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•r ^■' -• -• — V 



HARVARD LAW LIBRARV 



I : 



• I 



C9 



REPORTS 



Of 



CASES IX LAW, 



ABOUIO ANB BBTIRMINIO IN TKS 

SUPREME COURT 



OP 



\ 

I 



NORTH 



JBOK JVRB TSUI, ttO, TO A 




CLvnrak 



•»• 



BY JAMES IREDELL. 



VOLUME XII< 



-•-•-•- 



RALEIGH. N. C. 

flBATON OALBB. FDBUSIIBK 



Jiu.. ^z^. 6 /$^2 






JUDGES OF THE SUPREME COURT 

OF NORTH CAROLINA, 

During the period comprised in tliis ooJume. 

Hon. THOMAS RUFFIN, Chief Jubticb. 

Hon. FREDERICK NASH, 

Hon. RICHMOND M. PEARSON. 



I 



Judges of the Superior Court, 

HoK. THOMAS SETTLE, 
Hon. JOHN M. DICK, 
Hon. JOHN L. BAILEY, 
Hon. MATTHIAS E. MANLY, 
Hon. DAVID F. CALDWELL, 
Hon. WILLIAM H. BATTLE, 
Hon. JOHN W. ELLIS. 



Attorney OeneraL 
WILLIAM EATON. Jk., Esonu. 



Clerk at Raleig'*. 
EDMUND B. FREEMAN, Esaoni. 

Clerk at Morganton. 
JAMES R. DODGE. Es«aua. 



Reporter. 



I JAMES IREDELL. 



Marshal. 
J. T. C. WIATT. 



i 



INDEX 



TO TUl 



NAMES OF CASES. 



Albritlon, Pitt v. 
Andrews, Ellison r. 
Arey v Stephenson, 
Atto. Gen'l v Carver, 
Bagley, Wood v. 

do V Wood, 
Ballew, Osborne v, 
Baugh. Buffaloe ▼. 
Baxter, Ferebee v. 
Beatty v Conner, 
Bettis V Reynold^i 
Biggs V Ferrell, 
Blackwell, Pearce v. 
Bradford v Erwin, 
Briggs ▼. Byrd, 
Brooks, Midgett v. 
Bryan, Smith v. 

do Robinson ▼. 
Bufialoe v Baugh, 
Bnie, Cox v. 
Bttrcham, Stringer v. 
Byrd, Briggs v. 
Carson y Smart, 
Carter, Ponder v. 

do Deaver v. 

do Colman v. 

io Hoke t. 

do do y. 



74 Carver, Atto. Gen'l v. 


231 


188 


Chesson, Phelps v. 


194 


84 


Chunn v Jones, 


251 


231 


Colman, Carter v. 


274 


83 


Conner, Beatty v. 


341 


90 


Cox, Hice V. 


315 


373 


do V Buie, 


139 


201 


Craig V Miller, 


375 


64 


Crow, Holland v. 


275 


341 


Davis, Williams y. 


21 


843 


Deaver v Carter, 


267 


1 


Dickinson v Jones, 


45 


49 


Dickson v Jordan^ 


79 


291 


Dula v McGehee, 


832 


377 


Edwards, Williams v. 


118 


145 


Ellison, Pippin v. 


61 


11 


do V Andrews, 


188 


183 


Erwin, Bradford v. 


291 


201 


Farmer v Francis, 


282 


189 


Feimester v McRorie, 


287 


41 


Ferebee v Baxter, 


64 


378 


Ferrell, Ledford v. 


285 


369 


Ferrell, BIms v. 
Fincher; Wentz v. 


1 


242 


»7 


267 


Floyd V Taylor. 


47 


274 


Francis, Farmer ▼. 


282 


387 


Fullenwider, 8imt>soh 


V.384 


324 


Gant V Hunsucker, 


254 



\u 



\AAtE!< or CA8B8. 



Gaskill V Kine, 
Harshaw v Moure, 
ITenrv, Posten v. 
Ilice V Woodward, 

do V Cox, 
Hoke V Carter, 

do V do 
Holland v Crow, 
II(.ustoii, Judjzc V. 

do V Starue?, 
Ilunsucker, (lanl v. 
Iluntlev V VVaddell, 
llymau, Monro v. 

do V Williams, 
.lackson. McLean v. 
Johnston, Love v. 

do do V. 

Jones, Dickinson v. 

do Shannon, v. 

do V Jones, 

do Chunn v. 
Jordan, Dickson v. 

do Walters v. 
Judgo V Houston, 
Killian v Simms, 
King, GaskiJI v. 
Khico V liackenour, 
Lac ken our, Klug3 v. 
Ledford v Ft* rrell, 
Lovo V Schonck, 

do V llainso!!, 

do V Johnston, 

do V do 
Lyerly v VVheelor, 
McDougald, Robinson v. 
McLean, Sloan v. 

do V Jackson, 
McKorie, Feimester v. 
McAlister v McAlister, 
McEntyre v McEntyre, 
McKay, Simpson v. 
McGehee, Dula v. 
McRae v, Russell, 
Meadows v Smith, 
Midgett V Brooks,. 



2LI 
2'17 
339 
293 
315 
327 
3^4 
275 
103 
313 
204 

3'Z 

3S 

02 
149 
355 
307 

45 
200 

9!:^ 
251 

79 
170 
108 
252 
211 
180 
160 
285 
304 
32S 
355 
307 
2JU 
136 
200 
149 
287 
184 
299 
141 
332 
224 

16 
145' 



Miller, Craig v. 375 

Moore v Hyman, 38 

do V Parker, 123 

do Harshaw, v. 247 

Ncwsom, Stafford v. 17 

Osborne, Price v. 26 

do V Ballew. 373 

Parker, Moore v. 123 

Parr's v Roberts, 268 

Pcarco V Blackwell, 49 

Pearson, Kevel v. 244 

Pelway, Pitt v. 69 

Phelps V Cliesson, 194 

Pippin V Ellison, 61 

Pi It V Petwav, 69 

do V Albritlon, 74 

Ponder v ('arler, 242 

Posten V Henry, 339 

Price V Osborne, 26 

Ram sour. Love v. 328 

Kay V Ray, 24 

Keildick, VVhitehead v. .95 

Revel V Pearson, 244 

lleynoids, BeHis v. 344 

Roberts, Parris v. 268 

Robinson v McDugald, 136 

do V Bryan, 183 

RussjII. JIcRae v 224 

ischenck, Love v. 304 

Shannon v Jones, 206 

Sharpe v Stephenson, 348 

Sinfns v Killian, 252 
Sim[)son v Fullenwider, 334 

do V McKay, 141 

Sloan V McLean, 260 

Smart, Carson v. 369 

Smith V Bryan, 11 

do Meadows v. 18 

Stafford v Newsom, - 17 

Starnes, Houston v. 313 

State V Clark, 151 

do V Cohon, 17^ 

do V Curtis, 270 

do v Ellis, 264 



^ 



XAMEA OF CAIES. 



Ml. 



State ▼ Jackson, 32 9 

do V Jenkins, 121 

do V McGowan, 44 

do V Martin, 157 

do V Powers, 5 

do V Preswell, 103 

do V Rash, 382 

do y Whitford, 90 

do y Williams, 172 

do y Yarrell, 130 

Stephenson, Arey y. 34 

do Sharpe y. 24S 

Stringer y Burcham, 4 1 



Taylor, Floyd v. 47 

Waddell, Huntley r. 32 

Walters y Walters, 28 

do V Jordan, 170 

Wentz V Fincher, 297 

Wheeler, Lyerly v. 290 

Whitehead v Reddick, 95 

Williams v Davis, 21 

do Hyman v. 92 

do y Edwards, 118 

Wood y Bagley, 83 

do Bagley y. 90 

Woodward, Hice v. 298 



I 



} 



CASES AT LAW 



AEOUSD AND DKTEEMINBD !?( 



THE SUPREME COURT OF NORTH CAROLINA, 



AT RALEIGH. 



JUNE TERM, 1861.. 



ASA BIGGS V9. THOMAS FERRELL. 

Vfhtn the owner of land, to which n ferry is annexed, as a franohiie, iMtoi 
tho laad together with the feiry, he is not responnhle for any daaMfa mm* 
tamed by a third penon, ftom the mismaBagement of the ferry, while in 
iton of the lessee. 



Appeal frdm the Superior Couit of Law of Martia Cottn* 
ty/at the Fall Term, 1850, his Honor Judge Baxlet pre- 
siding. 

This was a case agreed. The facts of the case are as 

follows, to wit : 

In March, 1848, the plaintiff's carriage and horses wem 
taken on board a Flat at the public Ferry, on the Roaookii 
river, called Hill's Ferry, to transport across the river, and 
^Q carrying them across, both of the horses werethrowsi 
ont of the flat by the limb of a tree, projecting from the bank 
of die river, striking the carriage, and one of the horsks vtm 
theitby drowned. 



SUPREME COURT. 



Bigfi V Femll- 

, 



The Ferry was attached to a tract of land conveyed to 
the defendant's testator, to be held in trust, for the sole and 
separate use of one Mrs. Jones, with a stipulation that she 
should enjoy it free from all claim whatsoever, by her hus- 
band. The deed was executed by the grantor and trus- 
tee. 

The defendant's testator never undertook to control or 
manage the property, nor in any manner opposed the man- 
agement thereof by Mrs. Jones or her husband. Mrs. Jones 
always permitted her husband to take the profits, and he 
always furnished his own hands for Ferrymen, and leased 
it according to his discretion. 

The Ferry, for the year 1848, was leased to one Purvis, 
who was to poy Mr. Jones therefor two thirds of the profits. 
There was also a marriage contract between Mr. and Mrs. 
Jones, and the witness stated that the defendant's testator 
sometimes, when there was a dispute between Mr. and Mrs. 
JoneS| about the property, would, on being consulted with, 
advise them what to do. 

If, upon the foregoing facts, his Honor should be of opin- 
ioB that the plaintiflf is entitled to recover, judgment is to be 
entered for $125 and costs. If otherwise, the plaintiff to be 
ooD^uited. His Honor being of opinion with the plaiatiff, 
rendered judgment for $125 and costs of suit, from which 
the defendant appealed, and entered into bond, &c. 

Jtodman, for the plaintiff. 

JB. P. Moorei for the defendant. 

PiB Attaoir, J. If there was no privity between the defend* 
tttAi testator and Purvis, the ferryman, it is clear the actioft 
Mimot be maintained^ It is, therefore, most favorable for 
IbO plaintiflf to put the agency of Jones out of yiiewt and 
4i0Bsider the lease ea made by the defimdant's testator. 
IWi qoestion is then presented : The owner of land, with 
IM^ Xcanchise of a ferry annexed, makes a lease for one year, 



JUiNE TERM, 1851. 



Biggs p Ferrell. 



and is to receive as rent| two thirds of the profits. Loss is 
suffered by the plaintiff— has he a right of action against 
the lessor ? 

We think he has not : and suppose his Honor fell into 
error, by not adverting to the distinction between a lessee 
and a cropper, (as he is termed) a servant whose wages de- 
pend upon the amount of profits. 

The leading case, State v Jones 2 Dev. and Bat. 645, 
which has been followed by several others, establishes the 
distinction. It is not verbal but substantial ; and leads to 
I important differences, in regard to the rights and liabilities 

of the parties. A lessee of the land and ferry annezed| be- 
comes the owner during the term. The toll belongs to 
Aim; if payment is refused, it is recovered in his name. If 
an injury is done to the boat, the action must be in his 
name. The lessor^s remedy for his rent is like that of any 
other creditor, and if a third person suffers loss at the ferry» 
his remedy is against the lessee, because he is the owner. 
Deaver v Rice, 4 Dev. and Bat. 431. 

On the other hand, if the owner employs one to act m 
Ferryman for a year, and agrees to pay him one third of 
. the profits, as his hire, the ferryman does not become the 

f owner^ the toll does not belong to him ; if be receive it, he 

does so as agent of the owner ; if payment is refused, it 
must be sued for in the name ot the owner ; so far as injury 
accrues to the boat, the action must be in the name of the 
owner. The ferryman must sue for bis wages like any other 
erediiory and, if loss is suffered by a third person^ he has a 
right of action against the owner, because the ferryman isAu 
servant^ and is domg the work for him. For tliis, Wis- 
waU y Brinsonj 10 Ire. 654, Is in point. It was relied on 
in the argument, but it has no bearing, whatsoever, on thia 
case, where there was a lease. It is suggested, that much 
inconvenience will result to the public, if owners of ferries 
are allowed to lease to insolvent ferrymen, and thus avoid 
responsibility, while they receive, a part of the profits^ 



SUPREME COURT. 



BifrgB V Ferrell. 



The county courts are directed to take bonds from the 
owners of ferries. If the duty hv been neglected, in refer- 
ence to this ferry, it is the plaintiff's misfortune. 

It is suggested, a tranchise cannot be assigned. That may 
be true in regard to the franchise of being a corporation, for 
corporations have a '< limited capacity," and only such rights 
and powers as are conferred by the charter. But there is 
no reason, why an individual who owns land, with a fran- 
chise annexed, as a ferry or market, may not transfer the 
land in fee, or for any less estate, and then the franchise 
passes as incident, like rent, which passes with the rever- 
sions incident thereto. 

It is again suggested, that a lessee for years is not the 
owner of the land, and has a mere right to occupy and re- 
ceive the profits. For feudal reasons, anciently, none but 
firee holders were considered " owners of the soil.'' A free 
holder is defined to be " the possessor of the soil by a free 
name!^ None but free holders were good '' tenants to the 
.precipe," to answer real actions, and a lessee for years, if 
evicted, had) at law, no remedy to recover the unexpired 
part of his ternL The law, in this particular, was changed 
at aa early period, and the writ of possession was given, as 
incident to the judgment in ejectment ; and in modern times, 
it is settled, that although for certain political purposes, a 
preference is given to free holders, yet for all civil purposes, a 
lessee for years has a part of the estate, and is the otener of 
the land during the time. This is taken to be clear law, 
in Deaver v. Rice cited above, and is not an open question. 

Per Cvrxam. Judgment reversed, and a non suit. 



L 



JUNE TERM, 1951. 



STATE M. BENJAMIN S. POWEKS. 

MThera an iodictroent for a libel, charged that the defendant aet np, in pnb- 

Uc, a board, on which waa a paintinfr or picture of a human bead, with a 

sail drnren through the ear and a pair of ahean hung on the nail, and th« 

proof waa, that a human head, shewing a aide face with an ear, a nail 

I ^iven through the ear and a pair of shears hung on the uaiJ, waa ia- 

acribed or cut in the board, by meana of aome iootmment, but was not 
painted ; Held, that there was a fatal variance between the allegatiou and 
the proof, and that the defendant must be acquitted. 

Appeal from the Superior Court of Law of Stokes Coun- 
tv. Spring Term, 1851, his Honor Judge Bailbt presi- 
ding. 

The defendant was charged, under an indictment, the 
material parts of which are as follows : That Benjamin F. 
Powers, the defendant, contriving and unlawfully, wicked* 
ly and maliciously intending to hurt, injure, vilify and pre- 
i judice one Samuel Fulton, and to deprive him of bis good 

nume, &c., and to bring him' into great contempt, d^c, on 
the 15th day of June, 1850, with force and arms in the 
county aforesaid^ unlawfully, &c., did publish and cause 
and procure to be published, and exhibited in a certain 
public place in the county aforesaid, a certain wicked, libel« 
lous, malicious and scandalous painting and picture on a 
board or planlc, meaning by said board or plank a pillory, 
representing the head of a man, (thereby meaning the head 
of the said Samuel Fulton,) with a picture, likeness or rep> 
resentation of a human enr thereon, (meaning thereby the 
ear of the said Samuel Fulton,) with an iron nail driven 
into the said painted likeness or representation of a ear, 
(meaning t)iereby to represent the ear of the said Samuel 
Fulton nailed to the pillory lor the crime of perjury,) from 



SUPREMR COURT. 



State V. Powera. 



which said nail driven into said painting or likness of a ear 
was suspended by him, the said Benjamin F. Powers, a pair 
of shears or larj^re scissors, (thereby, to wit : by said board, 
painting, nail, shears and lar^e scissors, meaning to indi- 
cate and represent that the ears of the said Samuel Fulton 
should be nailed to the pillory or whipping post, and be cut 
ofl for the crime of perjury,) to the great damage, &c., &c. 

The second count charged, that the said Benjamin F. 
Powers, being a person of wicked and malicious mind, &c., 
and unlawfully and maliciously contriving, ice, to injure, 
Ac^ the said Samuel Fulton, and to bring him into great 
scandali dice., afterwards on the 15th day of June, 1850, did 
unlawfully, &c., make and cause to be made a certain effigy 
or figure intended to represent the said Samuel Fulton, and 
afterwards on the same day, &c., unlawfully, ^e., erected 
Ac I OB a certain public place, where the said Samuel FuN 
Ion was accustomed to pass in the way of his business, and 
kept and continued the said effigy ox figure, so there erect- 
ed, &c^ for a long space of time, to wit : for the space of 
tea daysi uid during that time ^nd on divers other days 
and times, then next following, unlawfully, d&c^ hung up^ 
Jbc, the. said effigy or figure, as and in manner aforesaid, 
with a painting and picture representing the head of a man, 
with a picture, likeness or representation of a human ear 
Iheroon, and with an iron nail driven into the said painted 
likenesa or representation of a ear inscribed on a piece of 
heard or plank, on which was fixed and painted the said 
effigy or figure, and to which was attached a pair of shears, 
hung on a nail driven into the ear of said paitating, and with 
divers oAer scandalous inscriptions, &c., d&c., to the great 
damage, &c, and against the peace and dignity of the 
Stale. 

Benjamin PuUaro, a witness for the State, testified, that 
in the latter part of May, or the fint part of June, 1850, he 
was attbedeisndant's house in thecounty of Stokes: that the 
defeadant took him to the side of bis shop and showed bitn 



JUNK TERM, 1851. 



State V. Pow«ni. 



a board or piece of plank,, nailed up at the side of his said 
shop : that the defendant's shop was situated on the side of 
thepublic road in Stokes County : that the defendant's dveU 
liDg house was situated on the other side of said public 
road, some ten or fifteen steps from said board or planki 
the door of the defendant's dwelling house fronted the said 
road : that the defendant, with others, worked in said shop : 
that on said plank or board was iusciibed, by means of some 
instrument, the form of a human head and face, an ear on 
the side of the head, a nail driven through said ear, and a 
pair of shears hung on said nail: that the defendant pointed 
out this figure to him, said that he had put it up there, that 
that was Samuel Fulton, the prosecutor, that he had sworn to 
a damned lie, and he could prove it : that the said board or 
plank remained up for several months : that it was in a 
very public place : that on other occasions the defendant point- 
ed out 10 him the figure aforesaid, still up at the same plaee, 
said that was the prosecutor, that all be had to do was to 
shut the shears down upon the ear ; told the witness to tell 
the prosecutor, Saml. Fulton, tliat he, the defendant, iotended 
to get him a gang of hound puppies and fatten them on the 
souse that bis ears would make. He said the effigy was 
inscribed on the wood, but not painted. 

The Court charged the jury, that, if they believed, finmi 
the testimony, that the defendant erected, caused to be erai>> 
ted, or kept up, after it was erected, by others, the said boand 
with the said figure and devices upon it, thereby malicious- 
ly intending to represent the head and ear of Samud Ful- 
toDi and this was made public for the purpose of provoking 
the said Samuel Fulton, and exposing him to public co|i 
tempt and ridicule, the offence was sufllciently charged in 
the second count, and they could find the defendant guilty. 

Under this charge, the defendant was found guilty on the 
asooiid count in the bill of indictment, and not guilty on the 
first count. 



8 SUPREMt; COURT. 



SUto V. Poweni. 



1 



Rule for a ne\v trial upon the grouud of misdirection, and 
the sole question is^ whether the proof sustained the indict- 
ment. 

Rule discharged — motion in arrest of judgment disallow- 
ed-— judgment and appeal to the Supreme Court. 

Attorney General^ for the State. 
/. r. Moreheadf for the defendant. 

Pearson, J. It is charged that the defendant made a 
certain. effigy or figure, intended to represent Samuel Fulton, 
which he set up on a shop near a public road : " That he 
unlawfully, wickedly and maliciously hung up and susi3en- 
ded the said effigy or figure, as and in manner aforesaid, 
vrhh a painting' uDd picture representing the head of a man 
with the picture, likeness and representation of a human ear 
thereon, and with an iron nail driven into the said painted 
likeness or representation of an ear inscribed on a piece of 
hoard or plank, on which teas fixed and painted the said 
effigy or figure^ and to which were a pair of shears or scis- 
sors hung on a nail driven into the ear of said painting,^^ 
with other scandalous inscriptions and devices upon and 
about the said " effigy, figure and painting," reflecting on 
the said Fulton. 

By rejecting repetitions and general woids, we are en- 
abled to extract a definite idea, and put a construction on 
the indictment, so as to make this to be the descriptive alle- 
^tion : The defendant set up against the side of a bouse, 
near a public road, a board, on which was a painting cr 
picture of a human heeui and ear, a nail was driven through 
the ear, and a pair of shears was hung on the nail. 

It was proven that the defendant had set up on the side 
of a house, near a public road, a board, on which a human 
head was inscribed, shewing a side face with the ear, a nail 
was driven through the ear, and a pair shears was hung on 
the nail. The figure was itiscribed or cut in the board by 
means of some instrument, but was not painted. 



JUNE TERM, 1851. 



Slate V. Powers. 



The defendant's counsel insisted, that the indictment was 
not sustained by the proof. His Honofheld the proof suffi- 
cient. There is error. The variance between the allega- 
tion and proojT is fatal in this. It is alleged, there was a 
painting or picture of a human head and ear on the board. 
The proof is, the head and ear were inscribed, engraved, 
or cut in the wood with an instrument, and there was no 
paint about it. 

It is difficut to lay down a general rule on the subject of 
variance in particular terms, (and one in general terms 
would be of no use.) It is almost impossible to mark out 
the dividing line between such a variance as is fatal^and 
such as is not ; for, like light and shade, they run into each 
other, and although it be easy to determine, '< this is light," 
" that is shade," yet it is almost impossible to say, '' here 
the light ceases and the shade begins.*' A general rule 
cannot be established, except by decisions in many particu- 
lar cases. We shall, therefore, content ourselves by deci- 
ding in this case that an allegation, that a human head and 
ear were painted on a board, is not sustained by provinggthat 
the head and ear were cut in the board with an instrument^ 
no paint being used. This variance may be pronounced 
fatal without the aid of a general rule, because it does not 
approximate the "dividing line," 

It is suggested, as it is equally a libel, whether the head be 
engraved or painted, therefore the difference is not esseritial. 
It is true, it is equally a libel, but non constat that the differ- 
ence is not essential. It is murder, w;hether death be caus- 
ed by poisoning or shooting, yet an indictment charging the 
death in one way is not sustained by proving it was caused 
in the other. 

The Attorney General urged, that, on account of the dif- 
ficulty in setting out the particulars of a libel, effected by 
the means used in this case, the certainty of description, re- 
quired in other cases, ought, in some degree, to be dispensed 

with. It' may be that the position is correct| but it cannot 
2 



10 SUPREME COURT. 

State 9. Powen. 

aid in the question now under our consideratiou. A gene- 
ral allegation, that the figure of a human head and ear was 
made on a board, which board was set up, &c., probably 
would have been sufficient ; and (hen it would have been 
immaterial, whether the head and ear were painted or en- 
graved on the board. But when particulars are set out as 
apart of the description^ although it was not necessary to 
go into particulars, still it is thereby made necessary to stick 
to the truth, and the proof must correspond with the allega- 
tion. 

The defendant's counsel suggested a further variance in 
this : The indictment alleges, that there was a figure or 
efllgy intended to represent the prosecutor, and to this was 
hung and suspended a painting or picture of a human head 
and ear, &c. 

It is not necessary to inquire, whether the indictment, 
from the general terms used, will admit of tnis construction, 
nor is it necessary to consider the question made upon the 
motion to arrest. 

Pbr Curiam. There must be a venire de novo. 



JUNE TERM, 1851. 11 



DOE ON DEMISE OF JOHN SMITH m. JOHN BRYAN. 

A. iu 1793> took poMenioo under color 0/ title, to land, which had been pn« 
▼ioiuly i^ranted to another, and died in 1794, leaving a wiJL In 1795, B* 
a son, bat not a devisee ol A., took poe e ea a ion without color of title, and 
contiuned in the nnintermpted ponenion, exercising acts of owBerBhip, for 
more than twenty years ; Held, that B.'s title was perfected by each pos« 



A mere wrong -doer, who has only a color of ti^Ie, cannot pass any estate by 
his will to his devisees. 

Even if B. were a trustee under the will of C, C. cannot dispute his title at 

law, much less can a mere wrong-doer. 
If, in the ease of ajSen facuit for the sale of the lands of a deceased debtor* 

the heirs should be named, yet thb is not necessary, when the will is a Vi»» 

diUoni exponas, the land having been ascertained by tha levy and retora 

of a constable. 
The eases of Rutherford v. Raybmm, 1 Ire. 144, Lanier v. Stone, I Hawks 

329 and Robereonr. WooUard 6 Ire. 90, cited and approved. 

} Appeal from the Superior Court of Law of Bladen Coun* 

^ ty, at a special term in Decemberi 1850| his Honor Judge 

Dick presiding; 
The case is stated by the Judge in his opinion in the Court. 

Tray^ for the plaintiff. 
Strange, for the defendant. 

Pearson, J. It is only necessary to consider one ex* 
ception, as that is well founded, and gives the plaintiff a 
right to a venire de novo. 

A grant issued to one Harrison in 1760 ; in 1793, Robert 
McRee took possession under color of iitle^ and died in 
1794, leaving a will. His sou, William McRee, took pes* 
session in 1795, and continued in uninterrupted possession, 



ia SUPREME C61IKT. 



Smith 0. Bryan. 



"exercising acts of ownership over the land," nnlil his 
death in 1818. Alter his death, proceedings, (which will 
be noticed hereafter,) were taken against his heirs by a cred- 
itor, and in 1825 the lessor of the plaintiff l)ecame the pur- 
chaser at sherijff's sale, and took a deed in 1828. The will 
of Robert McRee directs, that, after the death of his wife, 
who is long since dead, "all of his land, <kc., be valued, and 
whatever it is valued at, to be divided into six parts, and 
each of my children to have iheir equal part. I desire my 
guardian, Robert McRee, do draw my son William's part ; 
and I desire that my son William see this, my last will and 
desire perfected." 

In 1839, one James Bryan, the father of the defendant, 
took possession without color of title, and remained in pos- 
session until 1843, when the defendant took possession 
without color of title, and still remains in possession. 

The action was commenced in 1847. 

His Honor charged, "that, if Robert McRee had taken 
possession before 1795, under color of title, and died in pos- 
session, and his son William had succeeded him in that 
possession, his entry was not to be considered adverse to 
that of his lather, unless so shown to be, and his possessioOi 
thus continued until 1818, would ripen the title of his fa- 
ther's heirs and devisees, under his color of title, and bar the 
right of Harrison. But the plaintiff could not make title 
nnder William McRee, because the will of Robert McRee 
deprived William of any right to the land aa the heir or 
devisee of his father, and, having no title himself^ he could 
tratismit none to his heirs.'' 

.When title is out of the State by grant, a continued and 
uninterrupted adverse possession ior twenty years, without 
color of title, or such possession for seven years with color 
of title, gives a title to the person, so holding possession. 
We therefore concur with his Honor in the opinion, that, 
hs William McRee held such possession for more than 
twenty years, and exposed himself to the action of Harrison 



JUNE TERM, 1631. 13 



Smith V JSryau. 



or his heirs, it barred the right, which ihey neglected to 
nssert. 13iU we think it gave the tUle to William Ale- ■ 
Recj and we are at a hiss to conceive how, instead of 
having that ellect, it can be made to have the efTect of 
ripening the title of the devisees of Rol)crt McRee. He 
was a wrong-doer, and had a mere color of title; of 
course, his will conld not pass the estate to his devisees. 
jAfter his death, William McRee, by taking possession, made 
himself a wiong-doer, and was exposed to the action of 
Harrison or his heirs, and when stie acquires the title by 
their negligence, then the devisees of Robert McRee, who 
had kept out of the way during the time of danger^ are 
made to step forward and assert, that in some way or other, 
this acquisition of title *< enures to their benefit." Wil- 
liam McRee was not their tenant, nor was he their agent. 
They had uo title, and could neither gain nor lose by his 
acts. 

It was urged in the argument, that the will of Robert 
McRee constituted William a trustee and vested the legal 
estate in him, in trust for the persons, among whom it was 
to be divided. This, as it seems to us, would be a strained 
construction ; but, not to raise a question of construction, 
admit that he took the legal estate as trustee, at his death 
it descended to his heirs, and could be sold under execu- 
tion ; and admit further, that after the lapse of so many 
years, the supposed cestui qtte trust would be at liberty to 
set it up in a Court of Equity ; how is it possible that the 
defendant, who is a stranger and a wrong-doer, can take 
any benefit from it in a Court of law 7 

^gain, it was urged, that although there was not a perfect 
trust under the will, because it did not vest the legal estate 
in William, yet there was an imperfect trust or moral obli- 
gation imposed on him, growing out of the fact that one of 
the devisees was his '^ own sou," and the others his near 
kinsmen, and his father had by his will desired him to see 
'* this my will and desire perfected," and it was therefore 



14 SCPRKME COURT. 

■ 

Smith r Drvaii. 

wrong in William to attempt to ncquire the title for himself, 
and he will be presumed to have acqqired it for the devisees 
of the father. In other words, he will be presumed to have 
become a wrong-doer for their benefit. 

This idea of an imperfect trust or moral obligation is too 
attenuated to be handled, even in a Court of Equity. All 
the objections to the defendunt's taking; any benefit from it 
in a Court of law, which have been pointed out in reference 
lo a perfect trust, apply to it with increased force ; lor, if a 
Court of law will notnrftice an express perfect trust, how 
can it notice one of the kind sup[)Osed ? We think there is 
error. His Honor ought to have told the jury that the title 
was in the heirs of AVilliam McRee. 

The remaining question is, did the lessor of the plaintiff 
acquire title by his purchase at the sheriff's sale? His 
Honor was of opinion that he did not. In this, we think 
there is error. The defendant is a wrong-doer, and as 
against him it is sufficient to show a sale, a sherifi^'s deed 
to the lessor, and an execution which authorised the sale — 
Rutherford v Rai/burttj 10 Ire. 1 44 ; for, if it be not neces- 
sary under the act of 1843, to show a judgment in an action 
against the debtor in the execution, or one claiming under 
him by a transfer after the lien ot the execution attached, of 
course it is not in an action against a mere wrong-doer. 

To the sale and sherifi''s deed, there is no objection, but 
it is said the paper, alleged to be an execution, is fatally de- 
fective, and that is the point on which the case turns. The 
paper is in these woids : 

*' To the Sheriff of Bladen County, greeting : 

Jonathan Evans «k Co., ) 

vs. > Order of sale. 

Heirs at law of Wm. McRee, dec'd. ) 

It appearing to the sniisfnction of the Court, that a judg- 
ment was granted against Jamrs P. McRee, the administra- 
tor of William McRee^ dcc*d. by J. Evans & Co., for the 



JUNE TERM, 1851. 15 



Smith V. Bryan. 

sum of 12jC Is. 6(]., with interest from the 1st of July, 1851. 
Administrator plead no assets. 

Oct. 14lh, 1818. J. SEA WELL, J. P. 

Said judgment revived for the above sum and interest 
aj^ainst the said Administrator, who plead no assets, by 
Robert Meivin, J. P., 20th January, 1823. 

STATE OP NORTH CAROLINA, ; 

Bladen County. ( 
To any lawful officer to execute and return agreeable to 
law : you are hereby commanded that of the lands and ten? 
ements of William McRee, dec'd., you levy on so much 
thereQf as will satisfy the above judgment with interest and 
costs, and make return to next Court and have the same 
agreeable to law. 

Given under my hand and seal, this 27th May 1823. 

ROBERT MELVIN, J. P. 

Levied on one hundred and nine acres of land, the prop- 
erty of William McRee, dec'd., joining James B. Purdis' 
lines and James Bryan's lines on the north-east side of the 
North West River, this 4th July, 1823. 

D. MELVIN. D. S. 

Whereas, writs of scire facias issued legally against the 
heirs at law, and the sheriff made due return thereon, that 
the defendants reside out of the State, and are not to be 
found, those who are minors, have no guardians, on whom 
a process can be served, May Term, 1825. Court ordered 
judgmeni to be entered up according to sci.fa. 

Court of Pleas and Quarter Sessions, May Term, 1826| 

Court ordered the sheriff to advertise, and sell agreeable to 

law, as much of the above described land as will satisfy the 

above mentioned judgment, interest and costs of this set. fa. 

Attest. ALEXU McDOWELL, Clk. 

Issued 7th June, 1825. 

Upon this the sheriff returns, that he sold the land levied 
on to the lessor for $L00. It is said this is no venditioni 
exponas, but professes to be a mere copy of the order of 
aiJe, and is not returnable to any given time and place. 



16 SUPREMK COURT. 

Smith 0. Bryan. m 

All of these objections are fully met by Lanier v Stone, I 
Hawks 329. There the paper was not even directed; here 
it ij directed to the sheriff, and in thelangnag:e of the Courf, 
'* the proceedings might have been more formal, but it is 
right in substance." 

It is next objected that the case comes withm the decis- 
ion in Roberson v Woollard, 6 Ire. 90, where it is held 
that dL fieri facias commanding the sheriff <' of the lands 
descended to the heirs Of Joseph Roberson to cause to be 
made, &c.," was void, because the heirs were not named. 
That decision was made in 1845 ; and the reasons on which 
it is put are, first, " because it is necessary that the execution 
should conform to the judgment in all respects," and much 
stress is laid upon the fact that there were^t^e heirs, and 
the judgment had been taken against on/y /our q/'^Aem; 
so the execution in its general terms extended to one against 
whom there was no judgment. This difficulty is obviated 
by the act of 1848. Second, '< that the sheriff may know 
certainly whose property he is to sell." This difficulty is 
obviated ; for, in that case, the sheriff was to act under a 
fieri facia^j nndi to ascertain the land himself; here the 
writ is a venditioni exponas^ the land had been ascertained 
by the levy and return of a constable — it was in custodia 
legisj and the sheriff was simply ordered to sell "as much 
of the above described land as will satisfy the judgment." 
The names of th^ heirs of William McRee was information^ 
of which the sheriff stood in no need. 

Per Cub I am. There must be a venire de tiovo^ 



JUNE TERM, ItiL IT 



ELMSLY STAFFORD vc ALLEN NKWSOM. 

Wl»er« a jttdgmeot has bo«u had in the Superior Court, and, on appoal to tbo 
- Supreme Coort, the judgment ia reversed for error, the whole judgment, a 
well lor the costs as for the other matters, is set aside, and the oosta mul 
be taxed by the Court below, which finally determines the case. 

Appeal from the Superior Court of Law of Stanly Coun- 
ty, at the Spring Term, 1851, his Honor Judge Manlt 
presiding. 

Strange, for the plainlifll 

G. C. Mendenhallj for the dclendant. 

Pearson, J. By the judgment, at the Fall Term, I86O9 
of Stanly Superior Court, the Clerk was directed to tax costs 
in respect of no other witnesses, except those named. He 
departed from the order, and taxed costs in respect of car* 
tain other witnesses for attendance up to the time of the 
trial in Montgomery, Spring Term, 1849, under the impres- 
sion, that an order made at that term, allowing costs in re- 
spect of a larger number of witnesses^ was still in force, and 
had the effect of qualifying to some extent the order which 
formed a part of the judgment under w'hich he was acting. 

The Judge, in the Court below, adopted this view, and 
refused the motion for a retaxation. In this, there is error. 
The order made in Montgomery was an incident or rather 
a part of the judgment, which, 6n appeal, was set aside^ 
1 be question of costs, as well as the rights of the parties, 
was decided by the judgment in Stanly. 

The defendant, by bis appeal, established that the Judge 

who tried the case in Montgomery, took ati erroneous view 

of it, and the effect of the venire tfe ntjvo was not merely 

3 



1 



18 jSUPREME COURT. 



Meadows v. Smith. 



to relieve from the direct consequence of the error in its 
bearing upon the results of the case, but also from its indi- 
rect consequence in its influence upon the question of costs. 

In other words, the order of the Judge, who determined 
the case, and who was in no error, is decisive as to the 
question of costs, because it is a part of the judgment. The 
position, that it is to be qualified and restricted, '' so as to 
make the two stand together," by an order of |i Judge, who 
was in error, and whose decision was reversed, is untena« 
ble. 

The judgment refusing the motion for a retazation must 
be reversed and the motion allowed. This opinion will b^ 
certified. 

Per Curiam. Ordered accordingly. 



V 

\ 



JOHN A. MEADOWS vt. WILLIAM SMITH. 

An afrent, vrho, in making a contract, discloses the nam^ of his principal, it 
not legally responsible to ths person, with whom he contracts, and, thete- 
fore, if he pays any damages arising IVom a breach, he 6annot recorer the 
amount so paid from the principal, unless paid by bis special request. 

Appeal from the Superior Court of Law of Jones County, 
at the Spring Term, 185 L, his Honor Judge Caldwell 
presiding. 

This is assumpsit to recover the price of a flat. The 
declaration contains three counts. First, in a special con- 
tract to indemnify ; second, for money paid to the u$e of 
the defendant ; third, for work and labor done. 



JUNK TERM, 1851. 19 



Meadows v. Smith. 



The facts, as they appeared on the trial, aie as follows : 
Sometime in the winter of 1846, the defendant employed 
the plaintiff to have a flat built for him at New-Berne, by 
the first of May of that year : that the plaintiff, in pursu- 
ance thereof, ' miKle a contract with Roberson &, Howell, 
Ship-carpenters, to build the same by the time mentioned, 
large enough to carry two hundred and fifty barrels, at and 
for the price of two hundred and twenty-five dollars, telling 
the said Robetson and Howell at the time, that it was for 
the defendant, and that he resided in Wayne. And the 
nid Roberson &, Howell testified that they built it accord- 
iogly, and of the proper size, and had it ready to launch by 
the 16th of April, 1846, and on the last day of ttie said month 
.launched it, where it still remains. They also testified that 
they (^id not know the defendant, Smith*: that they did not 
execute the job upon the faith^of being paid by him : that, 
when the work was done, they charged it to the plaintiff, 
on whom they relied, and, upon their application, he paid 
them in the spring of 1848. And they further stated, that they 
did not tell the plaintiff in express terms that they would 
look to him for the payment, when the said contract was made. 
On their cross examination, they stated that they allowed 
the plaintiff to bring a suit in their names against the de- 
fendant for the price of the flat in question : that it pended 
for some time and terminated in a non-suit, before this suit 
was brought ; and that the plaintiff, on being urged to do 
80, paid for the flat before Uie non-suit aforesaid. It also 
appeared by the testimony of a witness, that he had called 
on the defendant, in Wayne, before suit in the names of 
said Roberson & Howell, and demanded payment of him as 
well in behalf of said parties as in behalf of the plaintiff: 
that he refused to make payment, alleging that the flat was 
not finished within the time agreed upon. It did not ap- 
pear that any other demand had been made upon the de- 
fendant. 



n 



90 SUPREME COURT. 



Meadows «. Smith. 

It was insisted for the defendant that the plaintiff could 
not recover ; for that there was no evidence ot a special 
contract ; for, that the plaintiff made the contract as an 
agenti declaring at the time the name and residence of the 
defendant ; for, that as the payment made by the plaintiff was 
Toluntary and without demand on his part, he could not 
thereby make the defendant liable. 

The Court charged the jury, that, if they believed the 
flat was finished and ready for delivery on the 1st of May, 
1846, and the other evidence, on the trial, the plaintiff was 
entitled to recover the value of the flat, with interest on the 
money from the time it was paid by the plaintiff. Rule for 
a venire de noro, because of misdirection. Rule discharged. 
Judgment rendered on the verdict* ippeal to the Supreme . 
Court. 



