Volume 9 — North Carolina Reports

From Burke. This was a motion, after due. notice, to subject the Defendants as securities of one Ally, who was the Sheriff of Rutherford. The case was heard before Paxton, dudge, when the following appeared to be the facts» Aft execution issued from Burke Superior Court, at the in - stanre 0f f[ie state Cank, against Richard Ledbetter and, others, for the sum of gl812 72, tested March term, jg^o, and returnable to the September term of the same year.

From Perquimons. This was a petition for partition of lauds, (banded on the following facts t Miles Harvey being seised and possessed of the premises described in the petition, made his will, duly executed to pass lauds, and therein devised the plantation whereon he lived, to his wife for life, remainder to his son Miles Edward Harvey.

<p>The act of incorporation of the Yadkin Navigation Company makes the subscription of a certain sum, and not the payment of it, essential to the incorporation of the subscribers.</p> <p>The charter of the Company is not contrary to that clause of the Declaration oí Rights which condemns perpetuities.</p> <p>A law passed subsequently to the act of incorporation, without the assent of the subscribers, by which the place for the sale of shares forfeited, is changed, cannot be deemed an invasion of the rights granted by the original charter.</p>

From Bertie. This case came a second time before this Court* on a motion by Wood, one of the Defendants, to dismiss the appeal on the ground of a formal defect in the appeal bond. The cause had once been submitted to a Jury. At March term, 1822, the Supérior Court of Bertie sustained the appeal and overruled the motion to dismiss, and Wood appealed. The facts appear in the opinion of the Court.

From Bertie. Thl insisted that the administra tor was liable ; that he had a property in the goods before they came into his possession ; that they vested in him by relation ; and that he might support trover or trespass for them — (1 Com. Dig. 341.) Goods are assets, although not in an executor’s hands, and if by his default they do not . sell for value, he is chargeable for the whole — (Toller 153 — 3 Bac.

From Columbus. Ejectment, tried before Paxton, Judge, in the Superior Court of Columbus, at its Fall Sessions, 1821. The lessors of the Pial. th? claimed under a patent grani.-d to ^ov''ar(:’ regularly deduced title down to James Register, who by deed on the 7th of July, 1819, conveyed to the I .sors of the Plaintiff.

<p>From Randolph.</p> <p>An attachment was sued out against the Defendant by the Plaintiff, and one Gallimore was summoned as garnishee. Gallimose stated on his garnishment, that he was the administrator with the will anuexed of one Samuel Newby, and had in his hands certain property which he was directed by the will to distribute among the children of Samuel Newby, of whom the Defendant was one. That the estate of Samuel Newby was not so far settled as to enable him with certainty to ascertain what sum would remain for distribution after payment of debts, costs and charges of administration. On behalf of the Plaintiff, it was moved that judgment of condemnation should be rendered against so much of the estate remaining in the hands of the garnishee after payment of debts, and costs and charges of administration, as the Defendant in this attachment, should be entitled to. The motion was x’efuscd, and Plaintiff appealed.</p>

From Bertie. This was a petition setting’ forth that the Defendants, in the year 1803, had exhibited for probate to the county Court of Bertie, a paper writing, purporting to be the last will and testament of one Noah Hinton, and in the absence of all who were interested in opposing the proceeding, the paper writing was admitted to probate as a will.

From Wake. This was an action of debt brought upon the bond given by the Defendant as assistant paymaster.

From Wake. This was a motion by Henry Potter, originally made in Wake County Court, and carried by appeal to the Superior Court, for an allowance of commissions to him as administrator of the estate of David Stone, deceased* Administration on the estate of Stone was granted in November, 1818, in December, 1818, a sale of property was made in Wake. In January, 1819, a similar sale was made in Bertie.

<p>A i^'J K vM-'-d after lis oiccaíie » '-goal, if ;¡o ai'eralioft be made i.iiíi¿ Lise knowledge and cjuscíií olthr. grantor ; and tíis pari, altered need not be registered to mate it colo’.xr oí’title, ¡br an unregistered deed, is colour oft’tie.</p> <p>A tmsltbc i,t the course or distance of a deed slsov.kl not be permitted io difiopomt ilie intent oftbe parties, if that intent appears, and if the means of correcting ihc mistake are furnished either by a more certain description in the same deed, or by reference if) another deed con-tstííiing a more ceKifm description.</p>

From Warren. This was an action of debt, brought by the Plaintiffs, obligees, upon the bond of the Defendants, executed on the 22d of September, 1820, and was tried below before Norwood, Judge.

<p>.<4 I v"..n b'-it in Bjectment proraiccc? dfcc'á to Kirr ■'£ lo shew that lu; v.iu coiiimon ivitii llic lüsior o,’c'jt--í'i;-',ií;Íí'- »»;:;[/) to sbew ti-. •• tbií Defendant claimed t. e wlioltt Iriví, icuú a csa-f;fieá co» pj oí'h deed to íiie íloieii'íaiit, by wh'‘ \ another íiamiant of i’iain-lii’s fa.'tn'; si liad conveyed it to the dado ’ f1 till. 'do ‘utroduction of thin co.iv, without a previous uot’co to produce the original, was in;<dc d:e wound of a motion Sir a new #r;al, mid on the argument of the model'. uvf'ndant refused to • pport he gi'oiU'dtoJcen, by an affidavit be claimed nothinff unde' the deed, a copy of which had been read ; it was held, that his refusal warranted ,i ritronjj presumption that 1;/ did claim under the deed, and as no injustice appeared to have been done by the verdict, a new trial was refused.</p>

From Burke. This was an -idit»» for the removal of a debtor, founded oh the act of K06. The rWiiliff produced satisfactory evidence, of a debt, due to him, by one Craig, ;F: the. time of CraigV removal. IMewdant proved, trait on the.

From Hertford. This was an arfen on the case to recover damages for the breach of a (/nitract.

From Hertford. Case for Siwultr. — The. slanderous words charged in the declaration- were as follows: Ci I have said ho was the father of hi:: sister’s child, and I say so again, and I still believe he was ;9’ and again, “ Stephen 'Karo is the father of his sister’s child, and I reckon 1 can prove it.99 The Court below nonsuited the Plaintiff, on ¡he ground that, the words were not actionable •, whereupon, he appealed to this Court. contended that words, in the ticilou «.*>?…

From Mecklenburg. This was an potion of trespass for taking ten barrels of tar. -Plainin' on the 8th of January, 1820, purchased the tar of one Baggoi, at the kiln where it was made, and Beth «danta afterwards took it away. The Defendants, by way of justification, offered in evidence, proof that Sykes was a Constable, and that the other BofeU'iaJsts acted ass bis assistant4:, in carrying into of-feet an execuíiou ng’.iiust Baggoi’» properly.

From Camden. Tíiíh was an action of Debt qui lam, upon the statuto of usury. The declaration claimed a penally of one hundred and sixty dollars, the amount inane.i having been eighty. On the trial below, the Jury found a verdict for the Tkiiniiff, for one hundred and fifty-live dollars, and Use Defendant moved, in arrest of judgment, that the declaration claimed one hundred and sixty dollars, and the Jury had returned a verdict for a less sum.

From Warren. A judgjiieiit having; been ©bivjiwd pgsmsat the Defend ant, Marshal!, in the cotfey Oocri of Tfeivea, a %vii oí ca. sa. issue's! thereon, a*ad B'ir,Mrasim:'! gave bond purweMit to the provisions of the Muí: far fee i-cafei of honest ddsfe'-sfe its which the ISrfutid,«it, Ifesseí.’., bcoarae surety.

From Camden. Sawyer, the Defendants’ intestate, was one of the securities lo a guardian bond, given by one Michcau, on Ms appointment as guardian to James M. Grandy.

From Pitt. Tías cause came before tlse Court again, on an appeal from the judgment rendered on the new trial, bad pursuant to the former decision of this Court.* The case, as it now stood before the Court, came up on the ground that the Court below intimated to the Jury its opinion of the matter in issue.

From Hertford. This was ail action of debt brought against the deferí • dant, as one of the securities of Mo tv ell Jones, who had been appointed Clerk ami Master in Kqu'rty for Hert-ford county.

From Pitt. At September teem, 1821, of Pitt Superior Court, two bills of indictment against the, ¡ risoucr wore, found by the Grand Jury — the. one for burg!ary and larceny, the, other for a robbery. The larceny in the one. bill, and the robbery in the other, vero for the same goods and ehíkíels» and there war; but ono taking.

From Lenoir. This was an application for a writ of certiorari, on an affidavit of the Defendant, in which he stated, that having appealed from the decision of the Court below, to this Court, and having given bond and security to prosecute ins appeal, he applied, timing the term, to the Clerk below for ■> transcript of the record of the proceedings, in order to convey the same, in due time to Hits Court; that he ®vtg informed by the Clerk that the transcript should be…

IN EQUITY. From Johnston. The, bil! set forth, that to secure the payment of two small judgments, obtained against the Complainant Kirby, and assigned to the defendant Nowsance, it was agreed in 1806, between i'sem. that Kirby should convey to Newsance. a ■.■«’cable tract of land, of which Kirby should ei;.d- the possession, and Newsance receive the fruit of ‘1 orchard thereon growing, in lieu of interestj and iii.il whenever the judgments should be, paid up, that then the…

IN EQUITY. From Pasquotank. The bill set forth, that Thomas Davis, by bis last will and testament, devised as follows ; “ It is my wish, after the marriage of my wife Ann, or either of my daughters, I want my estate equally divided between my wife Ann, my daughter Georgette, and my daughter Susan-nah | and in case either of my daughters should die without lawful heirs of her body, her proportion of my estate is to go to the other daughter, and in ease both should die without…

IK EQUITY, From Johnston. The bill set forth, that one Jesse Pearce, by his will, bequeathed to his wife Elizabeth, during her life, a variety of articles, an- among others, a negro man slave, and after her death > »o , V son Levy Pearce forever 5 that the. executors permitto*8 Jizabeth Pearce to take possession of the said slnve, hat in her possession he remained un ti! be was gold by the ilheriíF of Johnston, under execution, km the property oí Levy Pearce.

