was obtained against the owner, it was Sdd that this was some evidence of a secret trust, for the use and benefit of the debtor, to enable him to defraud his creditors.</p>

Action of trespass guare clausum fregit, tried before Howard, J., at the last Fall Term of Tyrrell Superior Court. The following statement of the case was sent to this Court by his Honor: “ The plaintiff gave in evidence a grant from ilie State, and a deed from the grantee-.to himself, and' there was much evidence as to whether these covered the locus-in quo or not.

Petition for a public road, heard before Fbenoh, J., at the last Fall Term of Bladen Superior Court. The prayer of the petition was for a public road, running from Mount Zion Church, in Bladen county, to Lake creek, in the same county, as near as practicable to the line of an old road, now closed; said road to be seven miles long.

Action for slander, tried before French, J., at the Fall Term, 1860, of Anson Superior Court. It appears on the trial that a writ issued on the-day of February, 1857, returnable to March Term of that year; which was returned, “not found”; and that no writ issued to the next ensuing Term thereafter, but that one issued, returnable to the second Term, which was March Term, 1858, which was marked as an alias, and pursued the language peculiar to that writ.

Issue of devisavit vel non, tried before his Honor, Judge Howard, at the Fall Term, 1860, of Beaufort Superior Court.

<p>Where a bailment is once established, a more possession under a claim of titlfewith the use of the property as his own-,, unaccompanied by an. act upon, the part of the bailee, changing the nature of his holding, will, not set the-statute of limitations in motion.</p>

, at the last' Fall Term of Bladen Superior Court. The action was in debt, brought b3r the sheriff of Bladen, on, a bond given b}r the defendant, aé his deputy, conditioned faithfully to collect taxes and perform all the duties of his said office of deputy sheriff. The breaches assigned were the non-pajunent of money collected for taxes and under various processes.

This was an issue growing out of an attachment sued out against W. R. Tripp, tried before Heatii, J., at a Special Term (January, I860,) of Beaufort Superior Court.

<p>The words, “You as good as stole the canoe of T. H.,” are not actionable, per se.</p> <p>Where the Court erroneously submitted a matter of law to the jury, and they, by their verdict, decided the matter correctly, it was Held not to be a ground for a venire de novo.</p>

This was an action of assumpsit, tried before Saunders, J., •■at a Special Term (June, 1859,) of Wayne Superior Court. The plaintiff declared in three counts. 1st. For the price of theelaves. 2nd. For breach of the contract in not complying with tike terms of sale. 3rd. For the difference ‘between the priee at the first and second sales. The plaintiffs, as trustees, under a deed of trust from one John JD.

This was a contest for letters of administration on the estate of John Brissington, heard before Bailey, J., at the last Eall Term of Craven Superior Court. The decedent was a native of England, and died in this county intestate and without leaving widow or children.

This was an action of ejectmeNT, tried before Bailey, J., at the last Fall Term of Jones Superior Court. After this cause had been put to issue, it was, by a rule of Court, referred to arbitrators, who returned for their award, that they found “all the issues in favor of the defendant but made no mention as to the costs; on the coming in of the award, the plaintiff filed various exceptions.

This was an action of ejectment, tried before Bailey, J., at the last Fall Term of Wilson Superior Court.

<p>Appeal from the Superior Court of Johnston, Spring Term, 1860, Saunders, J., presiding.</p> <p>After pending for several terms, the following rule of Court was entered in the cause, to wit: “All matters in dispute referred to E. G-. Haywood.” The abitrator reports his proceedings, and the evidence laid before him, and thereupon awards as follows: The arbitrator, therefore, awards to the plaintiff $93.83, with interest on $62.50, from the first day of this term until paid. He further awards, that the defendant shall pay the costs of this suit, and also the costs of the reference, including $25 to be paid to the arbitrator for 4 days, or parts of days, engaged in this arbitration; and that the clerk of the Superior Court of Johnson County do tax the costs accordingly, and do issue execution for the said costs, and for the sum aforesaid.’* The defendant excepted to this award.</p> <p>1-. Because the arbitrator has not allowed him opportunity to procure witnesses;</p> <p>2. Because he has not allowed the defendant’s account as a set off.</p> <p>3. Because he has not allowed credits, stated and admitted by the plaintiff.</p> <p>The cause was argued on the exceptions to the award-, and his Honor gave judgment as follows : “In this case the award is confirmed. Judgment according to the award for $93.83, of which sum, $62.50, is principal, and carries interest from 22 March, 1858.” From which defendant appealed-.</p>

Action of covenant, tried before Saunders, Judge, at the Spring Term, 1860, of Franklin Superior Court.

Writ or error, coram nobis, before Saunders, J., at a Spe- - cial Term, June, I860, of Richmond Superior Court. The plaintiffs, in error, were the sheriff of that county andr his sureties. Held: there was error in the Court below, in this particular — and adjudged that the defendant’s, (plaintiffs in error,) have leave to enter the pleas, “ General issue, payment, &c.,” in that Court. Erom which the plaintiff, (defendant in error,) appealed to this Court.

Writ of eror, before Saunders, J., at the Special Term, June, 1860, of Richmond Superior Court. The error, assigned in this case, was the granting of judgment of $100, by the County Court of Richmond, against the sheriff.

Writ ok error, before Saunders, J., at a Special Term, (June, I860,) of Richmond Superior Court. The matter assigned for error in this case, is the same as in the case between the same parties, (ante 91,) except that in this case, the record does not show that the defendants below, mov ed in the County Court, to be allowed to enter pleas and have the same transmitted to ihe Superior Court for trial.

Action of trover, for the conversion of a slave, tried before Bailey, J., at the last Rail Term of Jones Superior-Court. The plaintiff was a constable of Jones county, and by virtue of certain executions in his- hands, levied one of them, on the 4th of September, 1859, and oné other on the 12th of the same month, on a female slave, as the property of one Andrews, and delivered her to the jailor of the county, who put her in the common jail of the said county.

Action on the case, tried before- Saunders, J., at the Fall Terra, 1860, of Chatham Superior Court. The following statement, signed by counsel, was sent to.this Court as the case tried below, viz: u The evidence was as follows: William Bland, the 'plaintiff’s intestate, through the defendant, who acted without commissions, shipped from Haywood to Wilmington, in February, 1857, a lot of cotton, worth $290.

, at the‘last Fall Term of Moore Superior Court. The defendant had given a bond for his appearance -at the July Term, 1860, of Moore County Court, to take the‘benefit -of the act for the relief of insolvent debtors. Not making his appearance in the forenoon, of Monday of the term, he and his sureties were called-,-and judgment was rendered against them, for the amount of the -judgment and --costs.

This was-an action of assumpsit, tried before Shepherd, J-, at a Special Term (January, 1860) of Guilford Superior Court.

This was an action on the case for a deceit in the sale of a saw-mill, tried before Bailey, J., at the last Superior Court of Wilson count}’. The defendant being a part owner of the mill in question, sold an interest therein (one third part) to. the plaintiff for $600. The plaintiff said of the mill, before he bought it, that he did not know whether it was a good one or otherwise. The defendant said the mill was a good one, and that it had no deffciences that he knew of.

<p>Wliure an administrator with a will annexed died, having in his hands money arising from the sale of land, decreed to be sold for the payment of debts, being a surplus over and above the sums required to pay such debts, which money belonged, by law, to persons, to whom the land was devised, it was Held that the administrator de bonis non ctim tes. an. of the original intestate, was the proper person to bring suit for such money, and not the devisees.</p> <p>Whore an administrator petitioned for the sale of his intestate’s land, setting forth the number and amount of the debts existing against the estate, and a decree passed for such sale, in a suit by an administrator de bonis non, to recover a surplus over and above the debts, such decree was Held not to be conclusive as to such debts, although the persons, to whom the land was devised, were made parties.</p> <p>Moneys paid by an administrator for the support of his intestate’s minor children, are not proper vouchers for him in the settlement of such estate.</p>

, at the last fall Term of Mecklenburg Superior Court. The petition discloses the following facts: The petitioner and one Cook, were special bail for one James Whitesides* A judgment was obtained against Whitesides in the County Court of Mecklenburg, upon which execution issued and was returned “ nulla bona.” A sows facias then issued against the petitioner and Cook. 'When the sci. fa. was executed upon the petitioner, he employed counsel, who appeared and entered his pleas,…

<p>Tins was a petition for a recordari, beard before IIeatii,. J., at the last Fall Term of Johnston Superior Court.</p> <p>The facts, appearing from -the pleadings and proofs, are: that Charles F. Fisher, who is the President of the North Carolina Rail-Road Company, having been informed that suit was about to be brought before a justice of Johnston county, against the company, by the defendant, Yinson, for damages to stock, and being of opinion that the said Yinson had no just right to recover damages for the alleged injury, gave directions to one Millinder, who was a station agent, in case the suit was brought and decided against the company by the magistrate, to take an appeal; that Millinder attended the trial before the justice of the peace, and resisted the claim on behalf of the company, but, that the justice, nevertheless, gave judgment against the company for ninety dollars, damages and costs, whereupon, Millinder prayed an appeal to the next County Court, but, from ignorance of the law in this respect, he failed to give security for the prosecution of the appeal, and after the'expiratio-n of ten days, execution issued on the j ustiee’s j udgment for the amount recovered. Millinder was the officer of the company on whom notice was served to institute the action, and attended in person on the trial. Mr. Fisher, the president, lived in a distant county, and was so much engrossed with the more important duties of the company as not to he able to attend in person to matters of this kind, but left them, usually, to the agents most convenient to the scene of the transaction; he had been informed, and was '•warranted in believing that Millinder was a faithful and diliigent-agent, in his management of the business of the company entrusted to him.</p> <p>The;prayer of the.petition us for a recordari, and for a supersedeas to stop the-collection of the execution.</p> <p>The order for these writs having been made and the case ■ brought up, and motion being made to place it on the trial ■docket for a new trial, 'his Honor disallowed the motion, and *the plaintiff appealed.</p>

This was an action on the case, tried at Johnston S'n-perior Court, Fall Term, 1860, Heath, J., presiding, and in-, which* plaintiff' declared in deceit and false warranty, on the sale* of a slave by defendant to plaintiff.

