Volume 7 — North Carolina Reports

From Cumberland. THE indictment charged “ that Jim, a Negro slave, the “ property of Neill Shaw, late of the county of Cumber-e< land, on the twenty-fourth day of September, in the year “ of our Lord one thousand eight hundred and eighteen, “ about the hour of one in the afternoon of the said day, “ the dwelling-house of one Gurdon Savage, then and there “ situate, then and there feloniously did break and enter, “ no person being therein, and one bank note therein be- “ ing,…

From Wayne. The indictment charged 44 that Abraham, a negro slave 44 the property of John Howell, late of the county of Wayne, 44 and… Held: in and upon the said 44 Andrew Scott, on the right side of the head, near the right 44 temple of said Andrew Scott, feloniously, wilfully, and 44 of his malice aforethought, did strike and beat, giving to 44 the said Andrew Scott, by the striking and beating aforc-44 said, with the axe aforesaid, in and upon the right side 44 of the…

From Edgecombe. The defendant was recognized in the sum of eight hundred pounds to appear at the Superior Court of Law for Edgecombe County $ and failing to appeal’, his recognizance was forfeited, and judgment nisi was entered against him.

From Wayne. The indictment contained three counts. In the first count, it charged “ that Barna Jernigan, late of the Coun- “ ty of Wayne and State of North-Carolina, not having ie the fear of God before his eyes, but being moved and sec( duced by the instigation of the Devil, on the twenty- “ fourth day of March, in the year of our Lord one thou- *■' sand eight hundred and sixteen, at and in the County of “ Wayne aforesaid, with force and arms, a certain male se slave named…

From Bladen. The question upon this case arose upon the following clause in the will of Richard Salter. <e I give my other 4e negroes, young Cato, Peter, Dinah, Mary, Anne, and « Diana, to be divided between my three children, William, “ ^aiT a*id Sarah, to them, their heirs and assigns fore- “ ver, to be divided when either of them comes of age, or “ sooner if my executors should find it necessary : and my “ will is, that if either of my said children should die “ under…

From Bertie. Robert Edens and Sarah bis wife, and Elizabeth Williams, an infant, by her guardian, filed their bill of complaint in the Court of Equity for Bertie County, against Jehu Nichols, executor of the last will of James Williams, late of Bertie County, and therein charged that the said James Williams, in his last will, which had been duly proved since his death, and of which the defendant had been appointed and had qualified as executor, had bequeathed as follows, to…

<p>Equity will decree a specific execution of a parol contractforthesaleand purchase of lands, although there has been no partial performance, if the contract be proved by such evidence as affords to the mind a conviction no less satisfactory than that which arises from a contract in writing.</p> <p>It is no objection to such a decree, that the purchase money was to be paid in the fall. That is a period sufficiently certain.</p>

From Wake. This was an action brought to recover the penalty given by the act of Assembly of 1741, ch. 11, to restrain excessive usury.

From Northampton. Samuel Nicholson and liulon Grizzard recovered judgments in Northampton County Court, against Charles Edmonds; and he being indebted to E. B. Freeman, conveyed to him in trust, a tract of land, to secure the debt j this conveyance was made after the recovery of the judgments aforesaid.

From Bertie. This action of ejectment was tried in Bertie Superior Court at October term, 1816, and a verdict was found, under the charge of the Court, for the Plaintiff. Held: and which were originally of his donation. He owed to them protection, and by his whole force ensured to them the enjoyment of their feuds ; and if they were evicted of them by reason of his inability to protect their enjoyment, he owed to them other feuds of equal value.

From Iredell. Alexander Long being the owner of an old established ferry across the River Yadkin, on the road leading from Salisbury to Salem, Lewis Beard and Jonathan Merrill made a road to a point on the River one mile below Long’s ferry; and having erected a boat, they transported tra-vellers, waggons and carriages across the river' — they were the proprietors of the land over which they made the road; but the County Court had not recognised it as a public highway, nor…

<p>From Craven.</p> <p>George Lane being seized of the land in question on the 1st day of December, A. D. 1811, sold the same to the lessor of the Plaintiff, for the consideration of 425 dollars. He gave a bond to make a title thereto within ten days j and on the tenth day of December aforesaid, Lane executed a conveyance pursuant to the bond. On the 2d day of December, A. D. 1811, the Defendant sued out an attachment against Lane, which, on the same day, was levied on the land aforesaid. The suit founded on this attachment, was returnable to December term of Craven County Court, which term commenced on the 9th day of the month. At that term a default was taken against Lane, and at March term, 1812, the default was executed, and a verdict rendered for the Plaintiff of 49J. 2s. Qd. No judgment of condemnation was entered. An execution was issued to the Sheriff of Craven, which recited generally that a judgment had been rendered for said sum, and commanded him, “ that of the goods and chattels, lands and tenements,” of the Defendant Lane, he cause the aforesaid sum to be made. This execution was levied by the Sheriff on the lands in question, and the lands were sold by the Sheriff and purchased by the Defendant for the sum of live dollars, in the name of his infant son, to whom the Sheriff executed a deed. This deed recites, generally, a judgment of March term, 1812, an execution tested of the same term, and a seisin in land on the day of such teste.</p> <p>The Court charged the jury, that under these circumstances, the title of the Defendant’s son, under whom he held, was bad : but that the Plaintiff must recover by the strength of his own title, and that by reason of the lien created by the attachment, the Plaintiff had not a good title. The jury found a verdict for the Plaintiff; and a rule for a new trial being obtained, it was sent to this Court.</p> <p>For the lessor of the Plaintiff, it was argued that it was' provided by the act of the second session of 1777, ch. 2, see. 25, “ that original attachments shall be returned to Court and be deemed the leading process ; and the same proceedings shall be had thereon as on judicial attachments.” The 23d section, in regard to judicial attachments, provides that “ the goods so attached, if not replevied or sold, shall remain in the custody of the sheriff until final judgment, and then he disposed of in the same 'manner as goods taken in execution on a writ of fieri facias ; and if the judg-menl shall not he satisfied hy the goods attached, the Plaintiff may have execution for the residue.”</p> <p>When goods are taken on & fieri facias, and it be desired that they should be disposed of, the proper mode is to sue out a Venditioni exponas, commanding a sale of the goods so taken. If the goods so taken are not to the value of the whole debt, the Plaintiff may have a Venditioni exponas for those seized, and a fieri fiadas for the residue, in the same writ. * Such is precisely the form to be observed on attachments.</p> <p>But if the Plaintiff, instead of a Venditoni exponas, sue out a general fieri fiadas, he waives the seisure under the first execution and destroys the lien on the property seized on, by it :† and so it was expressly decided in this Court in the case of Scott’s Executors v. Hill, Sheriff of Franklin.:‡;</p> <p>Whatever lien therefore was created by the attachment, it being precisely that with the lien on goods taken in execution on a fieri facies, such lien was waived by the Plaintiff’s suing out a general fieri fiadas and purchasing under it.</p> <p>In the second place, the sale to Amyett was antecedent to the attachment, and it is not the design of the attachment laws, to subject to such a process any property but what truly and equitably, as well as nominally and legally, belongs to the debtor.§</p> <p>Lastly, the verdict conforms to the justice of the case $ and the Court will not disturb it to keep in possession a man who clearly has no right.</p> <p>For the Defendant, it was argued, that although no judgment of condemnation appeared of record, yet in this case enough appeared to induce the Court to presume that such a judgment bad been rendered. But it may not be material to tbe main question of lien, whether there were such a judgment formally rendered: for the levying of the attachment created a lien, and this lien is not waived by suing out the fieri fiadas. This execution commands the Sheriff to levy the debt out of the Defendant’s property, that is, such property as is subject to the debt; which is different in different executions. If it be an execution regularly continued from term to term, it authorizes a seizure of property conveyed by Defendant bona fide at any time since the teste of the first fieri fiadas, although prior to the teste of the execution under which it is seized ,• for as to that fi. fa. it is the Defendant’s property. So also as to a fraudulent conveyance. In the ■present case, the property being subjected to the payment of this debt, the purchaser is permitted to shew that his title relates back beyond the teste of the fi. fa. or the rendition of the judgment. The recital of the judgment in the fu ju. is sufficient to identify it ,* a more full recital could only do the same.</p> <p>This is likened to the case of a fi. fia. where there has been a former levy, which, it is said, discharges that levy. A levy under a fii. fia. is a discharge of the debt, at least until the property is sold and its insufficiency ascertained, or the levy waived and the property actually restored to the Defendant. When the Plaintiff, therefore, sues out a fi. fia. after having caused a levy to be made, as that act could not be done without waiving the levy, and thereby discharging the lien, he is concluded from alleging that the levy continues, his act being inconsistent with it. Attaching property docs not satisfy the debt ,• it is to secure its payment when recovered ,• and the property cannot be sold and applied to its discharge without a fi. fia. or some other process. But a Sheriff may sell without a Vendilioni exponas : One seizure is to secure, the other to satisfy. The first requires the further aid of the Court to effectuate the object of seisure, which object being the raising of the money for the Plaintiff, the process which issues to effectuate it can only suspend during its operation, tbe lien created by tbe first seisure, on a presumption that the debt will be raised by this process. But the lien is restored when it appears that the debt was not so raised.</p> <p>If there were no judgment of condemnation, it may possibly render the final judgment erroneous : but until reversed, it has all the elfects of the most regular judgment. A reversal would only give a right to the money lost, not to the land sold to raise it — But a judgment of condemnation is nothing more than the Plaintiff’s adopting the property of the Defendant for his person, and thereby excusing his appearance. The after judgment prc-supposes this to have been done.</p>

