Volume 8 — North Carolina Reports

From Rutherford. This was an indictment for forgery, unde,r the act of Assembly passed in 1801, c. 6, and charged that the prisoner forged a certain acquittance and receipt for money, in the words and figures following, that is to say, 44 September- “ Sd, 1816 — Received of James Dalton his book account ire •‘full — John Logan,” with intent to defraud said Logan. .It was proved, upon the trial, that on the 3d September, 1816, the prisoner was indebted to Logan in the sum of…

From Ashe. The prisoner was indicted in the Superior Court of Ashe, for a deceit in fraudulently passing a false and coisnieribit Bank Note, purporting* to be issued by the Bank of Augusta, in Georgia, and to be signed by Thomas Gumming, as President, and E. Early, as Cashier, of that Bank. Several witnesses were called by the Solicitor, on the trial, to prove that the note was counterfeit.

From Nash. This was an action of debt on an obligation executed by the Defendant to the Plaintiffs ; and'on the trial in the Court below, the Plaintiffs had been nonsuited, and appealed to this Court.- The case., as stated ip the record, for the decision of this Court, is as follows : Short was found by inquisition, before the execution of the bond, “ to be of ** insane mind, and incapable of managing his affairs/’ whereupon the County Court appointed S. Westray his guardian…

<p>If a party to a cause in the Supreme Court die pending the suit there, his representative may be made a party by process from that Court.</p>

From Mecklenburg. IN EQUITY. This was a bill filed in August, 1815, for the redemption of a negro slave, Grace, and her issue, and was transferred from the Court of Equity for Mecklenburg, to this Court, for trial.

<p>The act of 1800, c. 9, does not require a bond of any particular form tube given for obtaining an injunction.</p> <p>The condition of a bond will be so construed by rejecting insensible words, as to fulfil the intent of the parties.</p> <p>Hence, if a bond given upon obtaining an injunction be conditioned, “ if “ the said R. G. (the Complainant) should dissolve the injunction, and " pay the sum recovered at law and interest,” the words “ should dis- “ solve the injunction, and” will be rejected as insensible.</p> <p>It is no objection to such a bond that it is taken for double tlie amount of the recovery at law : nor that it provides in the condition for the payment of interest on the sum recovered, should the injunction be dissolved.</p>

<p>A person called as a Juror in a capital case, said on oath, that he had not formed nor expressed an opinion respecting the guilt or innocence of the prisoner; and, after the verdict, it was proved that he had declared, a few minutes before to a third person, “that he could not “ serve, because he had made up his opinionwhich was unknown to the prisoner at the time he accepted the Juror.</p> <p>Held, that there shall not be a new trial — first, because such declaration was not on oath; and, secondly, because it is contradicted by the Juror on oath.</p> <p>If the insanity of a Juror be alleged as a reason for a new trial, being a disqualification so easily perceptible from its nature, it must be proved by clear and full evidence.</p> <p>The declarations of a party cannot be offered in evidence on his behalf in any case, unless they accompany acts, and be pars res gesta, and are offered as such. They are not admissible even to shew the insanity of a prisoner.</p> <p>Held, therefore, where a prisoner had committed homicide at 10 o’clock at night of one day, that evidence of what he said the next morning could not be received to prove his derangement.</p> <p>The property in a slave is not of the essence of the offence of the murder of him, and it is immaterial whether it be laid in the indictment or not: Hence it need not be proved upon the trial as laid. Quere — If the property be proved to be different from that laid ?</p> <p>If a statute take away clergy from any offence, and another statute, either prior or subsequent, create that offence by its known, legal, and technical name, all the qualities of its name will attach to it: Hence it will stand ousted of clergy.</p> <p>The statute 23 Hen. 8. c. 1. ousted murder of clergy: Our act of 1817, c. 18 gives to a slave the character of a human being, and places him within the peace of the state, so far as regards his life:</p> <p>Hence it is held, that one, convicted of wilfully killing a slave with malice prepense, is guilty of murder, and not entitled to the benefit of clergy.</p>

From Cumberland. This was an action of assumpsit, for money had and received, and money laid out and expended, to the use of the Defendants. Upon the trial, the facts were, that the Defendants, being’ merchants at Fayetteville, were customers of. the branch bank at that place, and kept large deposits, for which they had drawn checks from time to time, that had been honored and paid. The checks were produced in Court by the Plaintiffs, and admitted by the Defendants.

From Chowan. The Plaintiff obtained a verdict and judgment below, for a large sum of money, and the Defendant appealed to this Court. He brought up and duly filed, the transcript of the record; but omitted to file the appeal bond. moved to dismiss the appeal, for want of the bond. opposed it, and moved, at the same time, for a certiorari to the Court below, to get up the bond. He argued that the Court ought to grant it, because a refusal would be so penal to the appellant.

From Buncombe. This was an action of assumpsit, in which the declaration contained many counts; but the two hereinafter mentioned were the only material ones.

From Burke. This was an action of ejectment, in which the lessor of the Plaintiff claimed title to the lands in dispute, by a grant from the State, bearing date the 11th day of October, 1814.

From Wilkes, Tliis was an action of assumpsit brought upon a warranty made by the Defendant, upon a contract of sale of a slave, Peter, to the Plaintiff; and was tried before Mangum, Judge, at March Term, l'-20, To shew the sale and the warranty, the Plaintiff offered in evidence a bill of sale of the slave from the testator, John Hagler, to the Plaintiff, witnessed by one Benjamin Hagler, who was dead at the timo of the trial.

From Wilkes. Debt on bond : plea, non est factum. Plaintiff produced the, subscribing witness, who swore that he signed the bond, as a witness, at the request of the obligor or obligee, but that be did not recollect which : be further said, 'Ie did not see Laurence sign the bond, nor bear him acknowledge it, and that it was not delivered in his pro sence.

From Wilkes. This was a scire facias against Simonton, as bail for one Patterson, against whom, jointly with one Moody, the Plaintiff obtained judgment in debt, for four hundred and ninety dollars. The writ set forth the judgment and ca. sa; and that Moody was arrested thereupon, anti the return, that the other Defendant, Patterson, could not be found, and that the Defendant was bail for both of lito original Defendants.