<p>This was an action of tkover, tried before Dice, J., at a. Special Term, June, 1860, of Orange Superior Court.</p> <p>The facts, material in tliis case, are as follows : The action was brought to recover the value of forty-two bushels of wheat,. The plaintiff introduced a witness, one ■ Wright, who testified that in the year 1854, he was told by the plaintiff to take his (plaintiff’s) thresher and go and thresh out one Pickard’s whesit; that he went and threshed out the wheaton Pickard’s land, and on the following day, in obedience to the plaintiff’s instructions, he carried the wheat to defendant’s mill and told him to keep it until plaintiff called for it; to which the defendant assented.</p> <p>The defendant then offered a witness to prove that Pickard was the owner of'the wheat in question, and that it had been ground into flour, by his order, and taken from the mill by him, and that this occurred before any demand was made by the plaintiff on the defendant for the same. The plaintiff objected to this evidence, upon the ground, that the defendanthaving accepted the wheat as a bailment from the plaintiff, was estopped to deny the plaintiff’s title to it. His Honor being of opinion with the plaintiff) rejected the evidence. Defendant excepted.</p> <p>The defendant denied the contract of bailment with the plaintiff as sworn to by Wright, and offered to show that the title was in Pickard, as evidence, from which the jury might determine with whom the contract of bailment had been made by defendant. His Honor ruled out the evidence, upon the ground, that evidence of the title could furnish no aid to the jury upon the question of bailment. Defendant excepted.</p> <p>Yerdict for plaintiff. Judgment. Appeal by defendant.</p>

This was an action of trover for the value of certain slaves, tried before Saunders, J., at Eall Term, 1860, of Granville Superior Court. The plaintiff offered evidence, tending to show, that- the slaves in controversy, were the property,of his intestate, Lucy Ooghill, and. were in her possession, at the time of her death, and that the defendant converted- the same after her death, and-, that they were of a. certain value.

This was an indictment for murder, tried before Saunders, J., at the last Pall Term of Porsyth Superior Court. It appeared upon the trial, that the prisoner and deceased had been quarrelling during the morning of the day on which the fatal blow was given.

This was a petition for a certiorari, heard before Dick, J., at Eall Term, 1860, of Rowan Superior Court. Upon the hearing of the petition, answer and affidavits, his Honor dismissed the petition. It was agreed that the plaintiff should have until January 1st, 1861, to file' affidavits.— Both the counsel for plaintiff and defendant, agreed to transfer the case to the Supreme Court, upon the facts as contained in the petition and answer.

<p>This was a preliminary issue on a case for murder, tried before Bailey, J., at the Spring Term, 1860, of Granville Superior Court.</p> <p>The defendant was indicted for the murder of one Richard Eowler, and upon his arraignment, it was suggested that the prisoner was mute by the visitation of God, having been deaf and dumb from his birth. This fact was admitted by the ■counsel for the State, who moved the Court to direct tfeeclerk to enter his plea of “not guilty,” and that the trial-should proceed on that issue. The defendant’s counsel then object* ■ed, that he was not able to plead to the indictment and was insane, and on argument, the Court refused the motion of the ■solicitor for the State, and ordered that a jury enquire: 1st. Whether the prisoner, William Harris, is able to plead to the indictment preferred against him. 2ndly. Whether the said prisoner, William Harris, is now sane or not. On the trial of the issues, directed to be submitted to the jury in this-case, the prosecution called sundry witnesses, who testified, in substance, that the prisoner had been a deaf mute from his infancy; that he was then between fifty and sixty years of age, and had a comfortable estate, which had always been under the management -of a guardian. That when the prisoner was about fourteen years of age, his mother, with whom he lived, intermarried with one Moody Fowler, by whom she had a family of children, among whom was Bic'h* ard Fowler, the deceased; that the prisoner continued to reside at the house of his step-father after he arrived at the age of majority, and the guardian of his estate paid for his board ; that Bichard Fowler, his half brother, was an inmate of the same house, and at the time of the homicide, and for some years before, was a married man, and his wife, after the death of his mother, some ten years since, had been the housekeeper of the family; that some three or four years before the homicide, prisoner ceased to lodge in the house of Moody Fowler, and of his own accord, first took lodging in a neighboring barn, then in a shelter, which he erected by the side of a log, and afterwards, about two years before the homicide, he constructed a small hut about the fourth of a mile distant from the house of Moody Fowler, in which he lodged until brought to prison for the alleged murder; that these lodgings were all very rude and uncomfortable, and especially, the first two had exposed him to severe suffering from cold ; that during all this time, he continued to get his food at the house of said Fowler, and either ate it there or carried it with him to his lodgings; that he was not required to work, but sometimes had worked on the farm and did his work intelligently; that he spent much of his time in fishing, both with hooks and traps, the latter of which he constructed and placed in the water himself, and in hunting with a gun ; that he could stock guns skillfully, and did work of that kind for himself and several neighbors, from whom he received compensation in money, and varied his charges according to his opinion of their ability to pay ; that he had also made intelligent and useful suggestions to mill-wrights when engaged in the mechanical work of their trade, and one of these, a witness, testified that, in his opinion, if the prisoner had been educated, he would have made one of the first mechanics in the country. These witnesses all testified that they considered him a sensible person ; that, in their opinion, he knew right from wrong, and that it was a crime to take the life of another person.— His step-father, Moody Fowler, testified that himself and others had learned to communicate with the prisoner by means of signs; that prisoner knew it was wrong to take life, and that witness, himself, had signified it to him very often before the homicide, and that the prisoner had a sign to indicate putting to death by hanging, which he often signified would be inflicted on a person who should kill another. Fie also stated, that he was a man of violent temper, and generally carried his gun, even when he came from his hut to the house for his food, and some four or five weeks before he had attempted or offered to shoot the deceased in the dining room of his house, when the witness interposed and prevented him.. Charity Fowler, the widow of the deceased, stated that on the evening of the homicide, her husband with a friend had taken supper in the dining room and walked into another apartment* of the house, leaving her at the table ; that the prisoner- soon afterwards came in with his gun, seeming to be-very angry;-, that he sat down and declared to her, by a sign, that he would shoot deceased ; that she remonstrated with him, that he must-not, but he persisted in his declaration. She then called to. her husband, in the other room, and told him not to come. in there, that the prisoner said he would shoot him ; that the deceased enquired what she said, and she repeated her language, as lie walked into the dining room, when the prisoner fired and the deceased fell and died immediately; that prisoner went off then to his hut and did not come to the house in all the next day for his food, which he never failed to do before; that on the day following he came, when he was arrested, deprived of his gun and carried to prison.</p> <p>These witnesses also, severally, testified that they believed the prisoner knew that he was then in Court, because of having killed Richard Fowler. When asked, whether they believed he could be made to understand the contents of the bill of indictment, some of them answered that they believed he could, but no one professed to able to communicate them to him; others doubted as to his ability to understand this, and none of them supposed that it could be communicated to him that he had the rights of challenge allowed by law, and that he could be made to comprehend the testimony of the witnesses and cross-examine or contradict them.</p> <p>The prisoner’s counsel also called several witnesses, who testified that the prisoner had never been educated in any school for deaf mutes — seemed to, have tm idea of responsibility to the Supreme Being — never was known to attend church or to have any sense of religious duty — spent the sabbath frequently in fishing and hunting, and had no idea of moral responsibility. The witnesses, with the exception of two, stated that they believed that he knew right from wrong, and that it was wrong to kill the deceased^ They did not believe that he eould be made to understand the contents of the indictment, or why he was brought into Court.</p> <p>Mr. Cooke, the Principal of the Asylum for the deaf and dumb in this State; was examined, and said that he had endeavored to communicate with the prisoner by natural signs, and found him capable of narrating occurrences which he had witnessed, but could not discover that he had any idea of moral or religious responsibility; that, in his opinion, he could not be made to comprehend the indictment, or his rights of challenge, or cross-examination.; that deaf mutes were very rarely idiotic, and he believed the prisoner had the capacity ©f'Ordinary uneducated deaf mutes.</p> <p>'The counsel for the State, moved his Honor to instruct the jury : 1st. That if, in their belief, at the time of the homicide, the prisoner knew right from wrong, and that it was wrong to take the ¡life of the deceased, that they should find both issues against him. :2dly. That if at this time they believed the prisoner knew rightdrom wrong,-and it was wrong to take the life'of the deceased, they should .find both issues against •him.</p> <p>The prisoner’s counsel-moved the Court to charge the jury, that if they believed from the evidence, that the prisoner -is now of unsound mind, so that he cannot understand the charge against him in the indictment, and cannot understand, or be made to understand, the nature and purpose of the trial and of his rights therein, they should .find the issues -in his favor.</p> <p>The Court refused the instructionsfprayed by the State, and .gave those prayed by the prisoner’s .counsel. The solicitor •excepted. And the jury, under the ¡instructions aforesaid, found both issues in favor of the defendant.</p> <p>Whereupon the -Court reciting, that it appeared to him, that the said Harris was-incapable -of being brought to trial, ■ordered that this finding of the jury should be certified to the County Court of Uranville, to the end, that provision should he made for his safekeeping in the asylum for the insane, or •otherwise according to .law. From this order, the solicitor •appealed.</p>