<p>A. d evised four hundred acres of land to his son William, and added to the de.vise, “ I allow my son William to maintain my wife as long1 as she lives,” William sold the land to Defendants; and the widow filed her hill, charging that at the time of their purchase, they had notice of the devise, and that it was agreed between them and William, that they should maintain her during life, and therefore the land was sold to them at a price much below its true value. The bill prayed that Defendants might be decreed to afford to Complainant, a maintenance, &c.</p> <p>A motion to dismiss the bill disallowed ; and in considering this motion, it is not necessary to decide whether the devise to William charges the lands with the maintenance of the widow ; for the bill charges that upon the sale to the Defendants, a support for Complainant was left in their hands, being deducted from the value of the lands for that purpose.</p> <p>A consideration is necessary to raise an Equity, but not to transfer it; and when once raised, it is to be transferred like all other rights, upon legal evidence of the will of tire owner to make the transfer.</p>

>From Craven. This was an action of assumpsit against the Defendant as the indorser of a promissory note, the note was dated on the eleventh of- March 1814, drawn at nine months, and made negotiable and payable at the Newbern Branch of the State Bank of North-Carolina.

From Rowan. George Williams and Garrison Williams his son, filed their bill of complaint in the Court of Equity for Rowan county against John Howard, and therein charged, that some time in the month of September, A. D. 1806, two executions were issued against the property of George-Williams, which were levied by the Sheriif of Rowan on two negro slaves, viz. a woman named Sylvia and her child named Hannah, which .negroes were then, and had long been in the possession of…

From Martin. In this case the Jury found a special verdict, so much of which as relates to the point which was sent up for the opinion of this Court, was as follows : “ Hislop’s patent calls for Yv hitchurt’s corner, described “ in the plat of survey as at A, and “ thence along H ard’s “ line 80 poles.” Ward’s line is from C to D. “ Thence “ south on his line 320 polos to the back swamp.” The line from C to B is south 30° west; and D is on the « hack swamp, and is the corner…

From Granville. This was a case agreed, in which the material facts were as follows.' — Thomas Lanier, on the 2d JNcvemior, 1790, executed to his son William Lanier a deed of gift, in the following- words, to wit ; “ To all to tohom these Prest ntS shall come — Cs eeling— “ Know ye that I, Thomas Lanier, of Granville County, in the State of “North-Carolina, for and. in consideration of the love, good will and af- “ fection, wMch X do owe and bear towards my son William…

From Person. This was an application for a writ of supersedeas; and was founded upon an affidavit made by James M. Burton, .setting forth that in the year one thousand eight hundred and six, Philips Moore, executor of the last will of Stephen. Moore, deceased, sued out against him a writ of capias ad satisfaciendum upon a judgment recovered in Person Courts upon which writ he was arrested by the Sheriff of Granville county, and confined in the common jail of that county.

From Craven. Charles James being’ possessed of sundry negro slaves, made and published his last will, and therein bequeathed to bis wife Comfort James, all his estate during* her natural life; and after her death he directed all his negro slaves to be emancipated, declaring that he wished to give to them their freedom as a reward for their faithful and meritorious services; and he requested his executors to use their utmost endeavors with the County Court of Craven to obtain…

-n, b rom ^a^nc' This was an action on the case to recover damages for a fraud in the sale of a land warrant.

From Robeson. This was an action on the case, founded upon the undertaking-of-the Defendant to deliver to the-Plaintiff five hundred tar barrels by a particular day.

<p>A man charged as putative father of a bastard child, is at liberty to shew that the mother of the child is of mixed blood, and within the fourth degree, and therefore excluded by the act of Assembly from swearing against him.</p> <p>The County Court cannot charge a man with the maintenance of a bastard, where it appears to them, that the magistrates who took the examination of the woman, have proceeded against law, in the judgment they have formed.</p> <p>Whenever a special power is given to a Justice of the Peace, by statute, to convict an offender in a summary way, without a trial by Jury, he must strictly pursue that power.</p> <p>When a trial by July is dispensed with, the Justice must nevertheless observe the course of the common law in trials; he must give notice to the party of the charge raised against him, and give him an opportunity of making defence. The evidence against him must be such as the common law approves of, unless the statute specially directs otherwise.</p>

From Wayne. The Defendant was indicted for perjury, committed in Wayne County Court, upon the trial of a suit between John Ammons and Robert G-. Green.