<p>From Warren.</p> <p>The prisoner had been convicted of manslaughter before Paxton, J. at April term, 1820, and, after praying the benefit of clergy, which was allowed him, he was sentenced by the Court to pay a fine of two hundred and fifty dollars, and receive thirty-nine lashes on his bare back, and stand committed until the fine and costs of prosecution were paid. The prisoner appealed from the sentence, upon the ground that the Court could not, in law, render such judgment.</p> <p>but the Reporter did not hear the argument.</p>

From Hyde. The Defendant claimed title to the land in dispute under a patent bearing date in the year 1761, in which the boundaries were described as follows : “ Beginning at a poplar “ on the sontli side of Mailamuskeet Lake; thence running “ west, with the lake, 86 poles to a corner ; thence differ-e‘ ent courses and distances to a corner on the lake again ; “ and thence, with the lake, to tlie beginning.” The lessor of the Plaintiff had obtained a grant of late date,…

v From Bertie. This was a petition filed by Odom and others against 'Thompson and others, in winch the petitioners set forth that one Hinton died seised of real estate in fee, and possessed of personalty, and that the petitioners were heirs at law and distributees of Hinton; that, after his death, some of the Defendants caused a certain paper to be proved in the County Court as his last will, and the persons named therein as executors thereof being dead, obtained letters of…

From Greene. This was a warrant for the penalty of twenty-five pounds, under the act of 1782, c. 29, s. 2, for firing the woods. * It came on for trial on the general issue, at April Term, 1820, when the case appeared to be this: That on the 25th March, the Defendant put fire to Ms own ‘woods to bum around a'tar kiln, which afterwards communicated with the Plaintiff’s fence, about half a mile off, and consumed it: That on the morning of the 24th March, a fire was discovered…

kFrom Jones. This was an action of assumpsit, in which the Plaintiff declared for the pricé of a tract of land sold and conveyed by him to the Defendant. Upon the trial, it was proved that some months after the deed had been made for the by id, the Defendant acknowledged that a balance of 200 pounds was still due to the Plaintiff, which he was to pay him within two years thereafter.

From Cabarrus. Detinue for negro slave Violet: plea::, non delimit and. stat. lim. Upon the trial, ike title of the Plaintiffs appeared (o be derived by a perol gift to the feme Plaintiff, while sole, and an infant, by her step-father, J. Means, in whose house she lived at the time of the gift, and after-wards until her intermarriage with the other Plaintiff, which happened before she M as of full age, and several years after the gift had been made.

From Halifax. A suit pending between the parties was tried before Barde:. J. at April term, 11119, in which a verdict for a large suns of money had been rendered for the Plaintiff.

<p>From Franklin.</p> <p>This was an indictment, containing two counts: the first for an assault on one Benton, with intent to kill and murder ¿ and the second for an assault only. The Defendant appearing, pleaded in abatement, that before the filing and finding of this indictment, he was indicted in the Court of Pleas and Quarter Sessions for Franklin county for the same cause and acts upon which this indictment is founded, and that said indictment is still pending, and that the County Court hath jurisdiction of the case.</p> <p>To this plea, the Attorney-General entered a general demurrer, in which the Defendant joined; and, upon argument, the Court sustained the demurrer. The Defeu-dant, being allowed to plead over, pleaded “ not guilty,” and, on issue joined, the case came on for trial at October, 1819.</p> <p>The prosecutor and several witnesses stated, that the Defendant came up in front of the prosecutor in a menacing manner, but with his hands in his breeches pockets, when, the prosecutor raised his hand to push him back, and the Defendant immediately stabbed him with a knife in a vital part of the body, and that the wound was likely to produce death.</p> <p>One W. Taylor, at whose house the affair happened, proved on behalf of the Defendant, that Benton and a brother of Yarbrough were in conversation relative to some part of the Defendant’s conduct, who was then absent, but came up soon afterwards, and the brother then said to the prosecutor, ‘e Now tell him to his face, what you have “ to say of him.” Yarbrough seated himself in a chair in the porch, where the company was, and remarked to Ben-ion, that there was no occasion for casting flouts on him, and that he wished for peace. They continued to talk, until words of reproach were used on both sides, when Yarbrough rose and stood up, and Benton came up to him, and struck him a violent blow with his fist, which staggered him, though it did not knock him down. The company immediately interfered, separated them, and were attempting to carry Benton into an adjoining room, when Yarbrough advanced up, and the prosecutor extended his arm to take hold of him, and immediately the traverser stabbed him. The witness further said, that he did not see nor hear any thing of a knife until the stab was given j and that it was about one minute after the blow had been given by Benton.</p> <p>The counsel for Yarbrough moved the Court to instruct the Jury, that, according to the evidence of Taylpr, if he-lievcd, if (loath had ensued, it would have been manslaughter only. But the Court refused to give such in-stniotion ; and charged the Jury that it would have been murder, inasmuch as the parties were then separated, and there was then no necessity on the part of Yarbrough to stab the prosecutor. Under this instruction, the Jury found the Defendant guilty. He moved for a new trial upon the score of misdirection, which was refused, and he appealed to this Court.</p> <p>The question upon the plea in abatement and demurrer is now open ; for this Court must look into the whole record, and give such judgment as the Superior Court ought.* The plea ought to have been sustained. It is a maxim of common, right that no man shall be twice vexed for the same cause; and if a second action be brought, pending the first, it shall be abated upon plea. There is nothing in the nature of criminal prosecutions which renders the evil of a double prosecution more tolerable than in civil controversies; but decidedly the reverse. It is true, that in England, it. is not a good plea, that another indictment is pending for the same cause; but the reason of that is, that there are no conflicting jurisdictions, and all the evils that might result from them, or from double indictments, are remedied by easier and more summary methods than by plea. The Court of King’s Bench is the Court of universal criminal jurisdiction, and there is none other;† for although indictments may be found before other tribunals, they may all be removed into that Court by certiorari. And when the case is there, although no plea of auterfois ,arraign will be allowed, the Court will take care that justice shall be done, and the Defendant not unnecessarily harrassed, and v> ill quash the first indictment before the Defendant will be put to plead on the second.‡ And tin? same rule was adopted afterwards in Rex v. Webb;* and moreover the Court would not allow the ' prosecutor to proceed upon the second indictment at all, unless upon the condition that it should assume the place oT the former, and every thing stand in slain quo, as though the one were merely an amendment of the other. But here the indictments are. pending in Courts of concurrent jurisdiction, and the, Superior Court cannot issue a -fiiandamhs to the County Court, or otherwise control its proceedings, until a final decision shall have taken place, and the case be removed by appeal. Thus, if the plea he overruled, two prosecutions for one and the same thing may he going on at one and the same time; and if nothing short of an acquittal or conviction can be pleaded, the Defendant must incur double costs, enter into double recognizances, and run a double- risk of imprisonin’'lit before conviction. There is no other mode of relief than by pleading in abatement, for he cannot plead an acquittal or conviction after “ not “ guilty” — they are pleas in abatement, and must be before plea in chief.† But, as the jurisdictions are concurrent, the cognizance of the cause by one ought surely to prevent the interference of the other. Otherwise there will be perpetually an indecent scramble for jurisdiction : for it would certainly be highly indecorous to see the Judges of the. one Court and the Magistrates of the other running a rare in the exercise of their jurisdiction. Hence, in ail cases of concurrent jurisdiction, the jurisdiction, attaches and becomes exclusive in him who takes the first step — not him who can try first.‡ The objection to this plea can only be founded on a suspicion of the County Court: but the Legislature hath constituted that a competent tribunal, and it is not for any other authority to gainsay it.</p> <p>Nothing short of a complete acquittal or conviction upon. a sufficient indictment is a good plea.* So in Withipole’s case,† p- was iie](l, that “ miter fois arraign” is no plea; for, before he is acquitted or convicted, he may be arraigned upon another indictment. And the case of Regina v. Gfoddard‡ is express that it is not a good plea in abatement, that another indictment is pending for the same cause. So here the plea is, that the indictment in the County Court was pending- — it does net even state that (he accused liad been arraigned on it or pleaded. The criminal justice of the country may and will bo evaded, if this plea be held good. Persons guilty of high misdemeanors will procure their friends to commence a prosecution in the inferior Court, where it is notorious that the most hardened and violent offenders are suffered to get off with very inadequate punishment. None of the inconveniences pointed out on the other side can happen j because the Court, upon motion and a proper case, will stay the proceedings upon the second indictment until the prosecutor can move the Court below to quash tiie indictment pending there, or apply to the Attorney for the State to order a nolle prosequi. On the other hand, there will be a great e\ il $ for the Superior Court will he defrauded of its whole jurisdiction over misdemeanors.</p> <p>The counsel for the accused did not say any thing upon the other question •, and the Attorney-General declined arguing it.</p>