IN EQUITY. From Lincoln. This was a bill ííícta in 1804, «taliw/y that the Complainants, in the year i79t, entered in a part of Ear.se. now Buncombe county, a tract: of land lying on the French Ennui river, and that a grant regularly issued for the same in January, 17 94 3 that the Defendant was in possession of the said tract, claiming title thereto under two grants, die one to Henry Conway, and the other to one Baggy, made before the issuing of that under wbicb…

IN EQUITY. From Caswell. The bill stated, that one Matthew Means died in the year 1780, having, by his last will and testament, devised as follows : “ 1 lend to my beloved wife Sarah Means, one negro girl named Hannah, during her natural life, but if the said Hannah should have any children before my son Joseph comes of age, I leave such children, or child, if but one, to be equally divided, at the time of my non Joseph’s being of age, between my son Joseph and my daughter…

IN EQUITY. From Franklin. It appeared from the bill, that Collier Hill died in 1799, leaving a last will and testament, containing the following clause, viz: “Í give and bequeath all my slaves to four men, nasnely, Hill Jones of the county ot Warren and State of North Carolina, to Edmund Jones of the county of Halifax and State aforesaid, to Stith Parham, merchant, of the county of Sussex and State of Virginia, and to Richard Graves of the Methodist church, in the last…

IN EQUITY. From Richmond. The bill set forth, that the. Complainants, Brasilia Ingram and Hannah Ingram, were the grand-children of one William Terry, who, on the 20th of March, 1805, made and published his lest will and testament, containing, among other' clauses, the following: “ I give and bequeath to my son Matthew Terry, two negroes, viz, Nell and Boston, to him and his heirs forever; and should the said negro wench Neil have any children, it is my desire that they be…

<p>Where a bailee undertakes to perform a gratuitous act from which the bailor alone receives benefit, there the bailee is liable only for ¿-ros* neglect. Otherwise, where the profession of the bailee implies skill. for then want of skill is imputable as gross neglect.</p> <p>X mere mandulory who receives no reward is only liable for fraud or qross neglect.</p>

From Cabarrus. Covenant. — On the tenth of May, 1810, the Defendants executed an instrument of writing to one Jonathan Merrill, which, after a recital in the premisec, that the said Isaac Alexander and Charles T. Alexander acted in the execution of the instrument in their own behalf, and as attorneys in fact, for John Springs and Sarah his wife, John McCoy and Catharine, his wife, and Cunningham Harris and Mary his wife, witnessed, that the said Isaac and Charles, as…

<p>When an act of the Legislature prescribes the substance of a bond, that bond so drawn as to include every obligation imposed by the .Legislature, and to afford every defence given by the lair, will be valid, notwithstanding it. may be slightly variant from the literal form prescribed; and it is not necessary to insert in the condition of a bail bond, évery alternative contained in the 8th section of the act of 1777, ch. 8, on which bail are dischargeable, because the right to be discharged is not given the bail by the words of the obligation, but is given them by a public law which the Courts are bound to notice.</p>

<p>From Martin.</p> <p>This action was originally brought against Befen-dant’s testator, after the death of whom the present Defendant was regularly made a warty. The declaration contained two counts, in the first of which. Plaintiff set forth, that one .Robert Sherrod, on the Idfk day of Qeto-her, 1817, at the county of Northampton, became indebted to the Plaiuüfí in the sum of $200, to- be paid in two days after date, and secured by the writing- obligatory y10 gaj¿ Robert,- dated of the said day and year ,• and the said Robert and the Plaintiif both being- on the delivery of the writing- obligatory, and when it became due residents of the county of Northampton aforesaid ; that the said Robert^afterwards, to-wit, on the 20th of October, 1819, absconded from the county aforesaid, and from North-Carolina, the said sum of money and interest thereon being- then due and unpaid; and the said John (the Defendant) well knowing- the premises, and intending to defraud the Plaintiff of the said sum of money, and the interest due thereon, did, wrongfully, injuriously, and deceitfully, and with an intent to defraud the Plaintiff of this said debt and interest thereon, and to hinder, delay, and defraud him of his actions for the recovery of the same, on the day and year last mentioned, aid and assist the said Robert to abscond from the said county and state aforesaid, without the said sum of money and interest due and in arrears being paid, whereby the said Plaintiff has been defrauded of bis debt, interest, and actions, to his damage, &e. and therefore, &c.</p> <p>The second count was framed on the act of 1796, which enacts, that if any person shall remove, or knowingly assist to remove any debtor out of the county in which "he shall have resided, for the space of six months or more, who shall not have advertised his intention of removal, and obtained a certificate of his having so advertised, then such person so removing or assisting to remove, shall be liable for all the debts of the person removed, in the county from which he removed. The act further provides, that the said debts may be recovered by an action on the case, to be brought within twelve months.</p> <p>By an act of the Legislature passéd in the year 1820, (subsequently to the commencement of this suit) the act of 1796 was repealed, and it was enacted, that if any person or persons shall remov e, or shall aid and assist in removing any debtor or debtors out of any county in winch be. she, or they shall have resided for the space of six months or more, with an intent, by such removing, aiding or assisting, to delay, hinder or defraud the creditors of such debtor or debtors, or any of them, then the person so removing, aiding or assisting; shall he liable to pay all debts which the removed person justly owed in the comity from which he removed, tobe recovered by an actinia on the case, brought within three years from the. time of the removal.</p> <p>On the trial below, the FlaiiaiiiT proved that Robert Sherrod was indebted to him in the sum named in the first count of the declaration ; that at the time the obli-gaiioU of said Robert became payable, he had concealed himself for the purpose of avoiding his creditors j that John Sherrod acknowledged to several witnesses that he fad fitted up a horse and cart to convey away Robert Sherrod’s family fr<*m the State, and that he had furnished said Robert with money to enable him to remove ; that he executed u conveyance of the horse and cart and certain negroes to the children of Robert Sher-rod, previous to the departure of Robert’s family ; that the cart, together with the family of Robert and the ne-groes conveyed, set out on their journey from the house of Robert in the night; that John Sherrod expressed apprehensions from having been seen with the cart at the time it started ; that on one of the witnesses, who drew the conveyance before alluded to, and to whom he ac know lodged his having furnished Robert with money, and the horse and cart, he enjoined secrecy, saying that Robert was in debt and lying concealed, and he did not wish liis creditors to know it. it was also proved that Robert did remove out of the State, and had not returned*’</p> <p>The presiding Judge declined giving any opinion on the second count, hut charged the Jury that if they thought the first count was proved 10 them, that he way of opinion that the law would support a verdict rendered thereon ; that the quantum of damages was for them, noi: for himj that they might, if they thought proper, give the debt and interest. The Jury found a verdict for the Plaintiff on the first count. A rule to shew cause was obtained by Defendant and afterwards discharged uy the Court, and from the. judgment rendered according to the verdict, Defendant appealed to this Court.</p> <p>to chow that this action might be maintained at Common f.aw, cited 2 JFils. 2.94 — -Bacon’s M. tit.ee action on the cnee” F.</p>

From Wayne. The Plaintiff had obtained a judgment against the Defendants Black and McKinnie, iu the County Court of Wayne, at its session in August, 1821, whereupon a writ oi'ji.fa. issued, returnable in November, 1821. On this writ, the Plaintiff directed that no proceedings should be had. and by his direction a writ of ca. su. was issued, returnable in February, 1822.

From Wilkes. This was an action of Trover, brought to recover da-for lite conversion of a horse.

From Burke. The forge of one Murphey hatl many years before been washed away, and the iron bands on one of the, large-wheels had for some time been missing. The Defendant obtained a warrant against the Plaintiff, charging him with having committed a larceny of one of these bands 5 on this warrant he had been apprehended, and after examination was discharged. The Plaintiff then brought this action for a malicious prosecution.

From Washington. Petition for divoice from the bonds of matrimony, and for alimony.

From Robeson. This was an action of covenant. The Defendant’s ientaior, in his life-time, had sold and delivered to the Plaintiff, certain negroes, and in the bill of sale for said negroes he covenanted ia the following words, viz. “ And íf Í hereby promise for myself, my heirs, executors, and “ administrators, to warrant and defend the said negroes Ji as before named, unto the said Rhodes, his heirs and u assigns forever, against the claim of all persons what- “ soever.”…

From Lenoir. The Sheriff having’ in his hands writs of ft. fa. against the Plaintiff, liad levied them on two negroes, took the property into bis possession and advertised it for sale. The creditors at whose suits the executions had issued, were willing that the property might be sold on a credit, and on the day of sale the Plaintiff requested some of his friends, and among’ others the Sheriff, to assist him in finding a purchaser.

From Burke. Trespass. The Plaintiff in the year 1810, appeared at the town of Morganton, in the county of Burke, in the capacity of a pedlar, and as such, for the span, of one week, exposed to sale and did sell goods and wares uot of the growth or manufacture of this State.

From Duplin. This was an action of assumpsit for goods sold and delivered, and the question presented was, whether the acknowledgment of a copartner, made after the dissolution of the copartnership, prevented the operation of the statute of limitations on a claim existing against the firm ? relied oil the following authorities : Whitcomb v. Whiting, (Doug. 653) — Jackson v. Fairbanks, (2 If.

From Hertford. This was a scire facias under the act of 1806, to secure creditors against fraudulent and secret conveyances of property by insolvent debtors. On the trial of the issues below, there was a deficiency of Jurors of the original panel, and the Sheriff summoned of the bystanders, as talesmen, two who were freeholders of Virginia, but not of North-Caroiina.

From Hyde. From the record transmitted to the Court in this case, it appeared that the writ was in Detinue, for a negro slave Lewis, and that during the pendency of the proceedings in the Court below, leave was obtained to amend the writ, but it did not appear from the record that any amendment had ever been made.

From Chowan. This was an action of Ejectment, and the points in controversy arose on the title and boundaries of the Defendants, who claimed the lands under a grant from the State to Jonathan Jacocks, dated in 1786. The grant % was regularly authenticated by the sea! of the State, with the signature of the Governor, and countersigned by the Secretary, J. Glasgow.

From Pasquotank. The lessor of the Plaintiff claimed title under a grant from the State, bearing date the 21st of June, 1819, conveying certain lands in Currituck county, near Curri-tuck Inlet, or Betsy’s Shoal.

From Burke. This was an action of ejectment, in which the evidence of title on the part of the lessors of the Plaintiff, was a grant issued to William Tate, on the 23d of November, 1802. The Defendant offered to prove that William Tate, the grantee, was the surveyor of the land, and that the plat and certificate attached to the grant were in the hand-writing of said grantee, with the exception of the signature of the county surveyor.

From Caswell. Ejectment for a lot of land in the town of Milton. The facts of the case were as follows : One James Daniel being seised and possessed of the lot in question, became indebted to the Bank of Newbern, and for the payment of this debt the Defendant Irvine became security.

Front Craven. This was an action of ejectment, brought to recover possession of a lot of land in the town of Newbern.

<p>\ and 15. «re in possession oi'tlie same land adversely to cveli other, while in this situation a deed for the land is executed to A. by C, who has both possession and title. A. then having thus acquired ti ■ ile to the land, the law adjudges his possession the rightful one ; and an acknowledgment by C. under these circumstances, at tlic time of executing the deed to A, that 55. has the possession, shall not be sufficient to destroy the title made by his deed to A.</p> <p>¡’he maxim “ nemo audiendus eat .mam íurpiiudinem allegare,” does not apply, at least, to instruments not negotiable.</p>

From Buncombe. This was an action of trespass, quare clausum fregit, in which it became necessary for the Plaintiff to shew title to the land in dispute. The title set up was a de~ vise to the Plaintiff, in the will of John Strother, of the State of Tennessee.

From Surry. This was an indictment for a forcible trespass in breaking and entering the dwelling-house of one William Patterson, and the case presénted the following facts. Tlie Defendant Wright was a Constable, and had in his hands writs ofagainst the property of William Patterson, at the suit of the other Defendant, Armfield.