This was an action of assumpsit, tried before Howard, J., at the last Spring Term of Beaufort Superior Court. The action is brought against the defendant as surviving partner of the firm of Braswell & Cherry, and the plaintiffs declared, 1st, upon a special contract to pay plaintiffs for carrying the mail, as set forth in the evidence, from July 1st, 1836, to October 1st, 1856, and also in the common counts for wrork and labor done.

This was a motion in the County Court of Robeson, to have recorded a paper-Writing, purporting to be a copy of the last will and testament of Robert Pittman. Thp order was made accordingly, and the defendants appealed to the Superior Court, where Saunders, J., refused the motion with costs, and the plaintiffs appealed to this Court. The decedent, according to the language of tiie paper-writing offered, had lived in Robeson County, North Carolina, but then was of St. Clair .

This was an indictment for murder, tried before Howard, J., at the last Superior Court of Bertie county. The prisoner was indicted and put on trial with two others, Noah and Perry, for the murder of one George Askew, by burning the house in which' he was asleep. There was a count charging the death to have been produced by a blow from a stick. On the trial, one Joseph B. Ruffin gave testimony as to the confessions of Sam.

This was an action of'trespass guare clausum fregit', brought to the Superior Court of Martin county, at Spring Term, 1860.

Action of ejeotMENt, tried before FeeNch, J., at the last Fall Term of Richmond Superior Court. The plaintiff read in evidence a grant from the State to himself, dated 1st January, 1858, conveying the land in controversy. The defendant offered, in evidence, a grant from the State to one David Allison, dated in 1795, which is as follows: “ State of North Carolina.

This.was an appeal from an interlocutory order of the-County Court of.

This was a petition for the partition of slaves, and for an account of money, &c., tried before Howard, J., at Pali Term, 1860, of Perquimons Superior Court.

This was an action of assumpsit, tried before Dick, J., at June Term, 1860, of Orange Superior Court. The action was brought upon an open account, for work and labor done by the plaintiff for the defendant, and was commenced before a single magistrate. Plaintiff alleged that he had worked seven or eight months for the defendant on his farm, and that his services were worth eight or nine dollars per month.

This was an indictment, under the statute, against the defendant, for carnally knowing and abusing a female infant under the age of ten years, tried before Saunders, J., at the last Fall Term of Guilford Superior Court. The indictment charged, that the defendant did carnally know and abuse one Louisa E. Wheeler, alias Louisa E. Stack, a female under the age of ten years.

<p>Motion for a peremptory mandamus, heard before Osborne, J., at the Spring Term, 1860, of Ashe Superior Court.</p> <p>The petition sets forth the act of Assembly, laying off and establishing the county of Alleghany, and that ■ by a supplemental act passed at the same session, (1858) five persons, naming them, were appointed commissioners to locate the county seat of said county, at or as near the geographical centre of the said county, as to them should seem practicable, which was to be called “ Sparta where the court-house and other public buildings, were to be erected; and they were required to purchase, or receive by donation, a tract of land, to contain not more than one hundred acres, and to take a conveyance therefor, to the chairman of the county court. The petition sets forth further, that the commissioners appointed by the said act, performed their duty by causing a survey to .be made of the new county, and having ■ thus ascertained the centre, they fixed upon a point near thereto, on the land of one James H. Barks, and took a deed from the said Barks, and two others, conveying to the chairman of the c ounty court of Alleghany county, and his successors, fifty acres of land, for the purposes declared in the said act of Assembly, and delivered the same to Allen Gentry, clerk of the county court of said county, in whose hands it still is.</p> <p>The petition further states, that, by the 8th section of the said act of Assembly, the justices of the county court, at the first session, a majority being present, are required to appoint five commissioners, to lay off the lots of the said town, and after designating such as shall be retained for public use, shall expose to public sale the residue of the said lots, at such time and in such manner as the Court may direct, taking bonds and directing the justices to apply the proceeds to the erection of the public buildings.</p> <p>The petition sets forth, that the justices of the County Court, naming them, appointed the commissioners required, but gave them no instructions in what manner, and at what time to make the sale of the lots, and at the next term of the Court, ajmajority being present, they revoked the appointment thereto fore made, and directed them not to p2’oceed in the business, and that they have failed and refused, and;still fail ancf1 refuse to appoint any other commissioners, or to- give any instructions to those appointed, touching the laying off and' selling the lots anddaying off: streets of the said town,,or to-do any other act in the discharge of such their dirty.</p> <p>The petition avers- that the said justices were -fully aware of the proceedings- of the locating commissioners in surveying the.-county — fixing.on a sit©-and taking a deed for the land purchased, and of its-.existence in, the hands of. the clerk; of the county court.</p> <p>The prayer is for-a mandamus, commanding-the-justices to discharge‘thei-r duty, in,the premises, or show good cause.-to the. contrary.</p> <p>The petition • was verified in proper form, and-the writ of alternative mandamus issued, and was served on the justices. of the said county of Alleghany. At the-Spring Term, .1860, of Ashe Superior Court, which had jurisdiction of the case, several of the justices of tlie peace made- return, that they were willing and anxious to proceed in the- discharge of thei-r duty, according.to-the requirements of the act of Assembly, but that they were over-ruled .and ¡rrevented by the other justices of the county7,- who constituted a majority. The other justices, being the majority,, without having called a session, professed to make return- through A...B. McMillan, and alleged for their return, that the commissioners appointed to fix upon a site for the-county town, in performing that duty, did not consult their own judgments, but left it to a vote of the people of the new county, who determined on the place now insisted on, and, secondly, that the locating commissioners had never notified the justices of their action in the premises.</p> <p>The Court decided that the return was insufficient, and ordered a peremptory mandamus to issue, from which the defendants appealed.</p>

This was an action of covenant, tried before Dicfi, J., at the Fall Term, 1860, of Lincoln Superior Court. The instrument declared on, was executed by most of the children of William Little, who had then lately died, possessed of a large estate, and certain of his children had exhibited a script, which purported to be a will, but which was deified by the parties to this covenant.

<p>This was an action of debt upon a town ordinance, submitted to Dick, J., at the last Fall Term of Cabarrus Superior Court, upon the following case agreed. »</p> <p>By an act of the General Assembly passed at the session of 1850 and ’51, (chapter 329,) the plaintiffs are constituted a corporation with all the necessary and usual powers and provisions of municipal corporations. Section 30 of that act, provides that the County Court of Cabarrus shall grant no license to retail spirituous liquors by the small measure within said town, unless the applicant shall have first obtained from the board of commissioners their certificate of their assent to the same, and for which, they are authorised to demand the sum of ten dollars for the benefit of the town.</p> <p>In April, 1857, among other ordinances passed and duly published, was one entitled, “ Town taxes,” which incorporated a provision of the general law, entitled “Towns,” (Eev. Code, chap. Ill, sec. 13,) and levied a tax of twenty-five dollars for a revenue “ oil all ^persons (apothecaries and druggists excepted) retailing liquors or wines of the measure of a quart or less.”</p> <p>The defendants were the owners of a grocery in said town, and sold liquors and wines by the measure of a quart, they had no license to retail. They refused to pay the tax of twenty-five dollars thus levied, and this suit was brought by a warrant to recover the same.</p> <p>The only question intended to he submitted to this Court was, whether the defendants were liable to this tax of twenty-five dollars.</p> <p>On the foregoing facts, his Honor being of opinion with the plaintiffs, gave judgment jpro forma accordingly. Defendants appealed to this Court.</p>

This was an action on the case for slander, tried before Dick, J., at the last Fall Term of Surry Superior Court. The plaintiff declared that he was a clear blooded white man, and a regular licensed minister of the Baptist Church ; that the defendant said of him at a constable’s election, where plaintiff came forward to vote, that he (plaintiff) had no right to vote ; that he (plaintiff) was a free negro, and said, “if you let free negroes vote, here, let Zach.