<p>From Halifax.</p> <p>IN EQUITY.</p> <p>The bill stated, that one Crawley, being seised in fee of the laud in dispute, bargained in 1805, with the Defendant Sykes, for the sale thereof at a stipulated price, which was secured- by the bonds of Sykes, and one Hawkins, as his surety, and also by retaining the titie of the land ; that he gave Sykes a bond to snake him a deed, when the purchase money should be paid, — that Sykes paid a part, and that in 1808, Crawley obtained against hisn and Hawkins a judgment for the residue of the pus-chase money ; that execution was issued and the land was sold, when Rhodam. Isles became the purchaser at a 'small sum, and took a Sheriff’s deed, and Hawkins paid the balance; that the purchase of Isles was fraudulent, for Sykes, in fact, furnished the money secretly, and also transferred to Isles the. bond given by Crawley for the title, who then, by the consent of Sykes, made a deed to Isles ; that Sykes continued in possession, sold part of the land to one GammonP and received the purchase money, though Isles made the deed, and that, finally, in 1809, Isles secretly conveyed by deed, the balance of the land to Sykes, except thirty acres which adjoined Isles’ own land, and which he proposed to pay Sykes for and keep ; that Sykes being still indebted to Hawkins, and wishing to delay the payment or defeat the debt, it was afterwards agreed between him andlsfes, that the deed should be burnt, and that Isles should convey again at some future period, and the deed was accordingly destroyed, — that Hawkins sued Sykes in 1811, for the money which he had paid as his surety as aforesaid, and obtained judgment, on which execution issued, and was levied on the residue of the land, viz. sixty acres, described in the bill by metes and bounds, and including the 30 acres which Isles had wished to keep, and the same was purchased by the Complainant, who took a deed from the Sheriff therefor, and immediately actually entered into the land by the permission of Sykes, who was present at the., sale, and urged Complainant to purchase, expressing much anxiety that it should bring enough to satisfy Hawkins, and declaring that Isles (who was then lately dead) liad never paid any thing for the land, and had no just claim to it, but held it in trust for him ; that Mary Isles, the widow, and Lenoir Isles and the other Defendants, (some of whom were infants) heirs at law of Rhodom Isles, brought ejectment against Complainant, and recovered, because the Court of Law refused to bear evidence of the foregoing facts, inasmuch as they would not constitute a legal title, by reason of the deed from Crawley to Isles, and the destruction of that from Isles to Sykes : — The bill then contained a prayer for an injunction, that Sykes and the Isles should convey to Complainant, and that he should be quieted in possession.</p> <p>Upon the filing of the bill, the injunction was issued.</p> <p>'Sykes d:d not answer, and the bill was taken pro confesso against him.</p> <p>The answer of the other Defendants admitted the contract between Crawley and Sykes, the bonds for the. pur-díase money and that for Use title, and that Ides had purchased under the judgment and execution, charged in the bill, arid stated that Isles doubted whether the Sheriff’s deed was a good title, and, therefore, by Sykes’ consent, he. took a deed from Crawley, it wholly denied that Sykes furnished any pari of the purchase money, or that the purchase was iu trust for him. It insisted also that Isles took possession and held it during his-life, and that, although Sykes occupied a part of the land, he paid rent. It denied that Isles made any secret or «they deed to Sykes, or ever agreed to do so. It admitted that a part of the land was sold to Gammon ; but they say that Isles sold it, made the deed, recen ed the consideration, and held it to his own use. The Defendants also insist, that Sykes had fraudulently surrendered the possession which he held under them to the. Complainant,</p> <p>Upon' the coming in of this answer, the. injunction was dissolved, and the Defendants, lessors of the Plaintiff at Law, were put into possession under a writ of possession. But the cause was continued, as upon an original bill; and the testimony being completed, in numerous depositions, the ease was sent to this Court for trial.</p> <p>It was much debated upon the facts, by Gaston, for Complainant, and by 8eawe.ll and Mordecai, for the Defendants, Isles, before the Jury, to whom issues were submitted— The Jury, however, found, that the purchase by Isles was made with Sykes’ money, and in trust for him ; that Isles afterwards made a deed to Sykes, which was destroyed, as charged'in the bill; and that Complainant, bought at the Sheriff’s sale by the consent of, Sykes, who then represented that the land belonged to him.</p> <p>Upon this state of the case, Mordecai moved to dismiss the bill. If the. Complainant purchased a legal title, he might have availed himself of it at-Law j if Sykes’ title bean equitable, one, then it did not pass, because the sale was before the, act of 1812, c. 4. The legal estate did pass ; and therefore the bill must be dismissed. If the deed from jr^cg |() Sykes was registered, it in clear that it conveyed the land. If it was not registered, which probably we must now consider to be the case, (a,4 the contrary is neither charged nor found) the question arises, whether registration is necessary to pass the title to lands ?</p> <p>I am informed that Chief-Justice Marshall, in Hamilton v. Sims, in the Circuit Court for the North-Carolina District, decided that registration is only necessary for the purpose of notice 5 but that between the parties, the deed takes effect by delivery, and is valid without registration. In conformity with this, Judge Hall decided a case on the. circuit at Northampton. The cases of bills of sales of slaves, upon the act of 1789, c. 59, are in point. The act declares unless they be proved and recorded, they shall he void 1 but as it was apparent., that the ceremony of recording was only to give notoriety to sales of slaves, sales were held good between the parties without it. So the words of stat. 1715, c. 38, arc, “ that no conveyance of “ lands shall be, good and available, in law, unless they be <e acknowledged or proved and registered.” There can be no reason why these expressions, of the same import and enforced by the same sanctions, should receive a different interpretation.</p> <p>The title did not revert to Mea by the destruction of the deed. The right to a thing, which lies merely in grant, is destroyed by the destruction of the grant: but when the thing exists independent of the deed, and the deed is but evidence of it, the destruction of the deed does not affect the thing which is the subject of it.* The. Plaintiff ought, therefore, to have defended himself at Law. If he could not do it effectually, lie should have applied to Equity for relief pending the suit. He cannot take both chances — first at Law, and, if that fail him, then come into tbi.s Court.† He, however, does not allege that there was any obstacle at Law, except that the Judge rejected his evidence- If the Judge did right, he has no cause of complaint: if wrong, it is not fox* a Court of Equity to correct the error.</p> <p>If Sykes had only an Equity, the writ of ft. fa. could not roach it. The creditor ought to have taken out his execution, and then applied to Equity against the debtor and the holder of the equitable fund for satisfaction. The necessity for this arises from the inoificacy of the execu - tion. Then nothing passed by the sale, in this point of view.</p> <p>The Jury have found, that Trice purchased by the assent of Sykes, who encouraged hi n to buy. But the hill does siot allega that he bought from Sylcen, nor from the Sheriff as his agent; but it states, that the sale was upon execution. The Sheriff, therefore, 'acted as the officer of the law, and not as Sykes’s agent.</p> <p>was stopped by the Court.</p> <p>The Court having thus intimated ass opinion, Seaxvdl contended, that if Complainant got a decree, he could not recover costs. The Defend ants are heirs at law, having no knowledge of the facts upon which the Equity of Sykes and Price rqsted, and some of them are infants, who are not to blame for the defence set up here, or the claim asserted at Law for them by their next friends. Infants never pay costs.*</p>