From Lincoln. The Defendant was indicted under the act of 1819, more effectually to punish the making, passing or attempting to pass counterfeit bank notes. Held: that if the instrument as described be within the meaning of the statute, a slight variance is immaterial — (3 Chitty 1040-1.) The Court below did right in receiving the paper in evidence. As to the second ground, on which it is said a new trial should be granted.

IN EQUITY. From Orange. The original bill in this case, which was filed in March, 1799, set forth that in the year 1764, an agreement had been entered into between the Complainant: therein, William Janes, and one Thomas Person, whereby the said Person was to advance to Jones the sum of one hundred and twenty pounds, Virginia currency j and to secure the payment of the said sum with interest thereon, the said Jones was to execute to Person a deed in trust for 850 acres of…

IN EQUITY. From Cumberland. The Complainant, in his Ml!, set forth, that Richardson Peagram, the brother of this Complainant, in July, 1806, died intestate, possessed of certain negroes named, in the bill, and that administration on his estate was granted to this Complainant, who, by virtue thereof, took said slaves into his possession.

<p>IN EQUITY.</p> <p>From Halifax.</p> <p>'Bill of review, assigning various errors in former decree, and among others, that the facts put in issue were not decided by a Jury before the decree was made. To the bill was pleaded, that the former decree had never been performed.</p> <p>The former decree was made April 24th, 1812, for $>1328. On the 11th of July, 1812, it amounted, with interest, to >§1345 92, and at that time a payment was made of §700. The balance due on the decree, with interest thereon to 21st April, 1819, amounted to §909 53. On the 21st April, 1819, the Complainant paid to the Clerk and Master of Halifax Court of Equity, the sum of §904 37, in bank notes, and in the receipt taken for the same from the Clerk and Master, it was stated to be the balance due on the former decree. It was admitted, that the calculation of the balance due and payment to the Master, were made for the purpose of enabling Complainant to institute this suit.</p> <p>Hogg for Defendant.</p> <p>For the Defendant it was said, that payment to the Clerk and Master was not a performance of the decree* unless such payment was made by rule of the Court, or «pon process, and there can be no review unless on performance of former decree to a tittle — {Coop. Ft. 70)-— Williams v. Mdish, (1 Tern. 117) — Felton v. Macclesfield, {Ibid. 264) — Wiser v. Bluckly, (2 Johns. Ch. Ilep. 491)— Livingston v. Stubbs, (3 Ibid. 128.)</p> <p>The money in the possession of the Clerk and Master being bank notes, cannot be considered otherwise than as an offer merely, to secare the performance of the decree., and the present bill cannot be viewed more favorably than a petition to file a bill of review, which the Couri will grant only on the payment of all costs already in CHrred.</p> <p>For the Complainant. — The enquiry here is simply this, is the allegation of Complainant’s bill true ? A pica is put in, replication is filed, and issue is taken thereon, and by these proceedings no enquiry is made as to what the effect of payment to the Clerk and Master* is. The plea should have been set down for argument on if, sufficiency, and Defendant should not have taken issue thereon.</p>

IN EQUITY. From Granville. The bill stated that Complainant had become the purchaser for the consideration money of fifteen thousand dollars, of the tract of land in the county of Granville, on which the court-house of that county was erected ; that shortly after his purchase, certain individuals excited discontent among the citizens of the county, by representing that Complainant enjoyed a monopoly in being sole proprietor of the public houses near the courthouse, and a…

From Franklin. In this case, the Clerk and Master of Franklin had reported in favor of Complainant, stating in his report, that several sums were admitted by the Defendants, without taking down the admissions in writing and having them signed by the party making them. Exceptions filed to the report, which were overruled by the Court below', and a final decree made by the Judge below. Irons which an appeal was taken to this Court.

<p>From Warren.</p> <p>A judgment had been obtained in the Superior Court of Warren, at October Term, 1821, against one Hawkins, whereupon a ft-fa- issued, tested of that tern», which, oh. the 15th of March, 1822, came to the hands of the Defendant, who was coroner of the county. At February Term, 1822, of Warren County Court, judgments were obtained against Hawkins, and executions issued to the Defendant, previous to the 15th March, 1822; on that day, (fter the coroner had received the ft-fa. from the Superior Court, he exposed the lands of Hawkins to sale under the execution from the County Court. Á motion, was made by Plaintiff, who was interested in the Supe-perior Court execution for a rule on the Defendant, to shew cause why the money raised,by the sale of the land, should not be applied in satisfaction of the execution from the Superior Court. The rule being larged the Plaintiff appealed.</p>

From Moore. Detinue.'— On the sixteenth of May, 1817, the Defendant’s intestate executed an instrument of writing in the following words.: “ To all persons to whom these presents shall come, I, Thomas Gra- “ ham, of the County of Moore, and State of North-Carolina, send “ greeting: Know ye, that X the said Thomas Graham, for and in consideration of the natural love and affection which I bear and have to “ my niece Mary Graham, daughter to Robert Graham, and for divers “…

From New-Hanover. This was a petition for partition, filed by Frederick J. Cutlar, Jane Cutlar, and Euphemia Cutlar, setting forth, that in 1790, their father, Roger Cutlar, intermarried with Ellen Spillar, by whom he had issue, James Spillar Cutlar; that Ellen, wife of said Roger, died in 1794 ; that James Spillar Cutlar acquired, by purchase, certain lands, and died intestate and without issue, in August, 1797 ; that Roger Cutlar, in 1796, intermarried With Nancy Jones,…

From Rowan. The Plaintiff being a merchant in the town of Lexington, the Defendant went into his store, and asked his storekeeper, Carrigan, to exchange a fifty dollar bank note for him; Carrigan, after an examination of the bill, gave him small notes for it. Soon after, it appeared that the note was a five dollar bill altered so as to appear on its face a fifty dollar bill, and this suit was brought t© recover the value of the money given in exchange.

From Edgcombe. Bebí on administration bond, tried before Badger, Judge. The bond was given by the Defendant Mayo, and the other Defendants as bis securities, upon obtaining administration on the estate of one Griffis, deceased. The real Plaintiff, Stillman, was the assignee of tbe next of kin, and sought to recover the surplus of the estate, which he alleged remained in the administrator’s hands, after payment of debts, See.

From Sampson. The Plaintiff had issued a writ against the Defendant for having committed an assault and battery on him, which was returned to September term, 1822, of Sampson Superior Court, at which term a judgment by default was entered, and at the succeeding term, in April, 1823, a writ of enquiry was executed, and a Jury assessed the Plaintiff’s damages to five hundred dollars and costs.

From Hertford. Tliis was an action of covenant on a deed, tried before JVhs/t, Judge.

From Moore. This was ati appeal from the County, to the Superior Court of Moore, in an action of debt; and on the trial in the Superior Court, the Plaintiff moved to be permitted to give a new appeal bond and other securities, in order to enable him to call on one of the securities to the original appeal bond as a witness : the Court refused to grant the motion.

From Randolph. Trespass quart clausum fregit. Pleas General issue— Zil>. ten. — Slat Lira. — License. The Plaintiff claimed the lands described in the annexed Diagram, by the lines Á. II. G. E. The Defendant claimed those described by the lines K. 13» D. O. L. R. S. T $ and the question in dispute as to boundary was. Whether the Plaintiff’s tract was bounded oa the North by the line IL D. or A. E ? DIAGRAM.

From Rutherford. This was an action of trespass, for taking away two negroes, brought against the Defendant, who was coroner of the county of Rutherford,, The evidence on the part of the Plaintiff was, that he purchased the negroes of one Alley, on the 19th of Sep-Umber, 1820, for a valuable consideration and bona fide; that he took them into possession, and afterwards, on tiie 7th of October, 1820, the Defendant levied on, and sold them, by virtue of an execution issuing…

From Orange. JSjeclment. The lessor of the Plaintiff, to support his fstle, produced a grant from the h’late for She land in. dispute, (A. B. C. D. E. F, G. H. I. K. BO to Bober?, Cheek the elder, bearing date 13th March, 1780; a judgment in Orange County Court, obtained August Term, against Robert Cheek the elder, and execution thereon, a judgment in Orange Superior Court, at September Term, 1817, against Robert Cheek the elder, and execution on it, and the Sheriff’s deed…

From Cabarrus. Case for malicious prosecution» Plea — statute of limitations. On the 17th of December, 1817, Allison, a justice of the peace, at the instance of Gardner, as the prosecutor, issued a warrant to arrest the Plaintiff on a charge of felony, and after examination by Allison, the Plaintiff was committed.