W. H. Washingiorif for the plaintiff. 
J. TV. Brj/an, for the defendant. 

Pearson, J. We can see nothing to distinguish this 
case from the ordinary one of an agent, who engages work 
to be done for and in the name of his principal, whose name 
and residence he discloses. The agent is under no legal 
obligation to pay for the work, and if he does pay for it, he 
will not be able to make good the necessary allegation, that 
be " paid money for the use oi his principal and at his tn- 
stance and request.^ 

In this case, the defendant had, on demand made by the 
builders of the flat, expressly refused to pay* Whether bis 
refusal was upon sufficient cause is not material ; he had 
expressly refused to pay, and a suit was pending against him 
at the time the plaintifl alleges he paid the money /or Am, 
but the idea, that he paid it at his instance and request, is 
out of the question, in the absence of any prior legal obli- 
gation to do so, and the defendant had cause to complain, 
that thereby the matter which he saw proper to contest with 



3VXE TERM, 1651. SI 



Williams v, Dtkv'm. 



the builders of the flat was, without his consent, put an end 
to by the officious inteifereuce ot the plaintiff, who now 
seeks to make him pay for the flat, without any inquiry as 
to the merits of the defence, upon which he was relying in 
the action brought by the builders. 

This disposes of the count '' for money paid." Upon tlie 
other two counts there was no evidence ; at all eventSi the 
case does not seem to have been made out ia reference to 
ihem. 



V 



Per Curiam. There most be a venire de novo. 



DOE ON DEMISE OF WILLIAM C. WILLIAMS, vs. STEPHEN 

DAVIS. 

Hie set of 1844, eh. 83, making deviiM to operate on sneh real estate m 
the teMator nwy have at the time of h*a death, was aitogether proepeotifieg 
and did not extend to wilU made and pabliahed before the time when tha 
act went into operation, though the testator did not die until afterward^* 
unless there had been a re-pnblication of the will, after the act went into 
operatioa. 

Hie case of Ba<l2c v Speight, 9 Ire. 288, cited and approred. 

Appeal from the Superior Court of Law of Warren Coua- 
C7, at the Spring Term, 1861, his Honor Judge Ellis pie- 
sidiDg. 

This was an action of ejectment to recoFer the knds aad 
tenements mentioned in the plaintiff's declaration. A ver- 
dict hy consent was given for the plaintiff upon the trial, 
subject to the opinion of the Court upon a case agreed* 
The case agreed is as follows : 



22 SUPREME COURT. 

V 

1^ 



WilliuiiiH r. f)uvi& 



The premises in dispute belonged to Peter R. Davis, un- 
der whom they are claimed by both parties. On the 2d day 
of June, 1S36, the said Peter R. Davis, . being then entitled 
to a large real and personal estate, made and published n 
will in writing with all the formalities required by law to 
pass every description of property. The said Peter R. Da- 
vis died sometime in the year 1850, without revoking, al- 
tering or re-publishing his said will ; and upon his death it 
was duly proved by the subscribing witnesses in Warren 
Ck>unty Court, in which county he resided at the time of his 
death ; and thereupon Stephen Davis, the defendant, and 
'William C. Davis, one of the plaintifl's lessors in this suit, 
being the executois named in said will, qualified as such. 
The testator, after the makinflf and publication of his said 
will, purchased the lands and tenements described in the 
declaration. The testator died unmarried and without is- 
sue, leaving as his heirs at law one brother, the defendant, 
Stephen Davis, and four sisters, to wit : Rebecca Williams, 
who is the wife of William C. Williams, Nancy Powell, 
wife of John B. Powell, Elizabeth Pitchford, and Polly 
Kearney, wife of Edward Kearney, all of whom, with their 
respective husbands, are the plaintiff's lessors in this suit. 
The plaintiff claims four fifths of the lands and tenements, 
<kscribed in the declaration, as property undisposed of by 
Ihc said will of the deceased brother. The defendant claims 
the whole under the residuary clause of the said will. It is 
admitted that the feme lessors were married to their hus- 
bands, named in the declaration, before the death of Peter 
R. Davis, and that the defendant, Stephen Davis, was in the 
possession of the premises at the commencement of this suit«- 
The Court being of the opinion that Peter R. Davis died 
ihttiState bs to the lands and tenements described iu the dcc- 
latiition, rendered a judgment in favor of the plaintiff, as 
iollotvSi to wit : It is considered by the Court, that the said 
pluihtlff do recover against 4he said defendant his said term 
yet to come of and in four undivided fifth parts of the tract 



JUNK TERrJ,.lSr>l. 23 



VVilliains v. DaviM. 



of land, first described in the declaration, and also his term 
yet to come of and in four undivided fiith parts of one un- 
divided fourth part of the tract of land, secondly described 
ia the declaration, and also his said damages and costs ot 
suit. And the said plaintiff prays for a writ of posse2>;>iou 
and it is granted to him, &c. From the above judgment^ 
the defendant prays an appeal to the Supreme Court, and it 
ia allowed to him. 

EaioTif for the plaintiff. 

J5. P. Moore, for the defendant. 

Nash, J. The case presents the single question, whether 
the act of 1844, ch. 83, making devises to operate on such 
real estate as the testator may have at the lime of his death, 
applies to the will of Peter R. Davis, under whom the plain- 
tiff and defendant claim the latid in controversy. It is a 
well known prmciple of law, that land purchased by a tes- 
tator after the publication of his will, does not pass under it, 
for the reason that a devise is considered as a species of 
coaveyance, and must therefore operate on a specific sub- 
ject. The act of 1844 has changed the law^in this respect, 
and after-purchased lands will now pass by devise, provided 
the will be olie on which the act operates. The case states 
that the will of Peter K. Davis was made and published in 
1836, and that he died in 1850. Alter several devises, the 
will contains a residuary clause, whereby the testator devi- 
ses to the defendant " all the rest and residue of my estate 
of every description," &c. Under this clause, the. defend- 
ant claims the land in dispute. The plaintiffs are a part 
ot the heirs at law of Peter R. Davis. The case further 
states, that the will was not republished after the purchase 
of the laud. In the case of Battle v. Speight, .9 Ire. 288, 
the precise question now before us was litigated and deci< 
<Jed« It was there settled that the act of 1$44 'f was alto- 
gether prospective," and did not ^?cteqd to wills made aoA 



24 SUPREME COURT. 



Ray V. Ray. 



published before the time whea the act went into operation, 
though the testator did not die until afterwards. If there 
had been a re-publication of the will af\er the purchase of 
the land, it would have passed. There being no such re- 
publicatioUi it did not pass, and as to it the testator died in« 
testate. 

Per CuKiA&i. Judgment affirmed. 



JOHN RAY v$, MALCOLM KAT. 

After au appeal Troni a Coaoty to » Superior Court, a procedendo will not 
be ordered to the County Court to give judgment for the coeti, because 
the question wat to be determined by the Superior Court in deciding on 
the appeal. 

Where there has been an appeal to the Superior Court and thecce to the Su- 
preme Court} a procedendo cannot issue to the County Court to give judg- 
ment for costs, because that question b involved in the appeal 

If. after the decision of an appeal, the Superior Court ret uses to obey the 
mandate of the Supreme Court, an api; eal cannot again be had, for there 
is no question to be reviewed, but the party grieved must apply for a man* 
damuo. 

Appeal from the Superior Court of Law of Cumberland 
County, at the Spring Term, 1861, bis Honor Judge Manly 
presiding. 

The judgment of the Supreme Court in this case, being 
certified to the Superior Court for Cumberland County, at 
its Spring Session, 1851, 



JUNE TERM, IBftl. 2S 



Ray V. Ray. 



A judgment and execution for the costs of the said Supe- 
rior Court against the defendant and his sureties on the ap- 
peal bond, (to be taxed by the clerk,) were moved for by the 
petitioner's counsel. Which was allowed, &c., &c. 

A judgment and execution were also moved for the costs 
of the County Court against the defendant and sureties 
aforesaid, (a memorandum of which is appended to the 
transcript of the record from said Court) : Which the Court 
declined to give, but offered a writ of procedendo to the Coun- 
ty Court, where the case might be disposed of, in accordance 
with the decision of the Supreme Court, and the costs, as 
the County Court might adjudge. 

With this refusal, the petitioner was dissatisfied and pray- 
ed an appeal, which was granted. 

Petitioner's counsel then asked for a jvrit of procedendo 
to the County Court, pending the appeal, which was refused 
and from this refusal the petitioner appealed. 

Banks and MuUins^ for the plaintiff. 

X O, Shepherd and Siranffe, for the defendant. 

Pbarson, J. There is no error. A judgment for the 
costs of the County Court ought not to have been rendered 
in the Superior Court, because it was repugnant, and incon- 
sistent with the fact, that there \^s no right of appeal, and 
of course no case constituted in that Court. 

After the appeal to this Court, upon the question, as to 
the costs of the County Court, it was clearly right to refuse 
to grant a procedendo^ because, thereby, the County Court 
would have been called upon to give a judgment, as to the 
costs of that Court, whereas the appeal assumed, that that 
judgment ought to have been rendered in the Superior 
Conrt| and it was repugnant and inconsistent, pending an 
appeal, which was taken to try the question, whether the 
Superior Court ought not to have given the judgment, to 

4 



n 



flS SUPREME COURT. 

• Price 9. Oiborneb 

move for aproMcfefufo, under which the County Ck>urt must 
iiaye^iven it. 

Another view may be taken of the question* If the Su- 
perior Court refuses to obey the mandate of this Court, the 
counsel is not to appeal, for there is no question to be re- 
viewed, but to apply for a mandamMS, In this case, the 
jpefusal is accounted for and explained by the fact of the ap* 
|)eal, as to the question of costs, pending which, the prooO' 
ikndo ought not to have been sent, for theareby the case 
would have been split up and put in two Courts at the saoae 
time. 

PjsR CvRiiuc. Judgment affirmed. 



90E ON DEMISE OF DAVID PRICE m. LOUISA OSBORNE. 

Whore A. had leased land to B. for the year 1848, and 6nnng the year 1848, 
. wfaHe B. was in poaMsskm under the leaee, A. executed to C. a deed pnrpori- 
ing to convey to him the fee simple, and thereupon, (X, on the S5th of He* 
cember, 1848, commenced an action of ejectment against B. ; Held, thai 
the action would not lie, because at the date of the demise, C. had not the 
T^ght of entry. 

Appeal from the Superior Court of Law of Rockingham 
County at the Spring Term, 1851, his Honor Judge Bailet 
presiding. 

In this case the.evidence was, that the lessor of the plain- 
tiff purchased the land, in dispute, as the property of Robert 
Jm Osbom, husband of the defendant, at November Term, 
1847, of Rockingham County Court, at sheiiff's sale, took 



JUNE TERM, 1851. 2t 



Price o. Oiraora* 



a sheriff's deed and had the same daly recorded : That 
before Christmas, 1847, the lessor leased the said land to 
the said Robert L. Osbora, for the year 1848: That the* 
said Robert held over, and lived with the defendant, his 
wife, on the land, until the 6th day of May, 1849, when the 
said husband died, and that the defendant, his widow, con- 
tinued on the land until after she was served with a copy 
of the declaration in this case. 

A verdict was rendered for the plaintiff, subject to the 
opinion of the Court, whether in case the said Robert L* 
Osborn, the husband, rented the land fdr the whole of the 
year 1848, the demise as stated in the declaration being oxk 
^he 25th of December, 1848, and the ejectment being stated 
on the first day of January, 1849, the plaintiff could re- 
cover. 

The Court being of opinion with the defendant, on the 
point reserved, set aside the verdict, and ordered a non-suit. 
From which judgment of non-suit, the lessor of the plain-^ 
tiff prayed and obtained an appeal to the Supreme Court. 

J. T. Morehead^ for the plaintiff. 
KerVi for the defendant. 

Nash, J^ We concur with his Honor, before whom the- 
ease was tried, and in the judgment he gave. The demise 
in the declaration is laid on the 25th of December, 184& 
In the latter part ot the year 1847, David Price, the l&ssor 
of the plaintiff, and who was the owner of the land, leased 
it to Robert L. Osborn tor the year 1848. Osborn entered 
into possession, and continued it during the whole of that 
year, and until some time in 1849, when he died, and the> 
defendant, his widow, continued on the land. On the 26th 
of December, 1848, the date of the demise, R. L. Os- 
born» the lessee, was in possession of the premises, under 
his unexpired lease. His possession was a lawful one,, and 
David Price, the lessor, bad no right of entry, and without 



96 SUPREME COUKT. 

■ ■ "' ■ I !!■ I. ■ ■ - I 111! ■ I ^ ■■■■>■ — — 

Walters r. Walten. 

such right he could make no lease to the plaintiff. In eject- 
ment, the lessor of the plaintiff must recover, upon the 
strength of his own title ; he must show a good title to the 
premises, and a right of entry veMed in him at the time 
of the demise^ otherwise he cannot recover. Brown on 
actions, 466— 1st Chit. PI. 8»0— 2 Fast 250— 13th East R. 
SIO, 212. 

Pkk Curiam. Judgment afRrmed. 



WILLIAM WALTERS vb. FLEETWOOD WALTERS.- 

tVbere A. gave B. a bond for fifly dollara» and, at. the eame time, itnaa agreed 
by parol, that, whenever A. paid certain coets in a suit then pending be- 
tween the parties, the bond should be surrendered and given up, and A. 
afterwards paid the costs ; Held, that this was competent and sufficient 
evidence of the discbarge of the bond. 

The case between the same parties, reported June Term, 1850, cited and 
approved. 

Appeal from the Superior Court of Law of Robeson 
County, at the Spring Term, 1851, his Honor Judge Mak« 
LT presiding. 

This was an action originally commenced before a Jus- 
tice of the Peace on a bond, of which a copy accompanies 
this case, marked A. The defendant pleaded general issue, 
and payment, accord, and satisfaction. The execution of 
the bond was proven by tlie subscribing witness thereto, 
who also proved that a suit, which had been pending be- 
tween the same parties in the Superior Court of Robeson, 
was compromise^; the terms of which were reduced to 
writing, signed and sealed by the parties^ a copy of which 



JUKE TER&I, 1S5L 



Waltenv. Waltera. 



accompanies this case, and is marked B. The defendant 
proved by the subscribing witness to the bond, (who was 
nlso a sut)scribing witness to the paper writing, the copy of 
which is marked B,) that the bond declared on was given 
by the defendant at the same time of the written agreement, 
the same being insisted on by tlie plaintiff, and given with 
the express understanding, that, wiienever the defendant, 
Fleetwood Walters, complied with the ogreement, by paying 
to the Clerk of the Court Eighty Dollars and balance of the 
costs, that the bond of Fifty Dollars, on which this suit is 
brought, should be given up and surrendered. This testi- 
mony was objected to by the plaintiff, but was admitted by 
the Court. The defendant then further proved by the Clerk 
of the Court, that, previous to the commencement of this 
action, the defendant, Fleetwood Walters, had certainly 
paid him the Eighty Dollars, and, according to his impres- 
sion, also the balance of the costs, aniounting to about 
Twenty Dollars more. The plaintiff objected to this evi- 
dence, but it was admitted by the Court. The counsel for 
the plaintiff asked the Court to charge the Jury, that, the 
defendant ought to have given notice to the plaintiff of his 
payment of the money to the Clerk, and demanded a surren* 
der of the bond. But the Court declined giving this instrufc* 
tion. The plaintiff insisted, that, notwithstanding these 
facts, he was entitled to recover on the note, but his Honor 
cbai^red the jury, that if they believed the verbal agreement 
between the parties to have been as stated by the witness, 
and that the Eighty Dollars had been paid by the defend- 
ant, and the other Twenty Dallars, which was his half of 
the remainder, before the bringing of the action on trial, to 
find for the defendant. 

{Copy of the bond marked A.) 

On or before the 24th July, 1846, 1 promise William 
Walters, or order, Fifty Dollars, value received, this 24th 
March, 1846. Test. FLEETWOOD WALTERS, (Seal.) 

-•J. WlWSLOW. 



30 SUPREME COURT. 

Walton 8. Walters. 

{Copy of the agreement marked B.) 
Flkctwood Walters ) j^^^^ ^^^^^^ ^^^^ 
William Walters, i Spring Term. 

The parties agree to dismiss this suit on the following 
terms : The plaintiff to pay Eighty Dollars of the costs, and 
if any balance is due, whatever balance there is, is to be 
paid, one half by the plaintiff and one half by the defend- 
ant* 

Test. FLEETWOOD WALTERS, (Seal.) 

WILLIAM WALTERS, (Seal.) 

J. W1N8LOW- 

Banks and MvUins^ for the plaintiff. 
JDoMtn, J. O. Shepherd and TF. Winslow^ for the de- 
lendanU 

Mash, J. This case was before the Court at June Term,. 
1850, and the principles of law, there discussed and decided 
by the Court, are decisive of the case as now presented. 
The case, then, did not set forth what amount of costs were 
to be paid by the defendant. The Court says, << as the 
amount of the costs which the defendant agreed to pay, and 
did pay, is not stated, and the opinion of the Court was gi v* 
en against the plaintiff, without any reference to the amount^ 
it must be understood that the opinion rested exclusively 
upon the agreement, that the bond should be void or be de- 
livered up, if or when the defendant should pay the costs, 
whether more or less, and upon the fact that he had paid 
them." This is declared to be erroneous, annexing, upon 
parol evidence, a condition to a bond which is absolute in 
its face, and upon this principle the case was decided. In 
the case now before us, the agreement upon which the suit 
previously pending between the parties was compromised, 
is set out. By it the defendant boimd himself to^ pay Eigh- 
ty Dollars of tlie costs, and if any balance is due he obliges^ 
himself to pay one half of it, and the bond upoa which this. 



lUNE TERM, 185U ft 



Walton 9. Walten. 



action is broujj^ht, was executed at the same time ; and the 
defendant offered to prove, that it was at the time expressly 
agreed, that the bond should be given up and surrendered, 
upon the defendant's complying with that agreement. To 
this evidence the plaintiff objected, but it was received by 
the Court And we concur with his Honor that the evi- 
denoe was competent, not as annexing, by parol, a conditioa 
to a written instrument, but as laying a foundation to show 
its discharge. If A. owe by bond $100 to B., and B. owes 
C. a like sum, A. cannot discharge his obligation by show* 
ing he has paid his obligee's bond to C. But if it be agreed 
between A« and B., that A. shall pay to C. the amount cC 
bis bond, and he does so, it will be a discharge under tfie 
plea of payment, and io that effect is the opinion of the 
Court upon the former trial of this case. It is there said, 
page 147 : '^ If, indeed, the defendant paid the costs, or any 
part of them, we should hold the amount thus paid to be a 
payment pro iatUo upon the bond sued on." But here he 
bad not paid a less sum than that called for in the bond, but a 
much larger one ; it is of course not a payment fro tantOf 
bat one pro toto. 

PsE CifEi4M. Judgment aflbrmed. 



m mjPRBtfB COURT. 



ROBERT 8. HUNTLY vi. JAMES M. WADDELL. 

A., by deMl» conveyed m timet of land by metea and boundi, apecifyin^ the 
Mumber of acraa, and covenanted aa followa : *' To have and to koid to 
him the aakl R. S., hia hein and aaiigna, tho right and iitle of the aanio. 
I warrant and will ever defend ;'* Heldt that thia waa only a oovonant for 
<piiet enjoyment and not a warranty aa to tho number of aerea mentioned 
in the deed. 

In the Bale of land by deed, there are no implied warrantiei. 

The ease of RUkoiio v Diekit^, 1 Mnrphy 343, LyUo t PomoU, 1 Mor. 348, 
and WUUmmo v Lowe, 3 Car. L^ Repot. 367, cited and approved. 

Appeal from theSnperior Court of Lav of Anson County^ 
at the Pall Term, 1S50, his Honor Judge Battle presi- 
dinjr. 

This was an action of covenant for the breach of a war- 
xantyi alleged to be contained in a deed for land, in which 
the defendant, after conveying by metes and bounds, covr 
enanted as follows : " To have and to hold to him the said 
Robert Huntley, his heirs and assigns, the right and title of 
the same, I warrant and will ever defend thasaroe." Upon 
a survey of the Jand contained m the metes and bounds, set 
forth in the deed, it appeared that there were only one hun* 
dred and ninety-seven acres, instead of two hundred and 
twelve and a half, as mentioned in the deed. The plaintiff 
contended that the warranty ih the deed embraced the quan* 
tity of land mentioned therein as well as the title, but this 
was denied by the defendant A verdict was taken for the 
plaintiff, subject to the opinion of the Couit upon theques* 
tion stated above, upon which the Court being of opinion 
' that the action coiild not be sustained, the verdict was set 
aside, and a judgment of non suit given, from which the 
plaintiff appealed to the Supreme Court. 



JUNB TERM, 1S61. ^ 33 



Hantly v, Waddell. 



G. C. Mendenhall^ for the plaintiff. 

W. Winslow and R. Slrange, for the defendant. 

Nash, J. As early as 18 10, the Supreme Court decided 
that in a deed of bargain and sale, the words " containing so 
numy acres/' do not import a covenant of quantity. In the 
ease oiRicketts v Dickins, 1 Mur. 243, this principle was af« 
firmed, and reiterated in the subsequent one of Lt/les v Pow- 
dly and recognized as sound law, in that of WUliama v 
Lowt^ % Car. L. Repos. 267. In the first, the words oi the 
deed are, '' containing two hundred and fifty acres, d^c, to 
have and to hold the said land and premises, and every 
part thereof, J&c." The operative words in the case of Pow- 
ell are the same. Yet in such, it was decided there was no 
covenant of quantity, though upon surveys the number of 
acres fell short of that specified in the deed. In this case, 
the same description is contained. After describing the 
metes and bounds of the land, it continues, " containing two 
hundred and twelve acres and a half." The only differ- 
ence between this case and the two first referred to, is, that 
in the latter there was no express covenant, whereas in this 
ease there is. It is as follows: " To have and to hold to 
him, the said Robert Huntly, his heirs and assigns, the 
right and title of the same, I warrant and will ever defend.** 
Does this covenant extend to, and cover ihe quantity of, 
land conveyed ? His Honor, who tried the case, ruled that 
it did not ; and we agree with him. The covenant is one 
for quiet enjoyment of all the land conveyed by the deed. 
No land was conveyed by the deed, but that which was 
contained within the specified metes and boundaries. It 
can be made to apply to the quantity mentioned, only by 
implication ; but there are in the sale of real estate, by deed, 
no implied warranties. If there had been more land with^ 
in the lines than the quantity specified, they would certain* 
ly have passed. Would the bargainor, in such case, have 

been entitled to remnneration from the purchaser for the 

6 



34 SUPREME COURT. 

Arey v. StaphenMm. 

surplus 7 Surely not, because he had sold all the land with* 
in the bouudaries. If, in such a case as this, the purchaser 
wished to be protected in the number of acres mentioned, 
he ought to have taken a covenant to that effect, or he might, 
if he had chosen, have had the land surveyed before the 
contract was executed. He has done neither and must 
abide the consequence. 

PsB Curiam. Judgment affirmed. 



JOSEPH AREY *• DAVID STEPHENSON. 

An omUiion by a Jadge to instruct th« jury upon a particular point, ii not 
error. If tho party, deeming them material, ask for inBtructiona, and they 
are improperly granted or refnoed, the question may be brought before tho 
Supreme Court for review. 

The caaes of Torrenee ▼ Oraham, 1 Dev. and Bat. S88, and State v CNtai, 
7 Ire. 353, cited and approved. 

Appeal from the Superior Court of Law of Cumberland 
County, 9t the Spring Term, 1851, his Honor Judge Manly 
presiding. 

This was an action of assumpsit, brought to recover the 
sum of seventy dollars, alleged to have been paid by the 
plaintiff for the defendant's use. 

Pleas, general issue, and the statute of limitations. 

The plaintiff proved by one Murphy, that the plaintiff 
had paid to him, in the years 1829 and 1830, two sums of 
money amounting to seventy dollars, on a debt which he, 



JUNB TERM, 1851. 35 



Arej V. StephenMn« 



Murphy, held against the defendant, and which was among 
the debis mentioned in the deed of trust hereinafter men- 
tioned, and which was intended to be paid out of the prop« 
erty conveyed by the defendant to the plaintiff. 

One Stephenson^ the brother of the defendant, introduced 
by the plaintiff, testified that on the 22d of September, 1837, 
he was present at a settlement between the plaintiff and the 
defendant, that the plaintiff had been acting as the trustee 
of the defendant in selling property and paying his debts 
under a deed, (a copy of which forms a part of this case,) 
that the plaintiff exhibited an account of his trusteeship, 
and among the items chaqjed was one for the said sum of 
seventy dollars paid by him to Murphy^ 

To this item the defendant objected, alleging that he had 
paid to one Gordm, of Mobile^ the whole amount of his 
debt to Murphy, the said Gordon being his Attorney. 

It was then proposed by the witness that the parties should 
proceed in their settlement, leaving out the said sum of sev* 
enty dollars, and that, if the plaintiff could show that the 
defendant had not paid the said sum to Gordon, then the 
defendant should pay it to the plaintiff. 

This was agreed to by both the parties, and the plaintiff 
surrendered to the defendant the trust estate. 

The plaintiff then proved by Marphy that he had received 
from Gordon the amount of his claim against the defendant^ 
except seventy dollars. The plaintiff introduced the depo- 
sition of one Sebastian L. Jennings, which forms a part of 
this ease. 

The defendant contended that he was not liable up- 
on the original payment of the seventy dollars by the 
plaintiff to Murirfiy. First ; because it was paid without 
authority. 

Secondly, because the balance due by the trustor to the 
trustee or by the trustee to the trustor, could only be recov- 
ered in Equity, without an express promise. And, therefore, 
the plaintiff was driven to lely upon the express promise^ 



3« SUPREME COURT. 



Arey v. StephtnsoD. 



and insisted that it had not been proven by the plaintiff, 
that the defendant had not paid the whole amount due to 
Murphy, to his agent Gordon. 

His Honor instructed the jury, that the plaintiff's right 
to recover depended upon the fact, whether they were sat- 
isfied that the defendant had not paid the whole amount of 
Murphy's debt to Gordon, and if they were so satisfied, the 
plaintiff was entitled to recover, and, if not, the plaiutifl was 
not entitled to recover. 

Verdict for defendant, and a rule for a new trial being 
discharged, the plaintiff appealed. 

W. Winslow, for the plaintiff. 
StrangCf for the defendatit. 

Nash, J. This case is here for the second time. When 
before us on the former occasion, the only question, present- 
ed by the bill of exceptions, arose under the plea of the stat* 
nte of Limitations. The case now before us presents a dif- 
ferent question. The defendant, being largely indebted, 
conveyed to the plaintiff a quantity of property in trust to 
sell, and pay the debts enumerated. Among them, was one 
due to a Mr. Murphy. Upon this debt the plaintiff paid to 
Mr. Murphy seventy dollars, the balance having been paid 
to him, by a Mr. Goidon, his Attorney, who had received 
it from the defendant. In a settlement between the plain- 
tiff and the defendant, this payment of $70 by him was 
claimed as a charge against the defendant, as money paid 
for, and on his account. The defendant refused to allow 
it, on the ground that he had paid the whole of the Murphy 
debt, to Gordon. The parties finally agreed to settle the 
trustee's account, except this item, and, as respected it, it 
was agreed, *' that if the plaintiff could show that the de- 
fendant had not paid the said sum to Gordon, then the de» 
fendant should pay it to the plaintiff." Upon entering into 
this agreement, the trust property was delivered up to the 



JUNE TERM, 1831. .87 

J 

Arey v. Stephenson. 

defendant. In his charge his Honor instructed the jury 
that the plaintiff's right to recover depended on the fact, 
whether they were satisfied that the defendant had noi paid 
the whole of the Murphy debt to Gordon : if they were so 
satisfied, the plaintiff was entitled to recover; if not, he was 
not entitled to recover. We arc not sensible of any error 
in law, in the charge, of which the plaintiff had a right to 
complain. The debt to ^Murphy, its payment of all but 
seventy dollars by Gordon, his Attorney, and the payment 
of that amount by the plaintiff, are all admitted in the case. 
The defendant, however, alleged, he ought not to pay to 
the plaintiff that seventy dollars, because he had paid to 
Gordon the whole of the Murphy debt. Like any other 
plea of pnyment, for it was not denied that the payment to 
Gordon, it made, wns legal and proper, it would have been 
the duty of the defendant to sustain it by proper proof of 
the fact. But the plaintiff voluntarily released him from 
that obligation, and took upon himself to prove he bad not 
paid it to Gordon, and makes that proof a condition prece- 
dent to his right of recovery, as it was the condition upon 
which the plaintiff^s new promise rested. The charge in 
its first branch is in the language of the agreement. The 
second upon the general liability of the defendant. Gordon 
was the authorized agent of Murphy to receive the debt. 
If the Jury were satisfied the defendant had paid the whole 
of it to him, then the payment of the seventy dollars by the 
plaintiff was unauthorized, and he had no right to claim it 
from the defendant; he must look to Murphy. 

In the course of the argument here, it was insisted that 
the Judge ought to have instructed the jury, that the depo- 
sition of Jennings, which constitutes a part of the case, if 
believed by them, proved an acknowledgment of the debt 
by the defendant. No such instructions were asked for by 
the plaintiff on the trial, and it has been several times de- 
cided by this Court, that an omission by a Judge to in- 
struct the jury upon a particular point, is not error, ifa 



38 SUPREME COURT. 

Moore v. Hyman. 

party deem it material to his case, he must ask for instnic*^ 
tion upon it, more especially when the party complaining 
does not show that the jury were probably misled by the 
charge. Torrenee v Grahamy 1 Dev. and Bat. S88| Stai& 

Per Curiam. Judgment affirmed. 



EDMUND 8. MOORE m. JOHN R HYMAN it Ah. 

A principal cmnnot maintain an action ajrainft hit agent for money had ancT 
reeeivedt until a demand and refusal, but the proof of a demand and refii- 
■ai is not restricted to any particular form of words, but any declaration of 
the agent to the principal, which shows a denial of his right, puts him in 
the wrong, and gt^es to the principal a right of action. 

Where the plaintiff had employed the defendant to sell for him a quantity of 
fish, and in attempting to make a settlement, they differed as to ax barrels 
of the fish, the plaintiff wishing the defendant to pay for six barrels offish 
more than he was willing to account for ; Held, that this was not only evi- 
dence of demand, but was, in law, a demand. It was a denial of the plain- 
tiff's right, and whether correct or not, gave him an immediate right of ac- 
tion, and set the statute of limitations in action. 

Appeal from the Superior Court of Law of Martin Coun- 
ty, at a Special Term in , 1851, his Honor Judge 

Dick presiding. 

This was an action of assumpsit, brought in October, 
1848. It was in evidence, that the plaintiff deposited with 
the defendants, some time in May, 1841, one hundred and 
fifty barrels of fish, to be sold by them on commission, and 
took their receipt. The defendants relied on the statute of 
liiliitations. 



JUNE TERM, 1851. » 

Mooro V. Hyman. 

It was proved by a witness for the plaintiff, that the plain* 
tiff said that one of the defendants came to his house ih 
1843, and {hey Would have made a settlement, but they did 
not settle on account of six barrels of fish, about which they 
differed. There was no other evidence of any demand by 
the plaintiff, until within a few weeks before the bringing 
of the suit 

The Court instructed the jury that the defendants were 
the agents of the plaintiff: that the statute of limitations did 
not begin to run until a demand by the plaintiff and refusal 
by the defendants : that what took place between the par* 
ties, in 1943, was not sufficient to put the statute in opera- 
lion, and that the defendants had not sustained their plea. 

There was a verdict for the plaintiff. The defendants 
moved for a new trial, which was refused, and judgment 
given against them, from which they appealed to the Su* 
preme Court. 

B. P. Moore^ for the plaintifil 

Biggs and Rodnian^ for the defendants, 

Nash, J. In May, 1841, the plaintiff deposited with the 
defendants one hundred and fifty barrels of fish, to sell on 
commission. In 1843, one of the defendants called on the 
plaintiff to settle the account, and the case states that '* they 
would have made a settlement but they did not settle on 
account of six barrels of fish, about which they differed.'' 
No other demand was made upon the defendants, until with- 
hi a few weeks before the bringing of the action. The writ 
issued in October, 1848, and the defendants relied upon the 
plea of the statute of limitations. The jury were instructed, 
" that the defendants being the agents of the plaintiff, the 
statute of limitations did not begin to run until a demand 
and refusal : that what took place between the parties in 
1843, was not sufficient to put the statute of limitations into 
operation." In other words, that there was no evidence of 



40 SUPREME COU|LT. 

Moore v. Hyman. 

a demand hj the plaintiflf and a refusal by the defendants, 
until within a few weeks before the action was brought. 

As a generi^l principle, it is true, that a principal cannot 
maintain an action against his agent for money had and re- 
ceived, until a demand and reiusal, but the proof of a de- 
mand and refusal is not restricted to any particular form of 
words, but any declaration of the agent to the principal, cr 
any act which shows a denial of his right, puts him in the 
wrong, and gives to the principal a right of action. It is 
not necessary for the principal to seek the agent by going 
to his residence, nor is it necessary for him to say, " I de- 
mand a settlement" — if the parties meet at a. third place, ei- 
ther by accident or agreement, the demand may then be 
made. In this case one of the defendants went to the plain- 
tiff's house, for what definite purpose is not stated, but 
while there the parlies attempted to make a settlement, and 
would have so done, but they differed as to six of the bar- 
rels offish. As we understand it, the plaintiff wished the 
defendants to pay for six barrels of fish more than they 
were willing to account lor. We hold, that this was not 
only evidence of a demand, but was in law a demand — it 
was a denial of the plaintiff's right, and whether correct or 
not, gave him an immediate right of action, and set the 
statute of limitations in action. See 1 American leading 
cases, Burrill and Phillips 519, in note, 2 E. C. L. R. 
366. 

More than three years elapsed, after the attempted settle- 
ment in 1843, beiore the action was brought. The charge 
of his Honor was erroneous. The statute was set in mo- 
tion by the attempted settlement, and having commenced 
running, continued so to do; and the defendants did sup- 
port their plea. 

Pkr Curiam. Judgment reversed, and a venire de 

novo awarded. 



JUNE TERM, Hit. 41 



MAY STRINGRE •«. 8HKPH£RD W. BURCHAM. 

The plaintiff, a colored penooi claimed to be free, and for the purpoee of pro* 
Ting it, introduced a record of Craven County Court ia 1807, letthif forth 
a petition in the name of William Je«ap> praying for liberty to emancipate 
certain davea* owned by him, for meritorions lerTicee— the order of th« 
Court that William Jeaeup have leave to emancipate the elaTee mentioned« 
among whom was the dave by the nime of Sinah—- and the copy of the 
Iwod filed, as directed by the act of 1796. Held, that the emancipation 
of the said Sinah was completely effected by these proceedings — that the 
petition setting forth the master's wish, f Aen to emancipate for meritorioos 
•errieeo, the judgment of the Court, and the granting to the master libeitj 
to emancipate, being entered of record, make the liberatioa reqiiirsd by 
law. 

Alter an aoquleecence for thirty yean by the pnblie, in the enjoyment of her 
freedom, every presumption is to be made in favor of her actual emanoipa* 
tioB, especially against a trespasser and wrong •doer. « 

TV casee ot Bryan v WadswertA, 1 Dev. and Bat 388» Sampmn y Bur^ 
fWM, 3 Dev. and Bat 38, and CuUy v Jonet, 9 Ire. 169, cited aadap- 



Appeal from the Superior Court of Law of Carteret Coun- 
ty, at the Spring Term, 1831, his Honor Judge Caldwell 
presiding. 

This suit is trespass for false imprisonment, the plaintiff 
alleging that she is a free person of color. 

On the trials in her behalf, a record, duly certified by the 
Clerk of Craven Coupty Court, was introduced, showing 
that, at December Term, 1807, of said Court, a petition was 
filed at the instance of one William Jessup, by his Attorney, 
Owen Stanton, praying permission to emancipate certain of 
his slaves for meritorious services, and, amongst others, ne- 
gro woman Sinah ; that upon the hearing, it was decreed 
aooording to the prayer, and bond given as directed by staU 

lite in aaeh case provided. It was proved upon the trial, 

6 



42 SUPREME >COURT. 

Stringer v. Bureham. 

that the plaintiff was the daughter of Hannah, and Hannah 
was the daughter of Sinah, and was born after the decree 
of emancipation. And it also appeared that Sinah and her 
descendents had always passed for and were reputed free 
persons of color, since the said act of emancipation, except 
upon one occasion, a man, calling himself Jessup, and 
claiming to be the son of said William, the petitioner, camo 
to Craven about 1817, and endeavored to carry off the said 
Hannah and one other : that he was arrested by virtue of 
process ; whereupon he surrendered them and has not been 
since heard of. 

The jury, under the charge of the Court, found in favor 
of the plaintiff. Rule for a new trial, upon the ground that 
said record is irregular and void. Rule discharged. Judg* 
ment on verdict. Appeal to the Supreme Court. 

• 

DonnMf for the plaintiff. 

J, W. Bryan^ for the defendant. 

• 

Nash, J. Our attention is confined by the bill of excep- 
tions to the sufficiency of the record offered in evidence by 
the plaintiff. The defendant objected to its competency, on 
the ground that it was irregular and void. In what partic- 
ulars it is alleged to be so, we are not informed. The plain- 
tiff claimed to be a free woman ; and, in order to prove it, 
she introduced a copy of the record of Craven County^ 
Court, setting forth the proceedings, under which she claims 
her freedom. The record sets forth a petition in the name 
of William Jessup, praying for liberty to emancipate certain 
slaves owned by him, for meritorious services, the order of 
the Oeart, that William Jessup have leave to emancipate 
the slaves mentioned, and the copy of the bond filed, as di- 
rected by the act of 1796. Those proceedings were had ia 
1907. In Bryan mnd WadsiooriA, 1 Dev. and Bat. 388, 
the Court docjares what, under the acts previous to 1807, 



JUN£ TERM, 1861. 4B 



Six'mger v. Barcham. 



should amount to an emancipation by the owner of a slave. 
These are the petition, setting forth the master's wish, then 
to emancipate for meritorious services, the judgment of the 
Court, and the granting to the master liberty to emancipate^ 
^ These, say the Court, "entered of record, make the libera- 
tion required by law. The slave is then freed by the 
master, under the license of the Court," It was suggested, 
that an objection had been raised in the Court below to the 
regularity of the record, because the petition is not signed 
by William Jessup, but by his Attorney. That objection 
is answered by the case of Sampson v Burgwin^ 3 Dev. 
and Bat 28, in which it is declared by the Court, that the 
act of 1796 did not require a petition in writing. The onci 
however, set foith in the record is sufficient, if one were re- 
quired. We think the record is neither irregular nor void» 
and that it was properly received in evidence. 

From 1807, the mother of the plaintiff and her descend- 
ents have been, in the community in which they live, con- 
sidered and treated as free persons. After a period of thirty 
years, the defendant, without a pretence of right, as far as 
we are informed, seized upon the plaintiff and questions her 
right to freedom. After so long an acquiescence by the pub- 
lic in her enjoyment of her freedom, every presumption is 
to be made in favor of her actual emancipation, especially 
agaiaat a trespasser and wrong«doer — CtMy v Jones ^ 9 Ire. 
169. 

We observe, that the bond filed by VTilliam Jessup refers 
only to Sinah, one of the negroes mentioned in the petition^ 
and the case states that the plaintiff is her descendent, born 
afker the emancipation. 

There is no error in the judgment appealed from, which 
is accordingly affirmed. 

Pbr CuaiAM. Ja<%mettt affirmed. 



44 SVPBEMB COURT. 



STATE, TO THB USE OF MOSES RINGOLD m. JOHN T. Mc- 

GOWAN A AU 

Whwt ft eoostabla was appointed at Febraaiy Tenn, 1848, and m Aaiput 
1848, a elaim was put in his hands for eollsction, on which he obtained a 
judgment, and a stay was granted by a mag;istrate, which expired dorinf 
Febmary Term, 1849, when the said constable was not reappointed at Feb- 
mary Tenn, 1849, bat in July following was appointed deputy sherifT, and 
then took oat exeeatioa on the claim, collected it and failed to pay it orer. 
Heldf that be was not responsible on his constable's bond, no default having 
been committed during the year of hii appointment 

Tb« eases of Keek y CoMe^ 2 Pev. 469,. and State ▼ iMekty^ 3 Ire. 35, 
eited and approYod. 

Appeal from the Superior Court of Lav of Pitt County/ 
at the Spring Term, 1851, his Honor Judge Ellis presi- 
ding. 

« 

No counsel for the plaintiiT. 

Biggs and Donnellj for the defendants. 

Na8h, J. The action is upon a constable's bond ; and 
the,breach relied on was for collecting money and not pay- 
ing oTer. 