>From Granville. This was a motion on behalf of Maurice Smith, Sheriff of Granville county, for leave to amend his return on the execution hereafter mentioned, upon the following case :• Robert Wade sued out a writ, returnable to Granville County, Court at May term, 1800, against John Boyd and Josiah Daniel, sen’r, which was duly executed and returned, and the Plaintiff therein obtained judgment at May term, 1801 — the Defendants filed their bill in the Court of Equity for…

From Johnston. This was an action of detinue for the recovery of negro Nanny and her children, and negro George.

From Halifax. The following affidavits disclose the facts of this case : “ STATE OE NORTH-CAROIINA. “ Thomas Whitmell maketh oath, that on or about the 12th day of November, 1814, he entered with the Collector of the Internal Revenue “ for the district of Halifax, four stills, for tire distillation of spirits from “ domestic materials, for the term of twelve months, and obtained from “ him a licence.

From Orange. Ebenezer Mac Nair, of the City of Richmond, in Virginia, filed his bill in the Court of Equity for the District of Hillsborough, and charged that on the 24th day of August 1771, his brother, Ralph Mac Nair, late of Hillsborough, Merchant, entered into partnership with Richard Kennon, of Chatham Comity, for the purpose of carrying on trade-as Merchants and partners, in Chatham County, under the firm of “ Richard Kennon and Company,” agreeably to the articles duly…

From Craven- The action was brought on the following bond, to-wit: “ Know all men by these presents, that we, 'William S. Morris, David cc Lewis, and Daniel Shackleford, of the county of Craven, are held and “ firmly bound unto Iris Excellency William Miller, Esq. Captain-Gene- “ ral, Governor and Commander in Chief in and over the State of North-Carolina, in the just and full sum of five hundred pounds, current “ money, to be paid to his Excellency the Governor aforesaid,…

From Cumberland. The Defendant was sued as a common carrier on the River Cape-Fear, between Fayetteville and Wilmington.

<p>In an action to recover the value of a negro slave, the Plaintiff gave hi evidence a bill of sale for the negro, made to him on the 15th December, 1817. The Defendant claimed title to the negro under the same person, and gave in evidence a bill of sale made to him on the 5th of that month. The Plaintiff alleged that he had purchased the negro before the 5th, and that it rvas agreed between him and the vendor that they should meet on or about the 15th, when he should give bond with security for the purchase money, and the vendor should make to him a bill of sale : and the declarations of the vendor made between the 5th and 15th were received in evidence to prove these facts.</p> <p>The declarations or confessions of a person malting them are evidence against him, and all claiming under him by a subsequent title. He cannot better his title by transferring it to another, or thereby affect the rights of those who have an interest in his confessions.</p> <p>A rule prevailed during Lord Mansfield’s time, that no man should be heard either directly by himself, as a witness, by giving Ins declarations in evidence to impeach an instrument to which he was a party, or to invalidate a title which he had passed away as a good one. This rule was exploded by Lord Kenyon, and the ancient rule restored, of excluding witnesses only upon two grounds, infamy and interest. It is still retained in some of our sister States, as to instruments which are negotiable.</p> <p>In this case the vendor was alive, and amenable to the process of the Court; and it was urged that he himself should be sworn, and his declarations be not received. But he is privy in estate, and in law, his declarations are those of the party claiming under him. If it be asked, Why not swear him ? The answer is, The party likes his declarations better. It is true, if he be now disinterested, either party may, if he choose, call him as a witness.</p>

} From Rutherford. This was an indictment for perjury, and so much of the indictment as relates to the points decided in this case was as follows, to-wit : cc State of North-Carolina, ?

From Franklin. This was an action of ejectment brought to try the title which the lessors of the Plaintiff claimed to one undivided fourth part of a tract of land situate in Franklin county.

<p>Rules concerning bills of review. It is provided by the third of Lord Bacon’s Ordinances, that no bill of review shall be admitted, or any ether new bill to change matter decreed, except the decree be first obeyed and performed: as if it be for land, that the possession be yielded; if it be for money, that the money be paid; if it be for evidences, that they be brought in: and so in other jcases which stand upon the strength of the decree alone.</p> <p>His fourth ordinance provides that if any act be decreed to be done, which extingtdshes the party’s right at the common law, as making ail assurance or release, acknowledging satisfaction, cancelling bonds or evidences, and the like, those parts of the decree are to be spared until the bill of review be determined j but such sparing is to be warranted by public order made in Court.</p> <p>Peculiar circumstances have induced the Court to make exceptions to the rigid enforcement of the third ordinance : as,</p> <p>1. Where the party would swear that he was unable to perform the decree, and submit to lie in prison until the matter was determined on the bill of review.</p> <p>2. Where the party had been in prison for twenty years, and swore that he was not worth forty pounds sterling-, besides the matter in question, he was allowed to bring a bill of review, without paying the costs decreed in the original case.</p> <p>3. Where a large sum of money was decreed to be paid, the Court permitted the party to bring a bill of review on giving good security to perform the former decree.</p> <p>-Thus fhr the Courts have gone in England. In this State, a party has been allowed to bring a bill of review upon its being shewn to the Court that he was insolvent.</p> <p>The Courts here will adopt the mild rule, where the party is able to perform the decree, of permitting him to bring a bill of review upon his making secure the party who obtained the decree. This rule will best comport with the condition of our country and our mode of doing business in Courts of Equity.</p>

1 From j Martin. Ezcldel Moore, being seised of the land in question, devised the same before the year 1784 “ to his three i( daughters, Rosanna, Celia, and Elizabeth, and their “ heirs, share and share alike.” These daughters were his only children. Celia died since 1784, intestate and without issue; Elizabeth also died intestate and without issue, but whether before or since 1784 did not appear.

From Iredell. This was an action of assumpsit, brought by the Plaintiff and his wife, to recover compensation for services rendered hy the latter, and a negro girl belonging to her, to the Defendant. The statute of limitations was pleaded, to which, the coverture of the wife was replied. It appeared in evidence, that Killian’s wife and her negro girl, had served the Defendant four years without making any contract in express terms for compensation.

~j L From Randolph. J This was an action covenant brought to recover damages for a breach of the covenants contained in the following deed, to-wit: “ Know all men by these presents, that I, John Clark, of Randolph “ County, and State of North-Carolina, for and in consideration of the sum “ of forty-four pounds, hard money, to me in hand paid, by Jacob Hoover, “ have bargained and sold him one note of hand upon John Arnold, Es- “ quire, given by him to Nehemiah Macshan, for…

1 > From Pitt. J In October, 1817, the Plaintiff and one Causey agreed to run a quarter race for- an hundred dollars. Held: that he who pays money voluntarily, cannot reclaim it j and in Andrie v. Fletcher,† it was held, that where a man pays money upon a contract which is void, and which therefore gives no right, the holder might retain it, though without consideration. It is true, in those cases the decisions rested, in part, on a principle of policy.