This was an action of the case, submitted to Bailey, J., at Pali Term, 1860, of Jones Superior Court, upon the following case agreed. The plaintiff’s negro, with a mule and cart, while crossing over a bridge in the county of Jones, were precipitated into the river Trent, by the breaking in of the bridge, and in consequence thereof, the mule and cart were lost.

This was an action of COVENANT, tried, before SauNDEbs, J., at the Special Term (June, I860,) of Bichmond Superior Court. The plaintiff declared on a covenant contained in a deed to him from the defendant’s intestate, one Eli Meekins.

This was an action of trespass vi et armis, tried before Howard, J., at Fall Term, 1860, of Chowan Superior Court. The plaintiff introduced a witness, his daughter^ who testified that in November, 1859, the defendant came to the store of the plaintiff, walked up to him, and said, “How dare you send a letter to my housethat the plaintiff replied, “ What do you mean sir !” and that the defendant then committed the trespass complained of.

<p>This was an action for slanderous words, spoken, tried before Bailey, J., at the Pali Term, 1860, of Craven Superior Court.</p> <p>The words complained of, are elaborately set out in a declaration, and the substance of them is, that on an indictment in a criminal court, in Baltimore in the State of Maryland, against one Thomas B. James, for obtaining goods under false pretences, the plaintiff, who appeared as a witness for the said James, committed willful and corrupt perjury. The declaration, however, no where averred that, by the laws of Maryland, perjury was, or now is, punishable with an infamous puuishment.</p> <p>Exception was taken, on the trial, to this defect in the declaration, and was sustained by his Honor, who nonsuited the plaintiff, from which he appealed to this Court.</p>

Action of ejectment, tried before Heath:, J., at the Spring Term, 1860, of Maeon Superior Court. The lessors of the plaintiff, in this case, are the children and widow of John Welch, a native cherokee Indian.

Action of debt on a constable’s bond, tried before Dick, J., at the last Fall Term of Iredell Superior Court. The breach of the bond alleged, was the non-collection of a debt off of one Lazenby.

This was an action of debt, tried before Saunders, J., at the last Fall Term of Stokes Superior Court. The plaintiff declared against the defendants, as the sureties of one Matthew Mabe, on his bond, given as the administrator of one Abner Mabe, and the breach assigned, was the non-payment of two judgments, which the relators had recovered against the administrator Matthew.

This was a motion to quash an indictment against the defendants for playing at a game of cards, made before Saunders, J., at the Fall Term, 1860, of Guilford Superior Court.

This was an action of assumpsit, tried before Heath, J., at Pall Term, I860, of Edgecombe Superior Court, and was brought to recover for the hire of a certain slave, Dave, from November 5th, 1857, to January 1st, 1859. The defendant, as plaintiff alledged, was to pay for such, hire, the sum of $100, on January 1st, 1858, and $187,50, on January 1st, 1859.

<p>All the arbitrators must concur in making an award, unless it is provided otherwise by the terms of submission:.</p>

Action of debt, tried before Saunders, J., at the last Pa’ll Term of Person Superior Court. The bond declared on was made by Long-, the defendant’s intestate, as a means of giving to the plaintiff’s wife (his sister) the sum called for in it, $500. The proof of its execution was unquestioned, but it was alleged that the intestate, at the time he made the bond, was non compos mentis, arising from extreme drunkenness and mental debility ensuing therefrom.

This was an action of covenant on an apprentice bond, tried before Osborne, J., at a Special Term, July, 1860, of Davidson Superior Court. The only question in the case was, whether the relator was twenty-one years of age at the time the action was brought. The mother of the relator, swore that the relator was born on the 10th of March, 1837. The writ, in this case, was issued on the 20th dajr of April, 1858.

<p>This is an indictment for assault and battery, tried before Dick, J., at the Spring Term, 1860, of Washington Superior Court.</p> <p>The offense is alleged to have been committed on the body of one Richard Fisher, a free man of color, and the jury found a special verdict: to the effect “ that the said Fisher had be-* fore that time been convicted of larceny, in the County Court of Washington, and by the Court was ordered to be sold for tlie fine imposed, to cover the costs, and was so sold for five years to one Peacock. Before the expiration of this time, Fisher was taken up on the charge of killing one Hussell, who was found dead, in his yard, and the defendant gave him five licks to make him show where the gun was, with which he killed Hussell. Peacock was present when Fisher was whipped, and gave his consent to it, and said it ought to be done.” Upon this finding, his Honor was of opinion that the defendant was not guilty, and so adjudged; from which judgment the State appealed.</p>

<p>This was an action of assumpsit, upon a special contract, tried before Howard, J., at the last Pall Term of Washington Superior Court.</p> <p>The declaration was that defendant promised and undertook to pay a debt, which one Pettijohn owed the plaintiff.</p> <p>It was proved that Pettijohn owned the schooner, “J. T. Davenport,” and having died, his executor exposed the vessel to sale, at public auction, when the defendant became the last and highest bidder, at a price much below her value. A condition of this sale was, that the purchaser should pay all the debts due by Pittijohn on the said schooner’s account. Among other debts, thus due, was that of the plaihtiff, which had been contracted for lighterage. There was no evidence that the plaintiff was present at the sale, or that the debt was mentioned specifically, or that the plaintiff and defendant, after the sale, had any understanding about the matter.</p> <p>The defendant’s counsel said, that if the Court was of opinion that the promise to Pettijohn’s executor would support ^the declaration of a promise to the plaintiff, and that the statute did not require the promise to be in writing, then he admitted the plaintiff was entitled to a verdict.</p> <p>“ The Court being of opinion that the money paid at the sale and the amount of debts really constituted the price of the schooner, and the arrangement made resolved itself into a deposit by the vendor of the amount of the debts with the de^ fendant, hold that the statute did not apply, and that the pro^ mise was well pleaded.” Defendant’s counsel excepted.</p> <p>Verdict and judgment for the plaintiff, and appeal by the defendant.</p>

<p>This was an action of trespass quern cla/usum fregit, tried before Howard, J., at the last Pall Term of Hertford Superior Court.</p> <p>The plaintiff introduced a deed from the defendant to him, containing the following, clause descriptive of the land conveyed, viz: “ Beginning at a small sweet gum on my avenue, thence along an old path to a pine, thence by a small black gum (fore and aft) to a small sweet-gum, a corner ; thence a southern course to a dead white-oak ; thence to a white oak; thence to a dead red-oak; thence to another dead red-oak; thence to a small black gum ; thence from black gum, a continued straight line to Lenton landing road; thence down said road to my avenue, leading to my dwelling-house ; here, I reserve the width of twenty feet for my avenue ; thence down said avenue to the sweet gum, the first station; still reserving forever the width of twenty feet for my avenue to house.”</p> <p>A surveyor testified that the land was on the north side of the avenue; that the “ sweet gum, beginning corner,” was on the same side; that after running around the land and coming back to the avenue, if the line ran down the side of the avenue to the “ sweet gum, the beginning corner,” the deed did not cover the locus in quo ; but that if it went to the centre of the avenue, and then to the beginning corner, that it would include it.</p> <p>The Court instructed the jury, that the proper construction of the deed was to run the line along the side of the avenue. In submission to this opinion, the plaintiff took a nonsuit and appealed.</p>

<p>This was an action of ejectment, tried before Shepherd, J., at the Spring Term, 1860, of Moore Superior Court.</p> <p>■Previous to the year 1834, Benjamin C. Williams, the lessor of the plaintiff, was the owner of the land sued for, and Council, the defendant, was in possession when the suit was brought.</p> <p>The defendant proved that Josiah Tyson, in 1834, purchased the land in dispute, at a sale by the clerk and master in equity of Moore county, under a decree of the court, as the property of Benjamin C. Williams, and went into possession, and so continued for five or six years, when one William Watson took possession. Tyson did not take a deed from the clerk and master until the 9th of January, 1841, when one was made to him by Bryan Burroughs, who was in office when the sale was made, but was not, when the deed was made.— In 1842, Tyson agreed to sell the land to tbe said Watson, for $3500, and the payment was to be made from the proceeds of the estate of Watson’s wife, in the hands of J. B. Cox, her trustee, and he entered into bond to make title to said Cox, as trustee, when the purchase money should be paid. Watson, ¡at that time, entered into the possession as the tenant of Tyson, and continued to hold possession as such, for ten or twelve years, viz, till March, 1853, when he left without surrendering the possession to him, or any one for him. The purchase money was paid about 1846, principally by J. B. Cox the trustee, but partly by Moses Cox, a brother of Mrs. Watson. In 1852, Watson called on Tyson to make a deed for the land to J. B. Cox, which was done on 17th of February, 1853.— The defendant also offered, in evidence, a deed from the said Cox, dated 17th of February, 1853, and he took possession of the land not long after Watson left, viz: some time in March, 1853.</p> <p>Previously to the sale to Watson, to wit, on the 9th of February, 1841, Tyson executed a deed of trust to one Roberts, to secure the payment of debts, therein named, but no sale was ever made under it, and no action taken upon it, and Tyson’s possession was continued as above stated.</p> <p>It was admitted that Benjamin C. Williams became of age on 20th of September, 1842. This suit was commenced -on 29th of December, 1857.</p> <p>Upon these facts, His Honor being of opinion that plaintiff could not recover, the plaintiff took a nonsuit and appealed.</p>

<p>Where the principal obligor in a ca. sa. bond was called, and failing to appear, judgment was rendered against his surety, it was held that the fact, that the principal was sick and unable to attend at the term for which he was bound, did not entitle the surety to a certiorari to have the case removed into the Superior Court.</p>

This was an action on the case, tried before Osborne, J., at Spring Term, 1860, of Rowan Superior Court.