From Duplin. Debt on bond. Plea, non est faciurn and issue. After the cause luid been pending sometime and stood for trial, the Defendant moved tiie Court on auidavits to amend by adding the- pleas of infancy and the statute against gaming; which was refused, and a verdict taken, and judgment rendered against him on the pleadings as they then stood.

in this case, a judgment bad been rendered against Wood, the, Defendant, in the Court below, which, upon appeal by him, was affirmed in this Court at May Term, IS 19. The record, by some omission of the Clerk below, did not state the precise sum of the recovery and costs, so that execution could not be issued from this Court. moved now to enter it mmc pro tunc, and he had brought up the whole record.

From Johnston. IN EQUITY. Moses Griffin died in 1816, having’ made his will, in which he devised and bequeathed as follows : “ I appoint “ Edward Graham, William Gaston, and three others, “ trustees of my estate and executors of my will — I a ill “ that all my debts and funeral expenses he paid out of my personal estate and as to the remainder of my es-íí tate, both real and personal, I give the same to my said “ trustees and executors, in trust, to be managed by them “ to…

<p>From Burke.</p> <p>IN EQUITY.</p> <p>The bill charged, that in 1775, one Killian was entitled to four hundred acres of land in Burke, then Rowan county, by virtue of an improvement thereon of a cabin, orchard, and ten acres of cleared and cultivated land, and sold it to Complainant for 551. paid to him, who took possession in 1776. That soon after the land-office opened in 1777, one Duckworth entered two hundred acres, part thereof, and that Complainant “not then “ having taken the oath of allegiance to this State, could “ not caveat the entry but, to prevent Duckworth from getting a grant, he applied to one M* Kenny to befriend him, and it was agreed between them, that M'Kenny should caveat the land in his own name, and at the charges of Complainant, and that the grant should issue to M* Kenny in trust for Complainant: and, “ in order to give M*Kenny the apparent right,” Complainant assigned to him the right of entry for the land, and took his bond for 250/. as the purchase money, though the same was never to be paid, and never had been paid, and was now ready to be surrendered. The bill further charged, that M( Kenny did caveat Duckworth's entry, and obtained a verdict in his favor, and judgment for a warrant to issue *‘*s name, and that Complainant paid all the expense : —That Complainant “ afterwards became a citizen of e( g^^,, an[| thereby became entitled to the land— but that M* Kenny, about the year 1780, sold or assigned his entry to one Alexander, who obtained a grant, vand sold or assigned the land to the Defendant, and that each of them had notice of the trust, and paid no valuable consideration : — and prayed for a conveyance and account, and to be let into possession.</p> <p>The answer admitted the caveat and the transaction between Complainant and Kenny, but insisted that it was an absolute sale, and that Me Kenny had offered to pay the purchase money in 1778, but that Complainant refused to receive it, on account of the depreciation of the paper money. It was also insisted, that the sales to Alexander, and by him to the Defendant, were bona fide, for a valuable consideration, and without notice of any equity in Complainant, and that they had been in possession from 1781, to the time of filing the bill, which was in September, 1799.</p> <p>The case was transferred to this Court under the act of 1818, and now came on for a final hearing.</p>

From Buncombe. IN EQUITY. This case was transferred under the act of Assembly of 1818, to this Court for a final hearing.