<p>From Person.</p> <p>John Rodgers, by his last will, “ lent to Ms son Little--ee ton Rogers, one bed and furniture, and three of his- “ negroes, Esther, Ned and Let; and directed his execu- “ tor to hire out said negroes yearly, and apply the hire “ to the support of his son Littleton, during his natural “ life $ and the overplus, if any, he directed to be yearly “ applied towards the support of Ms son Bird’s family : ie and after the death of Littleton, the said negroes, with “ their increase, to bo equally divided between his son Bird’s •* children, and their heirs, as they should come to lawful « age.” In another clause of the will, the testator directs. '* that “ all the remainder of his estate should be sold by his executor, and, after paying his debts and a small legacy, he equally divided among his son Bird’s children as afore-<s said.”</p> <p>This petition was filed by the children of Bird Rogers, who were born at the time of the testator’s death, to recover from the executor, the property bequeathed in the residuary clause of the will. The executor pleaded, that there were born to the said Bird Rogers, in lawful wedlock, after the death of the said testator, other children, to-wit, Richard, Rebeccah, John, J ames, Sarah, &c. who were not made parties to the petition 3 and prayed judgment of the Court, whether he was bound to make any further answer. It did not appear in the case, whether Littleton Rogers ■was dead, or whether the eldest son of Bird Rogers was of full age, before the birth of the after-bom children. It was referred to this Court to decide, whether the children of Bird Rogers, born after the death of the testator, were entitled to any share of the residue.</p>

1 1 From Bladen. J The object of the pleadings in this case, was to get the opinion of the Court upon the question, whether, where a Judge of the Superior Courts of Law and Courts of Equity^ (whose appointment, by the Constitution, is vested in the General Assembly) dies during the sitting of the General i;ie Governor has the power, with the adviceof the Council of State, to fill up the vacancy occasioned by his death, by granting a temporary commission the 20th section of…

1 > From Granville. J Complainants prayed in their bill to be relieved against the payment of interest upon a bond given before the revolutionary wax', and on which a tender had been made in paper money before its depi*eciation.

From Gates. The bill in this case was filed to enforce the specific execution of an agreement, alleged to have been entered into between the Complainant and Defendant.

>From Warren. The Complainant filed his hill in the Court of Equity for Warren County, against Robert H. Harwell, surviving' executor of the last will of Thomas Miller, deceased, and against Marmaduke Johnson, and therein charged, that Thomas Miller, late of Warren County, departed this life in April, A. D. 1806, having made and published in writing, his last will, of which he appointed Robert Fleming and Robert H. Harwell executors ,• who, after his death, • proved the will…

1 V. From New-Hanover. j This was a petition filed in the Court of Equity for New-Hanover County, under the act of 1812, ch. 25, which gives to the Courts of Equity power to decree the sale of lands, where it shall, appear that an actual partition cannot be made without injury to some, or all, of the parties interested. Samuel Strudwick, the elder, died in July, 1810, seised of real estates situate in the counties of Orange and New-Hanover.

| From f Biaden. Bill for partition of lands.-r-William James Salter, under whom Complainants and Defendant both claim, died in the year 1807, seised of the lands in question, intestate and without issue. William Salter, the grandfather of the said William, died in the year 1802, haring published his jas|. duly executed to pass his real estates, and therein he devised to the said William James, the grandson, in fee, the lands described in the bill.

¡>From Surry. John and Alexander Brown, having recovered a judgment against James Parks, sued out a capias ad salisfad-enduni, upon which he was ai*rested and committed to the custody of James Fitzgerald, Sheriff of Surry county.

1 V From Orange. J Complainants filed their bill to redeem a negro slave mortgaged to the Defendant’s testator many years before the fding of the bill; and the facts as agreed upon by the counsel were as follow,' — ■ On the 21st day of December, 1784, William Shepperd being in possession of the negro boy Limus named in the bill, borrowed 30Í from Thomas Willson, and to secure the payment thereof executed to Willson a deed in the following words, to wit, “ Know all men by…

1 [-From Edgecombe. J The indictment in this case was founded on the presentment of a Grand Jury. The Defendant was tried and acquitted, and a question was submitted to the Court whether he was liable for costs, and if so, what costs ; and the same question was submitted in the case of The State ■v. J-James Dancy, J Wliere a nolle prosequi was entered.

1 > From Camden. J The indictment against the Defendant was in the following words, to wit, “ The Jurors for the state, upon their oaths present, that John Brown, “ late of the County of Camden, shop-keeper, on the first day of February, li 1817, and continually thereafter up to the time of taking this inquisi-ci tion at Camden aforesaid, was, and yet is, a common Sabbath-breaker “ and prophaner of the Lord’s day, commonly called Sunday ; and that “ the said John Brown, on…

1 I From Rutherford. J The indictment charged, “ that at a Superior Court of “ Law, opened and held for the County of Rutherford, by “ the Honorable Duncan Cameron, one of the Judges of u the Superior Courts of Law and Equity, in and for the “ State of North-Carolina, and County aforesaid, on the “ third Monday after the fourth Monday of March, eigh- “ teen hundred and sixteen, there was a bill of indictment “ preferred, and sent to the Grand Jury of said Court, in “ behalf…

1 I From Edgecombe. J The indictment charged, “that Henry Waller, late of “ the County of Edgecombe, yeoman, on the first day of “ January, in the year of our Lord one thousand eight “ hundred and seventeen, and on divers other clays and “ times, as well before as afterwards, was, and yet is, a “ common, gross, and notorious drunkard, and that he, on “ ^10 sa^ ^anuaiT’ i*1 the year aforesaid, and e‘ on divers, other days and times,, in the County aforesaid, “ did then and…

1 I From Wake. J The Defendants were under recognizance to appear at Wake County Court, at February Term, 1818 5 they failed to appear, and their recognizances were forfeited. Scire fadases were issued, and upon their appearing in Court and shewing cause, their forfeitures were remitted.

From Pitt. This was an indictment for perjury. It charged, “ that “ at a Court of Pleas and Quarter Sessions, held for the “ County of Pitt, before the Justices of the said Court, on te the first Monday in August, in the year of our Lord one (t thousand eight hundred and seventeen, at the town of *•' Greenville, agreeably to an act of Assembly in such case “ made and provided, a certain issue duly joined in the said (i Court, between the State aforesaid and Janies Cason,…

From Mecklenburg. John A. Orr sued out an original attachment against Nathan F. Orr, and Andrew McBryde was summoned as a garnishee.

} From Burke. This was an action of debt founded upon the statute against usury.

From Person. This was an action of trover for a horse, 'fThe Plaintiff being one of the Constables of Person County, had in his hands a Writ of 'fieri Jadas against the property of the Defendant, which lie levied on a horse.