At the February Term, 1848, of Pitt County Court, the 
defendant, McGowan, was appointed a constabl e, and ien« 
tered into bond with the other defendants as his sureties. 
His official year expired at February Term, 1849. In Au- 
gust, 1848, the relator placed in his hands/t note, for which 
he gave a receipt, binding himself to collect or return. On 
the same day, the constable obtained a judgment on the 
Bote, on which the maf^istrate granted a stay of six months, 
which expired during February Term, 1849. McGowan 
was not appointed a constable at February Term, but in 



JUNB TBRV, 18H. 4» 



Diekinwrn v. Jonat. 



July ioUowinfT) was, by the sberiff, appointed hie deputy, 
after which he took out oq execution on the judgment and 
collected the money. The action is brou^jrht upon the official 
bond of 1848« The plaintiff cannot recover. The appoint- 
ment of a constable is but for one year, and the bond given 
by him loses its force as to any breach of duty after that 
period. The bond, upon which this action is brought, cov- 
ered only such breaches on the part of the constable, as oc- 
curred after his appointment in February, 1848, and before 
February Court, 1849. Keck v Coble, 2 Dev. 489, State 
V Lackey^ 3 Ire. 25. During that period, he received no 
money on the claim put in his hands for collection, nor was 
he guilty of any negligence. He received the note in August| 
1848, and on the same day took a judgment on it, and the 
stay upon it ran out at February Term, 1849, when his of- 
ficial year expired. He subsequently did receive the money 
linder an execution, not as constable, but as deputy sherifl^ 
and as such is answerable. 

PsA Curiam. Judgment affirmed. 



JAM6S DICKINSON o#. JOHN & JONES. 

A bond WM giren to an offioar, to indemnify him for oelling under oa oxeee- 
tioB at the instapee of •< J. and H. agaimit W." Held, that to entitle 
the officer to reooi%r on thii bend, he mutt show that he aold under the 
ciecation mentioned in the bond. 

Appeal from the Superior Court of Law of Wayne Ck>an- 

tfiatthePaU Term, 18S0, his Honor Judge Ellis presi- 
ding. 



46 flUPRBHB COURT. 

DickinMm «. Jmim. 

The CUM is stated in the cqHmon ddivered in this Cottrt. 

« 

Mwrdecai and Waahington^ for the plaintiff. 
/• A. Bryan^ for the defendant. 

Pearson, J. The plaintiff had, as a constable, levied on 
certain articles, as the property of one Briggs. One By- 
num claimed the articles; and, thereupon, the defendant 
executed a bond to indemnify the plaintiff for selling under 
an execution in his hands, " wherein John B. Jones and 
Henry Dickinson are plaintiffs, and one William G. Briggs 
is defendant.'' The plaintiff sold the property and was 
sued by Bynum, who recovered six cents, and a large sum 
for costs. The action is on the bond for indemnity. On 
the trial, the plaintiff did not offer in evidence an execution 
in favor of John B. Jones and Henry Dickinson agkinst 
William G. Briggs, and, of course, did not prove, that be 
sold the property under the execution recited in the bond. 

His Honor was of opinion that it was not necessary for 
the plaintiff to make this proof, and that he was entitled to 
xeoover by proving that he sold the property, without show* 
ing that he made the sale *^ under an execution correspond- 
ing with that recited in the bond." To this the defendant 
excepts. 

There is error. The defendant agrees to indemnify the 
plaintiff for selling under a certain execution. How can 
the indemnity be claimed without alleging and proving that 
he did sell under that execution ? Suppose the plaintiff sold 
under a different execution. It may be that it was not Iot- 
ied in time, or that the defendant had not the same interest 
in it At all events, it does not come within the terms oi 
the bond. 

ft is unnecessary to oetioe the other exoeption ; becvuce 
U|M| the next trial, if the plaintiff has in fact paid the 
amount lecovered by Bynttm, he will be able to prove it 



JUNE TERM, 1881. 47 



Floyd 9. Tftylor. 



wilhoat depending upon the entry on the execution docket* 
Pxa Ceai AM. Judgment rereraedi and a ventre de novo. 



DOE ON DEMISE OF BENJAMIN FLOYD m. WALTER B. 

TAYLOR. 

Thm Mivory of » deod it a qaeitioo of faeti lad the law hmt .|wwcribed ao 

partieaiar Utrif in which it ihall be aiade. 
When any eircomatanoee are pio?ed» no matter how alight or faioonelapiTa* 

ftem which a deliTeiy may be iaferred» the party relying upon them haa a 

right to have them fabmitted to a jnry, and it ie error in a Judge to iaetraol 

them that there u no erideace of a delirery. 



Appeal from the Superior Court of Law of Rockingham 
County, at the Spring Term, 1851, hie Honor Judge Baklbt 
presiding. 

The case is stated in the opinion of the Judge delivered 
in tliis Court 

/. T. Moreheadi for the plaintiff. 
JTsrr, for the defendant. 

Nash, J. The only question submitted in the bill of ex- 
ceptions is, as to the correctness of the presiding Judge, in 
refusing to submit to the Jury the enquiry, as to the delivery 
of the deed from Robert L. Osbom to Jane McDonald. To 
come to a satisfactory eonclusion on the point, it is 
ry to stale the fitcts as they appear ia the case. 



48 SU^REiME COURT- 



Floyd ». Taylor. 



. In 184 1» ihe legal title to the premises in question 
in Osborn. Judgments were obtained against him, and 
were levied on the land by a constable, on the 10th of July, 
1847, and at the sale by the sheriff at November Term, 
1847, of the Count jr Court, the plaintiff purchased. Osborn 
had purchased the land tor Jane McDonald, and paid for it 
with her money, but took the deed in his own name. Upon 
discoveriner such to be the fact, Jane McDonald insisted he 
should convey the land to her, and on the 16th day of June, 
1844, he did execute a deed of conveyance to her. To this 
deed one Mois and another person were attesting witnesses, 
and it was admitted to probate, and registered at the same 
Term of the Comity Court, that the land was sold. Mois 
proved, that, in 1844, Osborn came to his shop, in Leaks« 
xille, with this deed in his hand, and asked him to witness 
if, which he did, when Osborn observed, h& believed he 
would go and deliver it to Jane McDonald, and that he 
started in the direction of her house, taking the deed with 
him. It was further proved, that Jane McDonald, from the 
year 1841, down to the trial of the case, exercised acts of 
ownership over the land, renting it out, cutting fire-wood, 
cultivating portions of it ; and that in 1844, she had caused 
a part of it to be surveyed, preparatory to a sale. Upou 
tbese tacts, the defendant's counsel asked the Court to in* 
struct the jury, that they were at liberty to infer a delivery 
of the deed to Jnne McDonald, prior to the levy made by 
the constable in 1847. This was refused, and the jury were 
instructed, that there was no evidence of a delivery before 
November Court, 1847. In this position, the Court is of 
opinion there was error. The delivery of a deed is a ques- 
tion of fact. The law has prescribed no particular form, in 
which it shall be made. When the question rests upon the ' 
attendant circumstances and the intention of the parties, the 
facts of their existence and their effect are peculiarly within 
the province of the jury. It is error, then, for a judge to 
tell the jury there is no evidence of a delivery, when any 



JUNt! TERM, mi. 49 



Pe^rctt V. BlackwelU 



circu instances are proved, from which it may be iafiMred, 
no matter how slight or incooclusive they may be. Tho 
{Nurty relying upon them has a right to have them submit- 
ted to the jury for their consideration. Where, in the opin- 
ion of the Court, undue weight is given to^gch circumstan- 
ces, the correction is in tbe hands of the Judge. We think 
there was evidence to go to the jury^ upon the question of 
dehvery. 

Pkh Curiam- Judgment reversed, and venire fk n^ 
ptvarfl^d. 



JAMES F. PEAJtCE vt. lAMES U BLACKW^t.U 



Where a veadee Ukee ea article at his ewn riak or with aU faolta, he bee^mef 
hie own iiuarer, and the aeller is relieved frem all ohligation to disclose any' 
iaalt he may know the article has ; but he most resort to no trick or eon- 
ttivmnce to conceal the defect er mislead the purchaser. 

TIm ease of Smiik t AMdrtwa, 8 Ire. 6, cited and apprsved. 

Appeal from the Superior Court of Law of RQckiaghnQl 
County, at the Spring Term, 1851, his Honor Judge Sai- 
jufiy presiding. 

This i? an action on the caae for deceit and false wainio- 
ly in the sale of horses. 

William B. Orant^ a witness for the plaintiff, testifiad, 
that the plaintiff, a resident of Guilford county, came to hi$ 
tavern, in Statesville, at the Superior Court, in April, 1843: 
that the defendant, Blackwell, put up at hia house vith ins 
two horses, on Tuesday of Coiurt, and told him he wiAid 

10 Jidl his horses : that he learned from the plainijl^ that hi 

7 



50 SUPREME COURT. 



Pearce v. DlaclLwell. 



wished to buy : that on that day or the next, the parties 
catne before him, and (old him that they had swapped hor^ 
ses : that the plaintiff had received of the defendant, Black- 
welt, two horses, and the defendant, Blackwell, had received 
of the plaintifi one horse and one hundred dollars in money: 
that he counted the money at their request, a part of which 
the plaintiff borrowed of the witness. Hunt: that he heard 
the defendant, Blackwell, say, the horses had the distemper, 
but whether before or after the trade, he did not know: that 
the plaintiff left Statesville towards the last of the week, on 
Friday or Saturday : that the weather was cool and rainy. 

Jason Hunt^ the plaintiff's witness, testified, that he went 
with the plaintiff from Greensboro' to Statesville, the first 
week in April, 1848 : that he took with him two buggies 
to sell : that the plaintiff went to buy horses : that he staid 
at Statesville during the week of the Superior Court : that 
the defendant, Blackwell, proposed to sell to him his two 
horses for buggies, took him to the stable of the witness, 
Grant, and showed him the horses : that the horses seemed 
to be laboring under distemper : that Blackwell told him 
that the horses had distemper : that one had it about four 
weeks, and was getting over it, and the other horse had it 
about two weeks, and it was then at its worst : that he lent 
Pearce ten dollars to aid in paying the one hundred dollars: 
that he saw the horses some few weeks afterwards in the 
possession of the plaintiff, and that they had the glanders : 
that be had once owned a horse that had the glanders, a fii- 
tal disease : that the horses, when he saw them the second 
time) were wo»th nothing, but bad they had only the dis- 
temper, would have been worth iwo hundred and twenty 
five dollars, or two hundred and fifty dollars \ and that the 
period of distemper with horses, generally, was about a 
month. 

Reuben Rasa, the plaintiff's witness, testified, that he 
was ai Statesville at February Court, 1848 : that the defend- 
ant, Long, who was a brother-in-law of the defendant, 



JUNE TERM, 1851. ftt 



Pearce v. Black well. 



Blackwell, proposed to sell him a pair of horses : said ho 
had two horses to sell : showed him in the stable one of the 
horses : said the other was at Blackwell's : said the horses, 
or one of them had the distemper badly, but was getting; 
better: witness asked him if he would take a buggy in part 
pay for the horses : Long replied, that Blackwell had a 
buggy : the witness declined to trade, but saw the same 
horse he had seen in Statesville, in the possession of the 
plaintiff, in Greensboro', in April, 1848; and that the horse 
had the' glanders : that he did not examine the horse shown 
to him at Statesville, but the horse seemed to be healthy 
and had good hair. 

W. J. McElrotf, the plaintiff's witness, testified, that the 
defendant, Blackwell, drove the horses by Oak's Ferry, ia 
Davie county, about the first of February, 1848 : proposed 
Co sell the horses to the witness : that Blackwell said the 
horses had common distemper, had had it a short time and 
were getting well : that he saw one of the horses had what 
he supposed to be distemper : that the wife of the witness 
was not pleased with the horses, and he declined to buy : 
that the plaintiff passed with his horses by his house on 
Saturday about three o'clock, P. M., on his way from States- 
ville to Greensboro', about the first week in April, 1848 : 
that the weather was cool and rainy : that it is thirty- five 
miles from Oak's Ferry to Statesville : that in May, 1848, 
he saw the horses again in possession of the plaintiff: thai 
the horses were greatly reduced, and seemed to have glan^ 
dars, though he was no judge. 

C. A. Oillespie testified, that he resided in Greensboro': 
saw the horses in April, 1848, the next day after the plain, 
tiff got home, and on examining them, was satisfied, that 
they then had the glanders, and so infor.med the plaintiff : 
that glanders is a disease very iatal with horses : that he 
had managed and had much to do with horses : that mod- 
erate exercise with horses affected with distemper was good 
tqs them i but that, in the first stage of distemper, hard dri« 



M 8UPREMB COURT. 



Pearce t. Blackwell. 



ting and exposure mi^ht do injury : that distemper rarely 
affected horses longer than four weeks : that persons having 
the care of horses affected with the glanders ior three or 
four months, would, in his opinion, discover thAt the dis- 
«ta6e was not distemper. 

Wiltiam B. Wooller^ the plaintiff's witness, testified, 
Ibat he, in May or the first of June, 1848, went with the 
plaintiff to the defendant, Blackwell's, house, in Iredell 
county, to tender to him the horses : that he rode one ot 
the horses and the plaintiff the other : that they walked the 
homes most of the way : rode moderately : that they expec- 
ted to stay the first night at Oak's Ferry, forty miles from 
Greensboro', but were disappointed : that they went on in 
the night five miles further: got to Blackwell's house next 
day : saw the defendant, Long, first, the defendant. Black- 
veil, being from home : the plaintiff asked how long the 
horses had had the distemper, to which he replied, he had 
discovered that one had it when he returned from the north 
the December before : that Blackwell returned home in a 
short time : that the plaintiff tendered to him the horses, de- 
manded his horse and the money, and said to Blackwell, 
that he had told him the horses had distemper, when in 
fact they had the glanders : Blackwell replied, that he bad 
sold them as diseased horses: the plaintiff said, he had sold 
them as distempered horses, and he would sue him : Black- 
well said, he would sue the plaintiff, that his horse was not 
such as he represented him to be; that the plaintiff was a 
stranger to him ; that he expected he would come back, 
and that he had his witness fixed expressly for him : the 
plaintiff said, no one was pref ent, and if he had a witness, 
he must have been hid : that, in a conversation that occur- 
red some fifteen or twenty minutes afterwards, Blackwell 
said, that one Needham had told him that the plaintiff was 
dissatisfied with the swap, and was going to bring the hor- 
^ back : that he had had much to do with horses, and 
that the horses had the glanders. He also stated, thai 



JUNE TERM. 1851. 83 



Fearce v. Blackwell. 



Blackwell said, there had been no glandered horses, in his 
tioiehborhood. 

John Hiaitt the plaintifTs witness, testified, that he had 
dealt muclx in horses ; had bought and sold a great many : 
that at Guilford Superior Court in April, 1848, he bought 
these two horses of the plaintiff; thought they had the dis- 
temper when he got them ; took them home ; discovered . 
in two or three days they had the glanders : that glandered 
horses are worth nothing : that he returned the horses im- 
mediately to the plaintiff, who took them back again : that 
thensual period for distemper to remain with horses rarely 
exceeds four weeks: that distemper did not materially im- 
pair horses in value, not being considered a dangerous dis* 
ease : saw Pearce, the plaintiff, afterwards sell the horses at 
pablic auction in Greensboro', when one brought a dollar, 
and the other one dollar eighty-seven and a half cents. 

Labeecfis Oaither, the plaintiff's witness, testified, that 
in the month of November, 1847, he thought about the mid- 
dle of the month, he hauled a load of corn to the defendant, 
Blackwell's : that he showed him these horses ; called them 
his match horses : that Blackwell told him they had the 
distemper, and had had it some time : that sometime af\er- 
l^ards Blackwell rode one of the horses to his house, and 
led another horse ; wanted to sell the horse he led to his 
son: that he saw the defendant, Blackwell, in February^ 
1848 : that Blackwell wanted to sell him one of the match- 
es : that he declined to buy : that the horses still had some- 
thing like the distemper : that Blackwell tried at the same 
time to sell him a horse, that belonged to another person, 
who accompanied Blackwell on that occasion : that he ex- 
amined the eyes of the horse, saw the eyes were defective, 
and mentioned this to Blackwell ; who replied, he had not 
discovered it before: that he lived within five or six miles 
of Blackwell : and that he, Blackwell, dealt a j^reat deal in 
horses. He also stated, that when Blackwell ofTered to sail 
him one of the said ipatch of horses in Februaiy, 1848| he 



54 SUPREME COURT. 

Pearce e. Black well. 

told the witness if he would buy he would take less than 
he offered to t&ke before. 

Amos Sharp, the plaintiff's witness, testified, that he 
lived within about two miles of the defendant, Black\«ell ; 
that Blackwell dealt in horses: that during the fall of 1847, 
and the winter and spring of 1848, he had a glandered 
horse : that his horse got gradually worse, until he shot it 
in 1S49 : that he never knew his and the defendant's horses 
to be near each other : that, after the plaintiff got the horses 
from Blackwell, he heard the said Blackwell say, either that 
he had limed his troughs or intended to lime them. The 
witness further states, that it was a common thing in that 
neighborhood to lime troughs after horses had had distem- 
per. 

Miles Dohbinsj the plaintiff's witness, testified, that he 
was at Statesville on Tuesday of April Court, 1848: that 
the defendant, Blackwell, took him to the stable and offered 
to sell him the horses : told him they had distemper : thai 
one was very bad off with it : that he considered the other 
near about well : that witness examined the horses, saw 
some small sores about one of the eyes of one of the horses, 
asked Blackwell if he thought the distemper caused them ; 
Blackwell replied, he thought it did : the witness told Black- 
well the horses did not suit him : Blackwell said to him* 
" make me a bid :" the witness declined : Blackwell said 
the reason he wished to sell, was because he had too many 
horses. 

Oliver H. Farrington, the plaintiff's witness, testified, 
that in the latter part ot A\m\ and the first part of May, 
1848, he went with the plaintiff from Greensboro' to Laurel 
Hill, distant about one hundred miles : that they drove those 
two horses in a two horse waggon ; hauled down a barrel 
of whiskey and a box of tobacco ; were gone eighteen or 
twenty days; good weather; drove moderately, from eigh- 
teen to twenty-five miles each day ; drove home empty : 
that great care was taken in feeding and rubbing off the 



JUNE TERM, 185 r. 55 



Pearce v. Black we II. 



horses : thai the horses graclually declined, and seemed to 
be w'orse. 

Silas D. Sharpy the defendant's witness, testified, that 
he was at Statesvilleon Monday of April Court, 1848 : that 
be went with the plaintiff and the defendant, Blackwell, to 
the stables : that Blackwell showed the plaintiff his horses : 
that the plaintiff said they looked badly : Blackwell replied, 
yes, they have the distemper, I believe, and if he traded for 
them he must take them as they stand ; to whicti the plain- 
tiff made no reply : that the plaintiff and Blackwell went 
into the stable to the stall, in which stood the plaintiff's 
horse ; when the plaintiff said his horse was lame with the 
swinny, and if he took him, he must take him as he stood • 
that the defendant. Long, came also to the stable : had with 
him the child of Blackwell ; requested him to keep the 
child, which he did : that the plaintiff, Blackwell and Long 
were in the stable together a short time out of his hearing: 
that the terms of the trade he did not hear : that when they 
came out, Blackwell said he had lost thirty dollars in the 
trade, but he thought that better th^n to rub and fatten them 
up: that he was presenf when the one hundred dollars was 
paid ovei : the plaintiff borrowed a part of the money: that 
he had once owned one of the horses, which he sold to the 
witness, Cowan, in August, 1847.: that the horse, while he 
owned him, in March, 1847, had the farey ; broke out in 
twa sore places on the body behind the forelegs : that he 
washed with soft soap these sores and they soon got well, 
and haired over : that he saw sores were again breaking 
out on the horses : that he said nothing about these sores, 
because he did not think they would ever injure the horse: 
that, with this exception, the horse was perfectly healthy and 
sound, while the witness owned him : that the witness de- 
sired to own the horse again, and had gone to the stable oa 
that day to buy the horse if he could get him for eighty* 
five dollars. 



66 SUPREME COURT. 



Pf arce o. Blackwell. 



William F. Cowan^ the defendant's witness, festifiedi 
that he owned both the horses; purchased one from Silas 
Sharp in August, 1847, to match the other : that he kept 
them until the third of November, 1847, when he sold them 
to the defendant, Blackwell: that the horses were perfectly 
$ound aod healthy all the time he owned them, and were 
so when he let Blackwell have them: that he saw them re- 
peatedly afterwards, while Blackwell owned them : that he 
saw nothing the matter with either of the horses, until the 
first of January, 1848 : that one of the horses seemed to be 
bad off with the distemper : that Blackwell told him he had 
been offered a certain price for the horses: that be told 
Blackwell he thought he ought to have taken it, as he feared 
the horses might have the glanders : that Blackwell said 
he thought they did not have the glanders, because they 
improved, and he thought they would soon be well : that 
he had expressed his fears to others, but did not recollect 
having expressed them to the witness, Jacob Conay : that 
he saw the plaintiff in the streets of Statesville on tbe after- 
noon be left Statesville ; asked him what he had given, and 
whether Blackwell had sold the ftorses to him as sound ; 
to which (he plaintiff replied, that he had taken the horses 
as sound up to the time they took the distemper, and that 
he had paid one hundred dollars and a piece of a horse : 
that it was a wet, cold day, and the weather continued so 
until Sunday, when it faired away. He also stated, be was 
induced to suspect glanders, because there was a mare in 
the neighborhood diseased in such a way as induced hin> 
to think she had the glanders ; that the mare did not die, 
but lived and had two colts ; and that he changed his opin- 
ion as to Black well's horses, and thought they had the dis^ 
temper only. 

James Claywell^ witness for the defendants, testified, that 
he was the defendant, Black well's, clerk; lived with him : thai' 
he did not know that either of the horses had had distemper 
until about a week before Christmas, 1847, when he drove 



JUNE TERM, lUL ST 

Peuoe V. BlackwelL 

one of the hones to Clemmonsville, and discoreted for the 
fifst time that he had a cough : that the other horse did not 
have the distemper, until about two weeks before April 
Court, 1848 : that he was sitting in the store while the 
plaintiff, the defendant. Black well, and the witness, WooUeri 
conversed : that the plaintiff told Blackwell he had traded 
the horses to him as having the distemper, when in fact 
they had the glanders : that Blackwell refused to take back 
the horses-^told the plaintiff he had taken them as diseased 
horses : Pearce replied, you can't prove it : that he expected 
him to come back : did not recollect that any thing was 
said about a witness being fixed, or about Needham : that 
the defendant, Blackwell, limed his troughs after the plain* 
tiff got the horses : that he never discovered any thing about 
the horses but distemper, and thought the horses had the 
distemper: that the defendant, Blackwell, bought a mare 
after he let the plaintiff have the horses : that she had the 
distemper, "when the defendant, Blackwell, got her: that 
he kept her in a stable to herself: that she got well, and the 
defendant, Blackwell, afterwards sold hen 

WiUiam Taylor, the defendant's witness^ testified, that 
he was a brother-in-law of the defendant, Blackwell : that 
he worked the horses about the first of March, 1848, and 
that he thought they had the distemper : that he worked 
(hem about a week in a team with two of his own horses, 
watered them with the same bucket : that they performed 
well, and he thought they had nothing but the distemper; 
and his horses took no distemper. 

Robert Baxter^ the defendant's witness, testified, that he 
had much to do with horses : that he saw the horses shortly 
after the plaintiff got them, and he thought they had the 
distemper : that he had known distemper to continue with 
one or two horses as long as five or six weeks: that expo- 
sure and hard work would injure horses afflicted with the 
distemper. 

8 



68 SUPREIEB COURT. 



Pearce «. Blackwell. 



JmA Conajft the plaintiff's witness, testified, that the 
defondant, Btackwell, tried to sell bis son one of these hoi^ 
ses, and at another time tried to sell one of them to him? 
laid they bad the distemper : that this was a short time 
tefore the plaintiff got them : that he asked the witness^ 
dowan, about the horses, and Cowan told him not to trade 
for 'them, that they had the inlanders : that the defendant 
Blackwell, after he parted with the horses, white-washed 
4he inside of his stable and the trough : that the defendanti 
Blackwell, traded in horses. 

Joel McLean f the plaintiff's witness, testified, that he bad 
managed and dealt in horses for many years : that glanders 
and distemper were two separate and distinct diseases, re^ 
sembling each other: that distemper continued would turn 
into gtanders : that glanders was often produced by dift- 
tem^r: diatiarcy is intimately connected with glanders: 
they will run into each other, or their symptoms will min- 
gle together, and brfore either arrives at its fatal termina- 
tion, its associate will almost ii^variably appear : an animal 
inoculated with the matter ot farcy, will often be afflicted 
with glanders, while the matter of glanders will frequently 
produce farcy — they are different types or stages of the 
same disease : that moderate exercise is good for distemperi 
while exposure and hard labor are injurious to horses in the 
incipient state of distemper— tended to inflame and diffuse 
or scatter the disease through the system : that distemper 
was generally considered harmless : that horses were rarely 
affected with distemper longer than four or five weeks — 
more generally a shorter space of time : that glanders would 
likely in all instances, be deteeted4a less time than three or 
four months : that glandered horses would often eat heart- 
ily, keep in fine order, and do service for a long time, and 
some few horses would recover, but the disease was gene* 
rally fatal. 

Several witnesses testified, that the general character of 
all the witnesses on both sides was good. 



JUNE TERM, 1851. 6» 



«^ 



Pearee v. Blackwell. 



The coansel for the defendants moTed his Honor to charge 
the jary, that if they believed that the trade was upon the 
terms stated by the witness, Silas Sharp^ it was immaterial 
whether the horses had common distemper or glanders, or 
whether the defendants knew it or not, or whether the fact 
was disclosed to the plaintiff or not, the defendants were 
entitled to a verdicts 

The Ceart charged the jury, that, if the defendant. Blacks 
welly sold the horses to the plantiff and represented that 
they had the distemper, a disease which would last but a 
short time and do them no injury, but knew at the same 
time that they had a fatal disease called glanders, and the 
plaintiff was ignorant ot this, they should render a yeidict 
for the plaintiff, and the measure of his damage would be 
the difference between the value of the horses with the dis- 
temper, and what they were worth, having the disease called 
glanders : 

That, if they were not satisfied that the horses had the 
glanders, they must find for the defendants : • ^ 

That, if the horses had the glanders and the delendants 
did not know it, they should find for the defendants : 

That,' if the plaintiff knew as much about the disease 
which the horses had, as the defendants, they should find 
for the delendants : 

That, if the horses had the glanders^ and it was brought 
about by hard driving or improper exposure to the weather 
by the plaintiff after he purchased them, they should find 
for the defendants : 

That, if the plaintiff took the horses at his own risk with 
all faults, and Blackwell used no artifice or contrivance to 
cheat or defraud him, they should find for the defendants r 

That Blackwell was under no obligation to disclose any 
defects, if the plaintiff agreed to take the horses at his own 
risk ; but that this rule would not apply, if artifice or con- 
trivance was resorted to for the purpose of throwing the 
ptaiQtiff off his guard, and thereby to cheat and defraud 



80 SUPRSMfi COURT. 

Pearee v. Blaekwell. 

him ; and whether this was done or not, was a question 
entirely for them : 

That, if they should be satisfied, that the defendant. Long, 
had nothing to do with the trade, and did not participate in 
the inind, if the other defendant was guilty of any, they 
eould find a verdict against one and in favor of the other. 

Under this instruction, the jury found a verdict against 
Blaekwell and in favor of Long. 

Rule for a new trial — rule discharged, and defendant^ 
Blaekwell, appealed to the Supreme Court. 

Kerr^ for the plaintiff. 

J. T. Moreheadj for the defendant. 

Nash, J. Action on the case for deceit and false war- 
ranty in the sale of horses. It is unnecessary here to state 
the case at length. The principles of law, deducible from 
the evidence, are set forth in the Judge's charge ; and the 
exception is to the instructions at large. 

The first instruction is, that, if the defendant, Blaekwell, 
sold the horses to the plaintiff, and represented that they 
had the distemper, a disease which would last but a short 
time and do them no injury, but at the same time knew 
that they had a fatal disease, called the glanders, of which 
the plaintiff was ignorant, they should render a verdict for 
the plaintiff. There certainly can be no objection to this 
charge — the defendants' liability is strongly and fully put 
on the ground of fraud practised by him. The 2d, 3d, 4th 
and 5th branches of the charge were in favor of the defend- 
ants, and they cannot complain of them. 

The main argument was upon the 6th branch of the in* 
structions. It was as follows : " If the plaintiff took the 
horses at his own risk, with all faults, and Blaekwell used 
no artifice or contrivance to cheat or defraud him, they 
4bould find for the defendants : That he was under no obli* 
gatien to disclose any defects, if the plaintiff aorreed to take 



JfJNS TBRU. 18SI. ei 



I 



Bippia V. EUiMiu 



the hones at his own risk ; but that this rule would not ap- 
ply, if artifice or coutrivance was resorted to for the purpose 
of throwing the plaintiff off his guard, and thereby to cheat 
and defraud him." This portion of the charge is nearly in 
the language of this Court in the case of Smith v Andrews ^ 
8 Ire. 6, and it fully sustains his Honor, the presiding 
Judge. When a vendee takes an article at his own risk or 
with all faults, he becomes his own insurer, and the seller 
is relieved from all obligation to disclose any fault, he may 
know the article has ; but he must resort to no trick or con* 
trivance to conceal the. defect or mislead the purchaser. 
Pickering ▼ Dawson^ 4 Taun. 779. There is no error in 
law in the charge, and in every lorm in which it is put 
by the Court, the jury have found against the defendant 
upon the question t>f fraud. 

PsR Curiam. Judgment affirmed. 



LEVI PIPPIN w. WILLIAM J. ELLISON. 

The tenn " property,** in its legal leiise, does not inclade cAests in meiitmf 
•ad io reference to perwaaliy, is confined to ** goods," which emlmiM 
Uiingp isanimate, as fumitare» dn:. and to '< chattels*" which term embraoes 
living things, as hones, Ac. 

Where a testator doTised all his '* property'* to his wife for life, and directed 
that, after her death, ** it should be sold,*' dc Hefd, that ek9S€M in m€ti9m 
dldnot pasb 

Appeal from the Superior Court of Law of Martin Coonty, 
at the Spring Term, 1851^ his Honor Judge Ellis presi* 
ding- 



68 SUPREME COURT. 



Fippitv. ElliMB. 



The case is sufficiently slated ia tbo opinion delivered io 
tilts Ck>urt. 

Rodman^ for tho plaintiff. 
BiggSf for the defendant* 

Pearson, J. The petitioner is the administrator de bonia 
non^ with the will annexed, of John Wyatt,and the defend* 
ant is the administrator of Lawrence Cherry, who wa&tlM 
executor of said Wyatt. The petition is filed for an account 
of the estate of said Wyatt. 

An account was taken, to which the petitioner filed four 
exceptions. The first and fourth wera sustained. The 
second and third were overruled, and the defendant appeal* 
ed. This presents the first and fourth exceptions for our 
consideration. 

Both of these exceptions involve the construction of the 
following clause of the will : " I give and bequeath to Lydia 
Wyatt, all the balance of my property during her natural 
life, and at her death it is my will and desire, that the said 
praperii/i loand to my said wife, shM be sold by my exec* 
utor, with the exception of one acre of land, and the moneys 
arising /rom the. sale of said proper ty^ to remain in the 
possession of my executor in trust for the benefit of my 
daughter Keziah Roby, during her natural life, to be fur- 
nished to her at such times andnt all times at the discretion 
of my executor." After the payment of his debts, which 
he directs " to be paid out of my estate^ there remained in 
the hands of tho executor $273,80, being the principal and' 
interest of the bonds, accounts, and claims due the testator. 
This amount the executor paid over to Lydia Wyatt. 

The question is, whether the bonds, account^ and other 
ehos^s in action passed under the above clause, or were un- 
disposed of and subject to distribution. The word " estate'' 
haa a broader signification than the word ^' property." The 
^former includes choses in action. The latter does not ; and 



r M 



JUNG TERM, 18SI. 63 

Pippiii V. ElliaoD. 

in reference to personalty is confined to '^ goods," which 
term embraces things inanimate — furniture, farming uten- 
sils, corn, &c.. and " chattels," which term, embraces living 
things — slaves, horses, cattle, hogs, &c« Nothing but per- 
sonal property or ^' goods and chattels," could, at common 
law, be seized under a^./a. or be the subject of larceny. 

As the testator uses the word *' property," choses in action 
are excluded, taking the word to have been used in its legal 
sense ; and that such was his meaning is made still more 
manifest by the direction that all said property, at the death 
of his wife, shall be soM, and the moneys arising from the 
sale applied, &c. 

The fourth exception, because the defendant is charged 
with the amount of the debts, &c., which he collected and 
paid over to the widow, his Honor sustained. We concur 
kk the opinion, that the defendant ou^ht to be charged with 
this sum ; but there is error in not allowing the receipt of 
the widow to stand 09 a voucher for such part of the suDU 
as she was entitled to under the statute of distributions, and 
as to which the payment to her was rightful. 

The first exception, because the defendant is credited 
with the sum of $75, paid to Keziah Roby, his Honor sus- 
tained. In this there is error. The distributive share of 
Keiiah Roby, in the proceeds of the notes, accounts, ^c„ 
greatly exceeded this sum, and the payment of the $76 for 
her use was proper. 

There must be a reference to reform the accounts. 

* PsECmuAtf. Ordered accordingly^ 



6i .9UPRBMB COURT. 



SAMUEL FEREBEE «f. ISAAC BAXTER ^ At. 

Upon the death of an admiDistrator, the doty of Mttliog vp the ee tate do' 
Tofyea on the adminiatrater de bonit non. The repreaentatiTe of the fint 
adminietrator haa nothinK to do with it, except to account for and deliTer 
over to the adniiniatrator» d€ homU hm, Mch a«eta aa may lemaun undia- 
poaedot 

Creditori cannot me him directly, nor have they a riKfat of action on the firat 
administratof'a bond ; for the bond doea not vary nor add to the dutiea or 
liabilitiea of an adminietrator, but merely increaaea the aecnrity for perform* 
anoe of bia daty, 

A jndpnent obtained by a creditor againat the adminietrator de honis nmr^ 
aacertaiuing the amount of the debt, but declaring that thia adminiatrator haa 
no BMeta, will not vary the principle. 

The caaea of the State r Johneon, 8 Ire. 399, St^U r Brittm, 11 Ire. 110^ 

. and State t , II Ire. IfO, cited and approved. 

Appeal from the Superior Court <^ Law of Currituck 
County, at the Fall Term, 1860| bis Honor Judge Cald* 
WELL presidinj^. 

This is an action of debt upon the administration bond 
of one Jesse Doxey, who was the administrator of James 
Doxey, deceased. 

The facts of the case are as follows : The said Jes%, after 
the expiration of two years from his administration, paid 
over to the next of kin all the estate in his hands : 
he died some time in the year — and Benjamin Sim* 
mons became the administrator de bonis non of said James 
Doxey : the plaintiff brought suit against the said Simmons 
upon a canse of aation, which accrued between the death 
of said Jesse and the grant of letters of administration de 
bonis non to said Simmons : the said Simmons, in the suit 
against him, pleaded fully administered. On the trial, die 



JUNE TERM, 1851: 6B 



Ferebee 9. Baxter. 



jury found in favor of the plaintiff as to the debt, and in 
lavorofsaid Simmons or the plea of fully administered. 
There was no judgment on the verdict, other than such as 
the law implies. This suit is brought to recover the amount 
of the judgment. 

The Court was of opinion, that the action could not be 
sustained, and in submission to this opinion, the plaintiff 
submitted to a non suit. A motion to set aside was refused 
and the plaintiff appealed. 

No counsel for the plaintiff. 
Heathy for the defendant. 

PfiAiisoN, J. Upon the death of an administrator, the 
duty of settling up the estate devolves on an adminlstnitor 
4e bonis non. The administrator of the administrator has 
nothing to do with Jt, except to account for and deliver over 
to the administrator de bonis non, such of the assets as have 
not been disposed of by the first administrator iu the due 
course of administration. 

Creditors and distributees must look to the administrator 
de bonis fion, for he represents his intestate. There is no 
privity between them and the administrator of the admin* 
isuator. They caunot sue him directly, nor have they a 
right of action on the administration bond executed by his 
intestate. This bond does not vary or add to the duties of 
or liabilities of an adipinistrator, but merely increases the 
security for the performance of his duty. State v Johnson^ 
8 Ire. 397, State v Britton^ 11 Ire. 110, State v , 

lie. 16a 

We prefer to put our decision on the broad principle, and 
lay no stress on the fact, that the debt in this case did noC 
become due until after the death of the first administrator. 

The circumstance, that the debt has been ascertained by 

a j«idgment, seems to be relied on by the plaintiff, for the 

purpose of taking his case ootof the^iperation of the genend 

9 



66 SUPREME COtJRT. 



-*a^ 



Ferebee v. Baxter. 



principle. We are at a loss to perceive how it can have that 
effect. In the first place, such a judgment is unknown at 
common 'law, and there is no statute to warrant it. At com- 
mon law, no plaintiff could take judgment, without showing 
a liability on thepart of the defendant. The judgment quan- 
do was not an ^exception ; for, it did not, in fact, become a 
judgment until assets came to hand. Our statutes author- 
ise a judgment, when the defendant is not shown to be -lia- 
ble in but three cases^— where " no assets" is pleaded, or be* 
fore a single justice, when a creditor admits the personal 
'estate to have been fully administered, and seeks to charge 
the real estate, and where a creditor seeks to proceed on the 
tefunding bond. So, the judgment in this case, not being 
authorised either at common law or by statute, can have no 
-force or effect. 

In the second place, as there was no privity or cause of 
•action before the judgment, it is impossible that sudk a 
judgment can have the effect of creating a privity, and giv- 
ing the plaintiff a cause of action against a stranger. We 
'imagine this experiment was suggested by some supposed 
analogy to the proceeding in equity, where relief is given 
after a creditor has ascertained his debt at law and is unable 
to obtain satisfaction. There is, in fact, no analogy. The 
action in this case is of the first impression, and has neither 
principle, authority, or analogy to support it. 

Per Curiam. Judgment affirmed. 



JUNE TERM, 1851. 67 



STATE ON HELATION OF JEFFERSON D. BRITT v*. HENRY 

COOK. 

A gaardidn b not it liberty to consider the amount expended on infants by a 
ibnner guardian, even for board, if it exceeds their increase, aa a debt due 
Ivom the wards* estate, and payable out of the principal. 

A guardian is presumed to furnish all necessaries for his infant ward, and a 
•trenger who furnishes them, except under peculiar circumstances, must 
take care to contract with the guardian ; otherwise the provision that 
guardians shall not, in their expenditures, exceed the income of their wards, 
would be Main and nugatory. 

Appeal from the Superior Court of Law of Hertford 
County,, at the Spring Term, 1851, his Honor Judge Dick 
fresiding. 

The case is stated in the opinion delivered in. this Court, 

Sraggj for the plaintiff.^ 

W. N^H. Smithy for the defendants 

P£A»30ir, J. This was debt on the guardian bond of 
the defendant. Cook. The amount claimed as disburse- 
ments, e^xceeded the income of the wards. But the defend- 
ant, admitting the general rule, insisted, that an exception 
ought to be made upon the facts of this case, which were 
as follows: The defendant. Cook, was appointed guardian 
in 1843. From 1840 to 1843, one Moore hnd been the 
guardian. The infants lived with their mother during the 
year 1810. Cook married her in 1841, and they cdntinued 
to live with him. One of the items of the defendant, Cook's, 
account was a charge of thirty six dollars a year against 
each of the infants for board for the years 1840-'41 and 1842, 
and it was insisted thi9 amount was a debt due by the in- 



** SUPREME COBRT. 



State V. Cook. 



fonts to the defendont, Cook, for the satisfaction of which 
he had a right to "encroach" on the principal, the income 
being consumed by his disbursements' and those of the for- 
mer guardian, exclusive of this item of board, which, it is 
insisted, he was at liberty to pay out o( the principal, be- 
cause it was a debt due by his wards, when he was appoint- 
ed guardian. 

His Honor wos of a different opinion, and we concur 
with him. If Cook had been ^unrdinn all of the time, it is 
admitted he would not have been at liberty thus to exceed 
tlie income. How can thi^t be done indirectly, which could 
not have been done directly? How could the infants, da- 
ring the' guardianship of Moore, incur a liability exceeding 
tlieir income, which, upon the appointment of Cook as guar- 
dian, became a debt chargeable upon the principal of their 
estate? Moore, as guardian, was bound to furnish them 
with necessaries, and was not at liberty to exceed their in- 
come. The infants had no capacity to incur a debt exceed- 
ing their income, even for necessaries. The guardians for 
Infants are presumed to furnish all necessaries, and a stron- 
ger, who furnishes board or any thing else, must, except 
under peculiar circumstances, take care to contract with the 
guardian ; otherwise, the provision that guardians shall not, 
in their expenditures, exceed the income of wards, would 
be vain and nugatory. 