From Mecklenburg. IN EQUITY. This was a bill filed for a legacy ; and it stated that Thomas Davidson made his will and died in the year 1800, and that by his will, he bequeathed as follows, that is to say — “ I give and bequeath to my daughter “ Mary Long Davidson, my negro woman Nanny, and “ all her children, together with all my lands and tene- “ ments, and the remaining half of my househould furni- “ ture and personal estate : also, my will is, that she be allowed out of…

From Iredell. This was an indictment for perjury, which charged that the prisoner was sworn in due form of law, before A. B, a justice of the peace, upon the Holy Gospels of Almighty God.

From Burke. This was an action on the case for malicious prosecution, instituted by the Defendant against the Plaintiff, who had been arrested on a warrant, carried before a justice of the peace, and by him duly tried and acquitted. To prove these facts upon the trial, the Plaintiff offered the judgment of the magistrate, wrhich he verified by the testimony of witnesses proving the hand-writing of the justice.

<p>From Anson.</p> <p>This was a warrant returnable originally before a justice of the peace against. Harrington, to answer the Plaintiff Scroler, “ in a pica of debt of five pounds, for turning and obstructing the public road leading from Haley’s Ferry to Sneedsborough, from Little Creek to Jones’s Creek, from the 23d day of April last past, until the 23d day of May following — being one month.” Upon this warrant, judgment was given for the Plaintiff, for the five pounds and costs, by the justice of the peace; and upon successive appeals by the Defendant to the County: Court and Superior Court, upon the plea of nil debet, verdicts were given for the Plaintiff, and similar judgments rendered in those Courts. The point made in the Superior Court, as stated in the record, was, that the Plaintiff could not maintain the suit in his own name only, under the act of 1784, ch. 14 ; because the fine belonged to the County, under the 17th section of the act., as was contended. This Court, however, did not consider that question at all, but without argument, decided for the Defendant upon the insufficiency of the warrant-.</p>

<p>The drawer of a bill of exchange is entitled to notice of its dishonor, though the drawee be not indebted to him cither when the bill was drawn or fell due — provided, the drawer had reasonable ground to believe that it would be honored: And a written authority from the drawee to the drawer for the latter to draw is a sufficient ground.</p> <p>If the bill be payable after sight, it must be presented within reasonable time for acceptance, and immediate notice of non-acceptance given' to the drawer : It is not sufficient to give notice of the nonacceptance and non-payment together, after the day of payment has passed.</p> <p>If, in such case, the drawer be discharged, by the laches of the holder from his liability on the bill itself! lie will not be liable on a count for money had and received.</p>

From Pitt. This was an action of debt upon a sealed note ; plea, non est factum.

From Wake. This was an action of debt brought by the Adjutant-General of the militia of this State, in the name of the Governor, to recover from the Defendant, a Colonel of Cavalry, the penalty of fifty pounds incurred by failing to make his military return to the Major-General of the seventh division, in the year 1818. Plea, nil debet.

From Wake. This was an indictment for the murder of Daniel, a slave ; and on the trial, the evidence was, that the deceased had a free colored woman for a wife who lived on the lot of one Richardson, a carpenter, in Raleigh, and in a house near to that in which Richardson himself lived : that the deceased was generally there of nights: that the prisoner wras a journeyman in the employment of Richardson, and lived in the’ house with him: that on the night when the deceased…

<p>An instrument, purporting to be a grant for land, which was under the great seal of the State, was signed by the Governor and recorded in the Secretary’s office, but was not countersigned by the Secretary, will not pass the land, and is void!</p>

From Warren. This was an action of debt on a bond payable originally to one Myrick, and by him endorsed to the Plaintiff. The Defendant pleaded, non est factum, and the statute against gaming. Upon the trial, the Plaintiff proved the bond by the testimony of witnesses who knew the hand-writing of the Defendant $ which was received, as the bond was unattested upon the face of it.

From Person. This was an action on the case, brought under the act of 1796, for the removal of Morgan, a debtor to the Plaintiff, from the county of Person to the county of Orange. The removal was on the 23d day of December, in the evening.

From Hertford. This action had been tried in the' Superior Court of Hertford, in September, 1820, and a verdict and judgment had been rendered for the Plaintiff $ from which the Defendants appealed, and duly- entered into bond.

V-From Wayne. This was an action of debt on the bond given by Crawford as guardian of Elizabeth Hooks. The Defendant, after Oyer, pleaded conditions performed, and the Plaintiff replied by assigning as a breach, that the Defendant had not collected and accounted with his said ward for a legacy of 10OZ. bequeathed to her in tiie will of her late father, R. Hooks.

From Grates. Ejectment. — The lessor of the Plaintiff claimed title to the premises in dispute under the wills of Jesse Sanders and Lawrence Sanders, as follows: Jesse made his will, bearing date the 8th August 1811, and thereby devised the premises in the following words — “ I give “ unto my son Lawrence the plantation where 1 now “ live, and all the land adjoining thereto $ and if he dies “ without any lawful begotten heir of his body, then to his “ brothers and sisters.”…

From Pitt. “ In the name of God. • Amen ! “ Imprimis — 1 direct that all my just debts be paid. “ Item — I give to my sister Alicia Willis, in Georgia, one hundred !t dollars Forever. “ Item — I give to my sister Polly El-null, one hundred d. liars forever. “ Item — 1 give to my nephew Aaron El-null the debt lie owes me “ and one hundred dollars, besides a reasonable reward for his trouble “ in superintending my business, to him and his heirs forever. “ Item — I give to my…

From Edgecombe. Tins 'was an action of 'debt brought on a guardian bond against Taylor, the principal^ and the administrator of Dew, a deceased security. The breach assigned, was the non-payment by the principal to the ward, upon his arrival at age, of the estate to which he was entitled.

From Wake. This was an application for a mandamus, originally made to the Superior Court of Wake, and. upon its refusal to grant the writ, brought by the appeal of the petitioner to this Court. The petitioner stated on affidavit, that he subscribed for 250 shares in the Neuse River Navigation Company, established by acts of the Legislature passed in 1812, ch. 89, and in 1816, ch. 16.

From Nash. This was a motion to vacate a judgment, made upon the following facts. A suit depending in Nash County Court between the Plaintiff and Defendant, in May 1815 was referred to arbitrators, and the order of reference was renewed from term to term until August 1815. On the 25th of September 1815, the arbitrators returned an award in favour of the present Defendant, and thereupon a writ off. fa. issued against the present Plaintiff, bearing teste August term 1815.