1 j- From Burke. J This was an action of assumpsit on a warranty in the the sale of a horse.

h From Craven. J This was an action of trespass for taking away the Plaintiff’s goods. The Defendant being Sheriff of the County of Craven, seized the said goods by distress, for a tax alleged to be due upon part of a lot in the town of Newborn, occupied by the Plaintiff as lessee of tbe Trustees of tbe Newbern Academy.

From Burke. This was an action to recover damages of Defendants for having maliciously prosecuted the Plaintiff for larceny. Upon the return of the State’s warrant against the Plaintiff, before a Justice of the Peace, Asa Martin, one of the Defendants in this action, appeared and gave evidence, and his evidence was reduced to writing by the Justice, and returned to Court.

1 I From Iredell. J The Plaintiff, who was an overseer of a road, sued out a warrant against the Defendant, who was one of the hands attached to the road, for the penalty given by the act of Assembly ag’ainst delinquent hands, and charged him with a delinquency of four days. This delinquency the Plaintiff proved by his own oath, and recovered a judgment for the penalty.

From Bertie. On the trial of this ejectment, the lessor of the Plaintiff claimed title to the lands in question, as devisee of John Oxley, Ms father.

From Halifax. ‘William W. Rodman exhibited to the honorable John Hall, one of the Judges of this Court, in vacation, an affidavit complaining of a certain judgment rendered against him in the Superior Court of Law for Halifax County, at the instance of Henry Austin, and stating the facts upon which his complaint was founded. He prayed for a Writ of Certiorari, to have the case brought up to this Court.

1 V From Wayne. J The Plaintiff filed bis petition in the County Court of Wayne, under the act of 1809, ch. 15, to recover damages for the overflowing of Ms lands. TheDefendant appealed from the judgment of the County Court, and pending the suit in the Superior Court, he died.' — The Plaintiff sued out a sáre facias against his heirs, to make them parties j and a question arose whether the heirs or the representatives of the deceased should be made parties.

From Wake. The Plainüfis were creditors of the Defendant by specialty to the amount of $363 87, and sued out an original attachment against Ms effects, which was levied upon sundry articles, and Peter Browne, Esq. was summoned as garnishee.

7 From j Edgecombe. This case was sent up to this Court upon the following special verdicts to-wit: “ A judgment was obtained against Hattan, in Nash County Court, at “ February Sessions, 1807. Execution issued thereon, and was returned “ to May, 1807, without any levy having been made.

From *N ew-Hanover. The bill charged, that John Walker, late of the county of New-Hanover, departed this life some time in the year 1813, having made and published his last will, of which i10 appointed Hanson Kelly, William Watts Jones and J°1an Toomar, executors, who proved the will in the Court of Pleas and Quarter Sessions for New Hanover county, and undertook the burthen of executing the same$ that the testator bequeathed to the Complainant, John M. Walker, ten negroes…

1 > From Crave-'.. J The Plaintiff obtained a judgment against Minor Huntington, at September term, 1815, of Craven County Court, for 70L 4 s. 10(L and costs : whereon a ca. sa. duly issued, and was executed on the Defendant on the 25th of Sept. 1815.

*1 t From Edgecombe. J This was a bill brought to redeem a negro slave. The bill charged that.

<p>Question of jurisdiction. — The Plaintiff was owner of the brig Jane and her cargo, both of which were covered by Spanish papers to protect them from British capture, during the late war between Great-Biitain and the United States. On her voyage from a Spanish to an American port, she was captured by an armed schooner in a belligerent manner, and a prize-master and crew put on board ; by whom she was brought into the port of Beaufort, North-Carolina, where she was entered as a Spanish merchantman, having all the papers which it is usual for such a vessel to possess. No commission was shewn by the schooner at the time of the capture; but it was known that she hadbeen fitted outfrom ■a port of the United States, whence she sailed as a cruiser under a Cai-thagenian commission. — Upon the arrival of the Jane at Beaufort, she was consigned by the prize-master to the Defendant, who sold part of the cargo, and loaded her with a return cargo. Before she sailed, the American captain appeared and libelled the brig and cargo in the United States’ District Court of Admiralty. The brig was restored, the return cargo directed to be sold, and its proceeds, after payment of costs, paid to the Plaintiff for damages for the detention. But as to • tiie prayer in the libel, that damages should be decreed for the value of the cargo on board at the time of the capture, and that the Defendant and others should account for the value in their hands, the libel-lant waived all further claim on that process, and no decree was made thereon; he then brought an action of trover to recover tile value of so much of the cargo, as had been sold by the Defendant — The action will not lie ; for</p> <p>The Courts of common law have no jurisdiction in this case, the question of prize or no prize, is exclusively of admiralty cognizance ; and that qustion must be decided before it can be ascertained whether the Defendant has committed a wrongful conversion.</p> <p>The jurisdiction of a common law Court administering a code not common to other nations, is ousted, whenever it appears that the capture Was made in a hostile character ; and whenever the jurisdiction of the admiralty has once attached by the taking as prize, nothing subsequent can take it away.</p> <p>Whether the State that granted the commission to the cruiser, could rightfully exercise the prerogatives of sovereignty, is a question to be determined by the laws of nations, and not by the municipal laws of any country.</p> <p>The view of the case is the same, if the case be considered as one of piracy.</p> <p>The objection that the Plaintiff would be without redress, if a common law Court refuse it, is answered by the decision of the Supreme Court of the United States, “ that a prize Court of the United States has cognizance of a capture as prize, where the property is-bimight within the jurisdiction of such Court; and if the capture were made without a commission, or the vessel illegally fitted out in the neutral country, the captors are bound to make restitution.”</p>

<p>Action on the case by an indorse^ against an indorse^. Two counts in the declaration. 1. Upon tire indorsement. 2. Upon a special agreement entered into between the parties at the time of the indorsement, that the indorsee should sue the maker of the note, and endeavor by legal coercion to obtain payment from him; and if such endeavors should prove unavailing, that the indorser should be liable. Parol evidence received to prove this special agreement, and upon proof being made thereof, &c. Plaintiff recovered.</p>

From Hertford, This was an action of debt brought upon the following note, to-wit: ie We promise to pay Starkey Sharpe, one hundred pounds, withinter-Sc est from the first day of January last, for value received, as witness our “ hands and seals this 22d June, 1810. “ JAMES JONES, (Seal.) « JNO. WINBORNE, (Seal.) w Witness, “ Jko, Askew.” The suit was commenced in May 1816, and the Defendants pleaded severally.

n . From Moore. J This was an action of assumpsit, to which the Defendant pleaded a set-off. At the trial, the Defendant, being the keeper of a house of entertainment at Moore Court-House, offered in evidence his book, containing an account against the Plaintiff for boarding and lodging, amounting to eleven dollars.