Pes CtJRiAM. Judgment affirmed. 



\ • 



JUNB TERM, 18SL 69 



BENNETT P. PITT »#. WILLIAM D. PETWAV. 

When A. B. and C. were intereited at the principal eettuit que trtut in a 
deed of trnet of ilavei, lor the payment of debt*, in which A. wan the trui- 
tee, and, by an agreement between the three, B., at a pnblie aale, under 
tlie deed by the tmetee, bid oflTthe ilaTee, for the benefit of the three ; Held^ 
that, by this aale, the legal title vested in all, as tenants in common. 

The position, that " a trustee cannot buy at his own sale," must be takes 
with some qualifieations. He may bny at his own sale and charge himself 
with the bid ; and the eeetuit que trutt, may, at their election, hold him 
boand by it, or may repudiate the sale and treat the property as still be- 
Isnging to the trust fond. 

la wtr State, it is held, that, if a tenant in common takes a slaye out of the 
State to parts unknown, and sells him, the co-tenants may treat this as a 
destructka^ of the property. But a sale to a citizen of the State is not I 
tantamount to a destruction, and therefore does not amount to a conYor-' 



Appeal from the Superior Court of Law of Edgecombe 
County, at the Spring Term, 1861, his Honor Judge Ellis 



This was an action of trover for the conversion of a slave, 
named Burton. 

The plaintifis proved, that the slave in question, had been 
the property of one Robert Belcher, who, by deed in trust, 
dated Ist of June, 1849, conveyed him, with other slaves, 
for the payment of debts to the defendant, Pet way. In De- 
cember of the same year, the defendant exposed this and 
the other slaves, thus conveyed, to sale at public auction 
upon a credit of four ihonths, the purchaser giving bond 
with approved sureties. This sale was made in pursuance 
of the terms of the said deed of trust. One Lewis Belcher 
bid off the slave Burton, with others, who then went into 



70 SUPREME COURT. 

Pitt V. Petway. 

bis possession ; and by deed, dated 1.6th of April, 1850, the 
said Lewis Belcher Conveyed to the plaintifis, several slaves 
by name, and also his " interest in negroes Luke^ Edmund^ 
Burton and Kate^^ to be held by the plaintiffs in trust foe 
the payment of debts owing by liim. In June, 1850, the 
defendant, who was also sheriff of Edgecombe couoty, took 
the said slave into liis possession under an execution in fa- 
vor of one Lawrence against tiie said Robert Belcher, and 
exposed him to public sale, when ho was purchased by one- 
Armstrong, a citizen of Edgecombe county. The circum- 
stances, under which Lewis Belcher bid oflTthe slave at the 
sale ot Robert Belcher's property, were as follows : The ^ 
dkefendant^ Petway, and one Sugg and Lewis were creditors, 
of Robert Belcher^ whose claims were provided for in the 
said deed in trust to Petway. The said Petway, Sltgg and 
Belcher held a conference just before the slaves were ex-^ 
posed to sale in December, 1849^ when it was agreed be^ 
tween the three, that, as they were all interested in making, 
the property bring a fair price, the purchase money being 
principally applicable to their respective claims under the 
said deed in trust, unless the slaves brought certain prices,, 
which were set forth ia a paper, wluch Sugg then held in 
his hand, they should be bid off by Lewis Belcher fox the 
benefit of the three, and that they should again be sold, 
when an opportunity presented, for the benefit of the said 
Lewis Petway and Sugg. He gave no note for the purcbaso 
money for the slave, nor did he pay any money. After 
this sale, it was agreed between the said Petway, Sugg and 
I^wis Belcher, that he. Belcher, should keep possession of 
the slave, and that cither of them should make a sale of him 
for the benefit of tkemj when an opportunity presented. 
That the said Belcher, with the approval of Petway, did 
once offer to sell the slave. ' 

It was also proved, that Mr. Lawrence's execution, under 
which the slave was sold by Petway, was under the control 
d Stigg, the judgment having been assigned to one Nor- 



JUNE TERM, 1851. 71 

■ .1. ■-,.■■ I I 11 I I I ■ I I III I ■ ..M . || „ . 

Pitt 9. Petway. 

fleet, who held it in trust for Sug^ ; and that the said debt 
was one provided for nnder the deed in trust of the said Ro- 
bert Belcher. It was admitted, that the said execution />er se 
^ve no valid lien upon the said slave, the said Sugg hav- 
ing assented to the first sale by Petway. 

It was proved by Lewis Belcher, that at the time of ma- 
king his trust deed, he declined the request of the plaintiffs 
to insert the slaves Burton and others, because, as he told 
the plaintiffs, it could not benefit the trust then making; 
but finally yielded to the plaintiffs, and inserted them in the 
form stated. 

The plaintiffs contended, that Lewis Belcher acquired a 
title to the whole legal interest in the slave at the said first 
sale, and held him afterwards as trustee for said Petway and 
Sugg ; and that the plaintiffs were entitled to recover in this 
action the full value thereof, they having acquired Lewis 
Belcher's interest: That, if he, Lewis Belcher, only acquire 
ed one third interest in the slave, the plaintiffs were entitled 
to recover to the extent of that interest, as the slave had 
been sold by Petway, another joint owner. 

The Court was ot opinion, that Lewis Belcher did not 
acquire a legal title to the entire slave as trustee for Petway 
and Sugg, as contended ; but that, if any title at all passed 
irom Petway as trustee for Robert Belcher, the said Lewis 
Belcher only acquired title to the extent of one third of the 
interest in the said slave, and held this as joint owner with 
Petway and Sugg : and that it did not appear, that there 
had been any such distinction of the property as would en- 
able the plaintiffs, who had Lewis Belcher's interest to 
maintain trtwer against one of the other joint owners. 

The jury returned a verdict for the defendant. Rule for 
a new trial. Rule discharged. Plaintifis appealed to the 
Supreme Court. 



1 



72 SUPREME COURT. 

p" * ■ ■■■■■.■, I •> 

P&it V. Petw«y. 

Rodman^ for the plaiutiflT. 

Moore aud Biggs for the defendant. 

Pearson, J. The case turns upon the legal effect of the 
sale aud delivery to Lewis Belcher. It mast have operated 
in one of three ways. The slaves were simply " bid in** by 
Ijewis Belcher, acting for the trustee, so that there was no- 
sale aud they continued a part of the original trust fund ; 
or they were purchased by him for himself and as agent of 
the defendant and Su$rg, so as to vest the title m the*three, 
as tenants in common ; or they were purchased by him to 
be held in trust for himself and the defendant and Sugg, 
the legal title being in himself alone. 

The proof was, the slave in controversy and three others, 
together with other property, had been conveyed by one 
Robert Belcher to the defendant in trust to sell and pay cer- 
tain debts, in which Lewis Belcher, the defendant, and 
Sugg were the persons principally interested. Before the 
sale, it was agreed between said Lewis Belcher, the defend* 
ant, and Sugg, that, unless the slaves were run up above 
certain sums, Jjewis Belcher should become the purchaser 
for the benefit of the tlireei and either of them was after- 
wards to make sale of them, whenever a favorable opportu- 
nity occurred. Accordingly, Lewis Belcher became the 
purchaser and the slaves were delivered to him. He did 
not pay or give his note, for the amount of his bids — that 
was left as a matter of future arrangement. 

It is obvions, that the object of the parties was not simply 
to '* bid in" the slaves and allow them to remain a part of 
the original trust fund, because there were other persons con- 
cerned in that fund, and because, upon this supposition, 
there was no occasion for a change of possession and no 
reason why the trustee should deliver the slaves to Lewis 
Belcher. 

It remains to be decided, did the sale and delivery vest 
the title in the three as tenants in commoni or did it vest the 



JUNE TERM, ISdl. 73 



Pitt V. Petway. 



title in Lewis Belcher in trust for the three. His Honor, 
we think, properly adopted the former conclusion. The 
purchase was made for the benefit of the three, and they 
were to contribute rateably towards the price. The natural 
inference, then, is^ that the title was to bo rested in the three, 
unless there was some purpose to be accomplished by vest- 
ing the title in one to the exclusion of the others. VYe can 
sec no such purpose and reason for excluding the defendant 
and Sugg trom the legal ownership. 

It is suggested, that, as a trustee cannot buy at bis own 
tale, there was a necessity for Lewis Belcher to become a 
trustee for the defendant, and this is a reason, so far as he is 
concerned, for excluding him from the legal ownership. 
The position, that "a trustee cannot buy at his^otETsale," 
must be taken with some qualification. He may buy at his 
own sale and charge himself with the bid ; and the cestuis 
que trust may, at their election, hold him bound by it, or 
may repudiate the sale and treat the property as still belong- 
ing to the trust fund. This consequence follows, whether 
the purchase is made by the instrumentality of an agent, or 
that of one who is to hold the title as trustee. This sug* 
gestion, then, has no weight ; and the fact, that the defend- 
ant was the person who made the sale, favors the one view 
as much as the other, and we are left to adopt the natural 
inference, that the title was to be in the three, in the absence 
of any reason for vesting it in one, to the exclusion of the 
other two, except as cestui que trust* 

It was then insisted, that, if they were tenants in com« 
mon, the defendant had so converted the slave, as to entitle 
the plaintifis to recover an aliquot part of the value, in the 
same way as if he had destroyed the property. The con- 
version consisted in this : The defendant, as sfaerifl, sold the 
slave under an execution in lavor of Sugg, and he was 
bought by one Armstrong, <' a citizen of Edgecombe coun- 



10 



74 SUPREME COURT. 



Pitt r. Potway. 



The rule as between tenants in cammon is, that one can*- 
not maintain trover, unless there be a destruction of the 
property. The first exception made, (if it can be termed 
an exception,) was where a tenant in common of a ship had 
it repaired, the name changed, and sent it to the East In- 
dies, where he sold it and appropriated the whole price to 
his own use. This was held to be '' tantamount to a de> 
struction," because the co-tenants could not follow it. In 
our State, it is held, that if a tenant in common takes a slave 
out of the State to parts unknown, and sells him, the co-ten- 
fants may treat this as a <lestruction of the property. But 
the idea that a sale to " a citzen of the county" is " tanta. 
mount to a destruction," is now advanced for the first time, 
and cannot be sustained, without putting a tenant in com- 
mon upon the footing of a mere wrong doer, with whom 
there is no privity ; for which position there is no authori- 
ty and no reason. 

Per Curiam. Judgment affirmed. 



FRANKLIN G. PITT <fe AL m. BURTON G. ALBRITTON. 

^Wbero a bailment is made by one of two tenants in common, and the bailee 
mider:ake8 to hold for bim and subject to his order ahntf the bailee is not 
estopped as t«» the other tenant in common, but, in an action by the two 
jointly aj^inst him, may show that the true title is in a third person. 

Appeal from the Superior CoVirt of Law of Pitt County, 
at the Spring Term, lb51, his Honor Judge Ellis presi- 
ding. 



I 

« 

f 



JUNE TBRSf, 1831. 76 



s. 



•^ 



Pitt V, AlbrittoD. 



The plaintiffs declared in trover on a bailment to the de- 
fendant for the value of two slaves, Edmund and Luke. 
On the trial it was proved, that one of the plaintiffs, Frank- 
lin Pitt, in the month of June, 1850, brought to the defend- 
ant, who was sheriff of Pitt county, the two slaves, and re- 
quested him to keep them in the common jail, until he 
should call for them himself or by his order. The defend- 
ant received them on those terms. In the month of August 
following, the said Franklin Pitt came and demanded the 
slaves of the defendant, and the defendant stated, that h& 
had delivered them to a Mr. Petway, who had claimed the- 
right to possess them. 

The plaintiffs then offered in evidence, a deed in trust,, 
executed by one Lewis Belcher to the plaintiffs in April, 
1850, conveying to them in trust the said slaves. The- 
plaintiffs further proved that the said slaves had been in the 
possession of Lewis Belcher before the making of the said 
deed. In th&course of the cross-examination of the witness- 
es offered by the plaintiffs, the defendant made enquiry into 
the title of the slaves, tending to show that it was in one 
Robert Belcher. The plaintiffs objected to- this evidence on 
the ground, that the defendant being their bailee, he could 
not deny their title ; and the objection was sustained. The 
plaintiffs then offered evidence of the value of the slaves, 
and closed their case. The defendant objected, that the 
plaintiffs had not entitled themselves to a verdict, because 
only one of the plaintiffs had bailed the slaves, and only 
one could sustain the action simply by showing a bailment, 
without title by him to the defendant; and that, as the oth- 
er plaintiff, in order to entitle himself to a verdict, was ob- 
liged to show title^ the defendant was at liberty also to meet the 
question of title and show a different and superior one. 
But the Court was of opinion with the plaintiff. Thereup* 
on the defendant proposed to show that the slaves were, at 
the time of delivery to him and the surrender by him, tlie 
property of the said Petway : that the said Petway, as she- 



76 SUPREME COURT. 



Pitt V. Aibritton. 



riff of Edgecombe county, had, under nn execution issuing 
on a judgment, obtained at ilny Court, 1849, of that coun- 
ty, levied on the said slaves in June following, and returned 
his levy wiihout sale to August, 1S49: thnt a venditioni 
exponas issued from Aucrust, 1849, to Kovcmber, 1849, 
commanding him to sell the s^ud slaves; and another from 
May, 1850, commanding him likewise to sell (he snid slaves; 
and that the slaves having been withdrawn from Edgecombe 
the said Petway claimed them while in custody of the de- 
fendant by virtue of his levy aforesaid, and the defendant 
Iiad surrendered them to him. The plaintiffs excepted to 
this evidence, and the Court rejecied it as irrelevant to any 
matter of defence to the action. Thereupon the defendant 
offered to show that in 1849, one Robert Belcher was the 
owner of the said slaves, and had executed to the said Pet- 
way a deed in trust, duly proved and registered, conveying 
them to him for the purpose of paying his debts : that iti 
December of that year, the slaves had been sold, and by 
virtue of an agreement made before the sale between them, 
the said Lewis Belcher bid them off as the joint property of 
himself, the said Petway, and one Sugg : that after the sale 
the slaves went into the possession of the said Lewis Belch- 
er, and so continued until (and for sometime afterwards) 
the said Lewis Belcher executed his deed in trust, which 
the plaintiffs had read : that during the whole time the 
slaves were in the possession of the said Lewis Belcher, be- 
fore the execution of the deed to the plaintiff, he claimed to 
hold the slaves as tenant in common with the said Sugg and 
Petway, and, at the time of executing the said deed, he 
stated to the plaintiffs his interest to be such and no more, 
and that the deed was made and accepted upon such infor- 
mation to the plaintiffs. And the defendartt averred, that 
the said Petway claimed the right to possess said slaves as 
one of the tenants in common with the said Lewis Belcher 
or his assignee, and had received them on this claim of right; 
and to this end, as a complete defence, as well as for the pur- 



JUNE TERM, 1S51. 



Pitt V. Albritton. 



pose of determining the dnmasres, if ihe plaintiffs were en- 
titled to recover at all, the defendant declared this purpose 
in offering it. But the Court declined to receive the evi- 
dence for any purpose. And the jury, under the instruc- 
tions of the Court, rendered a verdict for the full value of 
the slaves. Whereupon the defendant obtained a rule on 
the plaintiffs to show cause why a new trial should not be 
granted. 

1st. Because the plaintiffs on the proof were not entitled 
to maintain the action jointly. * ' 

2nd. Because of the rejection oi proper testimony offered 
by the defendants. 

Rule discharged. Judgment for plaintiffs. Appeal to the 
Supreme Court. 

Rodman, for the plaintiff. 

B. F. Moore and Biggs for the defendant. 

PeariIon, J. The title of the slaves vested in Lewis 
Belcher, Petway and Sugg, as tenants in common. PUt r 
Pettoay, at this term. After the delivery to I^wis Belcher, 
he conveyed all of " his interest^ to the plaintiffs in trasti 
and afterwards one of the plaintiffs, Franklin Pitt, delivered 
the two slaves, now sued for, to the defendant, the jailor of 
Pitt county, to be kept for the said Franklin until he called 
for them. The defendant aUerwards delivered them to one 
Petway, one of the tenants in common ; so that when called 
OD for them by Pitt, he was not able to deliver them, and 
this action is brought by the two Pitts, to whom they were 
conveyed by Lewis Belcher. 

Oo the trial the plaintiffs proved the bailment by Frank, 
lin Pitt to the defendant, and his failure to deliver the slaves 
on demand. They then read in evidence the deed from 
Lewis Belcher to them, and proved the value of the slaves* 
and rested the case. The defendant offered to show, that 
Petway was a tenant in common with the plaintiffs, and 



78 SUPREME COURT. 

Pitt •. AlbrittoD. 

■I.I m t ■ . I , _ 

that, on demand, he had delivered the slaves to him. His 
Honor rejected this evidence, being of opinion, that the de^ 
fendant was bound as bailee, and could not be heard to de- 
ny the title of the plaintiffs. There is error. 

If Franklin Pitt had sued on the contract of bailment, it 
may be, that the defendant would have been bound by it,, 
and estopped from showing the facts ; for, although a bailee 
may excuse himself by proving that he delivered the article 
. xikdemand to the true owner, this is on the ground that he 
^'^^••^•^■iffiHld have been«»topfe*by the true owner to deliver the 
article, and it was not worth while to stand a suit. But 
when a bailment is made by a tenant in common and the 
bailee undertakes to hold for him and subject to his order 
alone, the bailee cannot excuse himself by showing a deliv-^ 
ery to the other tenant in common ; for he could not have 
compelled him to do so by action, and there was, conse- 
quently, no necessity for it. 

In this case the action is trover by the two Pitts, and aU 
though the case states, they declared in trover " on a bail- 
ment," that can make no diflerence ; for the gist of the ac- 
tion is, that the defendant, being in posession of the proper^ 
ty, converted it wrongfully. To sustain the action in the 
name of the two, it was necessary to depart from the spe- 
cial bailment, and rely on the title to show, that by impli- 
cation of law, the bailment was made by the owners. This 
opened the whole title; and the same implication which let 
in Bennet Pitt, (and which was necessary to sustain the 
action in the name of the two,) also let in Sugg and Pet- 
way, as part owners and parties to the contract of bailment, 
and so the defendant delivered the property to one of the 
parties to the contract ; which is a defence available under 
the general issue, because it is a performance of the terms. 
of the bailment. 



JUNE TERM, 1851. 79 



Dickion v. Jordan. 



The idea, that there ought to have been a plea in abate- 
ment for non-joinder, has no bearing. 

Per Curiam. Judgment reversed, and a venire de novo. 



DICKSON* MALLORY A CO. v«. PLEASANT JORDAN A AL. 

In an action on an expren contract for the price of Rope oold and deliveredt 
where no price was agreed upon, the defendant can only shew what was 
the wttarktt price, generally, of rope ot this kind, at the time of the aale, but 
cannot shew what wan the real or actual value of the article sold, so as to 
reduce the aroonni, which the plaintiff would be entitled to recover, below 
the market price at the time. 

Appeal from the Superior Court of La\v of Perquiman* 
County, at the Spring Term, 1851, his Honor Judge Ellis 
presiding. 

This action is assumpsit, and the plaintiffs declared ia 
twe counts. First, on a special contract for the sale to the 
defendants of ten coils of iSshing rope, at the price of 13 3-4 
cents, per pound. And secondly, on a quanium valebU for 
goods, wares and merchandise, . sold and delivered* It ap> 
peared from the evidence, that the plaintiffs were merchants 
in the city of Norfolk, and the defendants were engaged in 
fishing operations, in the spring of 1848, on the Chowan 
river, in the county of Hertford. And the plaintiffs proved 
by one Eingfield, their clerk, that in the latter part of the 
year 1847, one of the defendants, he did not know which, 
Isft a verbal order with the plaintifis to send them ten coils 



80 SUPREMK COURT. 



DiclcBon V. Jordan. 



of fishing rope; that the plaintiffs did not then have the rope 
on hand ; that \w knew nothing of any bargain between 
the parties as to the rope, but, that he only knew that it was 
forwarded to the defendants in the month of February, 1848. 
And that the ]irice, ut whcih the rope wns chars^ed by the 
plaintiffs, in their account against the delendants, to wit : 
13 3-4 cents per pound, was the same as that usually charged 
by the plaintiffs to their other customers. And in reply to 
a question of the plaintiffs, ns to the quality of the rope, the 
witness further si\\d that the quality was good, and such as 
they sold to otheis for fishinc^ purposes. The rope was 
21-2 inches in diameter, and the kind of rope used in haul- 
ing seines. It further appeared, that the rope came to hand 
and was used by the defendants in their said business. 

The defendants then offered to prove, that the rope was 
of bad quality — that withii two days after they commenced 
using it, it repeatedly broke — and proved to be rotten and 
defective in quality — that it was of little use, and they had 
Co procure other rope in the place of it. 

This evidence was objected to by the plaintiffs, and re- 
jected by the Court. But the Court held that the defendants 
might shew, and could only shew, what was the market 
price, generally, of rope of this kind, at the time of sale, but 
could not shew, what was the real, or actual value of the 
article sold, so as to reduce the amount, which the plaintiffs 
would be entitled to recover, below the market price of the 
article at the time. The defendants then proved that the 
market price, at the time, was 12 1-2 cents per pound, for 
such rope — and the plaintiffs had a verdict accordingly. 

Rule on the plaintiffs for a new trial. Rule set aside, and 
judgment for the plaintifi. Appeal to the Supreme Court. 

W. N. H. Smilh, for the plaintiffs. 
Jordan and Bra^g^ for the defendants. 



JUNE TERM, 1861. 81 



Dickaon t. Jordan. 



Pearson, J. It was beld in Dickson r Jordan^ II Irs. 
166,thatno warranty of quality is impUedin the sale of goods. 
An attempt is made to distinguish the case, as it now comes 
npy because it appears now, no price was agreed on, whereas 
before, it was stated that " the rope^ was sold at the price 
<^ 13 3-4 cents per pound. No stress was laid, in the opin- 
ion, on the fact, that there was an agreed price, and the 
eircamstance that no price was expressly agreed on, cannot 
distinguish this case, and take it out of the general princi- 
ple, then announced. 

If a defendant is not allowed to abate the amount of 
damages, for a breach of contract in failing to pay for goods 
sold and delivered, when the price was agreed on, by proof 
of their inferior quality, it would be singular, if he was al- 
lowed to do so, because the price had not been expressly 
agreed on. 

It was said, there the action was on an express contract ; 
here^ it is on an implied contract, and, as the plaintiff must 
declare on the '' quantum valehat/^ the question of value is 
open. We deny the premises from which this conclusion 
is drawn. The contract, in both cases, is an express one — 
the only difference being, that in one, the parties fix on the 
price ; in the other, leave it to be inferred from the circum* 
stances ; and the inference is, that the one agreed to take, and 
the other to give, the selling price, or (as it is termed in the 
case) the market price. If the vendor demands more, it is 
his duty to make it known — if the vendee is not willing to 
give it, he must say so. Silence is taken for consent to 
give and take the market price. Neither party is allowed 
to take advantage, from the fact, that the dealing was upon 
this mutual understanding. 

A Doctor is sent for, and attends day and night upon a 
•lave. It would be singular, if the owner when sued for 
the services, shoald insist, '* no price was agreed on," the 
declarauoii is upon a ^^quantum meruit^ and I may shoWi 
in abaieine at of the damages, that the slave died, and so the 



81 SUPREME COURT. 

Dickson «. Jordan. 

semces were of no valae. If a carpenter works day after 
day, according to instructions, and the building is of no um, 
because of a defect in the plan — can the employer on that 
ground be allowed an abatement from the wages ordinarily 
demanded, and paid to carpenters? 

From the argument, and the cases cited, (those referred 
to in 2 Greenleaf 136, note 4,) we presume tha oonnsel has 
fallen into a misapprehension, by not adverting to the di^ 
tinction, between a case like the present, where the contract 
is express, and an action on a contract implied by law — as 
when one agrees to build a house according to certain speci* 
fication for a given sum, but does not build the house ac* 
^sording to contract, and therefore connot maintain an action 
on it. Still if the other party takes any benefit from his 
labor and materials, the law will imply, from his doing so, 
a promise de bono et quo^ to pay what the labor and ma- 
terials are worth to him. Here the question of value is 
open; with this restriction, however, that the price agreed 
on is the " standard" and cannot be exceeded, and the rule 
18, if the house, built according to contract, be worth the 
sum agreed on,' how much should be allowed for it, built 
as it is ? In such a case, it would be out of the question to 
allow the plaintiff to recover according to workman's wages^ 
or the rates of the trade, so much per square ; for it may be^ 
Che defendant would not have had ihe house built, but for 
the very low price at which the plaintiff agreed to do it. 

P£R CuRtAM^ Judgment aflirmed. 



JUNE TERSf, 1851. 88 



JOHN S. WOOD Sl AL. m; WILLIS a BACLEY S AL. 

If» ai the time a judgment in obt&inod, the parties agree, that an ezecatioo* 
shall not isnie far a certain time, twhieh b doly entered of record, the time» 
within whidi a platutifT can take ont his exeeation, is extended to twehrO' 
months and a day from the termination of the specified time, and noeseca«> 
tion can re(^lar1y issue in th» meantime, except by coder of the i 'onrt. 

When a jadpnent is confessed upon terms, which are duly entered » it is, in 
effect, a conditional judgment, and the Coort will t«ke notice of the terms 
and enforce them. 

Where a rule or order is entered on the record, by a properoflicer of the Courl 
in the clerk's office, hut during Term time, and: the Court meets and ait^ 
afterwards, the conclusion of law is, that it was recognized and adopted by 
the Court 

The case of (7a<iy ▼ Qttian, G Ire. 193^ cited and approTod. 

Appeal from the Superior Court of Law of Perqtiimans. 
County, at the Spring Term 1851, his Honor Judge Dick. 
presiding. 

This was a rule on the defendant obtained by the plain- 
tiff, after due notice given him, at May Term, 1850, of the 
County Court of Perquimans county, to show cause why 
an execution o{ fieri fctciaSf which he had caused to be is- 
sued on a judgment recovered by him against the plaintiff, 
John S. Wood, at the preceding Term of the Court, should 
not be set aside. The rule havin? been made absolute ia 
the County Court, and the Court having ordered the said 
execution to be set aside, the defendant appealed to the Sa< 
perior Court 

Upon the hearing of the case in this Court, the following 
were the factr. 

The defendant's intestate, Miles Dail, recovered at Feb- 
ruary Term^ 1850, of Perquimans County Court, against 
the plaintiff, John S. Wood, judgment for the sum of 



84 SUPREME COURT. 



t 
I 



Wood V. B^fley. 



dollars, with costs of suit, and caused an execution, tested 
of that Term, and returnable to the May Term, following, 
to be issued on the day of — • , against the prop- 
erty of the said Wood, and on the same day delivered to 
the sheriff, of Perquimans County aforesaid/ Sut^scqoently, 
to February Term of Perquimans County Court, aforesaid, 
to wit : at the Terms of the Superior Courts held in the 
counties of Perquimans and Pasquotank, respectively, in 
the month of April, of that year, the other persons who are 
plaintiffs, severally recovered judgments in those Courts 
against the said John S. Wood, on each of which execu- 
tions oi fieri fadoi were issued shonly thereafter, to wit: 

on the day of of the same year, which were 

on the same day delivered to the sheriff' of Perquimans, and 
were returnable to the Fall Term, 1850, of those Courts re- 
spectively. 

Under these executions, and the execution of the defen- 
dant, Bagley, which afterwards came into his hands, as 
stated, the sheriff* made sale of the property of the said John 
Wood, and holds the proceeds of the sale in his hands un- 
appropriated. 

The judgments recovered by the several plaintiffs were 
by default on writs, of which the said Wood accepted ser- 
vice during the latter part of the week of the said Superior 
Courts. 

Accompanying the judgment, as entered upon behalf of 
the said Dail against John S. Wood, and immediately under- 
neath, appears the following entry on the docket, in that 
cause, to wit : 

" Stay execution till May Court, and thereafter till called 
for." 

It was in proof, that this entry was made on Thursday of 
the February Term aforesaid of the Court, in the office of 
the County Court Clerk, which is in the Court House, in 
the presence both of the said Dail, and the said Wood, by 
the County Court Clerk, under the direction of the defeu- 



JU^E TERM, 1S51. 8» 



• Wood 0. fiafloy. 

daut Uail, and that no Court sat on that day or the next 
day. 

The circnrastances, under which this entry was made in 
the case, were as follows : 

Alter jadgment had been rendered in the case of Dail v 
Wood, the said John S. Wood called on the said Dail to 
know, if execution was to be issued, and stated, that he did 
not wish to prejudice his debt, but it would not be convenient 
for him to pay it before May Term, and, perhaps, not before 
Ansfust Term of the Court. The said Dail suggested, that, 
under the advice of the Counsel, he preferred, that his exe- 
cution should isstie, but not be enforced. To this the said 
Wood answered, that that arrringement would not suit him, 
and that be could appeal and keep it off longer ; and there- 
upon, the sat^d Dail, turning to the Clerk, instructed him to 
make the entry of thastay, as already described ; and it was 
done. The execution, at the instance of Dail, was for 
Seventeen Hundred Dollars, or thereabouts. And the exe- 
cutions, infavor of the plaintiffs, other than Wood, amount 
ed to about Three Thousand Dollars, while the proceeds of 
sale of said Wood^s property, in the hands of the Sheriff, 
were about Four Thousand Dollars. 

It further appeared, that, according to the practice and 
mages in the County Court of Perquimans, rules and other 
orders are taken and entered on the docket in the County 
Court Clerk's oflice, at any time durincr the week, until 
Saturday when the Court adjourns ; and that the said Court 
did sit and transact business on Saturday of the February 
Term aforesaid, not having adjourned until th-it day. 

The Court was of opinion, on ihe above statement of facts, 
that the entry on the docket was merely a private agreement 
between Dail and Wood, and not a record of the Court. Tt 
therefore ordered, that the judgment of the County Court 
be reversed and the rule discharged. 

Prom which judgment, the plaintifl^ appealed to the Su« 
preme Court. 



86 SUPRKUB COURT. 

Wood V. Bagley. * 

W. N. H. Smith, for the plaintiffs. 
Heathy for the defendant, submitted the following argu* 
ment. 

The entry on tlic docket is either a record, a contract, or 
a mere direction : 

1st. On principle, it is not a record. A record is the pro- 
cess bringing the party into Court ; the allegations of the 
parties ; the action of the Court thereon, and the final pro- 
cess. This entry is not a record nor a part of a record — is 
not leading process, adjudication, nor final process. The 
fact that it appears on the record does not make it a part oi 
the record : An execution, when returned, is a part of the 
record ; Pigot v Davis^ 3 Hawks, 25. Yet the plaintiff's 
receipt thereon, is no part of the record \ Spruill v Bate- 
man, 4 DeY. and Bat., 489. On principle, then, particular- 
ly, as no Court was in session on the day, on which the 
entry was made, it is no part of the Record. Equally as 
little claim has it to be considered a record, on authority : 
Cody V Quinn, 6 Ire. 191, is a direct authority, that it is 
not a record. It is true, the learned Judge, who delivered 
the opinion, in Cody v Qt/mn, intimates, that the party in- 
terested might complain to the Court, << in a motion to hatre 
the execution set aside." This, however, is a mere obiter 
dictum, not necessary .to the decision of the cause, and may 
be questioned, however much the droppings even of his 
mind may be entitled to respect. And supposing the Court 
could exercise its discretion, it would require a proper case^ 
which this is not ; as, by setting aside the execution in this 
case, the defendant would be defrauded of the money due 
on his execution, and perchance, might lose title to the 
property, bought under it. 

2d. As a contract, it lacks the material ingredient of a cod< 
sideration; for the want of which it is believed, it could 
not be enforced, by suit eveU;, much less by rule. If the 
vaivitig of the oppeal, under the circumstances, could be 



' JUNE TERM, 1S5I. 87 

Wood V. Bagley. 

constraed into a consideration, the injury to Wood, if any, 
is not such an one as calls for the interference of this Court 
by rule ; but he should be left to his action at law. It is 
believed, however, it cannot be deemed a contract. 

3d. If not a record nor a contract, then the entry is a 
mere direction, which the party giving had a right to coun* 
temiand, and did countermand, and his execution issued 
rightfully. 

4th. This entry being no part of the record, nor even a 
contract, which the Court could or ought to enforce by rule, 
a waSf at the most, a mere matter of discretion with the 
Courts below, whether the execution should be set aside or 
uot. The County Court having ordered the execution set 
aside, an appeal was properly taken to the Superior Court : 
the Superior Court having examined the testimony^ and^ 
in the exercise of Us discretion^ having reversed the decis- 
ion of the County Court, no appeal lies therefrom : the 
cause is improperly in this Court, and the appeal must be 
dismissed. That the appeal from the County to the Supe* 
rior Court is rightful, and that the appeal to the Supreme 
Court is not, see Slade v Burton^ Exrs. 6 Ire. 207, Britt r 
Patterson^ 10 Ire. Z90. 

Nash. J. The intestate recovered a judgment in the 
County Court of Perquimaus against John S. Wood. When 
the judgment was obtained, it was agreed between the par- 
ties, that, if the defendant would not appeal to the Superior 
Court, a cessai execution until the succeeding May Term 
of the Court, should be entered. Accordingly the following 
entry was made upon the docket : << Stay execution, until 
May Term and thereafter until called for.'' Between the 
February Term, when the judgment was obtained, and the 
May Term following of the County Court, a Term of the 
Superior Court intervened, at which jud;;ments were con- 
fessed to his other creditors by J. S. Wood. Thereupon, 
the intestate, Dail^ caused t ir e.veciiii >ti in controversy lo 



88 SUPREME COURT. 



Wood V. Bagley. 



issue upon his judgment, before the expiration of the time 
agreed on. Upon the application of Wood and the plaintifis 
in the judgments confessed, the County Court at May Term 
set it aside and Uail appealed. In the Superior Court the 
order of the County Court was reversed, upon the ground, 
that the order, entered on the docket, was a private agree- 
ment between the parties, and not a record of the Court. 

In this opinion, we do not concur. The aorreesnent, upon 
being entered on the record of the Court in the manner this 
was, became a rule of Court, vesting in the parties legal 
rights, which it was the duty of the Court to protect. After 
a final judgment, in favor of a plaintiff, he is entitled to his 
execution and may take it out, ut any time within a year and 
a day, where the (mrties remain the same. If, however, a 
writ of' error is brought, or the parties, at the time the judg- 
ment is obtained, agree, that an execution shall not issue 
for a. certain time, which is duly entered of record, the time, 
within which the plaintiff can take out his execution, is ex- 
tended to twelve months and a day from the decision on the 
writ of error, or the termination of the specified time ; and 
no execution can regularly issue in the mean time, except by 
order of the Court. 2 Tidd's Prac. 994r-<l Mod. Rep. 20. 
In his first volume, page 550, Mr. Tidd states, that when a 
judgtnent is confessed upon terms, which are duly entered^ 
it is, in ellect, a conditional judgment, and the Court will 
Cake notice of the terms and enforce them. Here, the judg- 
ment became, by the agreement of the parties, a conditional 
judgment, so far as the execution was concerned. The de. 
fendunt in the orii^inal action had a right to appeal to the 
Superior Court ; the effect of his so doing would have been 
to vacate the judgment, delay the plaintiff, and put him to 
the trouble and expense of another trial. To avoid these 
results, Dail, tlie piaintiff, agreed to a eessat execution for a 
limited time. This was entered on the records of the Court, 
at the instance of the parlies and in their presence, by a 
pro, er ollice. of the C »ur(. This was done in the Clerk's 



JUMfi TBRM, 1I»L e» 



Wood*. Ba(l«]r. 

office, daring term timei and the Ck>art met and sat on the 
second day after ; so that the conclusion of law is, that it 
was recognised and adopted by it. Itthereby became a rule 
of the Court, and beyond the action of either of the parties 
without its order. The execution in this c^ was impro' 
perly issued, not because the rule of Court vacated the judg- 
ment, but because it violated that rule or ^mler. That the 
Connty Court had the power to set it aside on the applica- 
tion of J. S» Wood, who was the defendant, is shown by 
the case of Cody y Qumn, 6 Ire. 193, and they were right 
in so doing. 

We think there was error in the Court below. The judg- 
ment is, therefore, reversed and that of the County Court 
affirmed. 

P£B Curiam. Judgment accordingly. 



18 



eo SUPREME COORT. 



Willis h. BAGLfiy. adi«r. m. john s. wood. 

Kvery Coart has the control of \i» own reeordi, and may alter or ftuiA^ 

'tbepn, or refuse to do so at its discretion. 
- WhMO the Connty Coivts exercises this diaoretion their decision is subjeoi 
' to an appeal to the Superior Court and is thereby vacated, and the trial in 

the Superior Court is de novo, 
In.oonsiderini; the matter in appeal, the Superior Conrt is not confined to the 

evtdoDoe in the Court below, bnt may hear and will hear any additional vt 

»tm oTidMoei which may he offered by the pettier. 
Whether the decision in the Superior Court is one purely in the discretion of 

the Judge, or one which is subject to review here, the judgment is final and 

conclusite, because the Supreme Court is a Court for the correction of er« 

rors tn matters ot law, and not matters of fac'. 
The «ases of Jewitt v Booa, 5 Ire. 9, ^aUoteay ▼ ilfoilLslAaii 5 Ire. 19» 

Ditkeroon v. Lippit, 9 Ire. 563, and BrUt v PatUroon, 10 Ire. 390, cited 

and approved. 

• 

Appeal from the Superior Coart or Law of Perquimans 
County, at the Spring Term, 1851, his Honor Judge Diok 
presiding. 

The facts of tl^e case appear in the opinion delivered in 
this Court. 

Heaihj for the iplaintiif. 

W. N. H. SmiiA, for the defendant, 

Nash. J. This is a branch of the case of Wood eL aL 
y Baglsjf, administrator of Dail, decided at this Term, the 
.pari-ies being reversed. The motion, in that case, was to 
set aside the execution ; in this, to amend the record. The 
facts in both cases are the same, and need not be repeated 
here. The motion, in this case, was to strike out of the re- 
cord the cessat execuHo, entered at the lime the original 
judgnen t was obtained. Upon due coti«deration the Coun- 
ty Court refused so to amend the lecordy and an appeal was 



lUNR TERM, tSSK 9k 



Bigley V Wood. 



taken by the plaintiff to the Superior Court, where the judg* 
ment of the County Court, as stated in the case,. was affirm* 
«d, and an appeal taken to this Court.. 

Every Court has the control of its own records^ and ni6y 
alter or amend them, or refuse to do so,, at their'discretion^. 
So far as the action of tho County Court is concerned, the 
exercise of this discretion is subject to the revision of the 
Superior Court, to which anappeal lies, by act of 1836,^Rey. 
St., ch. 4, sec. 1. from every judgement, sentence, or decree* 
made by it. There are some eases, in which no appeal 
lies, but this is not one of them. Where an appeal is pro- 
perly taken, it vacates the judgment, and the trial in the- 
appellate Court is de novo,H3 if 'no sueh judgment had 
been obtained in the County Court ; and the motion to a- 
mend is made in the Superior Court, as if for the first time. 
And, in considering the motion, the latter Court is not con- 
fined to the- evidence in the Court below, biu may hear 
and will hear any additional or new evidence^ which may 
be offered by the parties. Whether the decision in this case 
\ras one of amendment, which is purely in the discretion^ 
of the Jtidge, or one, whiph is subject to review here, we- 
equally think Ihe judgment is final and should be affirmed ;. 
for the reason^ this is a Court for the correction of errors in- 
matters ot law, and not matters of fact. These principles 
are abundantly shown by the cases of Jewett v Boon 5 Ire*. 
9 — GaUoway v McKethan^ 5 Ire. 12 — and Dickerson v 
Tlppetty 9 Ire. 1 63 ; and more fully in the recent case of 
Briii V Patterson, 10 Ire. 390. The case shows, that the 
same evidence was laid before the Judge below, as was sub- 
mitted to the County Court, and the case was heard by his. 
Honor, *'upon the evidence submitted.** His decision, 
therefore, imist be final^we cannot look into the facts, upoa. 
which his judgment was founded, it being a judgment 
givei^in the exercise of a, discretionary power. 

Fee Cubxam. Judgment afirmed; 



M SliPREMB COimT. 



WILUAM T. HTMAN v«. WILLIAM K. A. WILLIAMI. 