From Perquimons. Ejectment. The following special verdict presents the facts of the case. Thomas Stephenson being seised and possessed of the premises in dispute, by his last testamént duly executed to pass lands, dated the 21s^^ February 1800, devised as follows, viz. On this finding, judgment was rendered below for the Defendant, and the Plaintiff appealed. -The limitation to the lessor of the Plaintiff is good.

i-From Craven. This was an action of trespass vi et armis, brought by the Plaintiff against the Defendant, for taking and carrying away the horse of the Plaintiff. It was found by the special! verdict, on the trial below, that the title to the horse was in the Plaintiff, butthat he had loaned him to his brother, Paul While, to work during the pleasure of the Plaintiff.

From New-Hanover. This was an action brought on a negotiable promissory note, made by William Giles, dated April 16th, [812, payable to W. Campbell, sixty days after date. The note became the property of Plaintiff’s testator, after having been indorsed by the payee and by Orme. Payment was regularly demanded, and the note protested for non-payment j due notice was also given to the indorsers, Campbell and Orme.

From Martin. Detinue for two negro slaves. The Plaintiff in support of his title, proved by the subscribing witness, a bill of sale from the sheriff of Washington county, for the slaves in suit. At the time of the execution and registration of this bill of sale, the vendee lived in Martin county ; the bill of sale had been registered in Washington county.

From Granville. This was an action of debt brought on a bond made payable to Sam’l Creath, for 251. of the currency of Virginia, executed by the Defendant on the 9th of March, 1808, and on the 23d of September, 1818, indorsed by the executrix of the original obligee to the Plaintiff.

From Anson. This was an action brought to recover the amount of a promissory note made by Edward Gf. Williams, negotiable and payable at the Bank of Cape-Fear, in Fay-etteville. The note was made payable to and indorsed by the Defendant, and afterwards by the Plaintiff 5 both these indorsements were made for the accommodation of the maker, who procured the note to be discounted at Bank, and applied the proceeds to his own use.

From Rockingham. Trespass.' — The Plaintiff was one of the tenants of Gen. izzard, on a large, tract, of land in the county of Rockingham. The landlord had given instructions to the Plaintiff, as well as to bis other tenants,‘te'sow small grain, stating to them, that should he sell the land, he would reserve for them the privilege of reaping and se-curjng ^[ie crop.

From Orange. The Defendant in this case was charged as the security on a judgment rendered by a magistrate in favour of the Plaintiff, and on the trial it appeared from the testimony of the magistrate, that a few days after the judgment was rendered, he signed the name of the Defendant as security, having been requested by the Defendant so to do, and witnessed it by his own signature as a magistrate.

j-From Beaufort. This was an action of trover for a negro girl. The Plaintiff shewed title to the slave under a bill of sale from Thomas A. Cabarrus, executed in the town of Washington, on the 1st of June, 1818. This bill of Sale represented the property as being, at the time of the conveyance, in the possession of the widow of the vendor’s brother, at Ocracok«.

From Rowan. Thfc was a motion to have money which had been paid lly the Sheriff of Rowan, to the Clerk of the Court, applied in satisfaction of an execution against one Fear-son, in favor of Allemong and Locke : the motion was opposed by Allison and Kelly. The facts were these. At.

From Rockingham. This was an action of ejectment, tried in Rockingham -Superior Court before JPaniel, Judge. The ]esg0J. 0f f]ie Plaintiff exhibited, in support of liis title, four several judgments obtained in his favour, on warrants before a justice, against one Ezekiel Bowen, for the sum of §218.

From Pasquotank Ejectment. The lands in controversy in the year 1790 descended, on the death of one James Pritchard, to his brothers, Enoch, Elisha, David, and John. Of these, Enoch and Elisha were lessors of the Plaintiff, and the other lessors were the children and heirs at law of John and David, both of whom died intestate.

From Orange. This was an action of detinue for certain slaves, tried before Daniel, Judge, in Orange Superior Court, Spring term, 1821. The Defendant pleaded non detinet, the act of 1806, and the act of limitation. It appeared on the trial, that- the father of the Plaintiff’s testator died in March 1781, and shortly after, the mother of the testator made a parol gift to him of the negro woman, for whom and whose increase the action was brought.

From Bertie. This was an attachment sued out by the Plaintiffs against Niel, and levied on a negro slave. Wood, who claimed the slave, interpleaded, and an issue was directed to determine in whom the property in the slave was.

From Surry. Indictment for perjury, tried before Paxton, Judge, at the spring sessions* 1821, of Suixy Superior Court. The perjury was charged to have been committed in making oath before a magistrate to obtain a warrant against one Smith, for feloniously taking the horse of the Defendant.

From Buncombe. The Defendant was indicted as one of the proprietors of the turnpike road leading from the Tennessee line, by the Warm Springs, to Asheville, in the county of Buncombe.

j-From Rutherford. This was an indictment for the murder of Hugh Allison, and the facts were these. The prisoner and one Freeman came to the house of the deceased, and at length commenced shooting at a mark for a wager, with the prisoner’s rifle; the deceased soon joined in the amusement with his own gun, and after concluding their sport and drinking together, the deceased went into his house, leaving the prisoner at the place where they had been shooting.

From Martin. This was an indictment under the act of Assembly against fornication and adultery, and was founded upon a presentment of the Grand Jury. The bill was found by the same Jury that made the presentment upon the testimony, of some of their own body, none of whom were sworn in Court as witnesses. These facts were admitted hy the prosecuting officer, and the Court, on motion, Quashed the bill. The prosecuting ^officer appealed to this Court. ■

From Halifax. This was an indictment for an assault and battery tried in Halifax Superior Court, on which the Defendant had been convicted. A motion was made in arrest of judgment, for that it did not appear, either in the caption or any other part of the indictment, that it was taken before any Court in the State of North-Carolina. The caption and commencement of the indictment were as follows : “ IT rfn'r os ?

PRACTISE — COSTS. !>From Caswell. This case was heard before Daniel, Judge, at the Spring term, 1821, of Caswell Superior Court, when it appeared that Sarah Jeffreys had been convicted of murder, and sentence of death had been pronounced, with judgment against her for the costs. The prisoner appealed to the Supreme Court, and gave the Defendants as securities to the appeal bond.