<p>From Chowan.</p> <p>This was an action on the case, and the declaration contained two counts. In the first, the Plaintiff complained of tl*>e Defendant for having overflowed with water the public highway, by means of which, the Plain tiff’s goods, contained in his waggon which was passing, were injured. The second count charged the i>e~ ietKh t with having overflowed the public highway by the erection of a dam near thereto, and keeping and mainlining a bridge so rotten and decayed, that the Plaintiff’s waggon, loaded with goods, was overturned oil said bridge, and thrown into the water, whereby the goods became wet and damaged.</p> <p>On tiie tidal, the facts, as they appeared from the Plaintiff’s testimony, were, that the mill-pond of the Defendant overflowed the public road, and tiiat there were three hollow bridges over the pond; but by whom erected did not appeal-: there was, however, no evidence that any of them were erected at the public expense. The road and mill-pond had, for twenty years, been in the same situation in which they were at the time of trial; and there was no evidence which was first made, unless the fact, that the owner of the mill kept the road and bridge in repair, furnished evidence that the road was the more ancient. The Defendant, at the time of the trial, liad owned the mill five years; and it did appear that the proprietor of the mill, for the time being, and their hands, were in the habit of repairing the bridges and road over the mill-pond, and did not do any other work on the public road ; and that the Defendant had repaired the bridges since he owned the mill.</p> <p>A waggon, loaded with the Plaintiff’s goods, in passing, fell through one of the bridges, which was not in sufficient repair, into the pond, and the goods were damaged by the water. The stream was not fordable, if there had been no mill-pond; but the bridge which broke, was not over the channel of the stream ; and had there been no pond, there would have been no water on that-part of the road. The Defendant offered no evidence.</p> <p>‘ The Judge left it to the Jury to say, whether the road or mill was first built, as a fact, and charged, that if the mill was first built, the Defendant was not liable; but if the road was first made, and the mill had occasioned the overflow of that part of the road, under the bridge which broke, then the owner of ttic mill was bound to abale the nuisance, or to erect a convenience whereby theciti-xens might pass in safety, if a bridge was erected, and ivas not in sufficient repair, and the Plaintiff sustained an injury in passing it, he was entitled to damages.</p> <p>There was a verdict for the Plaintiff; new trial refused; and from the judgment rendered. Defendant appealed to this Court.</p> <p>There should be a new trial, because there was no evidence la the cause that the high way was anterior to the Defendant’s mill-dam: the direct proof is that the road and mill-dam, and bridge, were in the same relative situation on the day laid in the declaration, and twenty years before, it is insisted by the Plaintiff that the Jury bad power to infer that the Defendant’s dam was built after the road, because the owners of the mill repaired the bridge : a Jury have no more or larger power of inference from facts proved, than the Court have on a demurrer to evidence. Let this rule bo applied : this argument assumes that the bridge was built in consequence of the dam, and was as old as the clam. For the sake of the argument, let it bo admitted. The creek, it is found, was never fordable, there could he no road over it without a bridge, and it is found, that there is uo evidence that the public ever built the bridge. The true inference is, that the dam and bridge are older than the road. It was the gravamen of the Plaintiff’s declaration, that the Defendant’s dam threw the water on the public road : the whole of the evidence was on the part of the Plaintiff, and it is matter of law to say, whether if it be all true, with all necessary inferences, it supports the declaration : the law must be the same on a demurrer to evidence or on motion for new trial, as for the law on demurrers to evidence — se^ Fhii. Ero. 217, and cases there cited.</p> <p>2dly. Because the Court in the charge usurped the l)rov''MCe of the Jury in passing on the facts. The Judge affirmed, that unless the Defendant did let off the water, or keep the Bridge in repair, that it was a nuisance in him. Now, that in law it is a nuisance to throw water on the public road, or if it be the duty of any one to repair a bridge, that the omission to do so is a nuisance, cannot be denied: but that it is the province of the Jury to find the truth and sufficiency of the facts, to prove the throwing of the water or the omission, is equally clear. If the presiding Judge be dissatisfied with such finding, he may award a new trial, but he can in no case, find himself. In the case before the Court, the presiding Judge did leave it to the Jury to find whether the dam or road were first made, whether the water was taken off or the bridge repaired, and relieved them from further en-quiry, by telling them that if the first fact existed, and the other two did not, that “ a nuisance existed.” This part of the charge was against the act of 1796 — (N. R. Ch. 452) — Bank of Newbern v. Pugh, (Hawks's Rep. 198, per Henderson Judge.)</p> <p>But the Judge erred in the Law: ho instructed the Jury, that if the Defendant erected a bridge in the highway, it was his duty to repair it. The Judge seems to have considered, that the Defendant had a right to erect the bridge, and that if he kept it in repair, there was no nuisance : or if it was not in repair at any time, that he should be excused from liability by drawing off the water. The enquiry, therefore, of the Jury, was directed to the time at which the Plaintiff alleged an enquiry. It is settled by the highest authorities, that an individual for his own profit, may deepen any stream in which he has a property, and if the ford or highway of the public be injured, that the individual shall be excused by erecting a “ bridge” “ useful to the public,” and that the county shall repair said bridge. In every such case the enquiry is, whether the bridge be of “ public utility/' that Is, whether the passage be more convenient than before the bridge ivas erected, and whether the expense to the couníy be not greater than the convenience. The criterion, iberefore, of a nuisance, is whether it be of public inconvenience j for it is strange that the public should complain of a benefit. The enquiry in the case of a bridge always relates to its first erection j if it be not a nuisance in the builder, then it cannot become so : the use and repair are thrown on the public : and it surely cannot be contended that it is a nuisance to deepen or widen water under a public bridge, whether built by the public or an individual. vVhy should it be ? the soil is in the citizen, and the passage in the public. The pro ■ perty of the soil remains to the citizen, to be «sed as be ¡shall think proper, so that he does not impair* or interrupt the right of passage. The deepening* or widening water under a bridge, by the erection of a dam, cannot do this ; and in the case beforewhe Court, it is found the injury resulted from the bridge being* out. of repair.</p> <p>The true enquiry touching the erect ion of a new bridge in the public highway is, does it contribute to the public convenience by making the passage of the citizens more easy ? Woes it provide against public expense by being built in a substantial manner ? if it does, the public must repair, and the individual who built, no matter what motive of private interest be might have, incurs no obligation either to the public or to individuals, who can claim only on the proof of a public inconvenience and private injury. It is absurd to suppose that the public duly to repair, can consist with the right to compel an individual to do so. If an individual build a bridge for Ms own profit, in the highway, and if it be of public utility, the county shall repair by Common Law — (2 Inst. 701, 703) — The King v. West Riding of York, (5 Burr. 2596) The Queen v. Com. of Wilts, (1 Salk. 359) — The King v. West Riding of York, (2 East, 342) — The King v. Com. of Kent, (2 Maule & Sel. 513.) In all these cases, the party erecting bad a private end, but as the bridges were 0f public utility, the county were held liable to repair. ^ie conse(lucnce is unavoidable, that the individual who built was not liable to repairs, and had committed no nuisance.</p> <p>The act of Assembly of 1784, ch. 227, JV*. R. and the stat. of Henry VIII, ch. 5, are in affirmance of the Common Law, and prescribe the mode only of repairing by the county.</p> <p>To apply these authorities to the case: If the Jury had been directed to enquire whether the bridge was a nuisance in its erection : it was o.ver a stream not fordable— bad stood twenty years and longer in a very public road— the owners of the mill liad been excused from labour on the public road — all these seem to point unerringly to its public convenience. But at any rate, the Defendant, who comes in as a purchaser of the mill only, and can be charged with a continuance at most, of a nuisance, has a right to have it ascertained. At present, the verdict finds only the existence of a nuisance at the day laid in the declaration : the liability of the Defendant was affirmed by the Judge. With all humility it is submitted, the county was liable. But at least, it remains to be determined by a Jury, whether the county or the Defendant were liable, and this according to the authorities, by ascertaining whether the bridge or its first erection was a common nuisance, or a public convenience.</p> <p>If the highway be older than the mill-pond, the owner of the mill is answerable for the injury sustained by the Plaintiff. The overflowing of a highway must be admitted to be a nuisance, and the continuance of it is a new nuisance ; thus, when a nuisance was erected by a devisor, and kept up by a devisee, the latter was held to be responsible — (Cro. Car. 231 — 2 Leon. 129.) If one encroach on the highway, and his heir, on its coming to him, doth not remove the encroachment, the heir is guilty of a nuisance — (Rolle’s Jib. 137.) So of a lessee, in regard to a nuisance of lessor continued by lessee — (_Cro. .'/as. 373 — 2 Salk. 460.) A damage, su tained in consequence of an unlawful act or* omission of an individual, gives an action to him injured, against the individual in fault — (5 Rep. 73 — 4 Ibid. 18 — •</p> <p>Ld. Hay. 486 — Russel v.Men of Devon, 2 Term R. 667.</p> <p>IJut it is contended, that a bridge having been erected over the part of the highway overflowed, the reparation of this bridge belongs to the county, and not to the owner of the mill. For this, are cited several authorities: the true principle to be collected from them is, that though a benefit conferred by a public benefactor, shall not bind him to the perpetual keeping of it up, yet where an act is done by -an individual for Ms benefit, (even if lawful) on him is the perpetual obligation to prevent the consequences from being injurious j and an omission of the care, necessary for tliis purpose, is unlawful. Occupiers of lands adjoin. jug the highway, are bound to cleanse the ditches by which their lands are protected, and for an obstruction of the highway, occasioned by negligence to do this, are indictable — {Hawkins’ Rook i, eft. 76, §5 —Bacon, “Highway E” — S Chilty, 567.)</p> <p>A proprietor of lands adjoining a highway, fences them in on both sides of the roa !, he is bound to keep the road in repair, because lie has taken away from passengers, the opportunity which they before had of taking a circuit when the road was out of repair— Gro. Car. 366 — » Hawkins’ Book 1, ch. 76, §6.</p> <p>If a man break up & highway, and thereby render a bridge necessary, which he erects, the original obligation is not destroyed, the original liability is not gone; but he is always bound to repair the bridge, while the necessity for it remains — (1 liolle’s M. 368, cited and explained in 2 Mast, 350- — Vide 1,3 East, 220 — -14 Mast, 317.</p> <p>The case cited from Rolle, will be found at length in 2 Maids & Selwtjn, 513, and was a case where Defendants (private individuals) were liable by prescription, on a grant of lauda from tire Queen, on condition to repair a bridge. The cases from 13 East, and 14 East, SI7, turn on the construction of private acts of Parliament, granting tolls on improvingna-vjgaj.jon 0f rivers by incorporated companies : tiicy are authorized to deepen fords on leaving bridges : this word leaving was construed in 13 East, to be a continuing condition : they had a right to take tolls, and to discontinue the bridges, so that they could not become those of the public : botii cases recognize the Common Law liability of the county, to repair a bridge of “ public utility” erected by an individual | and they are both express authorities to shew that where an individual is liable, the county is not. It would seem to be incontrovertible, that where the county is, the individual (who built) is not.</p> <p>Hawkins, Book 1, ch. 76, §5 and 6 — The authorities cited in these sections seem to be doubted by Hawkins. The analogy between them and the case at bar, is by no means very strict, especially in sec 5, which was an indictment for not scouring a ditch of Defendant, whereby the water was kept on the highway — It does not appear but that the water was brought to the highway by the ditch — To sec. 6, Hawkins, in the margin, puts a quere — • If the principle found in these sections of Hawkins, cannot be reconciled with the decisions in King’s Bench,cited for the Defendant, they must be considered as invalidated.</p>

From Carteret. This was an action of dell, brought on a Sheriff's bond against the Defendant, as security of a deceased Sheriff, and was heard below before Donnell, Judge. The breach assigned in the declaration wits, that the Sheriff, on a capias ad respondendum, duly issued to him, served the same, and took no bail bond. The Defendant demurred to the declaration, and the Court below pus tallied the demurrer.

From Caswell. Certiorari. Muffin, in this case, moved for a certiora-ri* on an affidavit made by Scales» stating that he was informed by his co-defendant, that several days before the meeting of this Court, the Defendant (McCain) sent to the Clerk of the Superior Court of Caswell for the record in this case, that lie might bring it up, and was told by the Clerk that he had made out the record and sent if up.

<p>From Rockingham.</p> <p>lhbt on Sheriff’s bond. This was an action brought against Matlock and his securities, to recover S3 55 65, which Matlock, as Sheriff, had collected on an execution issuing in behalf of Nathaniel Henderson, against one Henry, and returnable October, 1822.</p> <p>On the trial below, the Plaintiff proved the execution of the bond by the Sheriff, and that by virtue of the execution, ho had received the money as charged in the declaration.</p> <p>For the Defendant, it was insisted there could be no recovery in this action,</p> <p>1st. Because the bond declared on is a Sheriff’s bond, and not having been taken pursuant to the act of Assembly, is void.</p> <p>2d. Because the bond declared on is given for the penalty of £5000, whereas the law authorises a Sheriff’s bond to be given for £2000 penalty.</p> <p>3d. Because, admitting the bond to be good as a voluntary bond, the action cannot be sustained, unless it be shewn that the Governor, and not Nathaniel Henderson, has sustained damages — for the law does not make the bond enure to his benefit, unless taken pursuant to the act of Assembly as a Sheriff’s bond.</p> <p>4th. Tlio bond could not be considered a voluntary me, but as a Sheriff’s bond, because it is only upon a Sheriff’s bond that Nathaniel Henderson, the person injured, is authorised to commence a suit in the name of the Governor, to his use.</p> <p>5th. That if the Sheriff should, as Sheriff, be bound under this bond, yet his securities were not liable in this suit.</p> <p>The Court instructed the Jury, that if they were satisfied that the Defendants had executed the bond declared on, and that Matlock had collected the money, at the time and in the manner charged in the declaration, the Plaintiff was entitled to recover. The Jury found a verdict for the Plaintiff- — motion for new trial, judgment, and appeal.</p>

From Cabarrus. Issue devisavit vel non. Martin offered for probate the will of .Tames Hough, and succeeded in its establishment below. Those who opposed the probate appealed to this Court, and the statement sent up presented two objections, as the grounds of appeal.