A bcqiMftthed M fonom: ''Ilotn to my wife Cbaritj, one nefra man 
Primut*' (fmd other negroes) ; *• alfo she may take choice of toy one of Ibe 
Begra girb beloogijig to my csUte» which I may not five nwty," Ac. ^ kui» 
at the death of my wife the negroes I have loaned to my wife and their in- 
crease I want to he eqnally divided between my ibur grand children A , B, 
Ac" Held that the wife took a life estate only m the negro girl selected 
by her from those not giTea away. 

A residoary elaose operates as a limitation of j the interest of the tenant ler 
life, and passss it otot as effectdally, as if there had been an ezprees Umita- 
lion over of the specific thing. 

The cases of Jwiu$ ▼ Perry, 3 Ire. £q. 300, Speight r Oatlin, 3 Dev. Et}. i*, 
and Svnnder* t (?at2ta, 1 Dev. and BaL £q. 86 cited and approved. 

Appeal from the Superior Court of Law of Martin County, 
at a special Term in June 1861, his Honor Judge Dictc 
presiding. 

Detinue for a slave Hasty and a horse, which was deci- 
ded on a case agreed. James Burnett by his will bequeath* 
ed and devised as follows : *' Item 1st : I loan to my wife 
Charity, one negro man Primus, one negro woman Mahaly, 
one boy Hampton^ and negro woman Amy ; also my wife 
may take choice of any one of the n^ro girls belonging to 
my estate which I may sot give away ; also two bead of 
horses, such as she may think proper to take ; also all my 
cleared land and as much of the woodland as she may think 
proper ; and at the death of my wife the negroes I have 
loaned to my wife and their increase I want to be eqnally 
divided between my four grand children Henry R. Watts, 
James H. Watts, Charity Mitchell, and Mary Mitchell ; also 
the land I have loaned to my wife at her death I wish for 
it to be divided between my two grand children Henry R. 
WatU and James H. Watts." Then follow dispositions of 
•Javfs and other goods in three clauses, and then this item: 



JUNE TERM, 1831. ' 91 



Hvmiin V. Wiiriams. 



^Sthlyi AH the Dep*oes and properly of every kind which 
I have not given away hereinbefore, I wish my executor to 
sell enough of said properly to pay my debts, and ihe t)al- 
ance to be equally divided between my said grandchildreUi 
Henry R. Watts and James H. Watts." 

The testator left two negro girls not specifically bequeath- 
edtoany other person, and his widow took one of them 
named Hasty, under that part of the clause giving her the 
choice of one, and she also selected two horses — to all 
which the executor, (who is Ihe defendant in this suit,) as* 
sented. Mrs. Burnett made a will and appoicted the plain- 
tiff the executor, and then died in 1850. Thereupon the 
defendant took Hasty and one of the horses into his posses- 
sion, alleging that Mrs. Burnett was entitled to them for her 
life only under her husband's will ; whereas the plaintiff 
claims, that they belouji^ed to her absolutely. To determine 
the controversy this action was brought, and it was agreed, 
if the Court should be of opinion for the plaintiff, that there 
should be judgment lor him as therein particularly mention- 
ad ; but that if tlie opinion should be to the contrary, there 
ahottid be juds^ment of non suit. There was judgment ia 
Ihe Superior Court for the plaintiff in respect both to the 
slave and the horse ; and the defendant appealed. 

Rodman^ for the plaintiff. 

B. P. Moore, and Biggs for the defendant 

RuFFiii. Cp J. The Court holds, that the widow took 
for her life only. All the gifts to her are in one item or 
dausei and there is no word of gift in it, but *' loan" in the 
beginning. That, to be sure, is improperly used as a veipb; 
but it is the vulgar use of it among the illiterate instead of 
^ lend,'' and the aenae is very plain here. It applies to ail 
the subjects of the bounty to the wife. The argument for the 
piaiotiff is, that the language used in respect of this girl and 
Ihe horses amounted to independcutyanditbcicfore^absoluie 



94 SUraEMB COURT. 



Ifyman v. WUUanw. 



gifts. But, besides the circumstance just noticed, that thereis 
no word of gift in reference to these thtn8:8 in particular, ther& 
are the facts, that those parts of the clanse are connected, ia 
each case, with what precedes them by the word ''also," that 
is 'Mn the same manner," and showing that the wife was to 
take them as she did the negroes giren hy name. This is 
rendered the clearer upon the will, because, in the same 
clause, the land is afterwards given to the wife io a man- 
ner precisely similar to that of the gift of the girl to be 
chosen by her : that is, by the connecting adverb ''also^"and 
without applying any word of gift or loan to the land in 
particular: the words being, ''also all my cleared land and 
as much of my wood land as she may think proper ;" yet 
in the conclusion of this very clause, after giving over the 
negroes, lent to the wife, to four grand children, the testa- 
tor adds, " also the land loaned to my wife, at her death I 
wish to be divided" between two of these same grand > 
children., This is a plain declaration, that "loan" in the 
first of the clause was understood by the testator as 
xeoching the land ; and consequently it relates to and con> 
trols all the gift3 made to the wife in that clause and limitSv 
them to her life. The plaintiff, therefore, has no title to the 
slave Hasty, who is included with the others in the gift over 
to the four grand children. Nor has he a title to the horse ; 
for, although it is not limited over specifically after the death 
of the wife, and although it be true that a loan for life of a 
personal chattel is a gift for life, and, without more, passea 
the whole property, yet it has been held, that a residuary 
clause operates as a limitation of the interest of the tenant 
for life, and passes it over as effectually as if there had been 
an express limitation over of the specific thing. Jones v 
Perry, 3 Ire. Eq. 2O0— Speight ▼ Gatlin, 2 Dev. Eq. 6— 
Slaunders v Oailin 1 Dev. and Bat. Eq. 86. 

Per CueiamI Judgment reversed, and judgment of hoii: 
suit according (o the case agreed. 



MJNB TERM, 18SK 96 



WILUAH B.^ WHITEHEAD m. DURWELL REDDK^K. 

Where an afraament purported to be between A. D. " for and on behalf of tha 
AJbemarle Sn amp Land Company of the ouo pari** and ** B. R. of the other 
part" and stipulated, that the party of the second part should get ** on the 
land of the party of the first part" a certain qnaantity of lumber, anddalmr 
U 4te.> «Dd in the eondusion it is said*< in witness whereof A. B. for and on 
behalf of the party of the first part, being the Albemarle Swamp Land Com- 
pany," and B.R. as the party of the second part,have hereunto set their hands 
and seals, and the agreement was signed by ** A. B. for and in behalf of tha 
Albemarle Swamp Land Company." Held that this was a contract between 
Ihe Company and B. R., and that A. B. oould support no action for a breach 
of it in his own namei but that the action nmat be in the name of the Com- 

Appeal from th« Superior Cotirt of Lav of Beaufort 
<7ouiity, at the Spring Term 1851, his Honor Judge Cald- 
well presiding. 

This is an action of covenant : plea, non est factum. 
The instrument is in the tollowin^ form : " Know all men 
by these presents, that William B. Whitehead, for and oa 
behalf of the Albemarle Swamp liand Company of the one 
part, and Burwell Reddick and Willis S. Reddick on the 
other part, do enter intp the fo]|owin|r agreement : The 
party of the second part agree to get on the land of the par- 
ty of the first part, near Plymouth, N. C, the following 
kinds of lumber, and deliver the same on board such yessels 
at Shell Landing, as the party of the first part may send for 
the same, to wit : 600,000 to 700,000 juniper shingles of the 
best quality, to be thirty inches long, d&c." (Then deserib- 
Mig other kinds of shingles and staves, and juniper bolts,) 
md the said party of the first part agrees to pay to the party 
of Che second part for each and every thousand shingles so 
got aad delivered, $10 ; for each and evrey thousand staves^ 
^12| Ac. : The said lumber to be considered as received by 
(be party of the first part when delivered on board such 



U SVPRK>Ifi COURT. 



WhitebMd 9. Aeddick. 



vessels as may, from time to time, be sent for it, and pay- 
ment made on presentation of the Captain's receipt or bill 
of lading, subject to deductions lor such as may be thrown 
out as cullings, when the said lumber shall be sent to mar- 
ket. All the foregoing timber to be gotten on or before the 
first of January, 1S48 ; at which time the getting or making 
IS to cease, if desired by, either party. In witness whereof, 
William B. Whitehead for and on behalf of the party of the 
first part, being the Albemarle Swamp Land Company, and 
Burwell Reddick and Willis S. Reddick as the party of the 
second part, have hereunto set their hands and affixed their 
seals, this 23d day of June, 1846." 

(Signed) " W. B. WHITEHEAD, for and .g^j . 
on behalf uf the Albemarle Swamp Land Comp'y, ^ '^ 

B. REDDICK, (Seal.) . 

W. S. REDDICK, (Seal.) 

On the trial it was objected by the defendant, that White* 
head could not maintain an action on the agreement in his 
own name,, but that it ought to have been brought by the 
Albemarle Swamp Land Company — which, it was admitted, 
was a copartnership consisting of the said Whitehead and 
five other persons. Of that opinion was the Court ; and 
the plaintiff submitted to a non suit, and appealed. 

J. W. Bryan, for the plaintiff. 
Donnelly for the defendant. 

RuPFiN, C. J. The natural supposition is, that, in con. 
tracts made by agents, the stipulations are by and with the 
principals. Yet, as agents may bind themselves for their 
principals, and as the language of agreements is often inex- 
plicir, it ireqnenlly happens, that it is not easy to determine 
whether the contract is that of the agent personally or of 
the priticipal exclusively. In this case, however, there is 
no difficulty of that sort. The instrument purports to be 
between two parties and only two ; and the question is, 



JUNE TERM, 1861. 97 



Whitehed v. Raddiek. 



Whitehead or the Land Company is one of these two.— • 
Perhaps, from the structure of the sentence comprising 
the premises, the character of the instrument in this respect 
might be deemed somewhat equivocal. But the first stipu* 
lation,* contained in the next sentence, speaks explicitly. It 
is, that the defendants '< agree to get on the land of the 
party of the first part" the lumber specified. The defendants 
were, undoubtedly, not to work on Whitehead's land but 
on that of the Company. Therefore, the Company is here 
shown to be the first party to the contract. In the same 
manner it is seen, in other parts, that the timber is to be 
got for, and delivered to the Company, and paid for by them 
— they being described all along as " the party of the first 
part." Moreover, in the conclusion of the articles it is plain* 
ly declared, that Whitehead does not execute them, as being 
himself the party to them, but executes them as the deed of 
the Company, by saying that he does so " for apd on behalf 
of the party of the first part, being The Albemarle Swamp 
Land Company." It is thus clear, that the deed, through* 
out, calls the Company the party of the first part ; and 
hence the plaintiff is not exclusively that party ; and the 
judgment must be affirmed. 

PsB Curiam. Judgment affirmed. 



98 SUPREME COUtlt. 



ELIZA F. JON&S M. JOHN JONES. 

'iFlThcto'Cha Superior Court, upon ' the facts robmittted to and deteMoed by 
them, refuted a motion todismiai a guardian ; UBtdf that an appet) couM 
net be taken tnm their decieion. 
ThjD case of Bagley v Wood, anUp, cited and approved. 

Appeal from the Superior Court of Larw of Jones Countyi 
^ at the Spring Term 1851, his Honor Judge Caldwell pre- 
siding. 

Motion to remove the defendant from the guardianship 
"of the in&nt children of Jonas Jones, dec'd. The plaintiff 
is the mother of the wards, and the defendant their grand- 
father. In the County Court, the judgment was, that the 
defendant be removed, and the plaintiff be appointed in his 
place. From this decision, the defendant appealed to the 
Superior Court, where a motion was made by the Counsel 
of the plaintiff to dismiss the appeal, on the ground, that 
the defendant had no right to appeal. This was refused, 
and the plaintiff then insisted that the order of the County 
Court, removing the defendant from his guardianship, ought 
to be confirmed, unless the defendant showed that there 
was no error in law or in fact in said order. This was de- 
*nied by the Court, upon the ground that the trial in that 
Court was de novo, A motion was then submitted by the 
'defendant to dismiss the proceeding ior error in the rule 
and notice^ This was overruled by the Court. The case 
states, that " then the (pouxi proceeded to hear the whole 
matter, upon evidence and witnesses introduced in Court; 
and, after hearing the whole matter, the Court reversed the 
judgment of the County Court, removing the defendant from 
the guardianship of the infant children, and declaring that 



JUNE TERM, 1851. 99 



State V. Whitford. 



he was the proper, person to be their guardian^ and directed 
^.procedendo to be issued to the County Court. Where^ 
iipon, the plaintiff appealed to this Court. 

X H. Bryan^ for the plaintiff. 
W. ££. Haywood and J. W. Bryan, for Ihe defendant. 



Nash, J. For the reasons set forth in the case of Bag ■- 
leyy TFoodf, decided at this Term» without examining into 
the testimony, upon which the Superior Court acted, which 
we have no power to do, the orders of said Court are aflSrm • 
ed, upon the ground that we have no power to revise a dis^ 
cretionary judgment of the Superior Court, except for error 
io>law. Here, none is.shown. 

Pee Curiam. Orders afSrmed. 

(Note. — 7%e same point decided at this Term in. the 
caseof Leavitt v Etheridgej from* Currituck') 



STATE «•. WILUAM C. WHITFORD. 

Apeiwn, who is exempted by law fram eerving on jariet, is not bomid U 

serre on WL^peeisl venire. 
The casesof the State ▼ Hogg, 2 Mar. 319 aad State ▼ WilUami, 1 Dot: and 

Bat 303, cited and approved. 

Appeal from the Superior Court of Law of Graven Coun- 
ty, at the Spring Term 1851, his honor Judge Caldweli. 
presiding. 



loo SUPREME COURT. 



State V. Whitford. 



The defendant was summoned as juror, under a special 
writ ot venire facias, issued by the Judge of the Court, ac- 
coiding to the provisions of the act of Assembly, Rev. Stat, 
ch. 35, sec. 17. The writ was issued on Wednesday of the 
Court, in an indictment for grand larceny ; and the defen- 
dant, by virtue of the writ, was summoned to appear as a 
juror on Thursday of the same term of the Court. On his 
appearance^ he proved, that he was, at the time of the sum- 
mons, and still continued an acting member of an incorpor- 
ated Fire Company, in the Town of Newbern, by the name 
of the Atlantic Fire Company No. 1. The defendant pro- 
duced in evidence the private act of Assembly, incorporating 
the said Company, 1846-7, ch. 163, and also an act of 
Assembly, 1848-'9, in relation to the said Company, which 
was in the following words, '' The members of the aforesaid 
Fire Company, while they continue to act as such, shall 
be exempt from serving as jurors, either in the County or 
Superior Courts." It further appeared that the said Fire 
Company had complied with all the requirements of the act 
of incorporation. 

The defendant claimed, that he was exempt from serving 
as a juror. The Court was of opinion that he was not ex- 
empt. Thereupon the defendant retused to serve, and was 
adjudged by the Court to pay a fine of five dollars. From 
this Judgment the defendant appealed. 

Attorney General for the State. 
Strange and Debbin for the defendant, 

Nash, J. The case presents the single question, whetb* 
ei the defendant was bound to attend the Superior Court of 
Craven county to serve as a juror upon a special venire. 
The defendant alleges, that he was not so bound ; for the 
reason, that he was a member of the Atlantic Fire Company 
in the town of Newbern, and was then acting as such. 
The Company was incorporated in 1846 and in 1849, by a 



JUNE TERM, 1851. 101 



Sut« p. WhitforcL 



pablic act, the members of that Company, while Ihey 
continue to act as such, are exempted " from serving as ju- 
rors, either in the County or Superior Courts." The de- 
fendant was regularly summoned and refused to serve. 

The words of the act are sufficiently broad to embrace the 
defendant's case. It is alleged, however, that it does not 
come within its meaning. We are referred to the case of 
Hogg^ 2 Murphy, 319, and to that of VfiUiamSf recogniz- 
ing it» 1 Dev. and Bat. 303. The defendant, in the first 
case, was a commissioner of Navigation, and by the act of 
1807, was exempted from serving on juries. He was sum- 
moned to attend the Superior Court of New Hanover, as a 
talis juror, and refusing, under his exemption, was finedy 
and brought his case to the Supreme Court, when the judg- 
ment of the Court below was affirmed, upon the ground 
that the act of 1807 did not extend to tales jurors ; but that 
the exemptions stated in it, meant from serving on the orig- 
inal pannel. The reasons assigned are, that these exemp- 
tions are not intended as privileges or compensations to the 
party, unless so expressed in the act. "So far, therefore," 
concludes the Court, " as serving on a jury does not inter- 
fere with their public avocations, they are still liable to be 
called on for that service." And it is because a talisman 
must be taken from the bystanders nt the Court, that they 
may be summoned, as his being a bystander proves, that 
he was not then, on official or professional duties, which re- 
quired his attention. Do these reasons apply to an individ- 
ual summoned to serve on a special venire ? It is thought 
not. It is true a special venire is not the original pannel^ 
and the jurors are summoned only to try prisoners capital- 
ly indicted ; yet they are taken from the body of the com- 
petent citizens of the country, liable to be summoned, while 
they are engaged in the pursuit of their ordinary business 
while at home at a distance from the Court House, bound 
to attend under the same penalties, that compel the presence 
of the original pannel, and bound as the latter are, '' to at- 



102 SUPREME COURT. 



State V. Whitford. 



tend from day to day, until discharg^ed by the Court.** 
There is little, if any, similarity between the talisman and 
the special venire juror. The former is bound to attend 
only on the day on which he is summoned, and upon its 
close, if not empanneled, he stands discharged, and mayi 
without any leave of the Court, depart to his home. There 
is no reason, then, furnished by the case of Hogg, why the 
exemption, contained in the act of 1849, should not cover 
the defendant's case. The duties which he, as a member of 
the Atlantic Fire Company, has to perform, are highly im- 
portant to the community, and to their due performance, a 
Tegular train of diilling and exercise is necessary; and at 
any moment^ as well in the day as in the night, the services 
of the Company may be needed. As the language of the 
act of 1849 embraces the defendant's case, and no good rea« 
8on» so far as we can perceive, exists, why he should be de- 
prived of the privilege therein expressed, we are of opinion 
that there is error in the judgment appealed from, and that 
he was entitled to his discharge. 

Per Curiam. Judgment reversed. 



JUNE TERM, 185K 103 



THE STATE vt. RANDALL PKESNELL. 

It IS not a nilicienijusUfiaatioa for a person, who does an unlawrut act, to 
shew that he did not believe it unlawful. When the act is unlawful ao<l 
▼olnntaiy* the quo onimo is inferred necessarily from the aet itself. 

» 

Appeal from the Superior Court of Law of Randolph 
County, at the Spring Term 1831, his Honor Judge Baily 
presiding. 

This is an indictment for selling spirituous liquor to a 
slave, contrary to the statute. On not guilty pleaded, the 
defendant was convicted and fined a small sum; and he 
appealed. fThere was evidence on the trial, that the delen« 
dant kept a shop in Randolph coimty, on the side of a public 
Toad leading from the upper country to Payetteville, and 
that in the evening of a day in December 1849, John Tap<> 
scott and another person came with their wagons near to 
the shop and stopped for the night in the road; and that 
Tapscott bad with him his slave, Nelson, who drove his 
wagon. About 8 or 9 o'clock at night the defendant went 
from his dwelling house to the shop with three of his neigh- 
bors to do some business for them, and while they were in 
the shop Nelson went in and asked the defendant, whether 
he bad spirits for sale, and, upon being answered in the 
affirmative, he asked for a quart, and the defendant diew it 
and delivered it to him and received the price in the pre-^ 
sence of the three white men^ On the part of the defen« 
dam, Tapscott was then examined, and he stated, that Nel- 
"snn was a confidential and trusty servant, and for some 
years had driven his wagon and gone trips to different and 
distant markets by himself; and that he was usually furnish* 
ed with money and authorised to provide necessaries, such 
as provisions for himseUf and horses, shoeing the horses^ re* 



IM SUPRKME COURT. 



Statt V. PreHDttll. 



pniriiig the wngon and the like ; that during the day, on 
which they got to the defendant's, there was a cold rain, 
and Nelson had asked him lor a dram, and he told him 
that when they met with any spirits he should have some ; 
that he did not know that Nelson had gone for the spiiits, 
but that the next morning Nelson told him he had par- 
chased it and brought him the jug containing: it, which be- 
longed to Nelson : and that he and his companion drank 
some of the spirits, also Nelson and another slave, who was 
with the other wagon ; and that in the course of the day 
one of his hoises was taken sick and he used the residue ot 
the spirits in drenching him, and then or afterwards refun- 
ded to the ne^ro what he had paid for the spirits. This 
witness, being further examined, stated also, that he had 
never given Nelson any authority to buy spirits for him, 
nor expressed a wish that he should ; and that he did not 
know that the defendant kept spirits for sale or that Nelson 
had sfone into the shop, until infortned thereof the next 
luornin?, as before staled. 

The Counsel lor the defendant moved the Court to in- 
struct the jury, that a slave might be his master's agent to 
purchase spirits, and that there was evidence, upon which 
the jury might find, that Tapscott had constituted Nelson 
his agent to buy the liquor from the defendant, and that he 
bought it for his master. But the Court refused to give the 
instruction as prayed, and informed the jury, that, although 
a master may make his slave his agent to purchase spirits 
for him, yet there was no evidence that Nelson was the 
agent of his master to make the purchase from the defen- 
dant, or that it was made for the master.^ 

The Counsel for the defeudant( then; insisted to the jury, 
that the defendant had reison to believe and did believe, that 
Nelson was buyinnr the liquor for his master; ar\d he fur* 
ihermorc moved the Court to instruct the jury, that, if they 
found the defendant believed the slave had been sent by his 
master to purchase the spirits for him, he ought not to be 



JVNE TERM, 186t. 109 

^^ - irn -^ ■- - ' _ . . .. _ 

8Ute « Prenell. 

convicted, allhough it turned out that he was mistaken iti 
that belief and the slave had no authority from his master 
to buy for him. But the Court advised the jury, that the 
defendant acted at his peril in selling the spirits to the slavey 
and therefore, although he might have believed that the 
negro was acting as the agent of his master, they ought to 
find the defendant guilty, if, in point of fact, he had not any 
authority from his master to make the purchase for him. — 
Verdict and Judgment for the State and appeal by the de« 
fendant. 

Attorney General for the State* 
Mendenhall and Morehead for the defendant. 

(Ruffin, C. J. There was no error in holding, that there 
was no evidence of an authority to the slave to act as the 
master's agent in buying the spirits. To prevent imposition 
on trades-people, it is a rule that one, who habitually sends 
his servant to shops and pays for the articles taken up by 
the servant, is bound to pay for all thus taken up, though 
some of the articles do not come to his use, but are convert- 
ed by the servant. But that rule has no application here, 
for it does not seem, that these parties ever had any deal- 
ings before, or even an acquaintance, or that the defendant 
knew the negro as being the slave or the servont of Tap- 
8cott» If the liquor had not been paid for, but bought on 
the credit of Tapscott, he certainly would not have been 
bound to pay for it. But it was not even got in his name ; 
bnt, when the negro asked for it, the defendant, without 
asking who wanted it, or who he was, at once sold it to 
him. There was no semblance of agency in the matter. — 
But if there h^d been any presumption of it from the cir- 
cumstances, it is directly repelled by the express testimony 
of the master to the contrary. 

The Court is also of opinion, that there was no error in 

the second instruction given. The sale of spirituous liquor 

to a slave is apparently illegal, and it is incumbent upon 

14 



IM SUPREME COURT. 



State V. PrBMwll. 



one who does the act, to justify it by sbowio); that it was 
done under such circumstances as render it lawful. He 
must sbowy not merely that he thought that such circum- 
stances existed, but that they actually existed. It was said 
that when one believes he is not doing an unlawlul thing, 
there is. not the guilty mind necessary to constitute a crime. 
But that is not correct. When the act is unlawful and 
voluntary, the quo ammo is inferred necessarily from the 
act If a piece be brought to a printer for publication, which 
18 injurious to the character of another, and the author make 
such representations and adduce such proofs in support of 
the charges as induce the printer to believe that they are all 
true, and may, therefore, be lawfully published: yet the 
publication will be criminal or not, as it may happen that 
the charges may be true or false in point of fact. For, by 
making the publication in derogation of another, the printer 
holds out and undertakes that the charges are true. ^There- 
fore he must maintain their actual truth. It is plain that 
his belief of their truth does not, then, denote that innocence 
of intention in making the publication, which can prevent 
it from being a crime, if they prove not to be true ; and 
there is, therefore, in that case, the guilty mind spoken of. 
So, if one trade with a slave upon the faith of an order or per* 
mit in writing in the name of the owqpr, he must take care 
to see that it is genuine. For if it be not genuine, but a 
forgery, then the authority required by law for dealing with 
a slave is wanting, and the party would be guilty under the 
act. Upon that point, every person must necessarily take 
the risk of judging for himself. It must be the same in this 
case ; for, the act being against the policy and the letter of 
the law, can only be made innocent by showing facts which 
in law justify it, and not by showing merely the probability 
or the party's mistaken belief of the existence of those facts. 
Those circumstances might well afiect the degree of punish* 
ment, and seem to have had their effect in reducing the fine 
here to almost a nominal one. But they could not prevent 



J 



JUNE TBRH, 1851. lOT 

SUte V. PraiDaU. 

the act from being a violation of the law, for which the 
party was liable to conviction. (The instraction prayed, 
would| therefore, have been properly refused upon the mat- 
ter of laW| if in fact the defendant had believed, that the ne- 
gro was baying the liquor for his master. But, in truth, it 
might and ought to have been refused, because there was 
no evidence to raise the point; since, as has been already 
observed, there was no semblance of an agency in the trans- 
action, for the reasons mentioned in disposing of the first 
•xoeption. A party has no right Uius to ask for an instruc- 
tion upon an abstract proposition, which, ypon the levideneei 
has no application to the case in hand.^ 

P£R CuRiABf. Judgment aifirmed. 



< 



108 SUPREME COURT. 



ISRAEL H. JUDGB vt. STEPHEN M. HOUSTON. 

WJiara A. liTM upon land together with B., whodaimi the title, and the lend 
ii Bold under en ezeeatipn against A. in an action of ejeetment, bf the 
pnrchaaer under the execution, brought against A., the latter cannot pro- 
tect himself from the action by setting up the title of B. 

Buti by Pbaeson J^ if B., in such a case» after judgment, can satisfy the Coort* 
hy proper af&davits, that he had a bona fide claim of title and Is in possts* 
8ion,the Court hes power to order the writ of posMssion not to be issued 
until the plaintiff brings an action of^ ejectment against him. 

A sheriff is not bound, like a constable, to any particularity in his ratom of a 
leryon %fi fa. 

Although a deed is made to mdude more land than was sold> It is noii en that 
account, frandnlent, but it is only void for the excess. 

*The cases of Tkonuu ▼ Omll, 5 Ire. 569, Owynn y SUUt, S Hawks 93S 
M^ BUd90€ V Smitht 2 DeV. 314 cited and approved. 

Appeal from the Superior Court of Law of Duplin Coun- 
ty, at the Fall Term 1850, his Honor Judge Ellis pie^ 
aiding. 

This was an action of ejectment. 

The plaintiff declared for three tracts of land, but aban^ 
doned his cladm for one tract No. 3. He claimed title to the 
said lands as purchaser at SheriflPs sale, under execution a- 
f ainst the defendant. To prove title in his lessor, he offered a 
tleed of bargain and -sale from the Sheriff of Duplin county, 
purporting to convey the premises in question, which re" 
cited, that the said land had been sold under a^/o, running 
against the property of the defendant. He then offered in 
evidence the Ji. fa., recited in the deed, against the defen- 
dant, and in favor of one William D. Pearsall, which was 
duly returned into the office, with the following endorse- 
ment: '* Levied this execution upon the Lands of Stephen 
.M. Houston, on the enst side of the North East river, ad- 
joining the lunds of Stephen M. Grady and others, and 



JUNE TERM, 18S1. 109 



Jndgv 9. Houston. 



after due advertisement, sold the land levied on, on the 3rd 
Monday in March A. D. 1840, beinfif the sixteenth day of 
the month, at which time and place, Israel H. Jndge became 
the last and highest bidder at the sum of one hundred and 
fifty dollars, which is applied to this execution. 

JOHN E. HUSSBY, Sheriff. 
By James Maxwell, D. S." 

The plaintiff further introduced the record of a judgment, 
in the Court of Pleas and Quarter Sessions for said County, 
in iavor of said Pearsall, and against the defendant, and upon 
which the said JL fa. was regularly issued. 

The plaintiff then introduced a witness, who testified, 
that the defendant was living upon tract No. 1, set forth in 
the declaration, commonly called the home tract, at the 
time of the service of the said declaration, and that he did 
then and had, seveml years before, and since that time, cul- 
tivated tract No. 2, as claimed, in Turpentine, and used the 
standing timber for procuring turpentine; that the said tract 
did not adjoin No. I, but was two miles distant. 

The defendant objected to the recovery of the plaintiff, 
1st, because two sisters of the defendant were living upon 
the locus in quoj at the time of the service of the declar- 
ation in ejectment ; claiming title in the same: that the 
defendant was merely living with them upon the premises 
at the time of the sale, and that they had a life estate in po- 
session in the said premises and were still living. But the 
Court refused to hear evidence to sustain this position, for 
the reason that this defendant, being the defendant in the 
execution, was estopped from denying title in himself at the 
time of the sale, and that living then (at the sale) upon the 
premises, and continuing there until the service of the de* 
danuion, was estopped from setting up possession in his said 
sisters in the present action. 

The detend.ini ohjecied 2Jndly : ilu^l ihe levy wns loo 
vjgue in its terms uiid too uncerUiiii in its de^cription to 



aio supreme: court. 



Judge «.*IIoiMtou. 



include No. 2, which was two miles distant from the otheri 
and did not adjoin the lands of Stephen M. Grady, as ad- 
mitted, although it lay upon the east side of North East 
ftiver, and in the neighborhood of Stephen M. Grady, and 
that the said tract not being included in the lavy, no title 
passed to it by the sale and sheriff's deed. The Court re- 
served the point. 

The defendant objected 3dly : that the sheriff's deed was 
fraudulent and void in the following particulars, 1st : The 
deed included more land and greater estates than were sold; 
2dly : More land was sold than was levied upon. To sus- 
tain this position, the defendant examined one Wallace, who 
testified, that he was present at the sale under the ezeeutioa 
and heard the deputy proclaim that he would sell only the 
tract ol land on which the defendant lived at the time, which 
is the same as tract No. 1, in the declaration, and that he 
reserved the life estate of his sisters. This witness thought 
the lands worth $1000. 

In this connection, James Pearsall was offered by the de- 
fendant, who swore, that he was present at the sale, and 
heard the officer offer for sale << the lands of Stephen M. 
Houston ;'' these were the words used by the officer. He 
said he heard it rumored amonof tlie bystanders that there 
was an encumbrance upon the lauds, but did not hear it as 
coming from the sheriff's officer. Maxwell, who made the 
sale, was then offered by the plaintiff to prove the bona fide 
character of the sale, together with the circumstances con- 
nected with the levy and the sale, and to explain them, 
^rhis witness was objected to by the defendant, upon the 
gfOiUid that his action in the matter was set forth in the re- 
ituffi upoii the execution and sheriff's deed, and he could 
only he beard to speak through them. The Court over- 
ruled this otijeetion, and the witness was examined. He 
swore that he wiis the officer who made the levy and sale; 
tti t he was not ut ih*e time ncquaitHed with the exact locu- 
tion of the defeudant's lands, he understood they were situ* 






JUNK TERM, ISSt 111 



Judge t. Houston. 



oled on the east side of the North Ekist Rirer, in the neigh- 
borhood of Stephen M. Grady, and adjoining him ; that it 
was atl wild or woodland, except the tract on which he 
lired, and tliat tract did adjoin the aaid Grady, but the other 
did oot|. as he had sabsequeutiy learned. That, when he 
made the le?y, which was endorsed upon the fi. fa.^ he in- 
tended to levy upon all the interest of the defendont in all 
the lands he had in the neighborhood. That he sold all the 
lands iu dispute, and which were liefore levied upon, and 
were the same as those set forth in the sheriff's deed ofiered 
as evidence. That he made no reservation of any life ee» 
tate of the defendant's sisters nor any other reservation, and 
that he never heard of that or any other incumbrnnce upon 
the land until a sut^sequent period. That he sold the land 
at the Court House with a large number of persons present, 
and to the highest bidder. 

The Court charged the Jury, that to enable the plaintiff 
to recover, it was sufficient for him to show a judgment 
against the defendant, an execution thereon with a levy and 
sale of the lands claimed and a sheriff's d««d to himself, and 
possession in defendant at the time the declaration was 
served : That possession was made out, if they believed the 
defendant lived upon one tract of the land, and used the 
other, by way of cultivating turj>entiue upon it, or exercised 
ownership over it by any other acts or uses. Upon the 
question of fraud, the Court char^^cd the jury that any com- 
bination between the Sheriff and Phiintii^as purchaser, Ciil- 
culated to injure the sale of the pro|^rty, would avoid the 
deed and all other proceedings under the execution, and no 
title would pass to the plaintiff thereby. That any com* 
bination to include more land iu the deed than was sold 
would render it void. That the deed could convey title 
for no more and no other lands to the plaintiff, than those 
octiially sold at the Sheriffs sale. The jury returiHHl a ver-i 
diet for the plaintiff for both tracts. The defeiidaut moved 
and obtained a rule ior a new trial^ for niisdirectiou to the 



I 



118 SUPRRHB COURT. 

Jndgs v. Hooflton. 

jury and admission of improper testimdny and exclusion of 
legal evidence and because the Court reserved the question 
relative to the levy, instead of leaving ^t to the jury as a 
question of fact. The Court overruled these various ex- 
ceptions, and being of opinion with the plaintiff upon the 
point reserved — that is : That the terms of the levy were 
not so vague as not to be capable of including the land in 
dispute, and considering Uie question as to whether the par- 
ticular lands in dispute were included in the levy as having 
been passed upon, as a question of fact by the jury, dis- 
charged the rule and gave judgment for the plaintiff; from 
which the defendant appealed. 

D. JReid for the plaintiff. 

W. Wifislow and Washington for the defendant. 

Peabson, J. The lessor was a purchaser at sheriff's sato 
under a>!./a. in favor of one Pearsall against the defend- 
ant. It was proved that the defendant was living on the 
land at the time of the sale, had been living on it for seve* 
ral years before, and was still living on it. 

The defendant offered to prove, that his two sisters had 
the possession, at the time of the service of the notice, they 
being entitled to a life estate, and that he was living with 
them merely as their g^uest, without in fact having the pos- 
session, or any title, except the reversion. This evidence 
was rejected, and the defendant excepts. There is no er- 
ror. Thomas v Orrel, 5 Ire. 569, is directly in point. 
The defendant and his two sons were living together ; it 
was held, that '< he had no right to assert title for them, or 
rather to set up their title and their possession with him, to 
protect himself." 

The action is for two tracts. No. 1, (as it is called in the 
case,) wi^ the tract on which the defendant lived. No. 2 
was situated near No. 1, but did not adjoin it, and was cul- 
tivated for turpentine only. The levy endorsed on the^. 



JUx\E TERM, 1851. 113 



Judge V. IfouitoD. 



fa* is in these words : «< Levied this execution on the lands 
of Stephen M. Houston, on the east side of North East BJT- 
er, adjoining the lands of Stephen M. Grady, and othersi 
and, after due advertisement, sold the land levied on, ^c" 

The defendant's counsel objected, that the levy was too 
ragtie and uncertain in its description to inchide Na 2* 
This question was reserved. The plaintiff called the offi- 
cer who made the levy, to explain the position of No. % in 
reference to No. 1, to the lands of Grady, and the North 
East River. This was objected to, but was received; for 
this the defendant excepts. The Court decided the ques- 
tion reserved for the plaintiff ; for this, the defendant ex* 
c^t& There is no error. 

These points were hiade under a misapprehension of the 
nature of a sheriff^ levy under Vifi.fs. The defendant'^ 
counsel did not advert to the difference between such a levy 
iirhich need not be returned, and the levy of a constable 
which creates a lien, must be returned, and must have a cer- 
tain degree of particularity, so as to identify the land, and 
«nabfe the sheriff to know which land to sell under the 
venditioni exponas^ and of which notice must be given. 
None of these things is required in reference to a levy by 
the sheriff under aji.fa. It is not easy to perceive why A 
levy is required when the land is sold under the^/a. 

The defendant insisted that the sheriff's deed was fraudu- 
lent and void, because it included more land^ and greater 
estates than were sold. 

Ou9 Wallace, a witness for the defendant, swore he was 

at the sale, and heard the officer proclaim, that he would sell 

only the tract of land, on which the defendant leviedi and 

that he reserved the life estate of the defendant's sisters. One 

Pearsall and the oillcer swore, that all of the land in dispute 

was sold, and there was no reservation of a life estate. The 

Court charged, '' that any combination between the sheriff 

and the plaintiff, as purchaser, calculated to injure the sale 

of the property, would avoid the deed — ^and any such com* 

15 



114 SUPREME COURT, 

Judge V. liuuiton. 

bination, to include more land in the deed, than was sold, 
would avoid it. The deed could convey title for no more 
and no other lands than those actually sold." 

The defendant moved for a new trial, because oimisdirec* 
*ii(m. There is no misdirection, of which he has a right to 
complain. The first proposition was uncalled for, because 
there was no evidcHce of a combination to injure the sale 
of the property. The second, unless qualified by the latter 
part of the sentence, is-too broad, for ahhough a deed is naade 
to include more land than was sold, it is void only ior er- 
cess; this however did not prejudice the defendant. 

The -only diflEiculty in law is in consequence of an omif- 
Bion to charge in reference to the alleged reservation of a life 
estate* There is no exception for this omission, and we 
are therefore obliged to infer, either that the charge was 
satisfactory on ibis qnestion, or that the defendant did not 
wish to raise the question before the jury, and did notob* 
ject to the omission, being satisfied that the fact was agamst 
liim. 

We should have no doubt of the correctness of this in- 
ference, but for the fact, that the evidence in regard to the 
alleged reservation is staited, which was unnecessary. Such 
statements, however, are very common, and wc cannot 
permit it to influence our decision. If the reporter did not 
omrt a great deal of surplusage, his books would be quite 
voluminous. The other two judges prefer to rest the first 
point, upon the decision in Thomas v OrreL It is proper 
for me to say, rn that case collusion between the father and 
son is taken for granted, and I acquiesce in the decision 
upon the assumption, thi^t, after judgment in this case^ if 
the sisters of the defendant can satisfy the court by proper 
afiidavit, that they have a bona fide claim to a life estate 
and are in possession, the court has power to order the writ 
of possession not to be issued, until the plaintiff brings an 
action of ejectment against them. 



JUNE TERM^ 1851. 115 



Judge V. Houston. 



I think the court lias this power,.and put my opinion oa 
the ground, that awarding a writ ot possession is no part o£ 
the original j^)dgment in ejectment^ but is a new incident^ 
superadded by the court in order to do complete justice,. and 
is therefore under its control, so that, although an executioa 
for the damage and costs necessarily follows the judgment8|. 
being what is demanded by the writ and declaration, yet 
the writ of possession may be refused, if this '* creature of 
the Court" is likely to be made an instrumeat of injustice.'^ 
3 Blockstone Com. 199. 