. From Warren-. . The question in this case arose upon the following clause of the will of Robert Bignall: “ I give and bequeath “ to my said wife all the property I received with her, to “ her and her executors and administrators; and the rest “ of my estate f also give her till my son comes to lawful “ ago, when I will that the same' shall belong to him: ee and, in the mean time, it is my will and desire that he he maintained and educated at a reasonable expense out se of…

1 v From Wayne, J This was an action of assumpsit, in which the Plaintiff declared for money laid out and expended, for money lent, for money had and received, &c. The Defendants were partners in trade in the sale of merchandize, at a store in Wayne county, which was conducted by Carter, Porter residing in an adjoining county.

<p>Petition for divorce from the bonds of matrimony, for adultery committed in the years 1812 and 1813. — The petition dismissed ; for</p> <p>The act of 1814, ch. 5, is the only law which gives authority to the Courts to'take cognizance of the subject of divorce. The adultery charged was prior to the passage of this act; and the act shall not be so construed as to have a retrospective operation : because,</p> <p>Before the passage of the act of 1814, adultery was ptmishable only by a fine. To superadd to this liability, a deprivation of the marital rights, under the act of 1814, would be to increase the punishment of the offence ; and this would be contrary to the 24th section of the bill of rights, which declares that “no ex post facto laws ought to*be made,”</p> <p>JEx post facto Laws are of different kinds.</p> <p>1. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action.</p> <p>2. Every law that aggravates a crime, or makes it greater than it was, when committed.</p> <p>3. Every law that changes the punishment, and indicts a greater punishment, than the law annexed to the crime when committed.</p> <p>4. Every law that alters the legal rules of evidence, and receives less or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender.</p> <p>The enhancement of a crime or penalty, seems to come within the same mischief as the creation, of a crime or penalty.</p> <p>To eveiy petition for divorce there must be an affidavit appended, that the facts charged have existed and been known to the petitioner six months before the filing of the petition.</p>

From Wake. This was an action of debt to recover the sum of twenty-five pounds^ the penalty incurred by a Colonel of the Mi-Ktia, for failing to make a return to the Brigadier-General. Upon the trial, the Plaintiff offered in evidence the following certificate of the Adjutant-General, to-wit: ° .

From [Pasquotank. Special verdict — The Jury.find that the premises described in the Plantiff’s declaration comprehend two « tracts of land, one of 300 acres devised in fee, about the “ year 1733, by Thomas Swann the elder, to bis eldest son Samuel $ and another of 367 acres, purchased in “ tlie year 1752, from the agents of Lord Granville, by the “ said Samuel himself; which said two tracts are known by the name of the Elm Plantation.

From Halifax. The Complainants filed their bill in tbe Court of Equity for Halifax county against the Defendants, and therein charged that in the year 1789, Wiitmell Hill and Henry Hill, who were brothers, purchased a tract of land lying in Bertie county, for which they each paid equal moieties of the purchase money, but the conveyance was made to Whitmell Hill alone ¿ who agreed, to convey a moiety of tlic said land in fee simple to bis brother Henry Hill.

} From Mecklenburg. This was an action of detinue for sundry negro slaves, Maria and her children ; and the case was, that William 41exander, sen. was the owner of (he negro slave Maria, and upon the… Held: it would not do at Law, and an injunction was filed. The same doctrine seems recognized by this Court in the.case of West v. Dubberly before mentioned.

j I From Halifax. J This was an action for money had and received. The Plaintiff and Henry Hunter made a wager on a horse race in the year 1816. The money was deposited in the hands of the Defendant as a stakeholder. After the race was run, the Plaintiff demanded of the stakeholder a return of his deposit, which was refused, and this suit was brought to recover it.

1 {■ From Wilkes. J This was an action of slander, ami the slanderous words charged in the declaration were, “ That Ship]) had stolen >s a note from the Defendant, in the county of Halifax, in « Virginia? and presented the note to J. Unthank, and “ tried to draw the money.

~) I From Bertie. J This was an action of trover for a negro slave named Stephen. It was proved on the trial that about twenty years before, Stephen was given by parol by John Wat-ford to his son, the Plaintiff, who was an infant aged one or two years. A formal delivery of the slave was made, and persons were called to witness it. At the time of the gift the father was indebted, but not beyond his ability to pay.

j > From Burke. J The Defendant owned a house in the county of Burke, having’ sundry apartments, one of which he had leased to James W. Edwards.

1 > From Craven. J This was a bili filed in the Court of Equity for Craven county by George Lane, administrator of the estate of Charles Jones, deceased, and by Lewis Jones and others, heirs at law of the said Charles.

1 I From Caswell. J The Defendant was indicted for murder: and the indictment charged, that s‘ she, being big with a female se child, did by the Providence of God bring forth the said “ child alive of her body, alone and in secret, which female “ child so being born alive, by the laws of this State, was “ a bastard j and that she no.t having the fear of God be- “ fore her eyes, but being moved and seduced by the in- “ stigation of the Devil, afterwards, to wit: on the same “…

<p>1 From Halifax.</p> <p>This was an action of detinue for negro slaves 5 and the leading facts of the case were as follows: The Defendant had a daughter, who married one Williamson. He was a man of bad character, and insolvent j and having gone to Tarborough to follow his trade, his wife went to live with him at that place in the year 1805, taking with her a negro slave belonging to her father. Williamson remained in possession of the negro till some time in 1807, when he and his wife left Tarborough, and went to reside near the Defendant j when the Defendant purchased a tract of land to settle them on, and, to pay for this land, he sold the negro. Williamson died, and his widow continued to reside on the land till 1809. when the Defendant sold it. At the time of the sale, Mrs. Williamson mnvoached the Defendant, her father, with injustice towards her: said to him that he had taken away the negro that he let hex* have, and sold it for the land, and the deed was taken in his name to prevent its being liable for Williamson’s debts. To these reproaches, the. Defendant replied, that a negro would suit her better than the land; that she could not cultivate the land herself, and she had no one to labor for her,- that he would give or let her ¡save the slave, (naming her,) who was the mother of those in question, and remove her to his own house, and have a house built for her. Soon afterwards Mrs. Williamson was removed to a house in'the Defendant’s yard, and had the possession and use of the slave. She then married Waller, and on the morning following the marriage, the Defendant called up the slave, and in presence of witnesses declared that Waller might take her home upon loan, subject to the demand of himself or his representatives. At this time no claim was set isp by Waller or his wife, both being present. Waller continued in possession of the slave for several years, and becoming indebted to divers people, he was sued, judgments liad against him, and executions issued, which were levied on the slave and her children, and at the sale the Plaintiff became the purchaser. Some time before the sale, Waller executed a bill of sale to the Plaintiff for the slaves, in consideration of money which the Plaintiff either had paid or was bound to pay for him. The Defendant gave notice to the Plaintiff before his pui’diase under the executions, that Waller held the slaves only upon loan. Waller lived with the Plaintiff, and sometimes one and sometimes the other had possession of the slaves for more than three years.</p> <p>For the Plaintiff, it was insisted, that Mrs. Williamson ■ was to be regarded as a purchaser of the slave, (the mother of those in question.) That she had a claim to the land in part purchased witli the negro slave first put into her possession after her marriage with Williamson 3 that at that time (previous to the act of 1806) the law regarded this putting of the slave into her possession as a gift 3 that abe asserted her claim to the laird when the Defendant was about to sell it, and had agreed to abandon her claim in consideration of the promise of the Defendant to let her have the slave, the mother of those in question; that the Defendant let her have the slave in pursuance of this promise,’ and the Court was requested to instruct the Jury, that if they were of opinion, from the evidence, that this was the history of the transaction, and that the slave was given in satisfaction of what Mrs. Williamson thought herself entitled to, and with a view of making peace in the family, they should find for the Plaintiff. The Court declined giving such instructions to the Jury, who found a verdict for the Defendant; and a rule for a new trial being obtained, the Court discharged the rule, and the Plaintiff appealed.</p>