From Surry. Debt on three several bonds, amounting to $394 50, tried before Daniel, Judge. The Plaintiff, on Lhe trial, produced, 1st, a bond for 8253 50 ; 2d, a bond for 8fO;, and 3d, a bond for $fl, all executed by the Defendant, and payable to bimself.

From New-Hanover. Ejectment. On the trial below it was admitted, that the lands in controversy had been granted by the State. Two deeds were read, one from John Cowan, and one from John Bradley, to Jonathan Jennings, for the pre~ alises ‘, ami seven years actual possession of Jennimrs, under iliem. was proved. The will of Jon a-than Jennings was then read, whereby the land described in the declaration was devised to his wife Ann, and her heirs.

From Bertie. Jijeciment. Thomas Collins was seised of the premises in the declaration at his death, in 1800 — Iiayner’s wife, the lessor of the Plaintiff, was Thomas Collins’ willow. Thomas Collins left a will duly executed to pass lands, to which his widow entered no dissent, other than by her petition for dower, which was filed in August, 18DO, and under which the lands in controversy were allotted her.

From Rowan. This was an action on the case against the Defendant as Sheriff o! Itowan County, for a breach of official duty.

From Mecklenburg. This was an action of detinue for a negro slave, tried before Daniel, Judge. The slave had belonged to Andrew McBride, who made and executed a mortgage deed to the Plaintiff, of the slave, dated August, 1814 £ this deed was proved in May, 1815, and registered in June, 1816.

From Gates. Garnishment on attachment. Langdon being indebted, on the 19th of November, 1816, executed to one Morgan a deed in trust of certain property, for the benefit of certain of his creditors. After this, the Plaintiff, having a claim against Langdon for §220 23, sued out his writ of attachment and summoned Morgan as a garnishee.

From Pitt. coming before this Court a second time,* it appeared from the statement, that on the new trial which took place pursuant to the former decision of this Court, Marcus C. Stephens, the Cashier of the Bank, stated as follows&emdash;-that David Smith was, at the time of his death, a large debtor to the Bank ; the President of the Bank, after a consultation with the Directors, in- formed Mooring, the administrator of Smith, that he was at liberty to take bonds with…

From Warren. This cause came on, to be heard in Warren ^superior Court, before Badger, Judge, on the return of a writ of .certiorari, which had issued to the Court below.

From Martin. Gaston, in this case, suggested a diminution of the record, because it did not shew that an app.eal was granted until after the adjournment of the Court below, and moved for a certiorari. The record stated that the issues in the cause were submitted to a Jury, who found a verdict for the Defendant $ that a motion was made for a new trial; that the motion was overruled, and judgment rendered.

From Wayne. In this case the Plaintiff declared as indorsee of a pro;-missory note, against the Defendant as indorser. The note and indorsements were as follows: “ On demand the 13th of September next, with interest from the 10th of December next, we or either of us promise to pay to Joseph Armstrong, or order, nine hundred and eleven dollars and twenty-eight cents, for value received.

From Mecklenburg. This was an action of covenant, brought on an instrument signed by the Defendant Hayer and by Pickens. On the trial below, before Daniel, Judge, the Plaintiff called on witnesses to prove the handwriting of William Pickens, subscribing witness to the instrument, who resided without the State. They proved not only the handwriting of. the wiu>ess, but also that of the obligors.

<p>From Robeson.</p> <p>The Plaintiff in Ibis caso sued oat his writ on the 8üa day of February, 1821, and declared on the-act of 1796, and on the trial gave such evidence of a just debt due to him from Roderick M’lntcsh, and of the removal of the said Roderick from the county of Cumberland to the county of Moore, in October, 1820, and of tbs cíhcr ma-teria] facts necessary to sustain bis action, as was proper to be left to the Jury. The Defendant contended, that the act of 1796 was repealed by the act of 1820, without any exception or saving by which this action could be maintained. The Court, on this ground, non-suited the Plaintiff. He, moved for a new tria!, which was refused, and the Defendants bad judgment for costs. Plaintiff appealed.</p> <p> JictvfltVG. </p> <p>Be it enacted, &c. that from and after the first day of May next, *.vhcn any persoir'who has resided six months or more in any county of this State shall be about to remove out of the same, either .by land or water, it shall be his duty to advertise his intention of removal in at least three public places of tlie county, ten days previous to his removing, one of which advertisement'; shall be set up at the door of the justice of the peace to v. bom such person may intend to apply for •a certificate of his having so advertised, or at such other public place on the premises of the said justice as he may direct: and if any per-•¡on m persons shall remove, or iaiowhigly assist to remove any debtor or debtors, out of the county in which he shall have resided for the space of six months or more, who shall not have advertised himself in the manner as by this act required, and sludi have procured a certificate of the same from under the hand of some justice of the peace of the county, then such person so removing, or knowingly assisting it-, rrtvive such debtor- shall be liable to pay all debts which the per-’.or so removed might justly owe in the county from which he was removed ; which debts may be recovered by the person legally entitled thereto, by an action on the case: Provided, suit shall be commenced for the same within twelve months from the time the proof of such removal shall come to the knowledge of the person to whom the debt was so due; any law to the contrary notwithstanding.</p> <p>Act of 1820.</p> <p>An act to repeal an act passed in the year 17 96, entitled, “ An act to punish persons for removing debtors out of one county to another, or out of the state,” and for other purposes.</p> <p>1. Be it enacted, &c. That an act passed in the year 1796, entitled, “an act to punish persons for removing debtors out of one county to another, or out of the state,” be, and the same is hereby repealed.</p> <p>2. Be it further enacted, That if any person or persons shall remove or shall aid and assist in removing any debtor or debtors out of any county in which he, she or they shall have resided for the space of six months or more, with an intent, by such removing, aiding, or assisting, to delay, hinder or defraud the creditors of such debtor or debtors, or any of them, then such person or persons, so removing, aiding or assisting, shall be liable to pay all debts which the debtors or debtor so removed shall or may justly owe, in the county from which he was so removed; which debts may be recovered by the creditors respectively, who may be entitled thereunto, their executors ot administrators, by an action on the case : Provided, such suit shall be commenced within three years from and after the time of such removal.</p> <p>contended, that the act of 1820 was not a repeal, but simply a modification of the act of 1796 j that the Legislature evidently intended to make liable an individual who violated the act of 1796, with a particular intention mentioned in the act of 18201 that there never was a moment when the act of the .De» fendant was not unlawful, for at the same time in which the act of 1796 is repealed, that of 1820 is enacted. Any other construction would be an adherence to the letter, not to the spirit of the law; it would impute to the Legislature an intention to destroy the right of an individual to recover, in a case in which it is manifest they uniformly believed, justice required he should recover</p> <p>This suit is founded on the act of 1796 alone, and under no circumstances can it he maintained, 'Whether the act of 1.820 repealed that of 1796, is to be ascertained in one of two ways only : the repeal is cither by express words, or bv inference direct from the words not express. The repealing words are here express, but were they not, then there is still such an inconsistency between the acts, as amounts to the repeal of the former. The proper mode to ascertain the intent of the Legislature as to the repeal or modification only of an existing law, is to consider cases as they may arise, deeming, on the one hand, the last act a repeal, and, on the other, only the continuance of a former system ; if absurdity follow from the consequences resulting from either of these modes of considering it, such mode is not conformable in its construction to the legislative intention. Now the act of 1796 declares, suit must be brought within twelve months from the time proof of the removal comes to the knowledge of the person injured ; that of 1820, within three years from the time the act is committed. Again, how could the Court give judgment in such case as this ? It is brought on the act of 1796 3 that act is repealed expressly. To punish it under the act of 1820, the removal must have been made with a particular intent 3 the declaration avers nothing as to intent, and the Court cannot look at the evidence to learn it, for its judgment must he founded on the record before it. In truth, the act of 1820 has nothing to do with the cause of complaint in this action 5 but if it had, then Plaintiff should have declared on all the statutes which give him his right of action — (Jscrotcr v. Harrington, 1 Ilawks’s Hep. 192.) However the declaration might be, yet the nonsuit was proper, for the record shews that the Plaintiff offered no evidence as to intent,</p>

From Pasquotank. Sprd.al verdiel in ejecivient. it was found by the Jury, that Tiiomas Symons was seised and possessed in fee* of the lands mentioned in the Plaintiff's declaration ; that the said Thomas died intestate in the year 1790, leaving a widow, Ann, and leaving, as his heir at law, an only child, Sarah; that Sarah intermarried with Joseph Jordan, and died intestate the 2d of March, 1308, leaving, as her heir at. law, an only child, Thomas ; that Thomas died an…

From Currituck. Ejectment. The case as stated io this Court, is as follows.

From Granville. This was an indictment, containing two counts — the. first was framed on the act of If. 1, ch. 339, N. II. to pre - vent malicious and unlawful maiming and wounding— the second was a count for an assault and battery. The charge, in the first count was, that Use Defendant, ou purpose, unlawfully bit off the left ear of Henry Yancey, with an intent to disfigure him, and concluded contra for mam statuli.

<p>From Mecklenburg.</p> <p>Indictment for deceit.- — The only question presented to this Court, arose from the Judge below haling received in ei idenoe, to prove that there existed such an incorporated company as the Farmer’s Bank, of Virginia, a prink'd book entitled “ Itovised Code of the Laws of Virginia,” containing what purported to he the act of incorporation.</p> <p>Gaston contended that the hook .should not Slave been received. The law of Virginia was as to Nor.h-Carolina, the law of a foreign country, and must be proved to a Jury as any other fact Is — {Gawp. 174 — 1 P. Wins. 431~— 2 Mast’s Mep. 9.7% — Church v. Hubbard, 2 Orandi, 236-7.)</p> <p>relied on i Dall. 462, el seq.~~2 May. 174.</p>

From Rutherford. indictment for passing counterfort money, knowing it to be such.