IN EQUITY. From Wayne. The bill in this case set forth, that Complainant was the owner of a negro slave who liad been in the possession of himself and those under whom he claimed, fourteen years, when, by seduction or some other clandestine means, she was taken into the possession of the Defendant; that an action of detinue was commenced against the Defendant by this Complainant, for said slave, which suit is still pending, and that the Defendant was in prison at tiie time…

IN EQUITY. From Edgecombe. The bill set forth that the Complainant was the widow of Thomas Blount, who died in the year 1812, having first duly made and published a will in writing, whereby he devised to the three sons and two youngest daughters of a deceased brother, ail his share of certain lands in Tennessee, owned by John Gray Bkmnt and himself, to he divided among such of the five c.ii, :dren of his deceased brother as should be living at testator’s death, with a…

From Rutherford. The question presented in this case, was, whether an award which had been set aside by the Superior Court of Rutherford, was properly set aside, and the Tlaintiff properly ordered to pay Costs : and the following were the facts.

From Halifax. This was an issue to determine upon the validity of the will of one Irvine. The will, which had but one subscribing witness, had been offered and proved in Halifax County Court, by that witness, as appeared from the endorsement made thereon.

From Halifax. The declaration In this case contained five counts. The first was on an implied promise of Defendant’s intestate to pay Plaintiff for board, &c. The second was In indeUtt^^assúmpsit, laid on the promise of the administrator as such. The third was a count quantum vale-iat, laid on the promise of the administrator as such. The fourth was a count for funeral charges against the Defendant as administrator, laying the promise to have been made by him as such.

From Anson. This was an action of debt brought on a penal bond, the condition of which, was, that, whereas the Plaintiff, has taken into his possession, by distress, a horse the property of the Defendant, to satisfy the amount of a tax levied on the property of the Defendant,^for the purpose of defraying the expenses of building a new courthouse in the county; if the Defendant should deliver the horse to the possession of the Plaintiff on a certain future day, then the…

From Burke. This was an action brought upon a general covenant of warranty in a deed ; and the Plaintiff assigned as a breach, an eviction by paramount legal title.

From Cabarrus. This was an action of covenant. On the 10th of May, 1810, the Defendants executed to one Merrill, an instrument of writing, which, after reciting that the Defendants acted in the execution of the instrument, in their own behalf, and as attorneys in fact for John Springs and Sarah his wife, John M’Coy and Catharine his wife, and Cunningham Harris and Mary his wife, witnessed, that the Defendants, “ as attorneys aforesaid,” received the consideration money, and…

From Wilkes This was an action brought against the Defendant and two others, for beating the slave of the Plaintiff The Defendants were the regular patrol of the Morgantoil district, in the county of Burke, and finding the slave not on his master’s premises, they enquired for his pass dr permit from his master; whither he was going; what was his business ?

From Randolph. The Plaintiff and Defendant had a quarrel and agreed to fight. After retiring for that purpose, Defendant asked Plaintiff “ if he would clear him of the law.” Plaintiff answered, “ yesand Defendant beat him. Plaintiff made no resistance during the beating, and according to the testimony of some, was too much intoxicated to know what he was doing: other witnesses thought otherwise.

From Cabarrus This was a motion for judgment against a stockholder in the Yadkin Navigation Company on instalments unpaid, pursuant to the acts of Assembly. The notice required by the acts was made returnable to Cabarrus Superior Court. Tiie Defendant admitted the service of the notice, and pleaded in abatement, that neither the Plaintiff nor Defendant resided in Cabarrus. To this plea the Plaintiff demurred, and the Court sustained the demurrer.

From Pasquotank. Ejectment. Mary Pritchard, then wife of Thomas Pritchard, senior, died seised and possessed of the land in dispute, before the year 1795, leaving her husband surviving her, and leaving two children by him, viz. Thomas Pritchard, junior, and Elizabeth, who .after-wards intermarried with William Clary. Thomas Prit-chard, senior, afterwards intermarried with another wife, and had issue by her, Mary, the wife of the Plaintiff1, and died.

J>From Rockingham. This was an action of debt upon a Sheriff’s bond against the Defendant and his sureties j and the declaration alleged that Matlock had voluntarily permitted •the escape of one Hodges, who was in custody on a ca. sa. at the' instance of Robertson & Co. The facts, as stated in the declaration, were substantially proved before Nash, Judge, who instructed the Jury that whether the escape were voluntary or negligent, the liability of the Defendant remained the…

From Halifax. The declaration, which contained but one count, charged, that Vick being Sheriff of Nash county, and one Hicks his deputy, Ricks had refused to allow the Plaintiff the bounds of the prison in the county of Nash, though sufficient security had been offered.

From Craven. Indictment for burglary, tried before Badger, Judge. In this case, the fact of burglary was proved by the testimony'of a white man, a witness above suspicion, but the only .evidence to shew any agency therein on the. part of the prisoner, was given by a slave, and that evidence was direct and positive.

From Chowan. This was an indictment against the prisoners and one John Skinner, for the murder of Samuel Skinner, by poisoning.

<p>tFrom Buncombe.</p> <p>The Defendant was indicted for having erected a gate across a public road. The defence résted on several acts of Assembly, the view of which, as taken in the opinion of the Chief-Justice, renders a detailed statement of them unnecessary.</p>

<p>From Buncombe.</p> <p>Indictment for breaking into the possession of one Sarah Somers, and taking away her slave. ^ The fact was, that the slave was not in the actual possession of Sarah at the time of the taking, but was in the field of another person, to which she had been sent with James Somers, a brother of Sarah. M’Dowell, after some conversation with James and the slave, (who were children,) seized the slave, and placed her on the horse of Gray, and Gray carried her off. James offered such resistance as he could to the taking. The Court instructed the Jury, that Sarah Somers was, under the circumstances disclosed, in possession of the slave ; that the resistance of James, her brother, was her resistance; and that the taking was with force and a strong hand. The Defendants were found guilty. A new trial was refused them, and from the sentence pronounced they appealed.</p>

From Tyrrell, This was an indictment against the Defendant, as an ordinary-keeper, for exacting more than the rates fixed by the County Court.