1 I From Orange. J The Defendant was indicted for the crime of murder in Orange Superior Court, and at the trial, after the Jury were charged, the counsel for the Defendant required that all the witnesses on the part of the State should be sworn and sent out of the hearing of the Court •, and the Solicitor-General made a similar motion respecting the witnesses for the Defendant: both of which motions were allowed by the Court, and sundry witnesses were sworn on eac¡) an(]…

j V From Granville. J 'Chis was an action of detinue for negro slaves, which belonged to the Defendant’s wife before her intermarriage with the Defendant. The Plaintiffs were her children by a former husband, and claimed the slaves under a parol gift, which they alleged she had made to them previous to the act of 1806, requiring gifts of slaves to be in writing.

V V From Surry. j This was an action of trespass vi et armis; plea, general issue. The Jury found a special verdict. The land on which the trespass was charged to have been committed belonged to the heirs of a man, who hat! died intestate, whose widow, together with her brother Patterson, administered on his estate. The widow intermarried with Cousong, and.he and Patterson advertised the land for sale, and sold it to Pilcher, who put Algood, the Plaintiff, in possession.

|-From From Buncombe. Lambert Clayton being the owner of the land in question, judgment was recovered against him by Hightower in 1 SO ,• on which executions regularly issued, and the last was levied on the land, and on the 8th October, 1808, the find was sold by the Sheriff, and the lessor of the Plaintiff became the purchaser, and now claimed the land under this purchase.

From Rutherford. This was an action of covenant brought on the following agreeament, to wit: “ I, Thomas M’Ouirc, of Rutherford county, North-Carolina, bind my- ‘ self, my heirs, Ike. to Allen Twitty, his heirs, &c. to build a house in “ Rutherfordton on the lot said Allen Twitty bought of William Tate, “ on the following plan, viz. As long and as high as the corner posts and “ sills which are already got will admit of.

<p>A processioner reported to the County Court that he had been called upon by A. to procession his land ; that B. had attended; that he began at a corner, and run one line, when B. forbade the processioning’. Upon this report, the Court appointed five freeholders to go with the processioner, and procession the land. They returned to the Court a report of their proceedings, and a motion being made to set their report aside and quash the order of the County Court appointing them, the motion is allowed; because the processioner did not in his report to the County Court set forth the lines in dispute, nor the circumstances on which the dispute was founded, so as to enable the Court to decide which party prevailed, whether the lines have been established correctly. and who shall pay costs.</p> <p>It is only by comparing the report of the processioner with that of the freeholders, that the Court, can determine which party prevailed in his claim.</p>

From Brunswick. In this case an appeal bond, with the statement of the case made out by the presiding Judge, was filed in this Court, but there was no transcript of the record sent up certified by the Clerk under the seal of the Court. A diminution of the record was suggested, and a motion made that a writ of certiorari be issued to the Clerk of Brunswick-Superior Court of Law.

¡>From Northampton. J This was an action of waste brought against Priscilla Hilliard; and by the writ she was summoned “ to answer ie unto Peterson Browne in a plea, why, in the houses, land “ and woods, in the county of Northampton, which she “ holds and is legally entitled to for the term of her life, “■ by the devise of John Hilliard, her late husband, de- “ ceased, she has made waste, spoil and destruction, to e e was committed, which expired by her death.” To this…

<p>la detinue. The Jury find for the Plaintiff, and assess damages for the detention of the slaves, but do not find the value of the slaves. The Court will award a writ of enquiry to assess the value, and not order a new trial in tato.</p> <p>What matter cannot be supplied by writ of enquiry.</p> <p>If the principal Jury omit to find matter which goes to the very point of the issue, and upon which, if they had found a false verdict, an attaint would lie by the party injured, such matter cannot be supplied by writ of enquiry, because the party thereby injured may lose his writ' of attaint, which will not lie upon an inquest of office.</p> <p>The rule is, that where the Court ex officio ought to enquire of any thing upon winch no attaint lies, there the omission of it may be supplied by a writ of enquiry of damages: but in all cases where any point is omitted, whereof attaint lies, it shall not be supplied by writ of en-quiry, because on that writ no attaint lies.</p> <p>This rule of the Common Law, as to writs of enquiry, is not enforced here as it is in England. The doctrine of attaint has never been in force here ; and therefore the Courts will award writs of enquiry in all cases where convenience and the justice of the case require it.</p> <p>■Formerly inquests' of office were held by the Sheriff. By the act of 1777, cli. 2, cognizance is taken of them by the Court that awards them : and even if the law of attaint were in force, it would be matter of speculation whether it would not apply to writs of enquiry executed by Courts of record.</p>

From Person. This was an action of covenant, and the question was, upon what principle damages should be assessed.

From Wayne. The indictment charged, “ that Joseph Martin, Thomas is Durden, Joei Newsom, Isaac.

From, Washington. Detinue for sundry negro slaves. Pleas — non detinct, and statute of limitations. Replication — act of 1806, c. • — . In the year 1794, Evan Skinner, the testator, made a parol gift of a negro girl named Bet to his son, the Defendant.

} From Bertie. The lessors of the Plaintiff were the heirs at law of John Swain, to whom the lands in question had been granted on the 18th day of May 1789. The warrant of surrey was issued in 1778, and the survey was made in 1784, the Defendant Leggat being one of the chain carriers.

} From Mecklenburg. J The question in this case arose out of the will of Tilo-mas Dunn, deceased.

<p>’Questions of boundary, like all other questions of fact, depend on, their own particular circumstances, where every shade of evidence, and every the most minute circumstance produces its effect. The artificial rules respecting boundary are intended only as guides in the application of circumstances, and not as fixed laws, to be applied indiscriminately to all cases. The injustice complained of in our boundary decisions, has been produced by considering these artificial rules, not as mere guides, but as fixed laws, and applying them indiscriminately 'to all cases, whether they fit them or not.</p> <p>It is the province of the Court to expound to the Jury the law connected with the facts under discussion, but not to express an opinion on the facts. If, therefore, the Court express an opinion on the facts, a new-trial will be awarded.</p>

From Burke. The Defendant claimed title to the land in question, under an older grant than that under which the Plaintiff claimed; and the question between the parties arose from the boundaries called for in the Defendant’s grant.