If the Court has not this power, I shoiiM question the: 
decision in Thomas v Orrel^ that the plaintiff in ejectment 
entitles himself to judgment, by showing that the defend^ 
ant was " an occupant of the premises," if it was proven 
that he was living then, as the guest or servant of the real 
owner ; for when two are living in the same house, the law 
adjudges the possession to be in the one who has title; 
Gwyn V Stokes, 2 Hawks, 233. Under the writ of posses- 
sion, it is the duty of the sheriff to put the defendant and 
all other persons off of the land, and if the writ issues in ^ 
this case, the sisters ot the defendant will, by process of the 
law, be turned out of ''house and home," without an 
oppoitunity of being heard. It is true, they may, by an 
action of ejectment, regain the possession, but that cannot 
compensate for the inconvenience and injury resulting from 
the loss of it. Suppose this case in trespass against the 
sheriff, they can recover damages for the eviction, (which 
I deny, for he docs only that which the writ commands 
him to do ;) this will be but a poor consolation for the in- 
justice intlicted on them, by the order of the Court, to which 
they are obliged to submit. I cannot bring my mind to the 
conviction, that such oppression can be a legitimate con- 
se:juence of the formal action of ejectment, which, it is said, 
is " so moulded and fashioned by the Courts, as to do com- 
plete justice in every case." In Bledsoe v Smiih, 2 Dev. 
314, it is held, that a judgment against the casual ejector 



116 SUPREME COURT. 

Judge P. Houston. 

will be Get aside, and if a writ of possession has been execu- 
ted, a writ of restitution will be issued when it is proven 
that the notice has not been served, and, of course, the same 
will be done, when it has been served on one who is not the 
person in possession. It is a settled rule in tnis State, not 
to enter judgment against the casual ejector, unless it be 
proven, that the person on whom the notice was served is 
the person in possession. In the above case, the Court re- 
marks, " If the wriiot kabere facias possessionem is issuedi 
every person in possession claiming title to the land, who 
might have a good title to it, would be turned out of pos- 
session. This would be iniquitous and oppressive, and a 
gross violation of the principle, that no man shall be de- 
prived of his property, without a hearing — since it is in 
order that the fictions in this action shall do no wrong, that 
the Courts will not permit judgment to be entered against 
the casual ejector, unless it is made to appear that notice 
has been given to the tenant in possession. The affidavit 
should be positive, that the person on whom the notice has 
been served, was the tenant in possession or acknowledged 
himself to be so. This rule was adopted to protect third 
persons, and if, by any means, a judgment by default is en- 
tered and a third person is turned out of possession, upon 
its being made to appear that the person served with no- 
tice was not the person in possession, the Court will order 
a writ of restitution, to prevent the rule from being evaded. 
The right to order restitution necessarily implies the right 
to prevent the recovery in the first instance — and the person 
in possession is permitted to object to the judgment against 
the casual ejector, and to prove error contrary to the admis- 
sion of the person served with notice, that he is not the per- 
'son in possession. 

Our question is a new Application of the same rule to a dif- 
ferent state of facts. Suppose the person served with notice 
admits himself to be in possession, and defends the action, 
and judgment is given against him. Arc the rights of a 



JUNG TERM, 18S1. 117 



Jadg^e V. Houston. 



third person to he affected by that circumstance? and does 
he thereby lose the protection of the rule? If so, on what 
ground? It is said, " why did he defend?'' and collusion 
will be implied from the fact of his doing so. It seems to 
me, this is a non sequHur. The person in possession is not 
presumed to have control over his actions^ and the risfht to 
say, " you must not defend, for I will thereby be precluded 
from showing my title, and that 1 am the person in posses- 



sion." 



So far from furnishing an inference of collusion, it seems 
lo me the inference is the other way, that the plaintiff is at- 
tempting a fraud on the Court. For instance, in this case^ 
the sisters of the defendant could not prevent his making 
defence, whereas the plaintiff had control over the process, 
and might have had the notice served on thein, so as to allow 
them to be made defendants, and, by n^t doing so, he gives 
an indication, that he preferred contending with one "trAoj# 
hands are tied^^^ rather than with those who are at liberty^ 
and can make full defence. At all events, if there be a pre- 
sumption of collusion, it cannot be conclusive so as to ex- 
clude the sisters of the defendant from showing, after the 
judgment against him, that they have a bona fide claim, 
are in possession, and that he was living with them as their 
guest or servant, and consequently that a writ of possession 
ought not to be issued, by which they would be turned out, 
without haying had an opportunity to prove their title. If 
this be not so, the result of our cases is, that if my land is 
sold, under an execution ogainst my overseer, and he de- 
fends an action of ejectment, I will be turned out of posses- 
sion, with the consoling assurance, that I may bring eject- 
ment, and regain it. Unless the Court can protect third 
persons in the way pointed out, this strange corollary ne- 
cessarily follows, from the nature of the action of i^cctment| 
and the doctrine, that the purchaser at Sheriffs sale, as a- 
gainst the defendant in the execution, is entitled to judgment 



118 SUPREME COURT. 



Wiiliams v. Edwards. 



by showing an execulion, a gale, a SherifTs deed, and that 
the defendant was living on the land. 

Per Cvriam. Judgment affirmed* 



JAMES. WILLIAMS AND WIFE tff. SUSAN i\ EDWARDS. 

Id a writ of error coram nobit, only luch errors in fact can be taiigned, as 
are coiuiatent wilh Uie record before the Court, in which the case waa 
tried. 

Appeal from the Superior Court of Law of Greene Conn, 
ty, at the Spring Term 1831, his Honor Judge Caldwell 
presiding. 

This was a motion in the Superior Court of Greene, for 
a writ of error, coram nobis^ to reverse a judgment of that 
Court for error in fact. On affidavits, the case was this : 
Richard Edwards gave his bond to the plaintiff, and, after 
tht) obh'ji^or's death intestate, suit was brought thereon in the 
County Court against his administrator. He ple&ded iully 
administered, and the plaintiff confessed the truth of the 
plea, and signed judgment for the debt ; and then sued out 
a scire facias against Susan C.Edwards, as heir at law, 
to have execution against the real estate descended. 'Vbe 
scire facias recited the former suit, and that the adminis- 
trator pleaded fully administered and the confession of the 
plea by the plaintiff. The heir pleaded thereto, among 
other things, mil tiel record, on which issue was joined. 
After a trial in the County Court, the case went by appeal 
to the Superior Court. Through the inadvertence of the 



JUNE TERM, 1851 119 

Wtltiams v. Edwards. 

/ 

Clerk, as now suggested by the plaintiff, the transcript from 
the County Court did not set forth the^ove mentioned 
p1ea» nor the plaintiff's admission, that the administrator 
had fully administered ; and on that ground the Court ad- 
judged that there was no such record, and gave judgment 
for the costs against the plaintiff. The plaintiff iurther 
swears, that the original record in the County Court con- 
tains the matters so recited in the scire faciasj that the 
debt is justly due, and that there are no personal assets to 
satisfy it. 

The Court denied the motion, and the plaintiff appealed 
to this Court. 

Rodman^ for the plaintiff. 

/. W. Bryan^ for the defendant. 

RuFFiN, C. L It is not to be considered whether there 
be error in law in the judgment ; for, if there were such 
error, it could not be corrected by writ in the same CourL 
Moreover, the motion is founded exclusively on an alleged 
error in fact. A writ of that kind can be had only when 
allowed by the Court where the record is ; and, if in such 
a case an appeal will lie to this Court, we must say, in our 
own opinion, it was right not to allow it in this instance. 
The only error which it is proposed to assign is in a matter 
of fact directly repugnaut to the record. The party wishes 
now to show, that in truth there was such a record, in con- 
tradiction to the finding of the fact by the Court, that there 
was not such a record. An averment of fact against the 
record cannot be heard in a case of this kind more than in 
others; Bac. Abr. Errors K. 3. Only such errors in fact 
can be assigned as are consistent with the record. When 
an infant, for example, is sued, there is nothing to enable 
the Court to see that he is or he is not an infant. The law 
considers that, as an infant, he has not discretion to choose 
an attorney, and therefore will not let him appear by attor* 



120 SUPRKMB COURT. 

Wiiliarna v. Edwards. 

nejr, but requires the Court to appoint a fit person his guar- 
dian to make defence for him. As the Court does not know 
the defendant's infuticy, it is the part of the plaintiff to as* 
certain and make known the fact, so as not to allow the 
Court to decide against a person under disability, for whom 
the full defence may not have been made, which the law 
intends. For that fault'the plaintiff's judgment must nec- 
essarily be reversed, so as to let in the other party to defend 
with all the advantages to which the law entitled him ; and 
therefore the defendant may aver the fact of his disability 
which stands well with the record, in order that he may 
have the benefit of a legal defence. It is the same when 
^fenie covert is sued without her husband. But if, in those 
cases, issue be joined on the questions of the defendant's in- 
fancy or coverture, and it be found that the party is of full 
age, or not tLfeme covert^ but sole, we appreliend that the 
verdict must, of necessity, conclude all parties on that point 
AS on any other put in issue and found; and that an aver* 
ment to the contrary could not be allowed. If it could, it 
would render the litigation interminable, as each party might 
say from time to time, that then he or she had fuller proof| 
which would establish the fiict to be contrary to the last 
finding. But the present case is much weaker than those 
mentioned. It is not one in which it is alleged, that the 
Court wrongfully administered the law for want of infor- 
mation, which the plaintiff ought to have given, as to a fact 
fix>m which the defendant would have derived advantage 
had it been brought to the notice of the Court. But here, 
the allegation is, that the Court erred in finding a fact 
against the plaintiff, on which the parties were at issue, 
contrary to the truth : and even that, not because the find- 
ing was not right according to the proof then before the 
Court, but by reason simply, that he can now produce evi- 
dence sufficient, be supposes, to establish the fact as then 
alleged by him. It is, in reality, an attempt in a novel way 
and at a remote period to get a new trial for surprise. The 



JUNE TERM, t85l. 121 



State «. Jenkina 

plarottflPs proper coarse would have been to suggest a dim* 
inutioQ of the record, and had the defect supplied before the 
trial, by certwrari^ or, after the trial and at the same Term, 
on account of the surprise, to have moved for another trial. 
The present attempt cannot be countenanced. 

PfiB CbBIAS. JttdgBMQit ofifBieA. 



THE STATE «. MARTHA JENKINS* 

AlthMisti R butard be bora in one Comity, yet if the mother and etald after] 
waidi remoYe to another Coantyi and there acquire a reeidenee before pro* 
eeedings in boetatdy ai« had ai^alnet her, thoee proceedinge moft be in the 
latter Coonty* which is alone reipoonUe lor the mabtedance of the \mm* 

taid. 
The eaee of Ihe SUU t Rohert$t 10 Ire. 350, oiled and approved. 



Appeal from the Superior Court of Law of Richmond 
County, at the Spring Term 1851, his Honor Judge Mani^t 

presiding. 

This was a proceeding under the << Bastardy Act," insti- 
tuted in the County Court of Richmond County. It appear* 
ed, that the child was born in Richmond County, that the 
mother and child removed to Montgomery County and there 
resided more than two yearabefore this proceeding was com* 
menced. The deiendant, therefore, moved to dismiss the 
prosecution for the want of jurisdiction in the County Gouit 
of Richmond, but the Court refused the motion and gave 
judgment against the defendant, who appealed therefrom. 



l» SUPREME COURT. 

'Moore v. Parker. 

The Saperior Court affirmed the judgment of the<}onDty 
Courty and the defendant appealed to this Court. 

Attorney General for the State. 

J. W. Cameron and Banks for the defendant. 

Peabson J. The mother and her child had acqtiited a 

' settlement in the County of Montgomery, at the time this 

> proceeding was eommeneed. The County of Richmond 

was not chargeable, and therefore had no right to require 

an indemnity. There is error. The point is settled by 

State V. Roberts, 10 Ire. 350. « 

Pbr Cukiam. Ordered that ihis cfaaion be certified to 
the Gouit below. 



JUNE TERM, 18S1: 123 



DEN ON DEMISE OF SUSAN 0. MOORE •. DAVID PARKEIU . 

A. deTiaed to his son a tract of land *' for and darioff hb natural lifei** and 
after hk death "to the heirs of his body, to be equally dirided between them» 
to them and their heirs forever," and if he dies withoot heirs of his body* 
\hnng at the time of his death, then to biadangfater. Held, thatnnder tbia 
devise, the son took only a life estate. 

Tbeeoo having only a life estate, when he sells and conveys the land with 
warranty in fee, this warrsnty does not bar nor rebut the pardhsser. 

The presomption of death, arising ftom the absence of a party for more than 
seven years, is not removed by proof of a mmor, during that tone, of his 
being alive, which mmor, upon investigation, tnma ont to be without tanda- 
tion. 

The case of Jones v Ward,.5 Ire. £q. 400, cited and approved. 

Appeal from the Superior Court of Lav of Hertibrd 
County, at the Spring T^rm 1851, his Honor Judge Dick 
presiding. 

This was an action of ejectment/ The case was as fol- 
lows : The land formerly belonged to one John S. Moore, 
who died in the year 1827| having first made and publish- 
ed his last will in form to pass real estate, which was duly 
proved and recorded : And in the said will the said land 
was devised as follows : " I give, devise, and bequeath to 
xny son, Adolphus Edward Moore, lor and during his natu- 
ral life, the three following tracts of land, to wit : (Here the 
testator describes the lands.) I also give and bequeath to 
my son Adolphus Edward, aforesaid, for and during his 
natural life, one feather bed and furniture, my large brandy 
still, and two mahogany tables. The above property, both 
real and personal, I give to my son Adolphus, aforesaid, for 
and during his natural life ; and after his death, I give the 
above property, both real and personal, to the lieirt oi. 
bis bgdyi l&wCally.begottenj to be equally divided betwoeo, 



124 SUPREME COURT. 

» 

Moore 9. Parker. 

1 them, to them and their Iieirs forever. Bat in case my eon 
Adolphus Edward should die without such heirs of his 
body lawfully begotten, living at the time of his death, then 
and in that case the lands given to him, as above described, 
to my daughter Sally Matilda aforesaid ; and should she 
die without heirs of her body begotten, living at the time 
of her death, then I give the above described land to all my 
children, living at the time of her death, to be equally divi* 
ded between them, to them and their heirs forever ;" which 
is all in the will that relates to the land in controversy. 

Adolphus E. Moore, to whom the land was devised as 
aforesaid, took possession of the land alter the father's death, 
and continued that possession until the year 1837, when, by 
his deed of bargain and sale, with warranty, he conveyed 
the same to one Alfred W. Moore, and thence by successive 
deeds the title was transmitted to the defendant before the 
date of the demise in the plaintiff's declaration. 

It was further in proof, that the said Adolphus E. Moore 
left the county of Hertford in the month of December 1841 ; 
and the witnesses lor the plaintiff, to wit : the brother of 
the said Moore, the husband of his sister, and the brother of 
his wife, and with whom she had resided ever since the 
said Moore left this State, stated that they had never heard 
from him since the year 1842 ; and the brother stated, that 
in the year 1842, and prior the to the month of November, 
he had received two letters from the said Adolphus, dated 
in Winyaw District, South Carolina, and that he subsequent* 
ly received another letter from Charleston, South Carolina, 
dated in the month of November, 184^ but that he had 
never heard from him since, though he had written to both 
places to have enquiries made ; and he and the husband of 
the sister of said Moore stated, that they had requested per* 
sons travelling South to inquire for him, but had never 
heard from him. 

The defendant then proved, that one John D. Jenkins, 
since deceased, while travelling in South Carolina in the 



JUNE TERM, 1S31. 13S 



Moore v. Parker. 



year 1845, wrote to his brother hi Hertford Cotinty, tbetha 
had heard of the said Moore, and that he was iD South Caro. 
lioa. 

The plaintiff then proved by the brother and the husband 
of the sister of said Moore, that on the return of the said 
Jenkins, having before heard what he had written, they 
called on him to ascertain what information he had on the 
subject, and were told by him, that he had no other than 
this — that be had seen a roan in South Carolina, whom he 
did not know, who told him that he had heard of a man by 
the name of Moore, residing in some village, he did not re- 
member what, who was said to be a shoe maker, with a wife 
and three children* It was further proved, that the said 
Adolphus had no such trade when he left this State : And 
also, that, when he left this State, he had a wife, who is yet 
alive ; and that the lessorof the plaintiff was his only childi 
and that she is yet an infant. 

The defendant's counsel insisted, that, under the will of 
John Moore, the lessor of the plaintiff had no title to the land 
devised, so as to recover ; and if that was not so, that there 
WIS not suflkient proof, that the said Adolphus was dead 
at the time of the demise of the plaintiff's lessor. 

By agreement, his Honor reserved his opinion upon the 
first point. And on the second he charged the jury, that, if 
the said Moore had been absent upwards of seven years and 
not been heard from, the law raised the presumption, 'that he 
was dead; and that such presumption could not be rebutted 
by a report of his being alive, which, when enquired into, 
proved to be baseless and unfounded. 

The jury returned a verdict for the plaintiff; and his 
Honor, by consent, ruled pro format that under the said 
will the land passed to the plaintiff's lessor, on the death of 
her father : And judgment was rendered accordingly, and 
the defendant appealed. 



126 SUPREMK COURT. 



Moore v. Parker. 



Bragff, for the phiioliflT. 

W. N. H. Smith, for ihie defendant, submitted the follow* 
ing argument. 

The devise of the land in controversy is to Adolphus E; 
Moore, for life, and after his death, <'to the heirs of lits bodjr, 
lawfully begotten, equally to he- divided between them, to 
them and their heirs forever,'* with certain other contingent 
limitations over. 

The terms, used by rile testator in this devise, brinp the* 
case directly within the operation of the rub in Sjielley's 
ease, unless such effect be given to the qualifying words. 
'* equally to be divided between themy." as to form the ex- 
ception. 

It is submitted, that after much con/fict of opinion as to> 
the efficacy ot those words, and other expressions of simi- 
lar or equivalent import, it is now established, by the authori- 
ty of English decisions, that such- qualifying expressions,, 
annexed to a devise^ after a life estate, to* the heirs, or to the 
heirs of the* body of the life tenant, do not prevent the ap- 
plication of the principle, upon which such words are con- 
strued, as words of limitation and not of purchase: and the 
estate of the tenant for life is enhirofed into a fee simple or 
fee tail, as the cose may be. Yide 2 Jarman on Wills Ch. 
38, pages 277 — to 306, citing and discussing the following 
cases, to wit : 

Candler v Smith 7 Dur. and E. 532 ; Person v Vickars 6 
East. 648 ; Bennet v Eorl of Tankerville 19 Ves. 170; Colo 
V Goldsmith 7Tant. 209 ; Jepon r Wright 2 Bligh 1; S.C. 
2 Marsh 517. The same principle has been recognised and 
determined iu this State ; Ross v Toms 4 Dev. 376 ; Yid 
Hayes' Inquiry. 

II. Do the words of inheritance, superadded to the devise 
to the heirs of the body, exempt the present devise from the 
rule, which construes them to be words of limitatien of the 
estate to the life tenant? 



JUNE TERM, 1851. lar 



M#ore 9. Parker. 

^ — — — — 



It isdifficalt to see Ufoii what pfiae^ple the addition of 

"wordsof inheritance can abridge the estate of the tenant i 

and thus impair the established import of technical terms. 

If the term " heirs of the body" does not serve to designate 

persons who are to take, what effect do iurlher words of 

■inheritance impart 1 It is submitted that such words be- 

-come annexed to the estate created by the previous words 

'^ heirs of the body," which estate, whether with or without 

this qualification, vests in the life tenant only« Ham v Ua'm 

1 D- and B. Eq, 598. ~ . 

Ifi therefore, neither the expression *^ equally to be divid* 
-0dP nor the further words of inheritance annexed to tha 
present devise, have the effect, separately considered, of 
preventing the life tenant from taking au estate of inheri- 
tance, do they, when found united, vary the rule of con- 
struction 3 

Ist. The legal import of technibal words, settled upoji 
repeated adjudications, should not be disturbed, except for 
•the strongest and most convincing reasons. The tendency 
to unsettle titles, when technical rules are departed from, 
whether those rules are founded originally in wisdom or 
not, forms a strong objection to the admission of au inter- 
pretation, calculated to lead to such a result. 

2d. The case cited. Ham v Ham^ and the authorities re- 
ferred to in the opinion in that case, shew that the rule of 
construction in Shelley's case was not adopted to prevent the 
iailore of the estate of inheritance in the donees, because in 
these cases the same rule is followed, notwithstanding the 
presence of superadded terms of inheritance. That rule is 
a rule of general application, and is based on considerations, 
wholly independent of the presence or absence of words of 
inheritance. 

3d. The devise of the testator's -< estate^ is sufficient to 
pass the fee, without further words, and yet it is held, the 
rule of construction contended for applies ; Bosnall v //ar- 
vejf^JL Barn, and Cress., 610. 



128 SUPREME COURT. 

Moore v. Parker. 

III. There was, therefore, an estate of mheritanee in pos- 
session of the ancestor of the plaintiff's lessor, and, whether 
absolute or contingent, his deed therefor conveys the title 
to the defendant, or htirs, by the warranty, the lessor who 
is his sole heir at law ; Plynn v Williams^ I Ire. 509. 

lY. It is further insisted that there was not sufficient 
proof of the death of AdoJphus E. Moore. The artiikial 
presumption from absence, if recognised at law, is one so 
likely to lead to error, us to require to be confined within 
its strictest limits. It should be limited to absences froin 
domicil, either where tfiere was the animus reveriendi, or 
to removal with a view to the acquiring a domicil else* 
where* It does not, in its reasons, seem applicable to tho 
case of one, who abandons his family and departs with no 
distinct object or purpose of location any where. Nor does 
it strictly apply to an interval of absence, interspersed with 
reports of his being alive, whether such reports be well* 
founded or otherwise. It does not legitimately belong to a 
jtidicial tribunal to permit the jury to trace the origin and 
truth of such reports, with a view to the laying down for 
their guidance u rule of evidence so purely artificial. It 
would render a case too complicated. On the contrary, 
with such deductions from a rule requiring a person to be 
seven years absent " unheard of^ it should have been left 
with the jury to draw such presumptions as to the fact of 
death, as the circumstances might, in their opinion, warrant, 
and not submitted to them as a rule of evidence, which the 
law required them to enforce ; Waison v Englandi 14 
Sim. 28. 

Pearson. J. John Moore, who died in 1886, devised 
the land, sued for, to his son Adolphus for life, '^and after 
his death to the heirs of his body, to he equally dhnded he* 
iween them, to them and their heirs forever /' and if be 
dies " without heirs of his body, living at the time of his 
deathi^ then to his daughter Sally Matilda. 



JUNE THRM, ISSI. 119 



Mooro V. Parker, 



Adolphus took only aa estate for life. The rule in Shel- 
letfacuse does not apply. 

This point is se ttled by Jbnggx JEfy^i ^ Trgi^Fq. 400, 
^vhere the matter is fully discussed and the cases reviewed* 
Indeed, this is a plainer case; for, there, no words of iQheri*> 
tauce were added to the estate of the issue, and it was ne- 
cessary to supply them, by inference from the act of 1784| 
eh. 204, set. 12. Here, the words are added by the will. 
Then, it was necessary to supply the words, " living at the 
time of his death" by inference from the act of 17S4 ; here, 
the words are added by the will. 

Adolphus Moore, having only an estate for life, his war* 
ranty does not bar or rebut the lessor of the plaintiff; for 
she claims by purchase, and not by descent. By the Rev, 
Stat. ch. 43 — sec. 8, it is provided, that all wairanties made 
by a tenant for life, descendin^^ or coming to any person ia 
remainder or reversion, shall be void and of no effect. Thif 
is a re-enactment of 4 Ann. Ch. 16, Sec. 21. 

We also concur with his Honor upon the question, as to 
the presumption of death, when one has been absent or not 
heard of for more than seven years. The circumstance, that| 
during the term, there was a rumor of his being alive, which 
proved upon investigation to be wholly without foundatioOi 
tended rather to confirm, than to weaken the presumption ; 
for, it thus appeared, that diligent enquiry had been made 
after him. 

Per Curiam. Judgment affirmed. 



17 



ISO SUPREME COURT* 



THE STATE v«. PEARCE YARRELL. 

A pnprittor of a mill, who cuts a canal aoroai a p«Uto loadi wharaby tht 
paMage along the highway is obstructed, and those who are iu poMemon of 
the mill claiming under him and using the canal, are liable to an iodict- 
ment for such obstruction, the one for creating and the olhen for contia* 
uing the nuisance. But, if a bridge is erected over the canal, neither ii 
indictable, simply for sufieiing the bridge to be out of repair. 

Appeal from the Superior Court of Law of Martin Coud- 
ty, nt the Spring Term, 185], his Honor Judge Ellis pre- 
siding. 

This was an indictment against the defendant, in the foi- 
4owing words: 

<^ The jurors for the State, on their oath present, that) on 
the first day of September, 1848, there was, and Irom thence 
to the taking of this inquisition, there hath been, andis now, 
in the county of Martin, over a water course called the Oanal| 
^ certain common public bridge in a highway in said coun- 
ty, leading from Hamilton to WilliamstoU) used by all the 
citizens ot the State on foot and with their horses and car- 
riages to go, ])ass, repass, ride and labor at their free will 
and pleasure, and that the said bridge on the day and year 
and during the time aforesaid, was and yet is, very ruinouSi 
dangerous, broken and in great decay for the want of amebd^ 
ing and repairing the same, so that the citizens aforesaldi 
upon and over the said bridge, on foot and with their hor^ 
and carriages during the time aforesaid, could not, nor yet 
can ^0, pass, repass, ride and labor as before the said time 
they were used and accustomed to do, and still of right 
ought to do, without great danger of their lives and the loss 
of their goods, to the great damage and common nuisance of 
the citizens ot the State upon and over the said bridge goingi 
passing, repassing, riding and laboring as aforesaicL 



JUNE TERM, 1851. 181 



State V. Yarrell. 



" And the jurors aforesaid, on their oath aforesaid, do 
further present, that Pearce W. Yarrell, late of the said 
connty of Martin, by reason of his tenure of a certain mill 
called the Canal Mill and the lands appurtenant thereto^ 
situate in said county, ought to rebuild, repair, and amend 
the said bridge, when and as often as it should or shall be* 
necessary — to the evil example of all others in like cases: 
offisoding and against the peace and dignity of the State. 

« MOORE, Atlor. Gen.« 

To which the defendant pleaded, not guilty. On the- 
trial the State proposed to show, that, many years ai{o, ar 
very small branch which needed ,no brid^fre across it, and 
which was not bridged, ran across the hignway described 
in the indictment: that in the year 1860, one Williams^ 
built a mill upon the branch, and, in order to supply it witl^ 
water power, cut a canal across the road and directed tho 
water from a large stream, which was on the opposite side 
of the road and crossed the road several miles distant, where 
it was then and is now bridged : that the canal l^rought 
across the road such a quantity oi water as to require a 
bridge to make the highway safe and convenient for traveU 
lers, and the proprietor of the mill, and the said Williams 
put up a bridge across the canal, where it crossed the road, 
as soon as it was cut, and kept up the bridge by rebuilding 
and repairing it as long as he owned the mill : that the 
mill pasaed from Williams by mesne conveyance to several 
pefsom, who held it until the defendant came into possess^ 
ion, and that each of them, while in possession, had rebuile 
and repaired said bridge as often as was necessary, except 
Ihe defendant, who came into possession of the mill in 1846« 

The defendant objected to the reception of this testimony, 
but it was admitted by the Court. 

The State proceeded to introduce other testimony ; and 
upon all the evidence in the case the jury returned the fol^ 
lowing special verdict : 

The jury find, that in the year 1800^ and ever since, there 
was a certain highway in the County ot Martin leading 



m SUPREAIK COURT. 



Slate V, Yatrell. 



from Hamilton to Williamston, which crossed a small branch 
not requiring a bridge and which was not bridged: That 
one Williams built a Mill down said stream, on the north 
side of the road, and, in order to supply it with water power, 
cut a canal across the road at the channel and bronn^ht to 
the Mill across the said highway a large quantity of water, 
which before that time found its way into a larj^e stream 
on the South side of the road : That the quantity of water, 
8) brought along the canal, was so great, as to obstruct trav- 
ellingalong the highway, and made a bridge necessary at 
that place, which the said Wjlliams immediately erected 
and kept up during liis life : Tiiat after his death the mill 
was owned by one Cloman, who rebuilt and repaired said 
bridge as often as needed, until his death in 1812, when it 
was rebuilt and repaired by his representatives, till the mill 
camBi in 1845, by purchase at a sale under a decree of the 
Court of Equity of Martin County, to the possession of the 
defendant, or owner thereof, who ever since has continued 
to own, possess, and use the said mill. And the jury further 
find, that the defendant, within two years next before the 
finding of the indictment, allowed said bridge to become out 
of repair, ruinous and dangerous to be passed by persons 
travelling over the same, which at all times since it was 
erected had been a part of said highway. They further 
find, that at all times since the cutting of the said canal a 
bridge has been necessary over the same, where it crosses 
the said highway. They also find, that, soon after the death. 
of said Cioman, the mill dam broke and the mill was not 
used (or two years, and that »iid Cloman's heirs, on whom 
the mill descended, were infants and continued such 'till 
after the sale aforesaid and purchase of the same by the de- 
fendant. But, whether upon the premises aforesaid the de- 
fendant be guilty or not guilty of any offence, as charged 
in the bill of indictment, they say they are ignorant, and 
pray the advice of the Court ; and if in the opinion of the 
Court the defendant be guilty, then they find him guilty ; 



JUNC TERM, 1B51. 133 



State 9. Yttrrell. 



and if in the opinion of the Court the defendant be not 
guilty, then they find him not ernilty. Upon this verdict the 
Court was of opinion, that the defendant was guihy, and 
pronounced judgment accordingly ; from which the defen- 
dant appealed to the Supreme Court. 

Attorney General^ for the Stale. 

Biggs, for the defendant^ submitted the following argu- 
ment. 

1st. A private individual at common law cannot bebound 
to repair a his^hway except in respect of some consideratioti 
and not merely by a general proscription. Austin^s case 
1 Ventr. 189 ; R. and St. Giles, Cambridge 5 M. and S. 
260. 

2nd. All public bridges are prima fade repairable at 
common law by the inhabitants of the Couniy. R, vs. 
liiliab. of Salop, 13 East 93, and other authorities cited in 
JRoiCoe on Criminal Evidence, pasje 295. 

3rd. Although a private individual cannot, by erecting a 
bridge, the use of which is not beneficial to the public^ 
throw upon the County the onus o( repairinof it, yet if it 
become useful to th'3 County in general the Coutity is bound 
to repair it. Glasburne Bridge case, 5 Bun. 2594. The 
acquiesence of the public will be evidence that it is of public 
utility; Roscoe oh Criminal evidence, 296. 

4th. Ratione tenurce implies immcmoriality, 2 Sannd 
I58d. (n.) And therefore upon an indictment against an 
individual for not repairing by reason of the tenure of a mill, 
if it appear that the mill was built within the time of the 
legal memory, the defendant must be aciftiitted. Hayman^s 
c«e, Mo. and M. 401 (a) 22 E. C. S. K. 341. 

Although an act of repairing may be //r/wa/cicie evidence 
of liability, yet in this case the defendant never repaired, 
and here the mill was built within the time of legal me* 
inory. 



134 SUPREME COURT. 



State V. Yarrell. 



It is submitted however, that a private individual in this 
State, in consequence of our Statutes, is not bound to build 
or keep in repair a bridge across a public Road, ratione 
tenura^ except as provided for in the 24th section of 104th 
Chapter of the Revised Statutes, and this case does not fall 
within that Statute, because the defendant's mill is not situate 
on the public Road and the Bridge complained oi is not at- 
tached to his mill dam. 

Williams, no doubt, could have been indicted for cuttihg 
the Canal across the road, but after he built the Bridge and 
the public acquiesced and used the bridge, it became a part 
of the public Road» and although Williams and Cloman 
kept the bridge in repair, the liability to repair was not there- 
by thrown upon the defendant. He has never assumed or 
acknowledged the liability. It is admitted he is not liable 
under the Statute, for this is an indictment at Common 
law. 

Pearson, J. The defendant, without doubt, is liable t* 
indictment for obstructing the public highway, by meous 
of the Canal, which he uses and takes benefit of for the 
purpose of supplying water to turn his mill. The original 
proprietor of the mill was guilty of a nuisance in cutting 
the canal ; and the defendant is guilty of a nuisance in 
continuing to use it. 

It may be, that, if he is indicted for the nuisance, he may* 
attempt to excuse himself by proving, that for more than 
twenty years he and those " whose estate he has" have had 
the benefit of this easement or privilege, but it will appear,. 
that the enjoyment of this privilege had a condition annex- 
ed thereto, to wit : that a bridge should be kept up over the 
canal, so that the public should sustain no inconvenience or 
hindrance by reason of the highway being cut across. The 
excuse will not avail, unless he proves that this coniicioa 
has been complied with. 



JUNR TERM, 1861. I3fi 

State V. Yarrell. 

The indictment charges, that the defendant, being the 
owner of t^e mill, was bound to repair the bridge, ^^virtuie 
ienuriB.^ Our late very able Attorney General followed an 
English form, and did not devote to the subject the degree 
of care which he usually bestowed upon every question. la 
this State, we are all tenants in capiiaf and our tenure is 
that of free and common socage, yielding iealty, doing suit 
to Court, and paying such taxes as the '* General Assembly" 
may, Irom time to time, assess. The laud, upon which the 
mill is situated, was, in all probability, granted long before 
the mill was built and the canal cut; so the repairing of the 
bridge could not have been a condition of the grant. 

When the canal was cut, there may have been an express 
license for so obstructing the public highway, granted by 
the County Court, upon condition that the bridge should 
be built and kept in repair, or this may be presumed by a 
usage for more thau twenty years, in the absence of such 4 
contract expressed or presumed. The proprietor of the 
mill, who cut the canal, was guilty of a nuisance in so ob- 
structing a public highway, and the defendant, who con* 
iinues to use the canal, is guilty of the like nuisance. Bex 
V Slaughter^ 2 Saunders, 158, 9, note ; King v Kerriaon^ 
1 Maule. and Selwin^ 526. 

The judgment must be reversed, and, upon the special 
^verdict, there must be judgment for the defendant. 

Per Curiam. Judgment accordingly. 



t36 SUPREMK COURT. 



HEMAN II. ROBINSON vn. CALL McDUGALD <b AL. 

Where a party who hut boon arrested upon a ca. 9a. given l)ood for his np- 
pearance, Ac, he may i when a judgment is moved for a breach of the 
botid, adduce any matter, which amounts to b defence. 

The cases of WiUiamty Bryan ^ 9 Ire. 331, and ifardUon v Benjamn, 11 
Ir«. (tl3» cited aud commented on. 

Appeal from tlic Siifwrior Court of Law of Bladen Couii- 
ty, at the Spring Term, 1851, his Honor Judge Manly 
presiding. 

The defendant, Call McDngald, was arrested on the 
Tuesday of the County Conn, and forced to give a ca, sa, 
bond, conditioned for his appearance on the next day. He 
failed to appear, and was called out, and judgment was 
moved for by the plaintiff. This motion was resisted by 
the defendant, Call McDugald appearing by counsel and 
his sureties, who appeared in person, and in their behalf the % 

Court was moved to quash the ca. sa. and the bond. The 
Court refused the plaintiff's motion for judgnient, and allow- 
ed the motion made in behalf of the defendant. The plain- 
tiff appealed to the Superior Court, where he renewed h>s 
motion for judgment on the ca.sa. bond ; which was op- 
posed on behalf of the defendant, and a motion made to 
quash the bond ; and the defendant offered to prove, that 
when the officer arrested the principal, Call McDugaId» 
he told him, that, if he did not sign the bond, he would put 
him in jail. But the Court, holding that the defendants, 
having (ailed to avail themselves of said defence, if it ex. 
isted, in apt time, refused to hear the evidence and gave 
judgment for the plaintiffs, from which the defendant ap- 
pealed. 



JVXE TKRrd, 18»1. 1^ 



I 



RobiaKUt v. McDagald. 

Strange^ for the plaintiiT. 

W. Winalow and D. Reid, for the defendant. 

Pearson. J. We do not understand npon what ground 
his Honor held, that the defendants had failed to avail them* 
selves of the said defence, if it existed, in apt time. They 
resisted the motion for judgment in the County Court, mor* 
ed on their part to qnash the ca, sa. and bond, and were 
successful in resisting the motion, made by the plaintiff. 
This was done on the very day after the bond was<executed 
and was in apt time, for aught that is stated in the case, 
which isfet out by us more at largo than would have other- 
wise seemed necessary. 

In Williams v Bryant^ 1 1 Ire. 614, it ^s remarked : '< It 
is true the debtor cannot, after failing to appear, adduce 
any matter of fact by way of defence" &c. " The case may 
be likened to a default in an action of debt,*' d:c. 

In Hardison v Benjamin, 9 Ire. 331, it is remarked : "U 
the officer, upon arresting the debtor thirteen days before 
January Couit, had refused to take a bond for his appear* 
ance at April Term, and insisted upon holditig the debtor in 
custody, unless he would execute a bond for his appearance 
at January Term, the bond would have been void as ob« 
tained by duress." ^ 

These remarks were unnecessary to the decision of either 
of the cases, and were thrown out only as suggestions in 
the course of discussion. But the very point is now pre* 
sented, and we are of opinion that the defendants were at 
liberty, when judgment was moved for, to adduce any mat- 
ter, which amounted to a defence. We do not see why^ 
upon this motion, the defendants stand in the condition of a 
defendant in an action, where judgment by default has been 
rendered. It is true, the debtor fails to appear and was 
called out, but that failure was not in reference to the con- 
dition of the ca. so. bond, and had no reference to, or bear* 

ing on the motion for judgment afterwards made ; in refer- 

18 



13yB SUPREME *COl}KT. 

RobiiKOD ». McDag>ld. 

ence to which the defendaots stood in the conditioo of de- 
fendants in an action, who appear and claim the right to 
enter their pleas. Why should the defendants not bare * 
the same right to resist judgment, where it is moved for ia 
a summary way, as they would have, if sued in debt on the 
bond, and the breach assigned was failing to appear accord- 
ing to the condition of the bond ? The summary judgment 
is provided to prevent plaintiffs from being* delayed, not to 
exclude defendants from any good defence. Suppose the 
officer forges a bond, and, upon calling out the debtor, a 
judgment is moved for ; will the Court refuse to allow the 
fact of the forgery to be proven ? The same reasons apply 
to the present case, where it is alleged it was obtained by • 
duress. 

Upon examination, it will be found, that provision is made 
for the case, Rev. St., ch. 5S sec. 7. Either of the parties 
to the bond may have an issue and a jury empanelled im- 
mediately to try it — ^^ non est factumP shall only bere- 
^ceived on oath of its verity. 

Per Curiam. Judgment revened, and this opinion mnst 
4)e^rtified, so4hat the issue may be made up and tried. 



JUNE TEKM, 18JI. 1S9 



WILLIAM COX V*. WILLIAM C. BU1«; 

In a proneedinf , under mir Statute, to recover damapM for overflowiof laud' 
by a mill pnnd, it ia not neeeoMry that a copy of the petition ahonld be aetrecl' 
OB the defendanL It in eufficieDt for the plaintiff to give the defendant' 
ten daya notice, in writing, of hb intention to>file the petition. 

Appeal from the Superior Ck>iirt of Law of Uavidsoa 
County, at the Fall Term, 1850, his Honor Judge Manly 
presiding. 

This is a petition for damages for overflowing land by i^ 
mill pond. It was iiled at May County Court, 1849, whicb 
was on the second Monday. On the first day of the montb» 
mor& than ten days previous to the term, the petitionergave- 
the defendant notice, in writins*^ of his intention to file the 
petition at the next Term ; and on the 7th day of the month 
the plaintifiT served the defendant with a copy of the peti- 
tion. At May Term the defendant put in an answer, set* 
ting forth several grounds on which he claimed the ri^ht 
to erect his mill and overflow the plaintiff^'s land, and de- 
nying the plaintiffs right to damages. It further stated the 
facts as to the serving of the notice and copy of the petition^ 
and insisted, that the copy ought not to have been served 
until after the County Court, and that for that reason the* 
petition ought not to be entertained, but dismissed. The 
County Court, nevertheless, ordered a jury, and damages 
were assewed and judgment rendered, and the defendant 
appealed. In the Superior Court, the defendant renewed 
the objection, that the suit was not properly conslituted,.and 
prayed the Court to dismiss it But the Court refused, and 
after a trial at bar and judgment for the diamages assessed^ 
the demandant again appealed. 



>4p tftJPREMK COURT. 



Cox V. BuIh. 



No counsel for the plnintifT. 
Mendenhall, for the defendant. 

RuFPiN, C. J. If the objection were open niter a full 
defence on the merits, it would not nvuil the defendant ; 
for there is nothing in it. The Statute does not provide for 
or intend that a C(»py of the petition should be served. The 
purpose wnsto give a summary remedy on motion at the 
same Term at which the petition was filed. But to prevent 
surprise, it requires the notice in writing of the intention to 
file the petition. That was jnsl the course in the Court of 
Chancery, before the Statute required the master to send a 
copy of the bill with the subpccna. Before that, the plain- 
tiff sued out his subpoena, often before his bill was filed ; 
and the defendant, being served with the process, bought 
the bill for himself, if he wished one. In respect to peti- 
tions of this kind, we believe a practice has grown up of 
serving a copy of the petition, in order to obviate possible 
objections for omissions in the notice. Though unnecessa- 
ry, it may thus be convenient t^ the petitioner to serve the 
copy. That is at his own expense, and can by no possibil- 
ity do any wrong to the defendant. 