<p>Action of assumpsit, tried before French, J., at the last Fall Term of New Ilanover Superior Court.</p> <p>The plaintiff declared in two counts.</p> <p>1st. For the loss of 2300 bushels of rice, which was destroyed by fire by the negligence of the defendant.</p> <p>2ndly. On a special contract, that the plaintiff should have the turn of the defendant, at the defendant’s rice mill, by a breach of which, the rice of the plaintiff was destroyed by fire.</p> <p>It was proved that Potter and Wade were partners.</p> <p>James Peitiway testified, that Wade was the active partner and superintended the mill. The mill was burned iu February, 1844. In October, 1844, at the request of plaintiff, he demanded of Potter 2300 bushels of rice, to which the latter replied, “it was nothing more than he expected,”</p> <p>Thomas D. Meares testified, that the custom, at the mill, was, that each planter had a turn at the mill, of 1500 bushels, and to secure this, a deposit of 200 or 250 bushels was necessary ; that on the morning after the fire, he had a conversation with Wade, and he said that he (witness) had in the mill, at the time of the fire, 1300 or 1400 bushels, and that plaintiff had lost much more than that, and that Potter had lost about 15,000 bushels.</p> <p>Plaintiff’s counsel asked witness, what Wade said as to the cause of the fire. The defendant’s counsel objected to the question, but the objection was over-ruled, and defendant excepted.</p> <p>The witness proceeded; that Wade said the fire originated from the journals, and that these were of wood, and were on the upper floor; that Wade said further, he was in the habit of going over the mill every night to see that all was right before closing, but on the evening before, he had neglected to do so, as he was much fatigued ; that the journals, as he said, had caught on fire before. He further stated, that Wade was mistaken as to the quantity he (the witness) had in the mill, for that it was only 800 or 900 bushels ; that clean rice was worth, at that time, $2,25 a $2,75 per 100 lbs., and rough rice about one-fourth as much; that the general custom was to give receipts, and that the rice was at the risk and control of the owner ; that this was expressed in the receipt.</p> <p>The counsel of the defendant read, in evidence, a notice served on the plaintiff, to produce the receipt he had received from the mill for the rice deposited.</p> <p>The defendant was a rice planter, and was entitled to his turn in the mill. The toll charged for beating was 10 per cent. This mill was run by steam power. The principal risk in mills of this kind is from fire. The wooden journals are liable to take fire if neglected, Mr. Quince testified, that he had been familiar with rice mills for 80 years ; that they are much subject to fire, and great care has to be used to prevent fire ; that according to the custom, in this business, the rice is at the risk of the owner, and subject to his control;.'that it was usual to make a small deposit at the mill to secure a “ turn” and just before it came round to deposit the remainder, say 1500 bushels; this course was pursued on account of the danger of fire ; that the owner of a mill, if a planter, had a turn.</p> <p>Stanton Spooner testified, that he was employed in the mill at the time the fire occurred ; that there was no negligence; that on the evening before the fire, on closing the work of the day, Wade went through the mill and carefully examined the mill, and saw that eveiy thing was right; that Potter did give Ashe one turn, and that Ashe only had about 500 bushels of rice in the mill when the fire occurred; that it was the uniform custom to give receipts to- persons bringing rice to the mill, expressing the quantity and the terms on which the vice was received.</p> <p>the contract to give the plaintiff his turn at the mill, was but a nudum pacttim, also that the non-production of the receipt, given by the mill-owner, to the plaintiff, created a presumption against his claim. The Court declined giving the instruction asked, upon the ground, in the latter instance, that there was no evidence that such receipt had come to the hands of the plaintiff. Defendant’s counsel excepted.</p> <p>ury, that if they were satisfied that there was a contract that the defendant was to give his turn, and that this agreement was made in contemplation of the imminent risk of fire, and the defendant did not give his turn and his rice was destroyed by fire, then, the plaintiff was entitled to recover the value of the rice destroyed. If they found that the contract was made, not in contemplation of the imminent risk of fire, and there was a breach of it, and the plaintiff’s rice was destroyed by fire, the plaintiff was entitled to nominal damages.</p> <p>beating rice was attended with great risk from fire, and that the fire originated in the journals, and that the defendant did not see that all was right before closing on the night before the fire, then, the defendant was guilty of gross negligence, and the plaintiff was entitled to recover the value of the rice destroyed by the fire. Defendant’s counsel excepted to the charge. Yerdict for $2930,20. The writ, in the case, claimed damages to the amount of $1500, but his Honor permitted the writ to be amended without costs, so as to correspond with the verdict, and the Court gave judgment accordingly.</p> <p>Defendant appealed.</p>

This was an action on the case, tried before Saunders, J., at Pali Term, 1860, of Wilson Superior Court.

, at the last Fall Term of Anson Superior Court. This was a motion in the County Court of Anson, for leave to amend the record of that court, made at April Term, 1859, in the case of Thomas S. Ashe and Johnson N. Hargrave v. Edward IT. Streator, Benjamin O. Hutchinson, Thomas W.. Kendall, Charles E. Smith and George A. Smith.

This was a motion to set aside an execution, before Saunders, J., at last Fall Term of Guilford Superior Court. The facts are these: Peter Adams obtained a judgment against Pylades Smallwood and Joab Hiatt, at February Term, 1860, of Guilford County Court, for $285.

This was an attachment under the statute, Revised Code, chapter 7, sections 27 and 28, to subject a vessel to the payment of a debt for work done by plaintiff on said vessel, tried before Bailey, J., at Spring Term, 1860, of Chatham, Superi- or Court.

<p>Where, upon an appeal from the County to the Superior Court, the suit pended for three terms in the latter court, when a motion was made to dismiss 'the appeal, for defects in the appeal bond, it was held that the appellant might, as a matter of right, file a sufficient bond, and - prosecute his appeal, u,nd that an order of the Court below, dismissing the appeal, was a proper subject for the revision of this Court.</p>

<p>This was a scire facias issuing from this Court, for the defendant to show cause why the .plaintiff should not have execution for the recovery and delivery of a slave, named Henry. An action of detinue had been begun in behalf of the plaintiff, against the defendant in the Superior Court of the county of Person, for the detention of certain slaves, and amongst others, a female, named Eliza, which, after pending several terms below, was brought to this Court, by appeal, and the plaintiff, at June Term, 1860, had a judgment, that he have and recover the said slaves, including the said female slave, Eliza. The scire facias sets out, that during the pendency of this suit in the said Superior Court of Person, and before the judgment, in this Court, the female slave, Eliza, was delivered of the said Henry, and the process is for the pmpose of having execution for the delivery to the plaintiff of this slave. On the return of the sci. fa. to this Court, the defendant appeared and contested the plaintiff’s right to this remedy, contending that if he was entitled to the slave, at all, it could only be recovered in another action commenced in the courts below.</p>

<p>Where, in an action, against the owner of a dray in the town of Wilmington, brought to recover the value of a trunk lost from the defendant’s dray, it was sought to charge the defendant as a common carrier, it was held competent for tk'e plaintiff to prove that it was the duty of draymen in Wilmington to 'Carry baggage.</p> <p>Whether the -owner of a lost trunk can be admitted to prove, by his own oath, the 'Contents of a trunk lost. Quere ?</p>

<p>A contract for erecting1 a public building, made with a committee appointed by the justices of a county, when performed by the contractor, must be fulfilled by the justices, although early in the progress of the worli: they had-dismissed the committee, and endeavored' to rescind the order appointing it, and had given notice to. the contractor not to proceed.</p> <p>Where, a contractor to ereet & public building; after the dismission of the. committee through whom the contract was made, and a rescission of the. order appointing it, and a notice by the justices not to go on with the building, still continued to act under such committee and by its directions, made material departures from the specifications m the contract, it was held that though he completed the building within the time specified, yet he was not entitled to recover the price agreed' to be- paid-</p>

, at the last Fall Term of Alamance Superior Court. The defendant, Murray, received, apparently, a majority of the legal voters for the office of sheriff, in the county of Alamance, and at the next term of the County Court made application to qualify, but was opposed in this by the jdaintiff, Patterson, who had given notice, previously, and specified the grounds of his opposition.