<p>When a wit,icss is called, who, in the comiueucerucut ot his ix-sumo. ny, states himself to be an accomplice of the acense !, it. is regular, before the witness is attacked, to cull on another W’tness to prove ihat the first had rb luted the facts disclosed in his evidence, immediately after they happened, and to state other confirmatory facts — such evidence is to be considered as substantially ¿¡ven in reply.</p> <p>When ail indictment charges a Defendant with forging a bank note, “purporting to have been issued, &c. promising to pay, it must be understood as descriptive of a bill, pm,poj,!i,ig to promise, as well as purporting to have been issued.</p>

From Hertford. ■ This was an indictment for the murder of a slave, which concluded at Gammon Law. The prisoner was found guilty, and moved in arrest, because of the insufficiency of the indictment. The motion was overruled and sentence passed, from which the prisoner appealed.

From Lincoln. Indictment for Perjunj, which charged that the Defendant “ was sworn in due form of law.” The Jury found that the magistrate before whom the oath was taken, swore the Defendant with an uplifted hand* agreeably to the directions of the act of Assembly, but the magistrate, did not tender the Gospels to the Defendant before he was sworn, nor did the Defendant request to be sworn in any other manner than as he was sworn 5 and further, they found that the Defendant…

From Columbus. The Defendant was convicted and sentenced below r and on his appeal to this Court, the following appeared to be the Indictment: '^^Co^vlui-a's^Govs'jyr ^ Superior. Court of Law, Spring Term, 1822.

From Columbus. Indictment for an assault, with intent to kill. The Indictment commenced as follows : « NORTH-CAROLINA, CoiuaiBírs Coukty.

IN EQUITY. From Granville. The bill stated, that in the yean 1820, one John Evans, being- much in want of money, applied to the Defendant; Smith, for his assistance in raising the smn of two ihoa» sand dollars, and it was agreed between Evans and Smith, that the latter would advance the sum at a discount of twenty-five per cent, provided Evans would make to him a bond with the Complainants as sureties thereto: that a bond was accordingly executed for i:i>. sum of two…

IN EQUITY. From Greene. This was a bill seeking the direction of the Court* and was founded on the following facts.

From Pitt. a bill setting forth that Susanna, the widow of one Richard Williams, having by her said husband, a Tyson, adm'r iiiiti, I*.

<p>IN EQUITY.</p> <p>From Camden.</p> <p>The. bill stated tiiat Complainant had a judgment, obtained against one William Shaw, in Camden Superior Court, for ¿62097 11 2 $ that on the 6th of December, 'íSIT-, execution issued, and was immediately placed in the bands of lac Sheriffs awl the Deputy Sheriff, Richard Pool, endorsed thereon that it came to Ins hands Janea-ry SOths 1818. and the execution was in the hands of the Sheris’or his deputys until the second Monday of the ensuing March» when it was returnable $ that William Shaw was said at that time to be insolvent, but had previously intermarried with oho Lydia Shaimonliousc, who was the widow of Ja raes L. Shannonhouse, by whom she had two children, Elinor and Elizabeth, living at the time of her intermarriage with Shaw; that after such intermarriage, aud shortly before the execution above spoken of issued, one of Use children, Elizabeth, died, an infant intestate, whereby the wife of Shaw became entitled to a moiety of the personal estate of Elizabeth, consisting of negroes, money, bands, &c.; that ihe Sheriff! believing lie might not lawfully levy the execution in bis hands, on this interest of Mrs. Shaw, returned the writ to March, 1818, endorsed “ sac property to be found tiiat Complainant issued another execution on the judgment on the 13th of April, í C i 8, and the officer endorsed thereon that it case to ids hands on the 15th April,-1818, and so remained until the Tib of July, 1818, and that he levied on the negroes 17th of June, 1818 j that at June term, 1818, of Pasquotank County Court, the Defendant, Muse, obtained letters of adnainiBtration on the estate of Elizabeth ñliannonhousc, and obtained cm order of Court to divide the negroes of his intestate, between Elinor Shannonhouse and Shaw,-in right of his wife j that this division took place within the same week, aud Muse procured an execution to issue from Pasquotank County Court, at his own instance, as executor of one BSoyd, and to be levied on the negroes by one Joshua Pool, who committed the negroes to prison and advertised them for sale; that on the 17 th of July, 1818, Richard Pool and Joshua Pool, by virtue of the respective executions, «net at the courthouse to sell the negroes, and both Complainant and lie-fentíaní attended ; that Muse produced a mortgage for the negroes, dated the 18th of December, 1817, to secure, the debt for which his judgment was obtained, and this execution had issued, and it was agreed between Complainant and Defendant, that each party should bid for the negroes, and that the money arising from the sale should be paid over to him to whom counsel, selected by the parties, should say the same belonged ; that under this arrangement, the negroes were bid off by Muse, and a return made on Complainant's execution accordingly ; that Muse was the purchaser, and that the money bid was not paid by the order of the Plaintiff; that the counsel selected by the parties did not .settle the question between them, and that Muse now refused to pay over the money, alleging that he had a perfect title by reason of his mortgage. ■</p> <p>The answer admitting Shaw’s marriage with Mrs. Sbannonhouse, and Elizabeth’s death, stated that at December term, 1817, of Pasquotank Court, commissioners were appointed to divide the property of Elizabeth, and on the first of January, 1818, they did so, when the negroes alluded to in the bill were allotted to Shaw, and at the same term, the Defendant was made administrator to Elizabeth. It further stated that the D ■< ndant, as executor of one Boyd, being interested in a judgment against Shaw, obtained from Shaw on the 18th of December, 1817, an instrument conveying to the Defendant, as executor of Boyd, all the interest of Shaw to an undivided share of the personal estate of Elizabeth, with a proviso to be void, if Shaw should pay the judgment aforesaid : further, that the- Defendant was the executor of James L. Sbannonhouse, father of Elizabeth, and that all the negroes of Sbannonhouse, including those alluded., to in the bill, had remained undivided, and under Do,fen-., dant’s control as executor, up to the time of the division, on the 1st of January, 1818, and that William Shaw no-.</p> <p>The Defendant admitted his having taken out an execu-iion on the said j udgment, which was levied on the negroes on the 17th and 18th of June, 1818, and that he bid them off at the sale as charged ; and further, that the agree - ment between himself and the Complainant, as to a reference of the question, and the result: of such agreement, was truly stated in the bill, and submitted that Ids title to the negroes, botli in Law and Equity, was good until the debt which they were conveyed to secure, was discharged.</p> <p>JV'ask, Judge, who presided below, dismissed the bill, ordering eacli party to pay his own costs. — Complainant appealed.</p>

<p>IN EQUITY.</p> <p>From Burke.</p> <p>The bill which was filed in 1815, by Tate, as administrator de bonis non, with the will annexed, of John Bowman, stated that John Bowman died in 1780, leaving James Greenlee, Charles McDowell, and John Greenlee, his executors •, that all were since dead intestate, and that administration had been committed to the Complainant ; that James Greenlee, one of the executors named in the will, took upon, himself the management of the estate of John Bowman, and had returned an inventory and account of sales, the amount of which was a large sum of money j that besides the property contained in this inventory, other property to a large amount same to the hands of Janies Greenlee, and had never been accounted for by him ; to-wit, a large number of cattle, indented certificates issued for property and services rendered the public by John Bowman during the war of the revolution, a quantity of tobacco, the rents and profits of certain lands belonging to John Bowman, and it was charged that several negroes bequeathed by the will of John Bowman to Mary Bowman, now th« wife of the Complainant Tate, were hired out by James Greenlee before bis assent to the legacy, and before they came into Complainant’s hands; that James Greenlee died in 1813, and the Defendants were Ids administrators, and possessed of assets sufficient to satisfy all demands ; that the Complainant had required of the Defendants to pay over to him the amount of Bowman’s estate which had come into the hands of their intestate, but that they had refused to do so. It was further charged, that the Defendants had in their possession all the hooks of accounts, and other evidences of John Bow - man ; also many memorandums and writings, which would disclose the certainty and amount of the several charges in the bill, and that the Defendants had refused to deliver them to Complainant, but fraudulently withheld them. The hill prayed particularly, that the Dc fendants might be compelled to disclose such facts connected with the charges of the bill as they had derived from papers in their possession, belonging to the esta*; of John Bowman, and also might be decreed to account</p> <p>It was admitted by the Complainant, that for seven - teen years after his intermarriage with Mary Bowman, lie lived in the immediate neighborhood of James Green lee, and that Mary Bowman received the hire of the ne-groes mentioned in the bill — that Mary was the niece of James Greenlee, and married during her minority.</p> <p>Wilson moved to dismiss the bill, on the ground of the great length of time which had elapsed, and stated it as the established doctrine, that where, a person sirens e-a his rights so long, that from human infirmity and (he dif ficulty of proof, the facts cannot be precisely ascertained, no recovery can be had, no matter what the length of time may be. This, he said, had been the settled rule for a century, and to shew its application in many cases, differing as to the length of time which had elapsed, he cited the following authorities — (JDeloraine v. Brown, S Uro, Cha. It 639- — Sturt v« Mellkh, ?, Mh La&m v. Briggs, 3 Mk. 1 05 — Mersey v. Uinwoodie, 2 Ves. jwu 92, et seq. — Pickering v. Stamford, ib. 582 — Morse v. Ry-all, 12 Ves. 374 — Thompson v. Blair, 3 Murph. 594 — Pre-Qrai~f g wheat. 498, 503 — Ellison v. Mobbit, Í Johns. Ch. Rep. 46 — Rap v. Bogart, 2 Johns. Cases, 432 — Raynor v. Pearsall, 3 Johns. Ch. Rep. 582.)</p> <p>If it be said Complainant was an infant- — an infant suitor is bound by laches in a suit- — (13 Ves. 396.)</p> <p>Gaston in answer, said, that length of time was not conclusive ; it was but evidence raising a presumption, and might be rebutted by proof — (Pickering v. Stamford, 3 Ves. 272, 582.) Length of time is not good, ipso jure, on a demurrer.</p>

IN EQUITY. From Iredell. The bill which was filed in 1817, set forth that one Gil-braithFalls died in June, 1780, intestate, and that administration on his estate was granted in 1781, to his widow, who in 1784 married the Defendant; that the Complainants were the children of Gilbraith Falls, and at the time of his death were infants ; that some of them (the daughters) married in infancy, and were yet femes covert $ that among other property of their deceased parent taken…

<p>Oil the trial of issues in Equity, the copy of a copy of a will, was read in evidence. The Court refused to grant a new trial of the issue, because, since the first trial, the original properly authenticated, had been found, and corresponded with the paper read in evidence ; and the Court perceived, beyond a doubt, that, as respected the evidence obtained from the paper read, the Jury was not misled.</p>

IN EQUITY. From Orange. The issues in this cause had been submitted to a Jury, and Muffin, on the finding, moved for an account and a dissolution of the injunction, andas both securities to the injunction bond were dead, he moved further for a rule on the administrators of the securities, to shew cause why execution should not issue as well against them, as against the Plaintiff,* and after a short consultation, the Court permitted him to take such a rule.

From Orange. This was an action of debt brought by the Plaintiffs against the Defendants, as the securities of one'James' Dickey, who was appointed by the Court of Orange, at February term 1817, guardian of Nancy Shutt, the infant Plaintiff in this case.