Per Curiam. Judgment affirmed. 



7UNB TERM, 1831. 141 



HUGH SIMPSON 9t. ARCHIBALD McKAY. 

Id ibe lale of a stave, m warnmty of Mnindnew include! foundneii of mind «■ 

well M of body. 
The MttodneM of mind meent in tbe warnnty of a slave, means only each 

a degree of mental capacity, as renden bim fit to perform tbe ordmary du* 

ties of a alave. 

Appeal from the Superior Court of I^aw of Bladen Coun* 
ty, at the Spring Term, 1831, bis Honor Judge Manly 
presiding. 

This was an action of covenant, brought for several 
breaches assijrnedot the covenanis coutained in the follow- 
iog iDStrument : 

«$450. 

Bladen County, N. C, May 13th, 1846, 

'^Received of Hus:h Simpson Four Hundred and Fitty 
Dollars in payment for a negro boy, named Graham, about 
seventeen years of age ; which negro I warrant both as to 
soundness and right of property, except a small rupture on 
said Graliam* In witness my hand and seal, 

ARCHD. S. McKAY. (Seal.) 

Test. Wm. Bryant, Jr." 

The plaintiff alleged, that the covenant was broken, in 
that the said Graham had a large rupture instead of a small 
one, had other bodily diseases, of some one of which he 
finally died, and that he was of unsound mind. Upon all 
these points the plaintiff offered proof; and, among other 
things, proved, that before the sale, a witness, who had ex- 
amined the negro, discovered that the negro's feet had been 
severely Irost-bitten, and that they sometimes became swol- 
len and subjected the negro to inconvenience : but there 



tU SUPREME COURT. 



8mi|wiii r. McKny. 



was uo proof (hat this was communicated to the plaintifr^ cr 
that it was otherwise known to him before the purchase. 

The counsel for the defendant objecttxl, that the warranty 
of soundness couUined in the covenant did not extend to 
mental soundness; and if it did, that the extent of unsound- 
ness, proven by the plaintiff, was not such as to constitute 
a breach ot the warranty of soundness. Upon those points 
and the extent of the rupture and the general unsouiMlness 
of the n^ro, the argument was mainly conducted on both 
sides before (he jury ; the defendant insisting, that tlierewas 
no breach of the warranty, and that, from the evidence, the 
negro died from the maltreatment of the plaintiff him« 
self and his other slaves, and was not uiisound beyond a 
small rupture. 

iimong other things, his Honor instructed the jury, that 
the covenant extended as well to soundness of mind as of 
body, and it was for them to say, from the eTideooe, and 
especially from the opinion of the medical witness, whether 
the rupture was a large or a small one, and,* if large, how 
far the difference between a small rupture and the oneprov* 
en, if they found any difference, impaired the value of the 
slave, and how far he was otherwise diseased, ekherin mind 
or body, and how far any sueh diseases, if they existed^ 
impaired the value of the slave: thai as to the frosted ieet^. 
if that was a permanent injury and diminished the slave^s^ 
capacity for labor, they must take that iote consideration r 
that the soundness of mind meant in the wnrranty of a slave 
was only such a degree of mental capacity as rendered hin 
fit for the ordinary duties of a slave : that this did not imply^ 
that he was very brii^^ht or intdh^ent, and if, from the evw 
dance, they believed, that the slave, although dull and below 
the ordinary standard of bunuM intellect, yet that he posses* 
sed sufficient capacity to perform the ordinary duties of » 
slave, the warranty in tnat respect was not broken ; othet- 
wise, it was ; and it was for them to estimate ibe araonnt, 



JUNE TERM, 18SI. 143 

■.■■■>■ ■ I ... ■ ■ ■ I ... ■ ■ ■ ■ ■■ I II . ^ 

SimpMn V. MoKfty 

to which his value was impaired by such mental incapacityi 
if fonnd by them to hare existed. 

A verdict having been returned for the plainliflT, the de* 
fendantobtained a rule for a new trial, upon the grounds, 
First, of an error in the Court upon the question of mental 
capacity, which the defendant insisted, was not embraced 
in the warranty ; Secondly, because the Judge had said any 
tiling about frosted feet, which, the defendant insisted, wae 
not embraced in the warranty, being a patent defect, if it 
existed at all. 

T*he rule ibr a new trial was discharged, the Court being 
of its original opinion, respecting the warranty of the men- 
tal soundness ; and as to the last poict, that no such objeo* 
lion had been taken on the trial, and, if it bad, that there 
was no evidenee, that the negro at the time of the purehase 
was with or without shoes, or in any way that the deCecC 
was such as must have been known to or observed by the 
plaintiff. 

Whereupon the defendant appealed to the Supreme Court. 

Stramgej for the plaintiff. 
Banksj for the defendant. 

PEAfMfOV} h The bill of sale has this clause, " which 
DCgfo I warrant both as to soundness and right of r^perty, 
exeqtt a maII rupture." 

Woeoncltr with4iis Honor in the opinion, that this w|tf* 
■urty included soundness of miad as well as body ; and we 
agree with iiim as to the degree of mental incapacity, which 
wenid amount to unsoundness of mind in a slave. 

The val9^ of a slave depends as much, if not more, upon 
his having aeose enough to do the work ordinanly done by 
slaves, as upon the soundness of his body, and if there had 
been simply a warranty of soundness, without question, ii 
' would have included soundness of mind as well as body. 
The exception, as to the ^mall rupture, cannot have the ^- 



144 



aUPRB2|I£ COURT. 



Simpaon v. McKay. 



feet of restrictinsi the general termj ^ soundness ;" it merely 
qualifies the warranty in regard to the soundness of the body 
and has no bearing whatever in regard to the soundness o 

mind. 

» 

The second exception is also untenable. It is not neces- 
sory to consider how far the fact, that a defect is so appa- 
vent that it must have presented itself to the notice of the 
fNirchaser, (as if the slave has but one leg,) will justify such 
a constructipn of the warranty as to exclude the particular 
defect from its operation, under the idea that the parties 
Qould not have intended to include it, becouse there is no 
avidence to raise the question. It does not appear that the 
condition of the negro's feet was apparent, or that the plain* 
tiff's attention was called to it. He wos prudent enough to 
require a warranty and has a right to the benefit of it. 



Per Curiam. 



Judgment affirmed. 



JUiNBTCRM, ItSl. m 



JOHN MIDGETT vi. ISRABL BROOKS. 

Where a d«ed for land, after aettiog forth the partiea, the daaeriptidii af'th* 
laud and the interest conveyed, goes on oa follows : " to hare and to hold 
the above described, pe ice or parcel of land, free and clear from me, roj 
heirs, executors, administrators and aaigns, and from all other peiBOOt 

. whatsoever, unto the said, Ac." Held, that this clause contauied a core- 
Bsnt for quiet enjoyment. 

No precise or technical language is required by law, in which a coveoaatahall 
be worded — any words, wbch amount to, or import an agreement, haing 
undersea!, are sufficient. 

The cases of Woodward v Ranuay, 3 Hawks 335 'and Hafner v Jneinj 4 
Dev. and Bat. 433, cited and approved. 

AppenI from the Superior Court of Law of Hyde County, 
at the Spring Term 186], his Honor Judge Caldwbll 
presiding. 

This was an action upon the covenant, contained in the 
following deed : 

<-This Indenture, made this 24th day of August, in the 
year of Our Lord one thousand eight hundred and thirty- 
nine, between William S. Douglas and John Midgett, both 
of the County of Hyde and Slate of North Carolina, wit- 
nesseth : That the said William S. Douglas, for and in con- 
sideration of the sum of one hundred and twenty dollars to 
him in hand paid by the said John Midgett, the receipt 
and payment of which is hereby acknowledged, hath bar- 
f^ained and sold, and by these presents doth bargain, sell 
and convey to him, the said John Midgett, his heirs and as- 
signs forever, a certain piece or parcel of land, situate and 
lying in the County and State aforesaid, in the settlement 
of Mount Pleasant, and beginning at, &c., (here the boun- 
daries are described,) containing fifteen acres more or less, 
to have and to hold the above described piece or parcel of 
land free and clear from me, my heirs, executors, adminis- 
trators and assigns and from all other persons whatsoever, 

19 



146 SUPREME COURT. 



Midgett p. Brooks. 



unto liiiii the said John Midgett, his heirs, executorsi ad- 
niiiiistrators aud u2>si^tis. 

^'In witness wheieof, I, the said William S. Doaglas, 
hereunto set my hand and seal the day and year above 
written. 

(Signed.) WILLIAM S. DOUGLAS, (Seal.) 

" Sealed and executed ) 

' iu the presence of \ 
"Reily Murray, 
"Geo. H. Shildon." 

The declaration contained a count on a covenant of seisin, 
•and also a count on a •covenant of quiet enjoyment The 
defendant pleaded the general issue — covenants performed. 
The following !acts are agreed upon : The plaintiff took 
.possession of the premises described in the deed, and con- 
tinued in possession until the death of the defendant's intes- 
•late, the party to the said deed. After the death of the said 
intestate, a suit in ejectment was brought against the plain- 
tiff by one Samuel S. Pugh, who had paramount title to the 
premises: a judgment was recovered by him against the 
plaintiff: the said Pugh sued out a writ ot possession and 
evicted the plaintiff from the premises on the 26th of Feb- 
uary 1850. 

' It is further agreed, that, if the Court is of opinion that 
the plaintiff can recover, a judgment shall be rendered 
•against the defendant for one hundred and twenty dollars^ 
with inteiest from the 26th of February, 1850 : if the Court 
•is of opinion that the plaintiff cannot recover, it is agreed, 
that judgment of non suit be entered against the plaintiff. 

The Court en the said case agreed is of opinion, that the 
plaintiff is entitled to recover on the first count mentioned : 
and thereupon it is considered, that the said plaintiff recov- 
er against the said Israel Brooks, d&c. From this judgment 
the defendant appealed. 



JUNE TERM, 1861. 147. 

MidgeU 9. Brooks. 

IhmneU^ for the plain tifil 
Shaw^ for the defendant. 

Nash, J. This cause in here upon a case agreed. The- 
declaration contains tviro counts ; one on a covenant of sei* 
sin, the other upon a covenant of quiet enjoyment. It is 
agreed, that if upon either count the plaintiff is entitled to 
a racovery, judgment shall be rendered for him for the sum 
set forth. The alles:ed covenants are contained in a deed 
of bargain and sale for a tract of land, sold by William S. 
Douglas, who is now dead, to the plaintiff. The deed, afier 
setting out in the premises the parties to it, and specifying 
the land, and the interest conveyed, goes on as follows r 
''To have and to hold the above described piece or parcel 
ot land free and clear from me, my heirs, executors, admin* 
istratorsaud assigns and from all other persons whatsoever, 
unto the said John Midgett,^ dec." Midgett was sued and 
tamed out of possession by paramoimt title. 

We are of opinion, that the clause in the deed, as above- 
set forth, contains a covenant for quiet enjoyment. The 
defendant, through his counsel, insists, that the deed contains 
BO covenant whatever. It is true, the word covenant or 
agreement, does not appear in it, nor is it necessary that 
either of them should. No precise or technical language is 
required by law, in which a covenant sholl be worded — any 
words which amount to or import, an agreement, are suffi- 
cient, a covenant bein^ an agreement or contract under seal; 
Piatt on covenants 28 \ Lamb and Morris^ 1 Bur. 290. 
The words in the deed we are considering, upon their face 
import a promise or agreement on the part of Douglas, the 
Tendor, that Midgett shall enjoy the premises free from dis- 
turbance from any one, claiming by title paramount ; and 
that is a covenant for quiet enjoyment ; Woodward v 
Ramsay^ 2 Haw. 335. The langiige of the deed is, that 
he '< shall have and hold, that is, possess, the land iree and 
clear, d&c." It is objecled, however, that these words ar& 



UB SUPREME COURT. 



Midgett V. Brooks. 



in the habendum of the deed, and constitute a part of it. 
By themselves, they properly constitute no part of the ha- 
bendum. The office of the habendum is to point out the 
interest or estate conveyed. The words, '^ free and clear," 
d&c., go beyond that, and, in connction with the habendum^ 
technically so called, are unmeaning. But it is a rule in 
the construction of deeds, that everyi clause and word, .if 
possible and consistent with law, shall have a meaning giv- 
en to it. If, however, they do constitute a part of the ha- 
frendffim, they certainly are out of place, but that circum- 
stance ought not to deprive them of their existence and le** 
gal effect. It is the office of the premises to specify the 
parties to the deed and the thing granted ; if, however, the 
name of the grantee appears for the first time in the haben- 
dum, it is sufficient ; Hafner v Irwin, 4 Dev. and Bat. 433^ 
CfOke on Lit. 26 b. note. Now, if a grantee may appear for 
the first time in the habendum, we can see no good reason, 
why a covenant may not. Had the words we are consid- 
ering appeared in a separate clause to themselves, there can 
be no doubt as to their being a covenant for quiet enjoy, 
tnent The whole clause, however, is a covenant for quiet 
enjoyment. An habendum clause is not essential to the 
validity or completeness of a deed — it may be entirely omit- 
ted without affecting its validity. The parties, the thing 
granted, and the quantity of estate may all be contained iu 
the premises — and' such is the modern or most frequent 
mode of conveyances ; 4 Kent's Com., 468. 

It is the duty of this Court to look into the whole case, 
and to pronounce such judgment as the Court below ought 
to have done ; and believing that the deed contains a cov- 
enant for quiet enjoyment, judgment is given to the plain* 
tiff. 

Per Curiam. Judgment affirmed. 



JUXETERM, 1851. 14» 



JOHN McLEAN AND WIFE vs. MARY ANN JACKSON. 

in detinue by a hasVand and wife for attlavf>, when it appeared that the slave 
had been given to A. for life, and after her death to the feme plaioUfT, who^ 
at the death of Uie tenant for life, wa« an infant and married, and had never 
•ince been discovert; /fe/tf, that the action was not be barred by the 
Statute of limitations. 

Appeal from the Superior Court of Law of Pasquotank 
CouQty, at the Spring Term 1831, his Honor Juds^o Dick 
presiding. 

This is detinue for a female slave, named Anne, and three 
others, who are her children. The pleas w^re non detinety 
and the Statute of limitations. On the trial the case was 
this: Shadrack Davis bequeathed Anne, when quite young, 
to Mrs. Sexton for her life, and then over to Susanna Wil- 
liams, the feme plaintiff, who afterwards inter-married with 
the other plaintiff, while she was an infant and before the 
death of Mrs. Sexton, which happened in the year 1833. 
The defendant alleged, that the plaintiff John sold the girl 
Anne to one Owen Williams ; and to establish the sale 
evidence was given, that soon after the death of Mrs. Sex- 
ton, one Shadrack Davis, junior, had the girl in possession, 
claiming her as his, and that the plaintiff John in the pre* 
sence of the girl mentioned to a witness that he had sold 
her too low to Owen Williams and that he ought to have 
had $50 more for her ; and that he said to another witness, 
that he had sold her to said Williams. Evidence was also 
given, that the plaintiffs resided in Pasquotank before 1833 
and have resided there ever since ; and that Shadrack Davis 
junior resided there until his death in 1837, and that then 
' his administrator sold the girl publicly to one Jackson, and 
tbatheand the defendant, who claims under him^ havecon- 



150 supreml: coubt. 



McLean and wife e. Jackaon. 



tinued the adverse possession of her and her children in Ibe 
same County up to the bringing of this suit in 1850. 

The Court instructed the jury, that, if they should believe 
upon the evidence, that the plaintiff John McLean had sold 
Anne to Owen WilliamS| they ought to find for the delen- 
dant. And if they should not find that such a sale was 
made, but should believe that Jackson purchased the ^irl 
in 1837, as stated by the witnesses, and that he and the de- 
fendant under him have held her and her issue ever since 
as their own, the plaintiffs were barred by the Statute of 
limitations. The jury found for the defendant and the 
plaintiflb appealed. 

W. N. U. Smith, for the plaintiffs. 
Ekringhaus Atid Heath, for the defendant. 

RuFFiN, C. J. There is error in the instruction upott 
the Statute of limitations. The action is in the- name ot 
husband and wife in her right, and would survive to heru 
There was no adverse possession until after the death of the 
tenant for life, and, consequently, it commenced during the 
coverture, which still exists. By the express words in the 
saving in the 4th section of the Statute of limitations, the 
fenie plaintiff would have three years after being discovert 
to bring this suit in her own name, because she was under 
eoverture, when the cause of action arose. Of course, she* 
is al liberty to bring suit at any time within that period,, 
though, if it be brought during the coverture, her husband 
and she must join by reason of her want of capacity to sue 
alone. It is probable, indeed, that the action would not lie 
in the name of the husband and wife, for the reason ttiat the 
right vested in the husband upon the death of Mrs. Sex- 
Ion, as no adverse possessioti at that tmie appears. But that 
point is not raised, and therefore it may be that the facts are 
not stated respecting it^ Consequently, the Court cannot 



JUKE TERM, 1851. 151 

State V. Clark. 

act on it ; and as there was error in the instruction, as given^ 
the judgment must be reversed. 

Per Curiam. Judgment reversed, and vetiire de riavo.. 



STATE vs, ADAM CLARK. 

In order to obtain a vtnire de novo for the adminiju of improper evidence, it 
'» not sufficient to state matter, rendering it probable that such evidence 
may have been received, but it is indispensable to state the evidence itself; 
otherwise, the Court cannot see that the evidence was illegal, and judgment 
will be affirmed. 

It is an established rule in the law of evidence, that in matters of art and 
science, the opinions of experts are evidence, touching questions in that 
particular art or science, and it is competent to give in evidence sach 
opinions, when the professors ol the science swear they are able to pro* 
Bounce them in any particular case, although at the same time they ny 
that precisely such a chae had not before fallen under their observation, or 
nnder their notice in the course of their leading. 

The effect of the evidence is of course to be decided by the jury. 

Appeal from the Superior Court of Law of Person Coun- 
ty, at the Spring Term, 1851, his Honor Judge Bailet 
presiding. 

The prisoner was charged in two counts with the murder 
of Eli Sigman : in the one by shooting, and in the other by 
striking, thrusting, and cutting with a knife upon the throatf 
the front part of the neck and the left side of the belly. He 
pleaded not guilty, and was convicted on both counts, and 
after sentence of death he appealed. The bill of exceptions 
atotcsi that on the trial evidence was given, that the body 



153 SUPREME COURT- 



Siutf'r. (Mark. 



wiis (oiuid ill a secret place in the woods, about three months 
after the kilh'ng, and when found was torn very much by 
beasts. Other evidence was then Jc'ven, tending to show, 
.that the prisoner killed said Sigman. Then several wit- 
nesses on \he part of tlic State described the condition of the 
hody, when found, and stated that the head was separated 
from the other, parts of the body *, and that the skin attached 
to the face afid the iliroat under the chin, where it separated 
from the body, presented a smooth and straight edge, as if 
it had been cut with a knife across the throat; and they 
gave it as their opinion, that it was so cut. Among these 
witnesses was a practising physician and surgeon. The 
others were not professional persons. The State then called 
another praciisinif physician and surgeon, wiio had not seen 
the body, but had been present and heard the evidence given 
on the trial. He was asked by the Solicitor, whether, as a 
matter of skill and science, he could form an opinion from 
the evidence, supposing it to be true, whether the skin 
of the throat under the chin of the deceased was cut by a 
sharp instrument or torn, and if he could form an opinion, 
he was requested to give it to the jury. Before an answer 
from the witness, the Counsel for the prisoner interrogated 
him, whether he had ever seen or read of a case of this sort, 
where the body hnd been exposed for three months ; and 
he replied, lie had not. Thereupon, the Counsel for the 
prisoner objected to the question -asked on the part of the 
State. But the Court allowed the question to be put and 
answered ; and the prisoner excepted therefor. Being foimd 
guilty and jiiclguieiit pronoiuiced ai^ainst him, the prisoner 
appealed. 

Attorney Gcjivral, for the State. 
Saunders, for the defendant. 

RuFFiN, C. J. The answer of the witness is not set forth 
in the bill of exceptions, so as to show it to have been to 



JVNE TERM, ISdl. 153 



State V.Clark. 



tlie prejudice of the prisoner ; which must always be done 
to entitle the party to a ventre de novo. It has been often 
said in the Court, that every thinf; is to be presumed righty 
unless he, who alleges error, show some one in particular. 
It is obvious, that it is not competent to the Court here to 
go out of the record for the affirmative presumption, that 
this witness replied, that from the evidence he could form 
an opinion, as a matter of science, and, further, that his opin«- 
ion was, that the skin was cut with a knife and not torn. 
Such a power, like that of going out of the record upon a 
motion in arrest of judgment for other facts, would be most 
dangerous. The principle upon which a Court of error 
must of necessity act in our judicature, is, that verdicts and 
judgments must stand, unless he, who impeaches them, dis^ 
tinctly show an error to his prejudice, either in his exception 
or in the record. In order to obtain a venire de novo for the 
admission of impn)])er evidence, it does not siif&ce to state 
matter rendering it probable that such evidence may have 
been received, but it is indispensable to state the evidence 
itsetfl For, in that way only can it be seen, that the evi* 
dence was, in itself, really illegal, or that it might have 
been to the prejudice of the appellant. On this ground the 
jndgment would be left unreversed, even if it were errone- 
ous to admit the evidence, assuming it to have been adverse 
to the prisoner; for, though a matter of extreme regret in 
such a case and upon that assumption, it is better to submit 
Co that evil, than that the Court should usurp the authority 
of presuming facts not appearing in the record. 

Upon the question of evidence, however, the Court is of 
opinion, that such answers from the witness, as those sup- 
posed, are proper for the consideration of the j ury. Author- 
ities need dot be adduced to show, that it is an established 
rule in the la\^ of evidence, that, in matters of art and sciefuce, 
(he opinions of experts are evidence, touching questions in 
(hat particular art or science. The rule is founded in ne- 

cessity; because persons of ordinary avocations, including 

20 



154 SUPREME COURT. 

■ Bute V. Clark. 

jarors and judges, ate not generally capable of judging cor- 
rectly upon many questions, which must be determined in 
order to ihe decision of a legal controversy, and which de- 
pend on scientific knowledge or skill in art. Resort is thea 
had to the information of those, who noade it or are sup- 
posed to have made it the business of their lives to study 
the principles of that science or art and carry them out into 
practice. The information derived from them may not lead, 
in the minds of those constituting the tribunal, to certain 
and satisfactory conclusions, and, indeed, is often unsatis- 
factory, especially when opposing opinions are delivered by 
different professors. Yet, from necessity, they must be re- 
ceived, because those opinions are the best accessible evidence 
on the matters in issue ; and when received, their weight 
must depend on the impression made thereby on those, who 
hear them. In reference to questions involved in contro- 
versies like the present, namely, as to the nature and efiect 
of a wound described to a witness, it certainly is to a con- 
siderable extent a matter of science to be able to judge of 
them correctly. Whether a wound was made by a shot or 
a sword or other sharp instrument, can, beyond all doubr» 
be better judged of by one,, who has habitually examined 
and treated wounds of such kind, as, for example, an old 
surgeon in the army, than by one without experience or 
scientific theory, whatever may be the degree of his general 
intelligence on other subjects. So, surgeons familiar with 
fields of battle, and the appearance of dead bodies lying 
there long without burial, may be competent at the dis- 
tance of three months not only to distinguish what kind of 
wound caused the death, but also to distinguish wounds 
made on the body before or at the death from lacerations of 
the dead body by the tearing or crushing of wild beasts or 
other brutes. At all events, wnen professors of the science 
swear they can thus distinguish, it would be taking too much 
on themselves for persons, who, like Judges, are not adepts, 
to say, the witness cannot thus distinguish, and on that 



JUiNE TERM, 18»t. 155 



State V. Clark. 



gronod refuse to hear his opinions at all. By such a course 
the Judge would undertake, of his own sufficiency, to de- 
termine how far a particular science, not possessed by him 
can carry human knowledge, aud to determine it in opposi* 
tion to the professors of that science. That course would 
subvert the principle, on which the rule of evidence is foun- 
ded and exclude the evidence in all cases ; since, in truths 
its utility depends ou having the aid of men of science at 
that point, at which it is necessary to supply the deficiency 
in the knowledge of those who are not experts. Indeed| 
that was the aspect in which the case was pressed in the 
argument of the prisoner's counsel — insisting that the opin- 
ions of medical men were entitled to little or no confidence 
and ought not to be received, and laying little stress on the 
particular circumstance, that the witness said he had not 
seen or read a case, in which the body had been exposed 
for " three months,'' as here. That circumstance, indeed, 
does not touch the question of competency, though it may 
lessen the credit given to the testimony. As just noted, it is 
the point for the man of science to consider, whether in a 
particular state of facts he can or cannot form a sound opin 
ion, which would satisfy his own judgment as to the matter 
of fact. Ill the next place, if it were the office of the Court 
to determine, whether the circumstances were or were not 
sufficient to enable the witness to form such an opinion, it 
could not be held, they were insufficient here, merely because 
exactly such a cause as this had not before fallen under the 
observation of the witness or under his notice in the course 
of his reading. For, the man of science is distin&ruished 
from an empiric in nothing more, than in not relyine on 
speciOcs and also not waiting: for exact sinilitudesin things 
material and immaterial, before forming a judgment, wheth- 
er two patients are laboring under diseases of the same 
character and requiring the like treatment. It is the pro- 
vince of science to discover general principles from long and 
accurate observation and sound reasoning ; and it must be 



166 SUPREME COURT. 



SUte «. Clark. 



sufficient to induce Courts of justice to receive assistance 
from men of science in making their investigations, when 
assured by them, that the principles of their science, appli- 
cable to a particular subject of enquiry, established certain 
results, even though the witness may not have seen or read 
of a case in all its particulars like that under consideration. 
Those results may often surprise, and, indeed, some of them 
are strange enough to, uninitiated minds. Yet, unless the 
rule be abrogated, they must be heard and left to be combat* 
ted before the jury by the better opinions of abler experts, or 
by the sound sense and observation of the jurors themselves. 
In fine, this matter went to the weight due to the opinions 
of the witness, rather than their competency — supposing 
that, in point of fact, he did deliver the opinions imputed to 
him in the argument, though not expressed in the excep- 
QDn. It must, therefore, be certified to the Superior Ck>urt, 
that there is no error. 

Per CuaiAM . Ordered to be certified accordingly. 



JUNE TERM, 1831. 167 



THE S'TATE Vi. EDMUND MARTIN. 

To eoBititate A capital felony in the case of stealing Ac, ftlATct, the tskiiif 
and conveying away of the slave must be from the potftsiion of the owner* 
The felony it not created by oar Statutes, when, before the taking or car- 
rying away, the owner has lost the poa«ession of the slare by the act of 
another, even though such act was procured to be done by the penoii 
chaig«d with felony, for a felonious purpose. 

Neither the act of 1779, Rey. Stat., ch. 34, sec. 10, nor the act of 184S-9, ch. 
35, coostitntes a felony in such a case. 

Hie oaae of the StaU y Hardin, 2 Dot. and Bat., 409, cited and approred. 

Appeal from the Superior Court of Law of Forsythe 
County, at the Sprinj^ Term, 1851, his Honor Judge Bai« 
LBY presiding. 

The prisoner was indicted for stealing a slave, Giles, the 
property of George W. Smith, and charged in fonrteen 
ooonts. The last seven counts were a repetition, with no 
naterii^l alteration, of the first seven. 

The first eonnt charged, that the prisoner, with force and 
anus, the said slave, the property, &c., "did steal and take 
and carry away against the form of the Statute," d^c. The 
aoeond count charged., that the prisoner, with force and 
armSi &€., the said slave, &c., ^ febniously, by violence, did 
take and carry away with an intention, the said slave to 
sail and dispose of to another, against the form of the Stat- 
ute, Ac." The third count charged, that the prisoner, with 
fbiee and arms, &c., the said slave, d&c, ^ feloniously, by 
violeoce, did take and carry away with an intention, the 
said slave to sell and dispose of to others, against the form 
of the Statute," &c« The fourth count charged, that the 
prisoner, with iotee and arms, the said slave, d^., " feloni* 
oDsIy, by seduction, did take and carry away with an inten* 
tkiDi the said slave to sell and dispose of to another, against 



1 



153 SUPREMK COURT. 



Stita V. Martin. 



the form of (be Statute," &c. The fifth count charged, that 
the prisoner, with force and arms, &c., the said slave, &c., 
*' feloniously, by seduction, did take and carry away with 
an intention, the said slave to sell and dispose of to others, 
against the form of the Statute," &c. The sixth count 
charged, that the prisoner, with force and arms, &c., the 
said slave, &c., '< feloniously, by violence, did take and car- 
ry away with an intention, the said slave to appropiiate to 

» his own use, against the form of the Statute," &c. The 

seventh count charged, that the prisoner, with force and 
arms, &c., the said slave, &c., " feloniously, by seduction, 
ttid take and carry away with an intention, the said slave 
to appropriate to his own use, against the form of the Stat- 
ute," &c. 
To this indictment the defendant pleaded not guilty. 
The first witness introduced by the State was Edward 
Booker, who stated that in the latter part of October or No-. 
Tember, 1850, he was passing on to the South, in company 
with his son Henry and another man, by the name of Null,: 

" with two loads of tobacco, which was the property of a gen- 

tleman in Stokes, by (he name of Hamlett: that they stoj^ 
ped for the night at a camping ground near the house of 

' the prisoner, in the county of Davidson : that a horse in the- 

team of Null was taken violently sick, insomuch that they 
oould not leave till the ensuing Monday : that the prisoneri 
during Saturday night and the next day, assisted in procu* 
ring and administering remedies for the relief of the sick 
horse : that, during the time they were attending to the 
horse, two or three drinks were given to the prisoner by 
the witness : that he told the witness that he <* liked his. 
looks," and expressed himself as much pleased with him, 
asked him if wagoning was not a slow business, and being 
toki ttiat it was, said he could put him into a business he 
could make money much faster, if he would be sworn ; (bat 
he had fine stock and could make him rich as Hairstoa ; 
the witness asked what sort of stock— if it was horses : Ih 



JUNG TERM, 1851. 159 



State V. Martin. 



said 00, they were worth from $600 to $1200 a piece, and| 
by being smart, witness could make five or six hundred 
dollars in a lew weeks : the witness told him he would like 
to get mto any other way of making money faster that was 
honest : that the prisoner did not fully disclose his business 
or his plans, but the witness inferred from what had been 
said, what that business was, and told the piisoner, that he 
was obliged then to go on to the South, and on his return, 
which would be in five or six weeks, he would call and see 
him again, and that during; his trip he would consider on 
it: that all the above conversation between him and the 
prisoner took place privately and not within the hearing of 
any other person ; and that, during a portion of if, the pris- 
oner was excited with liquor : that on Saturday of the first 
week in December following, he again came to the house of 
said prisoner on his way home, and remained there till 
Sunday evening: that the prisoner asked him what deter- 
mination had he come to, and, upon being informed by the 
witness, that he would go into it, the prisoner told him that 
he had several negroes out : that he could take the witness 
to them and show them to him: that they were at a dis- 
tance from home — he could not keep them near him for 
fear of being suspected : that there were a great many fox 
hunters around him, and he had been frequently tracked 
by their dogs, and been compelled to stnnd in water up to 
his waist for an hour at a time in cold weather, to escape : 
that he induced the negroes to believe he was going to send 
them to a free State : that he was interrupted in his inter- 
course with the prisoner, by a man by the name of Rains, 
who went there with him, who had a great deal of private 
conversation with the prisoner, and who, the prisoner in- 
formed, was also going to take ofi* negroes for him : that 
before leaving, the arrangement was made for the witness 
to return about Christmas and the prisoner would have a 
slave in readiness to go with him, which he was to take off 
and sell and divide the profits with the prisoner: that he 



160 SUPREME COURT. 



State 9. Martin. 



went back to the house of the prisoner on Thursdajr even- 
ing after Christmas, was informed by the prisoner that he 
could not (/et things ready before Saturday night, and their 
plans were thwarted by the presence oi another white man, 
who persisted in staying nil night, ahhough the prisoner 
nsed every effort to get him to leave ; on Sunday the wit- 
ness went off acrain into the neighborhood and remained 
absent until Simday evening, when he returned to the house 
of the prisoner; about one hour by sun he saw Jeff, at the 
prisoner's, the prisoner gave Jeff a dram and he went off; 
after he was gone, the prisoner told him he had sent Jeff 
after the qegro he was to let the witness have ; the witness 
went to bed, and between n^idnight and day he heard some 
person come into the kitchen-end of the house, where the 
prisoner and his family stayed, he, witness, being in the 
other end of the house by himself: that he heard the pris- 
oner and two others talking together; soon after the prison- 
er came to him with the negro, and said he was the one he 
was to take away, and his name was Giles : that be had 
liad him six or seven weeks : that he must get up and get 
ready and be off as soon as possible : that it was not long 
till day : never saw Jeff again after he left in the evening : 
the prisoner told him to get his hdrse and go on by 
himself to the end of Thompson's lane : thai there were too 
many wagoners camping near the house and that S wicegood^s 
doffs, by whose house they had to pass, were very bad, and 
he was afra d, if Giles went with witness, they would be 
interrupted or stopped : that he knew a bye- way, which was 
nearer, and he would lake Giles and meet him near the end 
of Thompson's lane: that after waiting for some time at or 
near the end of 'I'hompson's lane, about a mile from the 
prisoner's, the prisoner came with Giles, said he had been 
bothered by Swicegood's dogs: that he then delivered Giles 
to him and told him to be off— it was most dav, and must 
be timart ; had sent oH'two negroes before and had never 
beard from them again ; that he brought Giles to Salem, ex- 



JUNE TERM, lUl. 161 



State •. 



bibiled bim to Mr. Lash, aod finding that the jail of Fonytha 
was not completed, carried him to Germantown and lodged 
him in jail, and immediately sent word to Smith where his 
n^ro was : that in all the passed transaction he was acting 
bona fide for the purpose ot detecting the prisoner, and not 
for the purpose of co-operating with him : saw Smith in 
Salem afterwards with Giles, the same negro he had corn- 
mitted to )ail : that in a short lime witness returned to the 
house of the prisoner for the purpose of getting another 
slave ; was furnished by a friend, who was iu the secret 
with $400 spurious money and a fictitious note for $900 ; 
returned to prisoner's, paid him $300 and exhibited the notep 
cold him he had sold Giles for $700, and arrangements were 
immediately set on loot to carry ofi* another slave, that 
prisoner said was a blacksmith ; prisoner expressed himself 
well pleased with the result of the former trip ; that witness 
went to Mr. McDonald, who was a Magistrate in Davidson 
and disclosed to him what he had done and was then trying 
to effixt, and also carried a letter from other friends ; that 
he returned to the prisoner's on Sunday night, found bim in 
an ill humor*, prisoner chained his horse to the smokehouse^ 
told him he had deceived him, the money be bad paid bim 
was counterfeit, that be suspected he was about to betraj 
bim, that he would kill him that night, that be belonged to a 
Murrel clan and if he did not kill him some of the daa 
would, refused to let him have his horse ; another whit* 
man, who was known to the prisoner, was present, who also 
expressed himself, that the prisoner had been treated badly 
by witness : that witness, becoming alarmed, left and went 
to a house in the neighborhood, where he remained ali 
night : that be returned next day in company with one of 
the neighbors, sent for Mr. McDonald and had the pri#> 
oner arrested. The witness Booker also stated that he gave 
the prisoner spirituous liquors at each visit before they con* 
versed on the subject. 

21 



182 SUPREME COURT. 



State 9. Minis. 



Tbt Stale then called several witoessee to confirm Baker^ 
evidence, 

Wallis McDonald was then examined, who stated, that- 
Booker had related the whole affair to him at his house 
about four or five miles from the prisoner's ; and that he 
told the same cale, as deposed to on the trial, with the ex- 
ception that he stated, that the prisoner in the first conver- 
sation with him was drunk and on that occount he did not 
press him to disclose himself more fully and that upon hit 
Tecum from the South, he, Booker, first spoke to and 
arrested the prisoner on the subject : that Booker stated hie 
object was to detect Martin and get the reward, if any were 
-offered, for the negroes. He also stated, that Booker in this 
conversation told him, that the prisoner told him that Je£ 
had brought Giles to his house. 

The witness Richmond Swicegood testified, that be lived 
within three isundred yards of the prisonei's house : that ha 
saw Booker, who was a stranger Co him at the prisoner's 
house frequently, and on Saturday after Christmas saw the 
prisoner and Booker talking privately together several times: 
that believing that something wrong was going on, he de- 
lermined to watch the house on Saturday night, which waa 
very wet and rainy : that he slipped up near to the bouse 
and beard the prisoner endeavouring to get Wood awayt 
who was the man spoken of by Booker : that, after a failure 
to get Wood off, the prisoner went into the kitchen house 
with his wife and son Henry, leaving Booker and Wood ia 
the other house : that he approached the kitchen softly and 
ffot near a crack, when he could see and hear the inmates : 
that the prisoner, addressing himself to his son Henry said : 
•** I never told your mother 'till yesterday what Booker was 
staying here for ;" to which she replied : " I could not tell 
what in the name of God Booker was up to before :" that 
prisoner then said, he was not after tobacco ; that, by being 
smart he could make five or six hundred dollars in six or 
seven weeks ; it was a dangerous business, but he did not 



JUNE TERM, 1851. 163 

1^ I ■ ' ■ ■ ■■ ■ I . , 

State V. Martin. 

know any better tbey conld do; that his wife replied, she 
did not know that they conld : that the prisoner then said, 
" if I could just get to see him to^ni^ht it would all do yet; 
perhaps, it is better, if any harm should come ot it, that he's 
here. I'll wait 'till they all go to bed and then I can go and 
get back before day, and I can prove by him that I was here 
when he went to bed and when he got up in the morning.*^ 
The witness stated, that there was a good deal of other con- 
versation that he could not hear distinctly: that, being satis- 
fied that something was goin^on, he sent for one of hie 
neighbors that same night to consult what ^onld be done, 
who did not come till next morning: that Booker left the 
prisoner's next morning and he did not see him again during 
that visit 

' The State then called G. M. Smith, who proved, that he 
resided in the county of Davidson, about seven or eight 
miles from the prisoner's, who resided in the same county : 
that his slave Giles left his employment against his will and 
without his permission, on the22d day of November, 1850; 
and he found him in Germantown jail the 8th day of Janu** 
ary, 1851, and carried him home and sold him immediately : 
that on his way home from Germantown with Giles, he 
saw Booker in Salem, who also saw Giles with him. 

The prisoner's Coubsel, on being asked, before Hamlett 
and McDonald were examined, whether the witness, Book- 
er, was to be attacked, stated, that he should insist, that, if 
Booker was innocent, the prisoner was not guilty ; other- 
wise, Booker was a particeps, and in his testimony to be 
commented on before the jury as such. 

The Court was requested by the prisoner's Counsel to 
charge the jury as follows : 

1st That, if the jury believed from the evidence, that 
the negro Jeff brought the slave Giles to the prisoner's house 
for Booker, the prisoner was entitled to a verdict on the first 
seven counts, although he had gone for the negro at the x^ 
quest of the prisoner. 



1C4 8VPRBMB COURT; 



SUto V. Martin. 



2d» Thar, if enlided to a verdict on the first seven counts, ^ 
as the last seven counts conclude against the Statutesi the 
prisoner was also entitled to a verdict on them. 

3d. That, taking the whole evidenoe to be true, the prisr 
oner in law should be acquiued. 

4th. That, as the slave Giles ranaway on the 22d of No- 
vember, if the witness, Booker, on his return from the Soulhi 
staid with the prisoner, gave him spirits, and renewed the 
subject to induce and ensnare the prisoner, acted throughout 
for the purpose on his part of catching a runaway slave 
through the agency of the prisoner, made drunk and insid- 
iously led on by him, Booker was the principal and tiie 
prisoner only an accessory to his, Booker's, operations, al- 
though from the effects of the liquor and the false promises 
of Booker, he carried the slave as and for the purpose dis- 
posed to. 

5tb. That, if Booker was not guilty, the prisoner was 
not 

This the Court declined; but charged thejury asfol< 
lows: 

That the prisoner was indicted under two acts of the 
General Assembly — the one passed in the year 1779 and the 
other in the year 1848. 