This was an appeal from the Superior Court of Granville, from an order of that Court, (Judge Bailey presiding) to set aside a fieri facias. An action of ejectment was brought by John R. Taylor and wife, of Wake county, to recover an undivided part of a tract of land, in Granville county, in the possession of Joseph EL. Gooch, who, by an order of Court, was made defendant, which action is still pending in Warren Superior Court.

This was an indictment against the defendant for obstructing a public highway, tried before Saunders, J., at Pall Term, 1860, of Guilford Superior Court.

This was a petition for dower, heard before Saunders, J., at Pall Term, 1860, of Guilford Superior Court. George C. Mendenhall died in the month of March, I860,, leaving a last will and testament in which the'petitioner, Delphina, is named as executrix. She qualified at the term of the county court next after the death of her husband, which was May term, 1860. At August term, 1860, she filed her dissent from the will.

This was an action of kjeCtment, tried before Dick, J., at ® Special Term (June, I860,) of Ox-ange Superior Court. The plaintiff’s lessor exhibited no title, but alleged that one James Pender, the actual occupant of the land, was his-tenant, and insisted that the defendants, who came in as the landlords of Pender, were estopped to denj^ his (plaintiff’s) title.

Action of ejectment, tried before Bailey, J., at Pall Term, 1860, of Carteret Superior Court.

Action of ejectment, tried before Dick, J'., at Fall Term, 1860, of Alexander Superior Court. The first count in the declaration was upon the demise of James Childers and his wife, Margaret, the latter of whom is the daughter of William Munday, and the second count is on the demise of Margaret Jolly, Allen Jolly, Jane Jolly and John Jolly, the children of Jane Jolly, another daughter of William Munday.

Action on the case for slander and for malicious prosecution, tried before Bailey, J., at the Fall Term, 1859, of Watauga Superior Court. The declaration contained two counts, one for words spoken, charging the plaintiff with an attempt to commit bestiality, and the other for taking out a warrant against-the plaintiff for an attempt to commit bestiality.

<p>An action against a person as “ executor ” for an act done, or a contract made by him after the death of his testator, cannot be sustained, and the words “ as executor” rejected as surplusage; as may be done where the action is for the party on his own possession, and these words are improperly inserted.</p> <p>The cases Hailey v. Wheeler, 1 Jones’ Rep. 159, and McKay v. Royal, 7 Jon'es’ Rep. 216, cited and approved.</p>

This was an ■ issue of hev-isavit vel non, tried before Osborne, J., at Spring Term,, 1860, of Rowan, Superior Court., The paper writing purporting to be the last will and testament of''Jacob Troutman, deceased, contained the following-bequests and devises: “Item 3d. I will andi bequeath to Ann Allmond’two,hundred and fifty dollars, provided the said Ann shall live with my wife, Polly, and assist her in health and in sickness-j and if the said Ann shall faithfully perform…

. This was an action on the case for a deceit in the sale of a horse, tried before Dick, J., at the last Pall Term of Surry Superior Court. • The plaintiff proved by a witness, who was present at the trade, that the defendant told plaintiff the horse’s eyes were good '; that he would not warrant the horse, but that his eyes were good ; that at one particular time, which he mentioned, there was something the matter with his eyes, or they were hurt, but they had got well and…

Tins was a petition filed in the County Court of Johnston, in the nspnes, and at the instance of the creditors of one Micajah Cox, against his administrator, William T. Cox, and against Nathan B. Cox, to set aside an order confirming a sale of land as assets, to pay debts.

<p>. An action against a guardian for the penalty of $200, for hiring-the property of his ward privately, is not required to- be brought in the- name of the State, but is properly brought in the name of am individual’ undertaking to sue for the same. f</p>

This was an action of debt on the official bond of a sheriff,tried before Heath, J., at the last Spring Term of Gates Superior Court. The suit was brought against the sheriff and his sureties, for the escape of one Eure, who had been arrested by the defendant, Eure, on a ca. sa.

This was a proceeding under the 66th chapter, section 50, of the Revised Code, tried at Spring Term, 1861, of Bertie Superior Court, before Heath, J. It was a motion on the bonds of Joseph B. Cherry as chairman of the board of superintendents of common schools of Bertie, against him and his sureties. The motion was based on three bonds, one given on 10th of February, 1852, another on 18th of May, 1856, and the other on 17th of April, 1858.

This was an action of ejectment, tried before Howard, J., at tlie last Term of Orange Superior Court. The lessor claimed title under a deed from the sheriff, executed on 28th of October, 1858, by virtue of a sale under execution and judgment against one Turner, for a debt contracted by him in January, 1854.

This was an action of trespass quake clausum ereg-it, tried before IIeatii, J., at the last Spring Term of Chowan Superi- or Court. The plaintiff declared for an entry, by the defendant, on her enclosed lands and cutting and carrying away some oak trees therefrom.

This was a petition for a distributive share of the estate of Olarinda Joyner against her personal representative, heard before Osborne, J., at the last Spring Term of Greene Superior Court. Upon the facts of the ease, as set forth in the pleadings, (which are sufficiently stated in the opinion of this Court,) his Honor below dismissed the petition, and the plaintiffs appealed.

This was a petition to recover damages for ponding back water upon the plaintiff’s land, tried before Heath, J., at the Fall Term, 1860, of Martin Superior Court. The ease was brought up by appeal from the finding of a jury of view. On the trial below, it appeared that the dam in question had been erected twelve years theretofore, and the water kept up to its then height by one Williams, who about two years before, had sold to the defendant.

This was an action on the case to recover damages for negligence in running defendant’s train, tried before Bailey, J., at the last Spring Term of Wake Superior Court. The plaintiff declared against the defendant for so negligently running a train on their railroad track, as to strike and kill a negro man slave belonging to him.

<p>Where a party, with his horse and buggy, carried a debtor to a railroad station, and there procured the money to enable him to leave the State, with the intent to assist him in the purpose of avoiding his creditors, it was held to be a fraudulent removal within the statute.</p> <p>The declaration of a debtor fradulently removed, that “ he intended to get the defendant into a scrape,” was held to be immaterial.</p>

This was a petition for commissioners to lay off of a ditch for drainage, heard before Heath, J., at the last Term of Currituck Superior Court. The case came up from the County Court, by appeal, to the Superior Court.

, a a Special Term of the Superior Court of Currituck. The slaves, Peter, Jess and Miles, the property of George T. Wallace, were commited to the jail of Currituck county bj justices of the peace, under a criminal charge, which was no! bailable.

This was an action of ejectment, tried before French, J., at the Fall Term, 1860, of Montgomery Superior Court.

This was a case agreed, submmitted to French, J., at the Fall Term, 1860, of Moore county. The bond on which this action was brought, was made by George Wilcox, testator of the defendants, dated 26th November, 1856, for $286, due one day after date, and made payable to William P. Wilcox, his son. Prior to the making of this bond, W. P. Wixcox borrowed of John Murchison about $400, and gave two notes, with his father, the said George, as his surety for the amount.

, at the last Spring Term of Duplin Superior Court. The action was begun in the County Court, where a judgment was taken against Smith, and he prayed an appeal to Superior Court. The record of the case was accompanied by the appeal bond on which this motion is predicated, which is in proper form, and purports to have been executed by the defendants Howard and Monk, as the sureties of Smith.

<p>The willful and malicious setting fire to the house of another, the burning of which is only a misdemeanor, will become a capital felony, if a dwelling-house or barn, with grain in it, is thereby burnt, where such burning is the probable consequence of the first illegal act.</p> <p>Upon indictment for the felonions burning of a barn with grain or corn in it, a prisoner cannot be convicted upon proof that he burnt a crib with com in it.</p>

This was an action of slander, tried before Howard, J., at the last Spring Term of Davidson Superior Court. The action was brought for charging the plaintiff with having trumped up and sworn to an account. The following is the case sent to this Court: “The plaintiff introduced several witnesses to prove his general character, who said his character was good.

Action of trover, tried before Osborne, J., at the Spring Term, 1861, of Greene Superior Court.

Action of assumpsit, tried before Howard, J., at the last Spring Term of Davidson Superior Court. Joseph Wagoner, the defendant’s testator, in the year 1839, placed in the possession of his daughter, then a widow, a certain negro woman slave. The daughter was afterwards married to the plaintiff, who took charge of the woman and kept her and her children, of which she had several, until the year 1858, in the mean time feeding and clothing them.

Action on the case for negligence in taking care of a slave, Dick, hired to defendant, tried before Howard, J.j at Spring Term,, -1861, of Davidson Superior Court.

This was an action of debt, tried before Heath, J., at the last Spring Term of Wilson Superior Court. During the pendency of this case in the Superior Court, the defendants pleaded, since the last continuance, the following act of Assembly: An Act to Provide against the Sacrifice of Property and TO SUSPEND PROCEEDINGS IN CERTAIN CASES.