From Rowan. Trespass vi et armis for taking certain negro slaves. 'The facts were as follows : George McCulloch being indebted to the Bank of Newbern, the Plaintiff became bis surety, and to indemnify him from loss, McCulloch executed to him a mortgage deed for the slaves in question ; this deed bore date 29th of May, 1818. McGui-lof : lived ‘n liov&n, and the Plaintiff in Mecklenburg*, ab *t vhiFy rnoef. d; taut from him. The mortgage was afj»’r:i£. fule transaction.

<p>From Granville.</p> <p>Thist canse, was tried before Nash Judge at Granville* September term 1828, and iba Defendant bad a verdict. The case stood before- this Court, on a motion for a new trial, and the far is were these. Holden executed to the Defendant -u sealed note for SGOfi, and dated 2CUi offline, 3.820. On the 28th of June 1820, the Defendant endorsed the note to Plaintiff. At the County Court of Granvüi? in August 1820, the Plain tiffwithout having issued any writ, obfained from Holden, a romfe-sshm of judgment on the note, and granted him a stay of execution until February term 1821, and an entry to this effect was made on the Clerk’s docket at the time. The Plaintiff’ offered no evidence of a demand upon the maker, except the judgment confessed by Holden. lie however offered in evidence a deed of trust, executed by Holden to Samuel ill ¡¡man on tlie 4th of November 1820, and ail iu the hand-writing of the Defendant, by which Holden conveyed certain property, in trust, for the benefit of the Defendant and other creditors j and Plaintiff contended, that this amounted either to evidence of notice to the Defendant, or a waiver on Defendant’!, part of notice. The property conveyed in trust, when solí!, was insufficient to sa-{isfy the debts intended to be secured by it, and Plaintiff, under the sale, received his proportionate share, 0440. It also appeared, that in February or March the Sheriff sold property of Holden's not included in the deed of trust, by virtue of executions issuing- on judgments obtained in November 1820. Defendant contended 1st, that there was no sufficient evidence of a de-jnand or notice, and 2d, that by taking- the confession of judgment and granting a stay of six months, Plaintiff bad made anew contract with the maker of the note, and thereby released the endorser.</p> <p>: The Court charged the Jury, that to entitle the Plaintiff to recover, it was necessary he should have made a demand of Holden, and have given Defendant notice of it, and of the non-payment of the bond within a reasonable time; that what was reasonable notice, depended on circumstances, the law however, in all cases, required the assignee to uee due diligence in presenting, and that ho should as soon as he conveniently could, give notice to the endorser of the demand and dishonour of the note j that the deed of trust having been taken upwards of four months after the endorsement of the note, and only for part of Holden’s property, in no way dispensed with the. •necessity of notice : that if it was received as evidence of notice, it was only evidence at the time of its date., which, being four months and more after its endorsement, was notin reasonable time, the parties all residing in the same villagebut if they could infer from any other circumstance that the Defendant had earlier notice, they were at liberty to do so ,• and that Plaintiff having taken a confession of judgment, and given a stay of six months, when, if he had brought his suit regularly to August term, ho could only have kept it off three months without appearing, in which event the debt would have been secured, lie had virtually made a new contract with Holder, by which the Defendant was exonerated from all liability.</p> <p>The Plaintiff is noten» titled to recover in this case, 1st. because lie has given no evidence of a legal demand upon the maker, or of the requisite notice to the Defendant, the endorser. The principles which govern cases of promissory notes (and bonds in t!¡is State) are the same which govern accepted inland bills of exchange. .Before the holder can recover of the endorser, it is necessary that he should shew Le has made a demand of the maker, and given reasonable notice to the endorser. In this case, there is no evidence of any demand- on the maker,- except the confession of judgment by Holden, and no evidence of any notice, except what is furnished by the deed of trusty v hick forms a part of the case. It is contended, that these are not sufficient for the reasons which will be given hereafter. As to demand and notice, and what shall constitute reasonable notice, see Chitty on Bills' Siory’s Ed. — 101, 182, 187, 201, 150, ZüQ — lsl T.'il.-168, 169 — 8d Murphey 73 — 2 Philips'1 s Evidence, IB note CaJ and the authorities there cited.</p> <p>2d!y. He is not entitled to recove,", because by taking the confession of judgment from Holden at August Court,- and granting him a slay of execution from August till February term, when if suit had been regularly brought to August, and prosecuted in the usual and ordinary vvay, Holden could have kept off the, judgment and exe • eu^on only until November term, unless he had appealed, in which event the debt would have bcen'securcd, ho has made a new contract with the maker, and by giving him time, has made the debt his own, and released the endorser from all liability. “ This is a rule of law not confined to bills of exchange, for if the obligee of a bond with surety, without communication with the surety, take notes from the principal, and give further time, the surety is discharged,” Chitty 212 — sea also 8íh East, 576, cited in note (ft) of the same page. “As to giving time, the holder docs it at his peril- — aud that riremn-stance alone would be sufficient lo decide this case. For-^11 no case has it been determined that tíie endorser i;> liable after the holder of the note has given time to the ma{ier/» B idler Justice, in the case of Tindal v. Brown (1 st Term Hep. 1G9-70.)</p> <p>But it is said that the. deed of trust, which forms a part of this case, amounts to a waiver of notice. This case is very unlike the cases of assignment of property of the maker to the endorser, which have been decided to amount to a waiver of notice. In those cases, the assignment was made at the time of the endorsement, or before the note fell due ; in this case, the trust is taken upwards of four months after the endorsement} and after the bond had become due, and that too, tint when it was in a regular and legal train of collection, but after the holder liad given time to the maker, and thereby released the endorser from all liability, independently of bis failure to give notice. In those cases, the assignment was taken by the endorser of tiie whole of the property of the maker, and with a perfect understanding of his liability, so that notice would have been entirely useless to him; in this case, the trust is taken by Defendant upon only apar,’: of Holden’s properly, and under a clear mistake in regard to his (Defendant’s) liability.' It will be recollected, that the deed of trust bears date the 4th day of No - vember 1820, only a few days before Granville November Court, the term at which Yancey, would, by a ¿no course of law, l»a\c obtained his judgment against Holden, and that Littlejohn (by the trust) in the same breath in which he recognizes Ids liability, speaks (if the suit of Yancey v. Holden upon that bond, as being then pending, which shews very clearly, that he was under the impression that suit had been regularly broughr to August Court, and that Yancey was ussug all due diligence to collect the money cut of Holden ■ which he probably might have dime if he had obtained his judgment and sued out his execution at November term, as it is in e\ i-dflncc that a considerable sum was made out of Holden’s property as late as February and March Courts 182 i,) whereas in truth, no suit had ever been commenced by Yancey v. Holden, but the latter had, at August Court, admitted service Of a writ and confessed a judgment in favour of the former upon his agreeing to give him a stay of execution until February, which was enleml upon the docket. If 1 be deed of trust be received as evidence of Littlejohn’s acknowledgement of his liability, we, shall surely be entitled to draw from the same source the evidence, that the admission was made under an entire misapprehension of the facts and the law of the case. If Yancey bad brought suit immediately against Holden, and used Use same diligence which he himself could have done, Littlejohn might have felt himself hound in hon-our, if not in law, to have waived any advantage which lie might have in consequence of Yancey’s having failed to give him notice. But after knowing of the arrangement made by Yancey with Holden, lie could have considered himself bound, neither m law nor in honor, to have waived any advantage which he had. Where an endorser of a promissory note, believes a demand to have been duly made ori the maker, and that notice has been duly given to himself, and believing himself therefore liable^ takes measures for his indemnity, tfiis will not excuse the holder from proving a regular demand and notice. —(9th Mass. Rep. 332 — 5lh Johnson Rep. 375 — \2thlbid, 423 — 5th Ibid. 248 — ^-'8ill Ibid. 384 — 2d Campbell 105 — - 4ih Dallas 105 — Ckitty 172 note *.) The provisions of the trust required that the money arising from the sale, should he paid, not to Littlejohn, but in discharge of the' several debts intended to be secured by it, and Yancey came in, under the trust, and received his rateable proportion $ which siiews, that he looked to Holden and to the trust fund, as the means of collecting his debt, and not to Littlejohn, the endorser, which is further evidenced by the length of time which has elapsed since, the an (lorncment before the commencement of this suit. Sure* ^ ^ ‘s w*lh an grace that he can now contend that this deed of trust, of which he has received his full be-neg^ should be considered as amounting to a waiver of notice.</p> <p>So far from Yancey’s being entitled to recover front Littlejohn, had he, under all the circumstances of the case, received from him the amount of the balance of the debt, Littlejohn would have been entitled to have, recovered it back. — (Blesardv. Hirst — 5th Burr 2670, — Goodall and others v. Bollcy — (si Term Hep. 712 — >Garland v, the Salem Bank — 9ih Mass. Hep. 408.)</p> <p>It is contended, however, that if the deed of trust do wot amount to a waiver of notice, that it should be received as evidence of notice. All the authorities, and most of the reasoning, upon the last point, are equally applicable to this. An acknowledgment made under an entire misapprehension, will surely not create any liability where none existed before. Suppose, however, I am mistaken in a principle, which seems so very plain that scepticism itself can hardly raise a: doubt about it, and it is considered as evidence of notice. There are two* objections to it. The one is, the. confession is made at a time, when the endorser is already discharged from liability by the holder, in consequence of the credit which lie has given the maker, and is not in reasonable time. (See the authorities before cited as to notice.) If I admit. service of a writ,- it by no means' follows that I owe the debt. ; Want of notice, is one’ of the" means by which an .indorser may be discharged; giving Credit is another, and it is humbly contended, that after proof that the holder has given credit to the maker, notice, is perfectly, immaterial. — {Chilly 212.) The other objection is, that it is not evidence of such a notice as the law requires. If it be received as evidence of notice, what kind of notice is it evidence of? Common sénse can give but one answer to this question. That it mast be received as vsyideíioe of notice of the real slate of the case, which, if drawn np in words would amount to tiiis; “ that he, Yancey, had applied to Holden for the payment of the bond, which he, Littlejohn, liad assigned to him ; that it was not convenient, for Holden to pay the money, and that he had taken from him a confession of judgment, cud as it would not suit his convenience to pay the money sooner, he had agreed to wait with him until February Court, before lie issued any execution against h«m.” What would Littlejohn have understood from sucii a notice ? That Yancey looked to him for payment? Certainly not. But suppose he had so understood it; the object of notice is to give the endorser an opportunity of taking up the note and having his remedy over, and saving himself if practicable. In tisis case, the bond had passed out of the p «session of Yancey even, and was tiled in Hie Clerk’s office, as the evidence of the debt upon which the judgment had been confessed. Neither Yancey, or Littlejohn could have any control over the bond or judgment until February Court. ” The purpose of giving notice,” says Bullet Justice, in the case of Tiudal v. Brown, before cited, “ is not, merely, that the endorser should know' that the note is not paid, for he is chargeable only in a secondary degree, hut to render him liable, you must shew that the holder looked to him for payment, and gave him notice that he did so. A, case might easily he put where the endorser might have notice from the holder, and yet would not be liable; as if, in the preseut case, the holder had written a letter to the endorser, containing the circumstances which have been given in evidence, the endorser would have been discharged ; because it would have amounted only to this: “The note made by Donaldson anden dursed by you, is not paid, and Í have given credit to Donaldson ’till to-morrow.” Though there is no pre • scribed form of this kind of notice, yet it must import ■hat the holder considers the endorsers as liable, and expects payment from him, that he may have remedy over ^ an eai'ly application; then it becomes his business to take up the note. But notice of having'given cre-¿¡j. ¡jie maker, will discharge the endorser.</p>

From Bertie. This was a sci. fa. issued from Bertie Superior Court, to the Defendant, as administratrix of one Asa Hardi-son, who was security of Rachel Hare, in an appeal granted on a judgment rendered by a magistrate, against Raclml Hare, in favour of the present Plaintiff. The warrant was in the usual form, and on it were endorsements'as follow, viz : — “Judgment against the Defendant for twenty pounds, with lawful costs, this l£)1h January, 1811.