<p>From Rutherford.</p> <p>This was an indictment for an assault on one Spurlin, with an intent to kill him. The case, as proved before Norwood, Judge, was, tiiat the Defendant and one Magness, in whose employment Spurlin was, lived near each other; that during a temporary absence of Magness from his home, one of his slaves had been much injured by the bite of a very fierce dog, owned by Rutherford ; on the return of Magness, hearing what had happened, he requested Spurlin to take a gun, go to Rutherford’s house, and tell him that if he would permit his dog to be killed, he (Magness,) would be satisfied, otherwise, he would seek redress by law ; and also instructed Spur-lin, if Rutherford consented, to kill the dog. At dark, Spurlin accordingly went, and took the gun for the double purpose of defending himself from the dog, and of killing him, should Rutherford assent. On arriving within eighty yards of the house, he coughed, and the dog immediately attacked him; after trying in vain to keep the dog off with the gun, he fired, and injured the animal .slightly: Rutherford thereupon, immediately came out of his house with his gun, encouraged his dog, and ordered his negroes to pursue the person who had fired the gun : Spurlin, hearing this, ran towards the house of Magness, which was at some small distance, and was pursued by Rutherford, who, when within forty paces of him, without speaking, fired, and wounded Spur-lin in the head. On discovering who. it was, Rutherford expressed his regret that the whole load had not passed through. Spurlin. The Court, after instructing the Jury generally, as to the law, was requested by Defendant’s counsel, particularly to charge them, that if they believ- ^ ^je Defendant, Rutherford, had a. well grounded belief that the person who fired the gun intended to com, mit a felony, it would extenuate the offence, and the Defendant would be entitled to a verdict. The Court declined doing so, and instructed the Jury that there must be a felony committed, or strong and convincing evidence that a felony had been committed, or the party slaying, summoned by a proper officer, to extenuate a killing in pursuit; and that even then, if it should be apparent there was no necessity to kill, the offence would not bo extenuated, but would be murder; and that an intention to commit a felony, abandoned by the party, would not warrant a violent arrest. The Jury found the Defendant guilty: a new trial was refused; and from the judgment and sentenbe of the Court, Defendant appealed.</p>

From Rutherford, This was an indictment for a libel, on which the Defendant had been convicted before Norwood, Judge.

From Halifax. This Defendant stood charged on two indictments, which were tried in the Court below, and terminated in an acquittal of the Defendant. On the trial below, the Court refused to permit certain papers to be read as evidence on the part of the State, and the Attorney-General appealed.

From Wake. This was an indictment for buying and receiving of a negro slave Essex, certain goods of the value of six pence, which Defendant knew Essex had stolen, and the indictment concluded, “ contrary to the form of the star tute.” It appeared that Essex had never been prosecuted, but was running at large, amenable to process. The Court instructed the Jury to pass upon the facts, and find whether the Defendant was guilty of them as charged in the bill.

1-From Iredell. Ejectment. The Plaintiff’s lessor claimed title to the land under a grant, dated 21st May, 1791, and proved that Defendant was in possession.

J-From Mecklenburg. Ejectment tried before Norwood, Judge. The lessors of the Plaintiff claimed title as heirs at law of Francis Nixon, and proved that Francis Nixon died seised and possessed of the premises in question, and offered evidence that they were the heirs at law of Francis Nixon. To this evidence the Defendant’s counsel objected, on the ground that the demise laid in the declaration was joint, and the evidence offered was to prove title as tenants in common.

From Lincoln. Action for a libel. The libel was found by the Defendant at his shop-door early in the morning : he carried it into the shop of a neighbour, Reinhardt, read enough of the paper to discover what it was, and handed it to Reinhardt, who read it. Defendant then proposed to burn the libel; but this was objected to by Reinhardt, who said that the Plaintiff ought to have it, and observed that it should not remain in his shop, and asked the Defendant to take it away.

From Mecklenburg. This was a sd.fa. under the act of 1806, to secure creditors against fraudulent and secret conveyances of property by insolvent debtors.* The fact on which the case turned was, that the Plaintiff had recovered a judgment for damages on a tort, against one David Ben-ning, and that prior to that judgment, the conveyance, alleged to be fraudulent, was made by David Benning to the Defendant.

From'Chatham flebl upon bond. The Defendant purchased in New-York, goods of M’Gregor & Darling to a large amount. M’Quecn, as the agent of M’Gregor & Darling, settled the account with the Defendant, who at that time resided in Chatham county, in North-Carolina, and received from him a large payment.

From Iredell. This was an action of debt originally brought in Ire-dell County Court for twenty-five dollars, to which Defendant pleaded in abatement, pursuant to the act of 1820,* there was a demurrer to the plea. Demurrer overruled, and plea sustained. The Superior Court, on appeal, also overruled the demurrer, and sustained the plea; and Plaintiff, by his appeal, presented the question to this Court.

From Halifax. Tiiis was a rule on the Sheriff, to shew cause wherefore he should not return a venditioni exponas, Carter against Powell, satisfied. Several executions had issued, and were in the hands of the Sheriff, against Powell, returnable August, 1819.

From Halifax.* Trespass quare dansmn fregit. The Plaintiff exhibited on the trial below, a deed dated in 1812, to himself, including within its boundaries the locus in quo, and shewed that he was in actual possession of a part of the lands, and had been, but for a term of less than seven years $ and the trespass complained of was on the uncultivated part of said land, and on a part of which he had no actual occupation.

From Johnstoii. This was an indictment for sending a challenge to fight a duel, tried below before Nash, Judge.

From Bertie. This was a petition originally filed in the County Court of Bertie, in February, 1818, setting forth that Kittrell, the Defendant, had been appointed the guardian of the petitioner, and as such had taken into his possession property to a large amount, and received the rents and profits thereof, until the petitioner came of age:— that soon after this period, on the request of the petitioner, a settlement took place between him and the Defendant, of the…

From Craven. This was a petition, filed originally in 1816, in the County Court of Craven, by James Ryden, administrator of Elizabeth Ryden, and Mary Savanoe, shewing1 that Michael Hyman the younger, being seised and possessed of a large real and personal property, in 1793 duly made and published his last will, whereby, after some specific legacies, he gave all the residue of his estate to his four sisters, Margaret wife of Peter Vendrick, Syduey wife of Edward Bowen, Mary…

IN EQUITY. From Franklin. This was a bill filed by the heirs of one Daniel Foster, to set aside a conveyance of land and a negro, from said Foster to the Defendant, which, as they alleged, was fraudulently obtained. The prayer of the bill was, to have the conveyance set aside, and a decree for a re-conveyance, and it concluded with the general prayer for relief.