<p>This was an action of ejectment, tried before Osborne, J., at the Spring Term, 1860, of Eowan Superior Court.</p> <p>The lessors of the plaintiff were admitted to be the heirs-at-law of-Klutts, lately the wife of the defendant, James Klutts, the defendant, who claimed as tenant by the curtesy. To establish his title, the defendant proved by a witness that she was called in as a midwife to Mrs. Klutts on her confinement; that when she arrived, she found that the woman had been delivered of a child, which was then dead. The defendant offered to prove by this witness the declarations of the mother, to the effect, that the child had been born alive — that it had cried and survived its birth a few minutes ; and that the conversation occurred shortly after the birth of the child. The evidence was objected to and excluded by his Honor, and the defendant’s counsel excepted.</p> <p>Yerdict and judgment for plaintiffs. Appeal by defendant.</p>

This was an action of ejectment, tried before French, J., at the last Spring Term of Union Superior Court. The plaintiff’s lessor claimed title under a purchase at sheriff’s sale, made in 1813, by virtue of judgments and executions against Eobert Porter, in favor of IT. M. Houston and others, creditors of the said Eobert.

This was an action of ejectment pending in the Superior Court of Yadkin, before French, J., Spring Term, 1861. The action was brought in the County Court. The declaration having been served on the defendant, Carter, it was returned to the first County Court thereafter, whereupon he filed an affidavit that he was unable to give security for the costs of the suit on account of his poverty, and filed a certificate of his counsel that, in their opinion, he liad a good defense.

This was an action of debt, on a bond tried before Saunders, J., at the last Spring Term of Harnett Superior Court. The pleas were non est factum, payment and no assignment. The following case agreed, sets out the facts ■: The note on which the action was brought, purported to have been executed by the defendant’s intestate more than ten years before the suit was brought.

Assumpsit, tried before Howard, J., at tlie last Spring Term of Orange Superior Court. The plaintiff declared on the following order, in writing, and the acceptance thereon, to wit: £: Mr. William Anthony ! Please pay to James T. Hunter, constable, all the executions in his hands for collection as they come due against me and brother; this March 4th, 1857.

<p>Where a writ of lunacy was issued by a county court, and a trial had before a jury, and a verdict rendered, finding the subject party non compos, which was confirmed by the court issuing the writ, and a guardian appointed, all in the absence of the said party, and without notice to such party, and it appeared that the party immediately applied to a judge for a certiorari, which was refused on an erroneous ground, and the party under advice of counsel instituted a suit in equity, which failed for the want of jurisdiction, and the party swears to merits, it was held on a petition setting forth these matters, that the petitioner was entitled to a certiorari to have the case taken into the superior court.</p>

Tins was an action of assumpsit, tried before French, J., at the last Spring Term of Davie Superior Court. The suit was brought in the County Court against the defendant and one William F. Miller, and the plaintiff failing to recover against Williams, appealed to the Superior Court, as to him.

<p>A writ of error coram nobis, lies from any court of record returnable to itself, and not from a superior to an inferior court.</p> <p>Only the parties to a judgment, as to whom there is error of fact, need join in a writ of error coram nobis.</p> <p>The husband of a feme covert against whom a judgment has been taken, must join with her in an application for a writ of error coram nobis.</p>

Indictment for unlawfully removing a fence, tried before OscojsNE, J., at the Fall- Term, 1860j of Cleaveland Superior Court. The following special verdict was found by the jury: “ The-. fence removed was part of a fence that surrounded a cultivated field in possession of the- prosecutor.

This was an indictment for raeoeny, in stealing a shirt, tried before Osbobne, J., at the last Pall Term of McDowell Superior Court.

Action of keet, tried before Osborne, J., at the Fall Term, 1860, of Watauga Superior Court. The action was commenced by warrant before a justice of the peace. The Avarrant was directed to one N. C. Shull, who was not an officer, nor the deputy of an officer, and was by him executed and returned. The parties went to trial on the merits, and a judgment was rendered against the defendants for the plaintiff’s demand, from which he appealed to the Superior Court.

<p>Wherever a deceased person has left a will and omitted to appoint an executor, or the person appointed has refused to qualify, the court of ordinary has a discretionary power to appoint any proper person administrator with the will annexed.</p>

Tins was an action on the ■ case, tried before Dick, J., at the Spring Term, 1861-, of Henderson Superior Court.

This was an issue devisavit vel non, tried before Osborne, J., at the Phil Term, 1860, of Eutherford Superior Court. One of the questions, presented on the trial was, whether the person named in the script, as executor, and wlio propounded the will for probate, and as such, was stated on the record to be the plaintiff, could be a witness for the caveators, who are stated as defendants. His Honor rejected the witness, and the caveators excepted.

This was an action of slander, tried before Dick, J., at the Spring Term, 1861, of Lincoln Superior Court. The writ was issued on 23rd February, 1857. The declaration sets forth that the defendant accused the plaintiff with stealing his bridle. Pleas — general issue, statute of limitations and justification.

Action of debt for a penalty, tried before Osborne, J., at the Eall Term, 1860, of Rutherford Superior Court. The action was brought for the penalty of $200, which, it was alleged, the defendant had incurred by selling tbe goods of his testator at private sale.

A habeas corpus was returned before his Honor the Chief Justice, who called to his assistance the other two Judges of the Supreme Court, The application was on the petition of Hamilton C. Graham and his guardian, E. G. Haywood. The petitioners alleged that the said IT.

This was a petition for the division of slaves, which came up from the County Court, and was tried before Heath, J., at the Spring Term, 1861, of Perquimons Superior Court. The case is this : In the year 1838, Henry Hollowell died, leaving a last will, which was duly proved and recorded.

This was an action of debt on an administration-bond, tried before Heath, J., at the Spring Term, 1861, of Perquimons Superior Court. The action was originally brought in the County Court, and the writ was taken out against the defendant,. Billups, and the sureties to the administration bond, but the record states that only the defendant came and pleaded, and he only appealed to the Superior Court.

<p>Action of ejectment, tried before Saunders, J., at the Spring Term, 1861,, of Robeson Superior Court.</p> <p>The following case agreed was made out by the counsel for the respective parties and signed by them. .The lessor for the plaintiff showed first a deed from Gilbert W. McKay to himself for the land in controversynext a deed from King, sheriff of Robeson, to Sherrod F. Leggett, upon a judgment and execution against John .A. Rowland and Gilbert W. McKay for the same land, the said McKay being the same who first sold to the lessor of the plaintiff. Plaintiff then poved that Robeson Leggett went into possession as the tenant of Sherrod F. Leggett, and was in possession when the declaration was served on him. The sheriff’s deed is dated Feb. 7, 1864, reciting a judgment and execution from the court of pleas and quarter sessions of New Hanover county, against John A. Rowland and the said Gilbert W. McKay. The deed from the said McKay to the plaintiff’s lessor for the same land is dated, August- 31, 1850. The defendant then put in evidence a deed from McCormic, the lessor of the plaintiff, to Gilbert W. McKay, for the same land, bearing date 15th April, A. D. 1852. The lessor of the plaintiff replied to this by showing that he was under age at the time this deed to McKay was made, also at the time of bringing his suit, and the defendant offered evidence further, that in December, after the suit had been brought, McKay, the bargainee, made a payment on account of the land which the lessor accepted, (admitted then to be of full age.)</p> <p>Upon these facts, the Court directed the jury to find the defendant guilty, which was done, and from a judgment, according to the verdict, the defendant appealed to this Court.</p>

Action of assumpsit on the common counts, tried before Heath, J., at the Spring Term, 1861, of Washington Superi- or Court. The plaintiff proved that in the year 1865, he placed in the defendant’s hands, for collection, a note of one Griffin, for about $85, and that some time thereafter, the defendant received the money. The defendant rested his defense on the statute of limitations.

<p>Where a tenant; entered into the occupation of premises under an express lease from month to month, and he continued the occupation for more than two years, there is no reason why he should be considered as a tenant from year to year, and thus be entitled to six months notice to quit.</p> <p>What notice a tenant from month to month is entitled to — Quero?</p>

<p>The right to bring an action on the case against a sheriff for money collected by virtue of his office, is expressly reserved in the act of Assembly, (Rev. Code, chap. 78, sections 1 and 2,) giving an action of debt on his official bond for the same cause of action.</p> <p>An action of debt on a sheriff’s official bond for money collected, and a non-suit therein, is a sufficient demand to enable the plaintiff to sustain an action on the case for the same cause oí action.</p> <p>An error in a Judge’s charge to the jury, which works no injury to, the appellant, is no ground for a venire de novo.</p>