From Mecklenburg. This was an action of assumpsit brought by the Plain tiff, as administrator of William Hutcheson, for $320,, •bo price of articles purchased, as was alleged, by the Defendant, at the sale of the estate of William Hutche-son. The Defendant relied on the plea of infancy, to which there was a replication, promise after coming to lull age.

From Stokes. This case originated by a magistrate's warrant issued at the instance of the Plaintiff against the, Defendant* to answer the complaint &c. “in a plea of debt for the sum of fifty dollars due by a book accompt.” The pleas were the general issue, paymeut, set off, and the statute of limitations, ami Use Plaintiff was required by notice to produce his books.

From Wilkes. This was an action brought against the Defendant, as executor of one James McDowell, to which Defendant pleaded ne unque executor, fully… Held: that ius executor íu? sun tort was within the prdedion'of ¿Le act oí* If 1.1, and that the time began to ?«« i« favour oí the Defendant, from the time ho ««ok pi'^’occioi! of the ¡.rojX'vly, and openly and pub» lickJy er-'i l-í* An ejecutor de son fori never comes v,itjiiii iie protection of u»e act of 5716.

From Tyrrell. This was a motion for a judgment against the Defendant, Hallsey, and two others, his securities, on a bond given by Hallsey, conditioned that he would keep within the prison bounds, in the county of Tyrrell.

From Robeson. Iktime for negro slave .Jock. Flea, the general issue. Ficiiusii'i dafcrd the slave b/ virtue of a biil of sai:*, irons Jiluten torito ío iíhustof,, im*de 20th of December 1802 ; afc the time of this mile, Flaiwtiir was an infant, this suit w‘«is faiüiíEOüce.íl before he came of age. Tbs Defendant o bio tied ¡tow, under a bill of cale from .Tatars Smith, awi foe following facts appeared its evi-ítofíce.

From Cumberland. This w?b an action of assumpsit, brought against ihe Defendant as endorser of a bill of exchange, as follows : 15 (S 5000. ’ “ Fayetteville, 7th JJecember, 183 8. “Ninety days after sig-ht of this, my first of exchange, second of same tenor and date unpaid, pay to the order of James Seawell, five thousand dollars, value received, and place the same to account of “ Y’r very humble serv’t. « D. OCHILTREE. “ To Sahuei Momsy, Esq. Charleston, S..

<p>PRACTICE.</p> <p>ATTACHMENT EOS CONTEMPT.</p> <p>From Buncombe.</p>

From Ashe. This was an action on the case, brought by Plaintiff against the Defendant, Sheriff of Ashe county, to recover from him the sum of $ 65, which it was alleged the Defendant had received on two executions, which had been issued at the instance of the Plaintiff, against one Brown.

<p>From Iredell.</p> <p>•Assumpsit for goods sold and delivered. Pleas, the general issue, payment, set oif, and the statute of limitations. The Plaintiff on the trial, to prove his account, produced one Harbin, who swore that he produced to the Defendant the account, and read over the items to him, and that the ’Defendant admitted its correctness. This admission was made within three years before suit was brought $ but at the same time that it was made, Defendant alleged that lie had an account of equal amount against the Plaintiff, which he produced, but Plaintiff, who was present, denied that it was just. The Court instructed the. Jury, that the admission of the Defendant, if the witness was believed, was sufficient evidence of an acknowledgment within three years; and that the account produced by the Defendant was not proved by bis declaration, but must be proved by other evidence. A verdict was returned for the Plaintiff, for the amount of his account. A new trial was refused and judgment rendered, whereupon Defendant appealed.</p>

<p>From Buncombe.</p> <p>This was an action of 'assumpsit, and the declaration contained two counts •, the first, framed on a warranty that the sight of a negro boy would not be lost or destroyed by a disease with which they were affected, and the second, on a mutual promise to exchange negroes.</p> <p>The evidence was, that the Plaintiff being about to pui’chase a negro boy from the Defendant, wisiied him. to warrant that a defective eye which the negro had, would not become perfectly sightless ; and to Plaintiff’s request, Defendant replied, “ there is no doubt of the eye, in my opinionthe Plaintiff then took the boy and gave g.400 for him. The disease increased upon the eyes of fíifi hoy until ha became cr small value, wheat the Lfo>idn,ni, who was on his way to Charleston, slopped ,Lf iik* l'iwjurtiC’s house, and there, together with Iho I'hi'iVíiC üNiifsiÉíKrf the negro*» eyes. Plaintiff asked Defendant ií ha intended to bring negroes back with him from i!hr ?'L?r;:oü, and understanding that ise did, it was íiPjj'üíd ix*i Neen 'he, parties, that H’ Defendant biaught back a negro boy wito hita, he would leí. the Plaintiff have him, and take back the blind one, if tho boys were of equal si'-se; but should the boy brought from Charles-ion be the iiti-ger, then PlsintiiF was to pay Defatutant the diSbroitco Iu value, considering both boys sound. IíeíV'í¡ík:«¡. did bring back another boy and Bold hiss to a third person | I'ltdtuifiT thereupon brought suit, but made no tender of the i*. iVclive boy before isssjlsig his writ.</p> <p>The Jury, under the charge of the Court, found that there *,v¡rs ho warranty as laid in Ihe first coni;!, fast that iiie Defendant did assume, as charged in tie' second, and gave damages for the Plaintiff íhiyé A r;-w trial was moved for and refused, and judgment relieved, whereupon Defendant appealed,</p> <p>contended, dut in thiw case, tho acts to be performed were' concui-mtt, ami therefore that tho party suing for noa-performancc, should aver and show an offer r.n his pare to perform.— (CaUmeU v. Briggs* 1 Satit. 112 — C-oodiacA v. ,ffunn, 4 Term Itep, 761 — Mtrhm v. Lamb* 7 2bhL 125 —Jones \\ Barclay, ihag. 684 — Luacion v. ilobumn, Ibid. 620.)</p> <p>It is true, that the action m'gbt be supported, if Plaintiff, ready and willing to perform bis part of tie. cost-tract, requests Defendant to perform his, and DAVyui' »nt refuses j — (l Chilly PI. 3 J 7-18 — 1 East. 20.'?.,) but when the act is to be pot forme.' on request, such symst must be dated and proved. — (Jttrfcs v. Trippei, i riamd* SS — Bafih x, Owen. s Term, Rep. 409 — 4 Chilly PL Sgft-3.</p> <p>The exchange, in this case, was to take place on request, no time was fixed, and in such case each party had his lifetime to do it in, unless quickened by request. — (Co. Lit. 208 a.)</p> <p>said, that neither notice or request was necessary, to sustain this suit $ the promise, and not any prior performance by' the Plaintiff, gave him a right of action ,• it was the case of an independent contract on the part of the Defendant, and could not at all he affected by tiie circumstance of a request. The thing to be done, was as well known to the one party as to the other. — .(1 Ld. Hay. 1126,'Smith v. Gaffe.}</p> <p>If the declaration states, that Plaintiff was willing’ and ready and offered to exchange, it is sufficient. — (6 East. 561 — 2 Pos. and Pull. 447 — 1 Sannd. 320, n. 4— 3 Ibid. 352, n. S..) If this suit had been brought before the sale of the negijp by Defendant, a request would be necessary,- but, after that sale, a request was perfectly nugatory, for Defendant had himself put It out of his power to comply with Ms contract; and it is no answer to say, that he might have again obtained possession of the negro and complied with his contract. No such fact appears from the case.</p> <p>insisted again on the necessity of an offer on Plaintiff’s part to perform, and the prior sale by Defendant, he said, could not dispense with the necessity of such offer ; for, from the case, it did not appear.that this particular boy brought from Charleston should be exchanged, but any negro might be substituted for him.</p>

From Caswell. Assumpsit to recover the balance of the purchase money of a tract of land, which it was alleged Plaintiff had sold to Defendant.

From Columbus. This casa came a second time before the Court, it not appearing from the certificate sent from this Court, that any order or decision had been made here on the motion for a new trial. — (vide ante 460,) and now another point was stated on the record sent up. On the trial below, Defendant’s counsel asked a witness on the part ®f the prosecution^ if she had not held conversations with ethers, In which oho stated the facts others «so than as she now did.

From Cumberland. This was au indictment charging the Defendant with having committed an assault on a slave., and with inhumanly beating, wounding, he.

IN EQUITY. From Wake. The complaint as set forth in the bill, was, that the complainant had endorsed for the accommodation of one Lucas, a promissory note, negotiable and payable at the office of the… Held: that thejudgment was not satisfied, notwithstanding the payment, and that the Plaintiff might, as the substitute of L. use it for bis indemnity.

IN EQUITY. From Cumberland. This bill having been retained at a former term, (Jbite 295,) several issues were ordered to be submitted to a Jury, from whose fouling it appeared, that the verdict in the suit mentioned in the bill, was founded on the false testimony of Joseph Jenkr-i, \\ ho was corrupted by a bribe to swear falsely; that Jenks, in his last illness, declared that he had sworn falsely, and that Complainant had no knowledge of this declaration, or of the means of…

IN EQUITY. From Orange. The bill staled, that one John Whitled died seised and possessed of a large real and personal estate, and by bis will, bearing dale .t3th of March, 1804, devised and bequeathed to Susanna, his then wife, a part of his real estate, three negroes, together with one half of the money on hand, and all the rest of his personal property, bis negroes excepted, reserving also sundry small pecu - niary legacies, afterwards mentioned in the will.

IN EQUITY. From Halifax. In 1794, the Complainants, as legatees and next of kin to William Jones, who died in 1758, filed a bill against Zollicoffer and others, and set forth, that by the will of ^… Held: that a creditor who has a surety, and also a mortgage from the principal debtor, should not pursue the surety personally, until he had exhausted the mortgage fund.

IN EQUITY. This cause came on to be tried upon bill, answer and depositions, before the Court, without the intervention of a Jury! being the first case decided under an act passed at the last session of the Assembly, authorizing Courts of Equity to adjudge upon controverted facts without a Jury.