J > From Perquimons. J This was a special verdict, in which the Jury found, that Thomas Stevenson, being* seised and possessed of the lands in dispute, by his last will duly executed to pass his real estates, devised as follows : “ I give and bequeath “ unto my son, William Stevenson, the land and planta- “ tion whereon I now live, called Stevenson’s Point, con-’ “ tabling four hundred acres, more or less, reserving the “ tract lent to my wife during her life.

¡>From Northampton., William Jones, being seised of the lands in dispute, made his last, will, duly executed to pass his real estates, and therein devised as follows, “ I lend unlo my son Richard “ Jones, during his natural life, and during his wife Sarah “ Jones’s widowhood, all my lands lying on the north side es of Burwell Gilliam’s spring branch, and on the north ee side of the north prong of Canoe creek; and if the said “ Richard Jones should die without lawful issue, I…

. From Mecklenburg. This was an action of detinue for a negro slave named Letty. Pica, general issue. The facts of the case were, that McBrydc being the owner of the negro slave Letty, conveyed her with others to the Plaintiff Cowan, in mortgage, to secure a debt which ho owed to the Plaintiff.

} From Buncombe, J The indictment charged, ‘£ that John Arrington, late of t( the county of Buncombe, on the first day of October, in “ the year of our Lord one thousand eight hundred and •£ eighteen, with force and arms, in the county: of Bun- “ combe aforesaid, one sorrel mare of the value of five “ pounds, of the goods and chattels of James Peck, then “ and there found, did feloniously steal, take and lead “ away, contrary to the statutes in that case made and “ provided,…

From Wilkes. This was an action on the case, for slanderous words spoken of the Plaintiff.

Craven. This was an action of detinue for negro slaves, Lucy •and her increase. Pleas, “ general issue and statute of iS limitations.” The case was, that Michael Hyman Ci bequeathed to his daughter, Eliza Ridcn, a negro girl ie named Lucy, daring her natural life, and after her death, “ to her heirs forever.” Eliza Ridcn died, leaving three children, the Plaintiffs in this suit.

<p>Proceeding's under tlie act of 1784, ch. 11.</p> <p>Liability of the heir upon the obligation of his ancestor.</p> <p>At common law, if the heir was sued upon the obligation of his ancestor, it was necessary for him, in order to prevent a general judgment against himself, to confess the action, and shew the certainty of the land, which he had by descent. If he pleaded a false plea, or judgment was given against him by default or by confession, or upon any other ground, and he failed to shew the certainty of assets, the Plaintiff was entitled to judgment against him, and execution might issue against his other lands, or his goods, or his body.</p> <p>But under the act of 1784, ch. 11, no judgment can be obtained against the heir, which in any respects can make him personally liable for the debt; the object of the act being to subject the lands of the debtor, which have descended to him.</p> <p>The act of 1789, ch. 39, makes the heir personally liable, where he has sold the lands which have descended to him, before action brought or ■ process sued out against him ; and liable, ofdy for the value of the land so sold.</p> <p>Under the act of 1784, ch. 11, the heir may plead to a scire facias to subject to sale the lands descended, that the executor or administrator had not fully administered, that the executor or administrator had suffered judgment to be recovered, by fraud, See. But the plea, “thatthe “ lands descended had'been sold to satisfy prior judgments,” is totally immaterial; and although the Jury find it true, the Plaintiff is entitled to judgment of execution against the lands descended, as if no plea had been pleaded.</p>

<p>Possession of title deeds. Notice to purchasers. Length of time, — how it pi'otects from an investigation of fraud.</p> <p>Where land is sold without warranty, or with warranty only against the feoffor and ■ his heirs, the purchaser is entitled to all the deeds as incident to the land, to enable him to defend it.</p> <p>Where a purchaser, in the necessary deduction of his title, must use a deed which leads to a fact shewing an equitable title in another, he will be affected with notice of that fact, and will not be permitted to prove that he did not read the deed, or that he was ignorant of its contents.</p> <p>Where, therefore, the plat and certificate of survey annexed to a grant, shewed that the lands were surveyed for “ Ruth and Jane M’Cuistion, “ orphans of Robert M’Cuistion,” and the grant to which this plat and certificate were annexed, issued to “ Jane M’Cuistion, widow,” this is a fact, of which all persons claiming under “ Jane M’Cuistion, widow,” are bound to take notice.</p> <p>Although the statute of limitations speaks of actions in the Courts of Law, . yet it is the duty of a Court of Equity to infuse its spirit into their decisions, as much as can be done without violating its own fundamental maxims ; it being the object of both Courts to obey the Legislative will, when expressed either directly or indirectly.</p> <p>The investigation even of a fraud, will not be permitted after a great lapse of time, where the Defendants be not the persons who committed the fraud, although they may be volunteeis.</p> <p>The rule, that trust and fraud are not within the statute of limitations, is subject to this modification, that if the trust be constituted by the act of the parties, the possession of the trustee is the possession of the ces-tui que trust, and no length of such possession will bar; but if a trust be constituted by the fraud of one of the parties, or arises from a decree of a Court of Equity, or the like, the possession of the trustee becomes adverse, and the statute of limitations will run from the time the fraud is discovered.</p> <p>Wherever the Legislature has limited the period for Law proceedings, Equity will, in analagous cases, consider equitable rights as bound by the same limitation.</p> <p>Relief was therefore refused to “ Ruth and Jane M’Cuistion,” because nearly thirty years had elapsed from the time the fraud committed by “ Jane M’Cuistion, widow,” was discovered, before application was. made to Equity for relief.</p>

<p>Under the act of 1715, ch. 48, requiring’ “ the creditors of any person “ deceased to make their claim within seven years after the death of “ such debtor, otherwise such creditor shall be forever barred,” two circumstances must concur to put the bar in operation, to wit: the death of the debtor, and the simultaneous existence of a creditor.</p> <p>If, therefore, the creditor die before the debtor, and no administration be taken out on his estate in the life-time of the debtor, but is taken out afterwards, and suit is brought within due time, although it be more than seven years after the death of the debtor, the act of 1715 does not bar the claim.</p> <p>When the statute of limitations begins to run, nothing will stop its operation ; and, therefore, if a debtor die in the life-time of his creditor, whose cause of action has accrued, the act of 1715 will attach upon the claim of the creditor, although no administration be taken out on the debtor’s estate for more than seven years.</p> <p>In the report of the case of M’Clellan v. Hill’s executor, in Conference Reports, 479, the fact of Hill’s death before that of M’Clellan is omitted.</p>

F Craven. This was an application to the Court of Equity, by the Complainant, lor directions how to distribute a certain portion of the estate of his testator.