<p>Action of debt, tried before Saunders; J., at the Spring Term, 1861, of Columbus Superior Court.</p> <p>The action was upon a bond, executed by Robert Inman tq, Jesse Inman, and endorsed to the plaintiffs. The defendant pleaded General issue, Fraud, Illegal consideration.</p> <p>The plaintiffs proved the execution of the bond by the defendant and the endorsement to the obligee, which was after it became due.</p> <p>The defendant then offered the evidence of the subscribing witness, who testified that he was present at the time the bond was executed, and Jesse Inman stated that the bond was given|to defraud his creditors, and that there were then executions out against him in the hands of the sheriff; that the consideration for the bond was a raft of timber, a quantity of corn, cows and calves, about fifteen hundred pounds of bacon, horse and buggy, sows and pigs, ox and cart and a quantity of fodder; and that when the sheriff went to levy on the property, it was to be claimed by Robert Inman, the defendant; but, in fact, the property was. to. remain in the possession of Jesse Inman; that the bond was not to go beyond the ditch near where they were, but was to be destroyed. The witness further testified, that Bobert Inman was present and said nothing. The plaintiffs proved that they had paid Jesse In-man a valuable consideration for the note; also, that the property, above referred to, remained in the possession of Jesse Inman, and that when the sheriff of Bobeson went to levy on it as his property, Bobert Inman claimed it; and said that he had purchased it from his brother, Jesse.</p> <p>There was other testimony on the question of fraud, all of' which was submitted to the jury under the charge of the Court.</p> <p>His Honor instructed the jury that if they believed the declarations of Jesse Inman, that the bond was given for the purposes, and upon the consideration stated by him, the plaintiff could not recover.</p> <p>The plaintiff’s counsel excepted to the charge. Verdict for the defendant. Appeal by the plaintiff.</p>

<p>Where a person was appointed by court á commissioner to sell a slave for partition, and the surety taken by him, although reputed good at the time of the sale, turned out to be insolvent before the note could be collected, it was 'held that an attachment for a contempt for not paying the money into the court, under a rule for that purpose, was not a proper remedy, if ■ndeed, there wer e any.</p>

This was an indictment for stealing a bank-note, tried before Howard, L, at the Fall Term, 1861, of Montgomery Superior Court.

Action of debt, on official bond of a sheriff, tried before Saunders, J., at the Spring Term, 1861, of Richmond Superior Court. The breaches assigned, were for failing to collect, and for -collecting and failing to pay over the money on a noté put into his hands on one David A. Boyd, for collection. The plaintiff introduced a paper-writing which was on file in the office of the County Court of Eichmond county, as the official bond of the sheriff for 1856, to which D. 8.

Action of debt, tried before Bailey, J., at the Spring Term, 1861, of Edgecombe Superior Court. CASE AGREED.

Action of trover for the conversion of a female slave, tried before Osborne, J., at the Spring Term, 1861, of Greene Superior Court. Benajah Dixon, by his last will and testament, gave all his oroperty to his wife, Mary, to divide among his children, and It is admitted that the slave, in question, was a part of ,hat property.

<p>In an action on a covenant for. quiet enjoyment, it is no defence that the covenantor had a life-estate in the land at the time of making the deed, if such life-estate be fallen in, and the covenantee basbeen evicted by title paramount. ('Wilder v. Ireland, S Jones’ Rep, 85, commented on and distinguished from this case.)</p>

Action, of trover, tried before Bailey, J., at the Pali Term, 1861, of Orange Superior Court. Smith, the administrator of one Minnie, made a sale, and cried off to Henry Pickhard a quantity of wheat standing in the field unharvested. Pickard named the plaintiff as his proposed security to a note he was required, by the terms of the sale, to give.

Indictment for arson, tried before Howard, J., at the Pall' Term, 1861, of Eobeson Superior Court. The indictment charged the defendant with burning a barn, then having corn in the same.

This was an indictment for arson, tried before Howard, J., at the Pall Term, 1861, of Lenoir Superior Court. The facts,of the case are so fully stated in the opinion of the Court, that it is unnecessary to set them out here.

Action of assumpsit for goods sold, and delivered, tried before Saunders, J., at tbe Spring Term, 1861, of Stanly Superior Court. The defendant pleaded, specially, that he had a guardian, regularly appointed under a commission of lunacy. There was no contestation as to the sale and delivery of the goods, nor the price; and it appeared that they were of a proper kind, and useful for the subsistence of defendant and his family.

Indictment for murder, tried before Bailey, J., at Fall Term, 1861, of Caswell Superior Court. The defendant was indicted for the murder of one William J. Connelly, his father-in-law. He was living on a place belonging to the deceased, some six miles from the residence of the latter,.under an agreement that he should have all he made over and above what was required to support his children and three daughters of the deceased, who lived in the house with the defendant.

<p>Action of debt for a penalty, tried before French, J., at the Spring Term, 1861, of Iredell Superior-Court.</p> <p>The declaration was for the penalty of $500, for a false return to a subpoena placed in defendant’s bands, to be by him executed, as sheriff of Yadkin county.</p> <p>A suit, in equity, was pending in the Court of Equity of Iredell county, between John II. Tomlinson, plaintiff, and B. B. Benham and IV. H. A. Speer, defendants, which had been referred to IV. P. Caldwell, Esq., clerk and master of the said Court, to state an account between the parties. It was proved by Mr. Ocddwell, that on or about the 18th of November, 1859, he issued a subpoena, in due form, directed to the sheriff of Yadkin county, commanding him to summon <T. S..Clay-well, witness for plaintiff, to be, and appear, in Statesville, N. C., on the 10th of January, 1860, and that about the time of issuing said subpoena, he either gave it to defendant, Long, or mailed it to him, directed to Yadkin ville, the county seat of Yadkin county, of which the said Long was sheriff, and. that the same was returned to him, at Statesville, on the 10th of January, 1860, endorsed, “Not to be found in my county.” The day when the subpoena came to the hands of the defendant, had not been endorsed on the process. J. 8. Olay well testified, that he had been a citizen of Yadkin county for ten years past, and was personally well known to the defendant; that he lived some fourteen miles from Yadkin ville, and was at home throughout the month of December, 1859, except some five days immediately preceding Christmas day ; ■ that he returned home on Christmas day, and remained at home, about one mile from Jonesville, in Yadkin county, during the month of January, 1860. The witness stated that he.often crossed the river into Surry, but did not recollect that he was out of the county from December 25th, 1859, till 10th January, 1860.</p> <p>JR. M. Allison testified, that he was in Yadkin county during the first week in January, 1860, and saw the witness, Claywell.</p> <p>JB. JB. Benham, for the defendant, testified that the defendant, Long, came to his house, in Jonesville, in December, 1859, while Claywell was absent from the county, and told him he had a subpoena for Claywell, to give evidence in behalf of .Tomlinson, in the suit aforesaid, and he told Long that Claywell had left on that day, and would not return to Yadkin for two or three weeks. This evidence was objected to by plaintiff’s counsel, but admitted by the Court.</p> <p>The defendant introduced JE. O. 'Houghton, one of his deputies, who testified, that on the day before the return day of the subpoena, he went to the residence of the witnesss, Clay-well, but did not find him at home ; that Long’s post-office is Huntsville, ten miles from Yadkin, and twenty-five miles from Claywell’s.</p> <p>On this state of facts, his Honor intimated that the plaintiff could not recover; in deference to which, he took a nonsuit and appealed.</p>

Action of ¡debt .against the defendant, as sheriff of Alamance, for making a false return, tried before Bailey, J., at the Eall Term, 1861. The action was brought for the penalty -of $500.. A subpoena came to the hands of the defendant, as sheriff of Alamance county, commanding him to summon one Cynthia Bandleman, &c., as a witness for the plaintiff.

si. against the defendant, as sheriff of Henderson, heard before Dick, J., at Spring Term,» 1861. This ease was submitted to his Honor on a CASE AGREED. An^exeoution issuing from the County Court of Henderson, in favor of George Ledbetter against one William Eeese, more than twenty days before the term of the Court, was placed in the hands of the defendant, who failed to return the same on the Monday of the term.

<p>An information in the nature of a writ of quo warranto against a corporation, to have its privileges declared forfeited, because of neglect and abuse in the exercise of them, must be filed in the name of the Attorney General of the State,' and cannot be instituted in the name of a solicitor of a judicial circuit.</p> <p>In a matter of a public nature, the officer, who acts for the State, does not pay costs to the other party.</p>

<p>Where a person purchases a chattel from one who is not the owner of it, and it is admitted by the parties, or found by the jury as a fact, that the purchaser was induced to make the purchase by the declarations or acts of the true owner, the latter will be estopped from impeaching the transaction.</p>

Action on the case for negligence, tried before Bailéy, J. at the Spring Term, 1861, of Edgecombe Superior Court. The following is the case as agreed between the counsel of the parties. The declaration contained two counts: first against defendant as “ common carriers, and 2nd as warehousemen.

This was an action of assumpsit, tried before Bailey,, J., at the Fall Term, 1861, of Granville Superior Court. The declaration contained two counts : one for the price of two slaves, Jack and Friday, which plaintiff had sold to the defendant, and for which he promised to pay the sum of $287.25 ; the other, the common count in assumpsit.

This is an appeal from an interlocutory order of the Superior Court of Davidson, made by Saunders, J., in a suit pending in that Court, for a divorce.

Ejectment, tried before Bailey, J., at the Fall Term, 1861, of Orange Superior Court.

This was an action of ejectment, tried before Osborne, J.., at the Ball Term, 1860, of McDowell Superior Court. The lessor claimed title as the heir-at-law of one Dobson, and exhibited a grant to his ancestor, bearing date 18th December, 1799. The controversy was as to the location of the grant.