The stealing a slave (as well as the taking away and con- 
veying away by violence or seduction with the intents men- 
tioned) was embraced in both acts : That the only alteration, 
made as to the stealing of slaves, was depriving the felon of 
his clergy : That the taking and conveying away any slave 
or slaves, the property of another or others, by violence or 
seduction, with the intent to sell or dispose of to another or 
with the intent to appropriate to the taker's use, was a ielo- 
oy created by the act of 1778 : that it was nol.a felony be- 
fore at common law, but was made so by this act of the Oen* 
eral Assembly ; and that the privilege of clergy was taken 
away for these new oflfences, as well as the old one of steal- 
ui|f : Tliai a construction had been put upon this act of 1779 



JUNE TERM, 18S1. I6S 

State V. Mtriin. 

by the Supreme Court : that the Court had decided, that, to 
constitute the ofiences created by the act, there must not on- 
ly be a taking, but a conveyinir away the slave of another 
with the intent mentioned ; that the caption alone was not 
sufficient, nor was the conveying away alone sufficieiit, but 
to convict one, as a principal, he must not only take but 
convey away also : that, to cure tlii^ defect in the law, the 
act of 184S was passed, which enacted : ^'That any person 
or persons, who shall steal, or shall hy violence, seduction 
or any other means, either take or convey away any slave 
or slaves, the property of another or others, with an inten- 
tion to sell of dispose of to another or others, or to appropri- 
ate to his or their own use such slave or slaves, and be theiv- 
of legally convicted, shall be adjugded guilty of felony and 
shell suffer death without benefit of clergy." That, under 
this last act, the crime would be complete by either taking 
a slave or conveying away a slave, the property of another, 
with an intention of selling or appropriating to the taker's 
use : that either the taking or the conveying away with the 
intention would be sufficient. 

The Court further instructed the jury, that they were to 
find the facts ; and the prisoner was to be tried as if he were 
a white man : that they were not to suffer their minds to be 
influeDced either by sympathy for or prejudice against the 
prisoner : that they were to divest themselves of all prejudice 
on aecount of his color, and try the case as they would 
others, according to law and the testimony : That, if they 
were satisfied from the testimony of the witness Booker 
that, when he was on his way to the South, the prisoner ac 
the bar proposed to steal or take by seduction a slave or 
slaves, the property of another or others, for the purpose of 
aeUiog : that on his return home the same proposition was 
made by the prisoner, and the witness acceded to this pro- 
poiilion, and agreed, that he wef^ld carry away the slaves 
wiNeh the prisoner mi^t steiu ^r could take by violence 



or seduction or other meaiiS) and sell the same and divide 



; 



lee SUPREMK COURT. 



8teie V. Matin. 



the profits between them, nnd, in pitrsnance of this BgTB&- 
ment, the witness Booker went to the prisoner's hoase at 
the time mentioned by him, nnd the prisoner stole Giles, 
the property of George M. Smith, or tooir him by violence 
or seduction against the will of the owner, and did this 
either by his own hand, or through nej^ro Jeff, or any other 
person ; or if they should be satisfied, that the prisoner did 
not take the slave Giles by his own hand, nor was Giles 
induced to come by a message sent by Jeff or another, the 
said Jeff, or the other acting as the agent of the prisoner^ 
biit the slave Giles was stolen or was by vio!ence or eedoe* 
tion taken by Jeff or another person against the will of the 
owner and brought to the prisoner, and the prisoner reoeiv« 
ed the said Giles and carried him from his house to the plaee 
mentioned in the county of Davidson and there delivered 
him to the witness, in pursuance of the agreement entered 
into between them, that the said slave should be sold and the 
proceeds divided between them, that the prisoner would be 
guilty and the jury should so find : and that this was the lawr 
although they might be satisfied, that Giles was a runaway, 
and although the witness did not intend to act in good faith 
towards the prisoner, but intended to deceive him, having 
no intention to sell the slave, but to entrap the prisoner, wit^t 
a hope that he might obtain such a reward as the ma^er 
might have offered for his runaway slave : thnt, if he had 
no hand in the actual taking of Giles, but, merely persuad- 
ed, commanded, or hired n^ro Jeff., and that negro Jeff* 
took him &Cj Giles being runaway at the time, and brought 
him to the prisoner, which woald only make the* prisoner 
an accessory before the fact at common law, and the prison- 
er only conveyed him from his hotise to the place mention* 
ed, he would be guilty under the act of 1848, if this wa» 
done against the will of the owner, and with the intention 
that the slave should be sold and the proceeds divided be* 
tween them, although the witness did this for the purpose 
of a reward, which the owner might hate offered for hie 



JUNK TERM, 1S»1. H7 

ranaway tiave : that U was the provinee of Ihe jury lo de- 
cermine upon the credibility of the wiioesses : that it was 
insisted by the prisoner, that Booker was not worthy of 
credit : that there were many ways, by which a witness 
might be discredited : that it was insisted that his deport- • 
raent upon the trial was bad : that he was ready to answer- 
for the State and reluctant to answer for the accused : that 
he had contradicted himself: that his story was*iroprobaUe 
and unsatisfactory : and that he had been contradicted by 
McDonald and Hamlett in parts of his evidence that were 
material to the issue ; that he had sworn falsely, and that 
the jury could not place entire confidence in his statement** 
These views taken by the prisoner's counsel were submit- 
ted to the jury for their consideration. The Court informed 
them, that they were to judge of the facts : that it was pro* 
per for them to look at the deportment of the witness Book* 
Vi while under examination ; had he answered readily for. 
the State and with reluctance for the prisoner? had he either 
suppressed the truth or snggrested a falsehood ? had he con- 
tradicted himself? or had he been contradicted by others? 
all these matters should be deliberately weighed by the 
jury: that, if Booker was not believed by them, they could 
not convict : that it was a nile of law, if the witness was 
false in one thing, he was in all: that, if they should be 
satisfied, that Booker had sworn falsely and corruptly in 
one thing mentioned in the issue, they should reject the 
whole €^ his evidence and acquit ; or if they should, from 
cbe whole of the evidence, have a reasonable doubt of the 
prisoner's guilt, they should return a verdict of not guilty.- 
The jury found the prisoner guilty. * 

Rule on the State for a new trial overruled. Judgmen t| 
and appeal to tfie Supreme Court. 

Aiiamey Q0iural^ for the State. 
& W. Afatfer, for the defendant. 



169 SUPREMK COURT. 



afui« 9. Martin. 



Pba K80N, J. Ill ^'Hardin's com," 2 Dev. and BhU 407, it 
is decided, tliut ttu) taking and conveying away ot the slave 
loust be from the possession of the owner. The point oa 
which the case turned, was not whether taking from tlie 
possession of the owner, or "conveying^' away from his pos- 
session, amounted to iho siime thing (about which learned 
loen would scarcely differ ;) but whether the Statute, be- 
sides having the effect of making it a felony to convey away 
a slave from the possession of the owner, could, by a proper 
ooustructtoii, be made to have the further effect of creatinjc 
a new and distinct felony, where the slave was conveyed 
away from the possession of one, who had previously, by 
stealing, violence, or seduction, or otherwise, dispossessed 
the owtier, so that this new felony was not to involve an ia- 
jnry to the possession of the owner 7 That was the poittl. 
The Court held, that the creation of a new felony, simply 
by the use of the word, *'or," in a very awkward connectiooY 
could not be justified by any sound rule of construction, and 
that, if the intention of the legislature had been to make those 
who committed a subsequent asportation, after the owner 
had lost his possession, guilty as principal felons, " this inten- 
tion would have been explicitly expressed in termsmore ap- 
propriateand less equivocal, by the use of the words, proctir- 
ersy or receivers, or some terms, by which they wereezpiic* 
itly embraced, as had been done in analagous cases.'* 

The oct of 1848, which is now before us for construction, 
professes to be explanatory of the act of 1779 ; and the whole 
explanation consists in using the word, "et/Aer," before ^ake 
or convey away." This does not obviate the diOkulty in 
the slightest degree. 'We are satisfied, that the draftsman 
of the act did not understand the point in ^^HardUCs case^ 
otherwise he would not have supposed, that the word, " eith- 
er,^ superadded, could explain and show, that the legislature 
meant to create a new offence, so as to punish with death^ 
not only a conveying away a slave from the possession of ' 
the owner, but (he procuring him to be so conveyed away 



iUHR TERM, ItM. 189 

State V. Martin. 

' II— m ill 

or receiving him from one, who had before taken or convey- 
ed him away, so the ofience would be the receiving and cap- 
iog away a slave from the possession of one, who had c^ii- 
possessed the owner ^ and, by the usual analogies of the crimi« 
nal law, made himself the principal felon, the receiver be- 
ing an accessory after the fact. 

This misconstruction of the draftsman, we suppose, origi- 
nated, in his confining his attention to the doubt ezpressedi 
as to whether the words, *<take or convey away," "do not re- 
quire the interpretation, that eUher constitutes the oflfonca 
within the meaning of the legislature." If he had takei « 
more comprehensive view of the subject, he would have 
seen, that the majority of the Court arrive at the conclusion 
that eUher does not constitute the offence ; and that it was 
necessary in express and unequivocal terms to say, whether 
it was the intention of the legislature to make it a felony to 
convey away a slave from the possession of one, who had 
before taken him from the possession of the owner, and to 
put a receiver or procurer on the footing, not of an accessory 
but of a principal felon. 

As the decision in Hardin^s case was acquiesced in, and 
the reasoning is not met by the word ''either," introduced 
into the act of 1848, for it, in this connection, in fact, means 
the same thing as the word " or," we do not feel at liberty 
to depart from the construction adopted in HardMs ecus, 
especially in a matter of life and death, where there has « 
been a distinct announcement, that this Court cannot give 
to a statute the effect of creating a new felony, unless the 
intention of the law-makers is expressed in plain and une* 
quivocal terms ofenacimeni. 

There should be a venire de novo. 

Per Curiam.* Ordered to be certified accordingly. 



22 



170 SeFREHE COVRT. 



ELIZABETH WALTERS vs. CLEMENT HL JORDAN. 

'A widow it not Imrrad of her right'^to her year*! provision, under (Mr Statoto* 
Rev. StMi. ch. 131, Mc 18, by Mr adaltery Ao., •■ she is of her dower by 
' the Rev. fitat ch. ISl, see. 11. 

: 'Appeal from the Superior Court of Law df Penoii Gmui* 
tji^ <li8 Spring Term 1661, his Honor Judge Bailv 
pvesidKng. 

This i» a petieioa by a widow for a year's allowance otH 
•ofihe personal estate of her late husband Hardy WaU«8| 
wko died intestate. It came on upon appeal in the Superior 
Court, and the parties agreed upon the following facts. The 
intestate seduced the petitioner and lived io adultery with 
her and then married her. After the marriage and while 
they were living together, the petitioner-^he and her hiis» 
band being white persons — had erimraal cdnversation with 
a negro man, by whom she became pregnant. The hus- 
band discovered it and ordered the petitioner to leave his 
house. She did so accordingly, and by hisipermission lived 
in another house on his premises, where she was delivered 
of « mulatto child. The husband did not 'receive her into 
his family again, nor treat her as his wife/further than to 
attew her to live in the said house and to maintain her there 
until his death ; which happened soon after the birth of the 
child. It was submitted thereon to the Cotiit, whether the 
petitioner was entitled to a year's support or ^not Ifis Honor 
was of opinion, that ^he was, and so ordei^ ; but allowed 
the administrator an appeal. 

Norwood^ for the plaintiff. 

E. O, Readcj fpr the defendant. 






JUNE TERMv ISei. 171 



Wakan «. Joidtii. 



ItuFFHf , C. J. The Stat. 1 8 Ed. I, Un^a wife of dower 
itt her husband's lands, if she willingly leave her fausbMid 
and go a way, and continue with her adulterer, unlesa. the 
husband should become reconciled to her and sufier her lo 
dwell with him, Rev. Stat. ch. 121, sec. 11. The counsel 
for the defendant admits this case not to becova^ in terms 
by that Statute, as it is restricted to dower, and personalty 
is not in its purview. But it was supposed, that the IStfi 
sectionof our act, which gives the widow the right toa jreai's 
provision, does, by the use of the words ^"such widow,''^aUend 
the 11th section to this case and exclude from such support 
a widow before excluded from dower. Clearly that is not 
so. The 17th and 18th sections of the Revised Statutes are 
taken literally from an act of 1796, which is confined to 
making provision for the immediate support of the widow 
and family of ani intestate out of the crop, stock and provi- 
sbns on hand. The first sectioniof it enacted, that until 
the next Court the widow might take possession of the per- 
sonal estate and use as much of those articles as might be 
necessary for herself and family ;: and the second sectiou 
enacted, that "such widow" might at Court petition for an 
allotment of the crop, stock, and provisions for the further 
support of the widow and family for a year. It is apparent 
that the words "euch widow" in the second section of the 
act of 1796 refers to the widow mentioned in the preceding 
section — ^that is, the widow of an intestate, leaving those 
articles of personal estate^ It has. the same reference in the 
tSth section of the Revised Statutes to the. 17th section, and 
exactly the same sense. For, it cannot be supposed that 
the words of those parts of the Revised Statute are to have 
a different meaning from that in which the same words were 
used in the original act of 1796. Therefore that phrase 
^ such widow" in the 18th section has no relation to the 
provision, in the 11th section, barring an adulteress of dow- 
er. But^ if it had, it would make no difference here, because, 
in truth, this petitioner is not excluded from.dower under. 



n» 8VPRBMB COURT. 



Sttte 9. WillianM. 



that section. She did not leave her husband willingly , in 
the sense of the act, that is, of her own accord ; but she 
went away by the husband's orders, which she was obliged 
to obey. Besides, she did not " go away and continue with 
her adulterer;" whom, as far as appears, she never saw after 
her husband forced her to live separately from him. What- 
ever cause this woman may have given her husband for 
taking steps to have the marriage dissolved, and thereby 
protect his estate from her claims, it is sufficient for this 
case, that he did no such thing, but did leave her his widow 
and under no bar to her claims, as such, on his property. 

PsK Curiam. Judgment affirmed. 



THE STATE vt. THOMAS H. WILLIAMS A AU 

Where a pnblie law impoaee a public duty, the omiauon to perform t)ie daty 
if indictable ; bat, if it ia not ao abeolate duty, but a conditiooal one. depen- 
dent upon the honest exercise of the judgment of the peraon or penons, to 
whom it is submitied, whether it is to be performed or not, the omission to 
perform it, perte, is not an indictable offesce. 

Thus, where an indictment charged that the Wardens of the Poor had omit- 
ted to make by laws, rules and regulations for the comfort of the poor, 
under the act, Rev. Stat ch. 89, sec. 13, Held that the indictment would 
not lie, because the duty, imposed upon the wardens by that act, was a dis- 
cretionary one, to be exercised as they might deem e^kpedient. 

' Appeal from the Superior Court of Law of New Hanover 
County, at the Spring Term 1851, his Hontr Judge Manly 
presiding. 



JUNE TERM, 1851. 173 



State 0. Williami. 

The defendants are indicted for nn omission ot duty, as 
wardens of the poor of New Hanover Comity ; nnd the cnse 
comes here upon a motion in arrest of judgnicnt. The in* 
dictinent is as follows : 

^^ SlcUe of North Carolina, ) Court of Ptons nnd Quarter 
New Hanover County, V Sessions. Dec'r. Term, ISilO. 

''The jurors for the State upon their oath, present, that 
there were on the first doy of March, in tiie year of our 
Lord, One Thousand Eight Hundred and Fifty, nnd yet 
are, in the County of New Hniiovcr, a certain poor house 
and other out buildings, erected for the maintenance and 
support of the poor of said county : in which said poor . 
liou^e there were on the first day of March, and yet arc, 
divers poor persons and sick niid disabled persons residiuf*, 
inhabiting and beinu; : and that Thomas 11. Williams, Dan- 
iel McAllister, Albert G. Hall, Wm. Henry, Kobt. H. How- 
ard, Bernard Baxter, and AJichnel Register, nil late of the 
said county of New Hanover, were, on the said first day of 
March, in the year aforesaid, duly cUx^ted Wardens of the 
Poor for the county of New Hanover: and they, the said 
Thomas H. Williams, Daniel McAllister, Albert G. Hall, 
"Wm. Henry, Robt. J. Howard, Bernard Baxter, and Michael 
Register, did, on the said first day of March, in the year 
aforesaid, take upon themselves the said office of Wardens 
of the Poor for the county of New Hanover, and, as such, 
were bound by law annually to let out to the lowest bidder 
the said Poor House, and the said poor persons in the coun- 
ty of New Hanover, or to employ some fit nnd suitable per- 
son as overseer to superintend said Poor House, and provide 
for the comfort of the poor persons in the said Poor Housci 
residing, inhabiting nnd being : and the said Thomas H. 
Williams, Daniel McAllister, Albert G. Hail, Wm. Henry, 
Kobt. J. Howard, Bernard Baxter, and Michael Register, 
did, on the said first day of March, in the year of Our Lord 
One Thousand Eight Hundred andFilty, unlawfuilly omit 
and neglect, and yet do unlawfully ^init and ne((leci to ap* 
point some fit and suitable person as overseei, to superin- 
tend said Poor House nnd |)rovide for the comfort of the 
poor persons in said Poor House, inhabiting, residing and 
being, as they were bound by law to do, to the great dam- 
age and nuisance of all the good citizens of the i^tuic, cou* 



1 



174 SUPREME COURT. 



SMto •. WiUiuM. 

trary to the form of the Statute in such caaes made and pro- 
videdi and against the peace and dignity of the State 

*' And the jurors aforesaid, upon their oath aforesaid, do 
further present, chat there were on the said first day of 
March, in the year aforesaid, and yet are, in the county of 
New Hanover aforesaid, a certain Poor House and other 
out buildings erected for the maintenance and snpport of 
the poor of said county, in which said Poor House there 
were on the first day of March, and yet are, divers poor 
persons and sick and disabled persons residing, inhabiting 
and beini;: and that the-said Thomas H. Williams, Daniel 
McAllister, Albert G. Hall, Wm. Henry, Robf. J. Howard, 
Bernard Baxter, and Michael Register,' late of the county 
of New Hanover aforesaid, were, on the first day of March, 
in the year aforesaid, duly elected Wardens of the Poor for 
the county of New Hanover : and they, the said Thomas 
H. Williams, Daniel McAllister, Albert G. Hall, William 
Henry, Robert J. Howard, Bernard Baxter, and Michael 
Register, did, on the said first day of March, in the year 
aforesaid, take upon themselves the office of Wardens of the 
Poor for the county of New Hanover, and, as such, were 
bound by law to orduin bye-laws, rules and regulations for 
the government of the said Poor House, and of the poor 
persons in the said Poor House, inhabiting, residing and 
being : and the said Thomas H. Williams, Daniel McAllis- 
ter, Albert G. Hall, William Henry, Robert J. Howard, Ber- 
nard Baxter, and Michael Register, did, on the said first 
day of March, in the year aforesaid, unlawiully omit and 
neglect to ordain bye-laws, rules and regulations for the 
government of the said Poor House, and of the poor persons 
in the said Poor House, inhabiting, residing, and being, as 
they were required by law to do, to the great damage and 
common nuisance of all the good citizens of the Stale, con- 
trary to the form of the Statute in such case made and pro- 
vided, and agaainst the peace and dignity of the State. 

"And the jurors aforesaid, upon their oath aforesaid, do 
further present, that there were on the said first day of 
March, in the year aforesaid, and yet are, in the county of 
New Hanover, aforesaid, a certain Poor House and other 
out buildings erected for the maintenance and support of 
the poor of said county ; in which said Poor Hpnse, there 
were on said first day of March, and yet are, divers poor 
persons and sick and disabled persous residing, iohabitingi. 



JUNE TERM, 1851. 173 

' Suto 9. William^ 

and being : and that the said Thomas H. Williams^ Daniel 
McAllister, Albert G. Hall, William Henry, Robert J. How- 
ard, Bernard Baxter, and Michael Register, late of the coan- 
ty aforesaid, were, on the said first day of March, in the 
year aforesaid, duly elected Wardens of the Poor for the 
eoimty aforesaid : and they, the said Thomas H. Williams, 
Daniel McAllister, Albert G. Hall, William Henry, Robert 
J. Howard, Bernard Baxter, and Michael Register, did, on 
the said first day of March, in the year aforesaid, take upon 
themselves the office of Wardens of the Poor for the county 
aforesaid, and as such, were bound by law to do all such 
matters and things as were expedient for the promotion of 
the comfort of the said poor persons in the said poor bonso 
residing, inhabitinjTi and beinjf : and the said Thomas H, 
Williams, Daniel McAllister, Albert G. Hill, William Hen- 
ry, Robert J. Howard, Bernard, Baxter, and Michael Regis- 
ter, did, on the said firsc day of March, in the year afore- 
sakl, unlawfully omit and nes^lect to do all such matters 
and things as are expedient, for the promotion of the com- 
fort of the poor persons then and there in the said poor 
h^use, inhabiting, residing, and being, who were, on the said 
first day of March, in the year aforesaid, and yet are, utterly 
neglected and unattended to, to the great damage and com- 
mon ou sance of all the good citizens of the State, contrary 
to the form of the Statute, in stich case made and provided, 
and against the peace and dignity of the State.*' 

This indictment was found in the County Court, and up- 
on the trial, the jury acquitted the defendants upon the first 
and third counts, and convicted them upon the second. 
Upon argument the judgment was arrested and the State 
appealed to the Superior Court, where the judgment of the 
County Court was affirmed ; and the State again appealed 
to the Supreme Court. 

AUomey General^ for the State. 
Jredelli for the defendants. 

Nash, J. The only question is, as to the legal sufficiency 
ml the second count. That count sets forth," that there wei% 



170 SUPREMK COURT. 



»uiie p. Willi&nm. 



on the first day of Marcli 1850, and yet are, in the County 
of New Hanover a certain Poor House ond other outbuild- 
ings (kc, and that the said (setting forth the nam^ of the de- 
fendants) on the said first day of March aforesaid wefe duly 
elected Wardens of the Poor &c. ," and that the said &c.t 
<' did take upon themselves the office &c. and as such were 
bound by law to ordain by-laws, rules and regulations for 
the government of the Poor House and of the poor persons 
in said Poor House iiihahiiing &c." The omission is set 
forth as follows : ^^and the said (setting forth the names of 
defendants) did unlawfully omit and neglect, and yet do 
unlawfully omit and neglect to ordain by-laws, rules and 
regulations for the ;^overnment of the saidToor House Ac." 
In looking into the act, inider.which this indictment is fram- 
ed, Kev. Star, ch.- 87, sec. 13, we find, that the Wardens 
ot the Poor are directed '' aninially to let out to the lowest 
bidder the said Poor Houi^es and the poor of their respective 
Counties, or sliall employ some person or overseer to super- 
intend the business as to them may seem best ;" The sec- 
tion concludes, **and the wardens shall have^full power and 
authority to ordain by-laws, rules and regulations and do 
all such matters and things as they may deem expedient for 
the comfort of the poor.'' The indictment sets forth that, 
before the appointment of these defendants or overseers of 
the Poor House, it had existed ; and we must suppose, that 
Wardens of the Poor had been in office. If so, it was their 
duty to have passed such by laws, as the interest of the poor 
inhabiting or to inhabit the Poor House might require. If 
such was the case, no obligations rested on these defendants 
to enact other laws, any farther than they may have found 
those already in existence to be defective and unsufficient. 
Here, the charge is that they passed no laws, neglected to 
discharge a duty imposed on them by their offic^. This 
duly was imposed sub morfo— subject to their judgment and 
discretion. The coimt then is defective, in not averring, 
that no by-laws, rules and regulations for the government 



JUNG TERM, ISil. 177 



State «. Willianw. 

% 

of the poor house existed at the time these defendants were 
elected, non constat^ that such by-laws d&c. were not in ex- 
istence, made by some preceding board. Throughout the 
section of the act of 1836, we are considering, the duties 
enumerated are submitted to the discretion of the wardens — 
chey are to hire out the poor house and the poor, or to re- 
tain them in their hands and employ an overseer, " as t6 
them may seem best," and only in the latter case does the 
duty arise to adopt by-laws &c., and such by-laws &c. only 
are to be made by them << as they may deem expedient.'' A 
second reason, why the second count cannot be sustained, 
is, that the indictment does not aver, that the defendants 
did keep the poor house and the poor under their own maa- 
agement and control. It may be, that they did not let them 
out as the act permits. A third is, that by law the duty set 
forth in the second count is a discretionary one, that is, to 
be performed according as, in the judgment of the wardent, 
il might be necessary. When a public law imposes a public 
duty upon a single person or a number of persons, the omission 
to perform the duty is indictable, but if it is not an absoluttt 
doty, but a conditional one, dependent upon the honest ex- 
ercise of the judgment of the body, to whom it is intrusted 
whether it is to be performed or not, the omission to perform 
it, per ^e, is not an indictable offence. 

PfiB Curiam. Ordered to be certified accordingly. 



S3 



178 SUPREME COURT. 



^HE STATE V. REUBEN COHOON. 

'Qae» who votes illegally at an eleetioii of iheriffy eannot doted hinwlf ogltet 
an indictment, upon the ground that the electioo waa conducted irregnlarly. 

The Oounty Court, a majority of the tctiog justicea being present, is the tii^ 
buna! to decide all contested elections of Sherififa ; and the validity of -te 

. eleolipo or any allaged irregularities can only be objected to in a dtreot {■•• 
reading bafore that tribunal. 

Al^peal from the Superior 'Court of Law of Tyrrell Couii- 
'ly, at the Spring Term 1851, bis Honor Judge Dick pre- 
aiding. 

This was an indictment against the defendant for ill^al 
^voting. The-^case was as follows : 

It was proved, on the trial, that an election for Sheriflfo^ 
Tyrrell County was held in saidCrounty on the; first Thurs- 
'day of August A. D. 1851: That polls for that purpose were 
opened at a place, known as the Gum Neck precinct, in said 
C^mH^i under the superintendance of inspectors, duly ap- 
poipt^d by the County Court of said county, at the term 
'thereof next preceding said election: That the defendant 
appeared at the said precinct and voted in said election for 
sheriff, and was registered in the list of voters4n the returns 
of the election at the preoinct, which returns, duly certifiedi 
were made by^the inspectors to the County Court Clerk, as 
required by law, and filed among the records of his office: 
-It further appeared that the defendant had never paid any 
public tax, previous to his giving said vote. 

It was shown by. the defendant, that the inspectors at 
said poll were not sworn by* the sheriff or any other person: 
That in the year 1837 and tor several years before and after 
that date, the place in Gum Neck, where the elections^ were 
held, was about two miles distant from ihe place where the 



JtJNE TBRHv 1651. 17^»' 



State V. Cohooo. 



election was held in August last, though both these places 
were within the locality, known as Gum Neck, by which 
name^this precinct was known and called ; but that for about 
four jrears past the elections have been only held at the 
place, where the said elections were held in August last. 
There was no further evidence, that any chan$^ in the placie 
of holding elections in said precinct was made by the C6un- 
ty Court' aforesaid. 

It was contended by the defendant's Connsel, that the 
election was not held at the place required by law ; for wbicb 
reason, as well as because the. inspectors were not sworn^ 
the election was illegal, and the defendants could not be 
convicted. 

His Honor charged the jury, that the alleged irregulari- 
ties did not invalidate the election so far as this case was 
concerned ;. and, that, if the jury believed from the evidence 
thai the defendant voted in thesaid election, and had never 
previously thereto paid any public tax, both which-it wa» 
incumbent on the State to show, that the defendant wonld: 
be gniliy. 

The jury found the defendant guilty. Motion for a new 
trial for misdirection; motion over-ruled. Judgment against 
the defendant, from which he appealed to the Supreme 
Court. 

Attorney Crenero/, for the State. 
Beaihj for the defendant. 

Peajison, J. We concur wiUi his Honor, that the alleg- 
ed irregularities in the manner of holding the election did: 
not invalidate it, so far as this case was concerned. 

The returns, duly certified, were made by the inspecton 
td the Clerk of the County Court, and filed among the re- 
eords of his office, as required by law. 

The County Court, a majority of the acting justices be- 
ing present,, is the tribunal to. decide all cont^ted elections^ 



J 






180 SVPRBMB COURT. 

■ ^ ■ . , 

Kluge V. Laehenonr. 

*!■ I i _ _ ■ ■ ■ ' ■ ' 

ofsheriflb. The validity of the election or any alleged ir-, 
regularities can only be objected to in a direct proceeding 
before that tribunal, and cannot be drawn in question in a 
collateral manner, as was attempted in this case. 

Per Curiam. Ordered to be certified accordingly. 



DOB ON DEMISE OF CHARLES F. KLUGE v. PHILIP LACH- 

ENOUR. 

When then b a iBtse.. of a house, and a penon lives in it by an anignment 

•rwdartaking Itdid ibe lenoo, or by her liceoie merely and at her will, ho 

ii oonclnded from questioning the leosor's tiUe ; for he came in under him, 

. and cannot withhold the poweafion, when the term has expired or been 

legaUy surrendered. 

Appeal from the Superior Court of Law of Forsythe 
Coonty, at the Spring Term 1851, his Honor Judge Bailey 
pnsidingc 

This was an action of ejectment. The premises consist- 
«d of a house and garden in the Town of Salem. The de- 
mise was laid on the 1st of January 1850 ; and upon the 
trial, the case was this : Benigna Boner leased the premises 
from one Tan Vleck for one year, commencing on the 30th 
of April 1837 ; and she continued to hold as tenant from 
year to year under him until 1844, and thereafter, she held 
in like manner under the lessor of the plaintiff, who claim- 
ed Van VIeck's estate. ^ She paid the rent on the 30th of 
April in each year up to 1849 inclusive. On the first day of 



JUNE TERM, 18?1. 181 



Klnge 9. Lnchenour. 



November 1849, she came to an ngrreemeiU with the lessor 
of the plaintiff to pa^ the rent up to that day and surrender 
the term, and this was accordingly done. At some time 
while Mrs, Boner lived on the premises, the defendant, by 
her permission, lived in one part of the house and she in 
the other; there being two apartments in the house, with 
a door between them, which v/as sometimes kept open and 
sometimes closed. When the defendant went there does 
not appear, further than that he was there in May 1849. 
After Mrs. Boner went away, the defendant occupied all the 
premises, and i*e fused to give tliem up on the demand of 
the lessor of the plaintiff, who then brought this action. 

Thexlefendant moved the Court to instruct the jury, that 
the plaintiff bad not shewn a title in his lessor, and could 
not recover. But the Court held, that, if the defendant eu- 
tered by the permission of Mrs. Boner, he was estopped to 
deny the title of her landlord. The defendant then insisted 
that| if thus treated as a tenant, he was entitled to occupy 
until the 30th of April, 1850, and therefore, the action would 
uot lie. The Court thereon instructed the jury, that, if Mrs. 
Boner assigned her lease, or the residue of the term, to April 
30th, 1860, to the defendant, before her surrender, to the 
lessor of the plaintifl, then the plaintiff could not recover. 
But, if the defendant did not purchase the residue of the 
term, but was permitted by Mrs. Boner to stay in the bouse 
at her pleasure, while she occupied it, then her surrender of 
the premises to the landlord, and leaving them, gave him 
the immediate right to the possession, and entitled him to 
bring this action, upon the defendant's refusal to go out» 
when required. 

Yerdict and judgment for the plaintiff and appeal. 

Mendenhall and /. T. Morehead^ for the plaintift 
H. W. Miller^ for the defendant. 



182 SUPREME COURT. 

Klvfe V. Lachenonr. 

RuFPiN, C. J. Whether the defendant lived in the house 
by an assignment or underletting from the lessee, or hj her 
license merely and at her will, he was equally precluded 
from questioning the lessor's title ; for he came in under 
him, and cannot withhold the possession, when the term 
has expired or been legally surrendered. 

It was competent to the defendant to shew, that the sup- 
posed snriender was ineffectual, as the original tenant, be- 
fore the alleged surrender, had utiderlet a part of the prem- 
aes, or assigned the whole of them to him. But as that 
could only be by contract with her and was peculiarly 
within the defendant's knowledge, the enns of establishing 
the agreement was on htm. Instead of doing so clearly, 
there was qo evidence of any snch ' agreement. It did not 
appear, that the defendant paid or undertook to pay any 
rent or priee, or even that the apartments were occupied as 
distinct tenements, or that the defendant had a ffimily living 
with him» or carried on any separate business, or, in fine, 
that thew was any thing to shew, that those two persons 
did not live together in the house as hers, with a free com- 
munication between the two rooms. The Court might, 
therefore^ have properly told the jury, that there was na 
evidence of a title in the defendant to any part of tb6 term. 
But the Court gave him the benefit of that hypothesis by 
submitting the question of fact to the jury, and they found 
it against the defendant,, which certainly dispose of the- 
ease. 

Per Cveiah. Judginent aftxmad.. 



JUNfi T(;RM, 18il. 189 



HEMAN IL ROBINSON w. JOSHUA BRYAN k AL. 

W|iere| in an •fi|»««l bond given by tba defeadant, the plaintiff's name ia 
omitted, although the Court at the fi»t term would diamiai the ap|ieal nn« 
len the defendant gave a sufficieiit bond, yet they will not do so «a a mat- 
ter •fconne, when aeveral temm have elapoed. 

The eaaea otMeD9»tU t Bndi^y, 8 Ire. 99, WMf t Cor&tf, 4 Ire. 45, 
and Arriagian r SwUth, 4 Ire. 59> cited and approred. 

Appeal from the Superior Court of Law of Bladen Coun- 
tyi alt the Spring Term, 1851, bis Honor Judge Hanlt 
presiding. 

The suit began in the County Court and was there tried 
on issues, and the plaintiff had a verdict and judgment in 
February 1849. The defendant appealed, and in filling 
up the appeal bond the name of the plaintiff, as the obligee, 
was omitted by the Clerk. The defendant filed the tran- 
script in the Superior Court before the next term, which 
was in April 1849, and each party summoned witnesses 
and the suit pended until April term 1851 ; and then the 
plaintiff moved to dismiss the appeal for the defect in the 
bond. The Court allowed the motion, and the defendant 
appealed. 

TV. Winslow^ for the plaintiff. 
Strange^ for the defendant. 

RuFFiN, C. J. If the motion had been made at the first 
term it would have been proper to allow it, unless the de- 
fendant had then ofiered to give ' a sufficient bond. Mc- 
D&mM V. BradUfj 8 Ire. 92. So, if the defendants were not 
of substance to answer the plaintiff's recovery made and 
the <osts, the Court might have laid them under a rule to 



184 SUPREME COURT. 



«•• w ■ » 



.McAllM«*r V. McAllister. 



give a proper bond, which would secure the plaintiff. There 
was no suggestion of that kind, but the plaintiff insisted 
peremptorily, that the Court should not entertain the op- 
peal, by reason, merely, that an appeal bond had not been 
duly given. Now the omission to make that motion, for two 
years af(er the case was in the Superior Court for trial, is, 
according to the established practice, such laches as de- 
prives the appellee ol the right to make it at all. Wallace 
V. Corbtt 4 li-e. 45 ; Arringlon v« SmUhj 4 Ire. 59. 

Pkr Curiam. Judgment reversed, and a procedendo 
awarded. 



SARAH A. McAllister «. sarah Mcallister. 

A., haviD|r a life estate in two negroes, executed an instrument, in which werv 
the expressioHs ** which right and title I relinquish to B. for value receiTed,** 
which instrument was signed, sealed, witnessed and delivered. Held, that 
if this be not good as a release, technically, it is good as a bill of sale or deed 
of gift. 

A'Court may correct a slip, by withdrawing improper eyidence firom the con- 
sideration of the jury, or by giving such explanations of an error, as will pre - 
vent it from misleading a jury. 

When in detinue there is a verdict for tlie plaintiflTand error in the assessment 
of damages only, a reversal will be for the damages only — a venire de noira 
will not be awarded. 

The cases of the Stale v Maijt 4 Dpv. 338, and Dowd v. SeawelhS Dev. 18^, 
cited and opproved. 

Appeal from (he Superior Court of Law of Richmond 
County, at the Spring Term 1651, his Honor Judge Manlt 
presiding. 



JUNE TERM, 1851. 185 



McAllister v. McAllister. 



Detinue for a slave Caroline and her two children, whicl^ 
was tried on non detinet and the statute of limitatbns. 
l%e case was, that John McAllister owned the slave Caro- 
line and conveyed her for life to the defendant, his sister. 
Afterwards the defendant executed a deed to the said John 
of the following tenor : I, Sarah McAllister, having a life 
time right from my brother, John McAllister, for a negro 
woman named Nicey and her two children, Valentine and 
Caroline, which right and tide I relinquish to him, the said 
John, for value received, under my hand and seal, this 1st 
of August, 1829.'' The deed was attested by a witness who 
proved it in 1850, when it was registered. After the execu- 
tion of the deed the three slaves, therein mentioned, were 
left in the possession of the defendant and so continued up 
to the trial. While thus in the defendant's possession, the 
eaid John gave, and by deed of gift conveyed, the said Car« 
oline to the plaintiff, who was his infant daughter and is 
still an infant, and subsequently thereto, Caroline had the 
two children. 

On the part of the defendant it was insisted, that the deed 
made by her was not sufficient to pass her estate. But the 
Court held otherwise. 

It was fturther insisted on the part of the defendant, that 
her lon^ possession after the deed of 1829, barred the plain* 
tiflf s action. In reply thereto, the plaintiflf alleged, that the 
defendant was in possession under John McAllister, as his 
bailee, and that he, during such possession, continually 
claimed and exercised act of ownership over the slaves. 
And in order to sustain the same, the plaintiff, amongst oth- 
er things, offered in evidence a mortgage made by the said 
John of the said slaves and other property real or persona], 
which he made to a third person to secure certain debts. 
The mortgage was read from the Register's book, and while 
the plaintiff's counsel was reading it from the book, it was 
objected on the part of the defendant, that the book was not 

competent evidence of the contents of the deed, but that a 

24 



^ 



186 SUPREME COWRT. 



MeAllistcr v. McAllister. 



certified copy of the registry ought to be produced. The 
objection was over-ruled, and the reading finished j but, it 
appearing thereby, that the mortgage was made after the 
deed to the plaintiff, the presiding Judge remarked, that it 
could have no efiect favorable to the plaintiff, and no further 
notice was taken of it on the trial. 

The jury found a verdict for the plaintiff and assessed 
the value of each of the slaves, but did not assess any dam- 
ages for the detention — remarking;, that they had yielded no 
profits. After the verdict had been thus entered the jury 
was discharged ; but, in about one minute, and before any 
of the jurors had left the Court, they were called together 
and informed by the Court, that in such cases it was the 
usual form to give nominal damages, and thereupon the 
jury assessed one cent as the damages. Judgment was eU* 
tered on the verdict, thus altered, and the defendant ap- 
pealed. 

Strange^ for the plaintiff. 
Banksj for the defendant. 

RuFPiN, C. J. Theexceptionsdo not furnish any ground 
for reversing the judgment. The objection to the validity 
of the deed made by thedefendants is founded on the techni- 
cal nature of a release, and the possession of the slaves held 
at the time by the defendant. But, if that had any applica- 
tion to personal chattels, it is answered by the settled rule, 
that if a deed cannot operate in one way,as intended, it shall 
operate in any other, which will make it efiectual — ui res 
magis vaieat quam pereat. Therefore, if this be not good 
OS a release, it must be upheld as a bill of sale or deed of 
gift. If there had been an error in admittiug the Register's 
book the defendant would have no cause of complaint ; for, 
the evidence was clearly and promptly withdrawn from the 
jury, as irrelevant, and the defendant suffered no prejudice 
fiom it. It is undoubtedly proper and in the power of the 



JUNE TERM, 1851. 187 



' McAllister p. McAllister. 



Court to correct a slip by withdrawing improper evidenee 
from the consideration of the jury, or by giving such ex« 
planations of an error as will prevent it from misleading a 
jury; Siciie v. May 4 Dev. 328. Here that was so effec- 
tually done, that neither the Court nor the Counsel on either 
side took any notice of the mortgage, in submitting their ob- 
servations to the jury. 

If the judgment were reversed on account of the damage 
of one cent, a venire de novo would not be awarded, but the 
reversal would be in respect of the damages merely *, be- 
cause in that respect only would the verdict and judgment 
be erroneous, and not in relation to the slaves and their 
Talues. Frederick v. Lookup^ 4 Bur. 2018 ; Dowd v. Sea- 
v)dl 3 Dev. 186. But the Court is of opinion, there was no 
error as to the damages. The alteration in the verdict was 
made so immediately, as to exclude all possibility of ill 
practices with the jury, and was in itself so unimportant 
and immaterial as not to call for any correction. 

Per Curiam. Judgment affirmed. 



18» SUPREME COURT- 



William j. feLLisox »». william w. Andrews, d au 

Where a decree is made in the County Coart lo faTor of the plaiatMb, on m 
fMHion for a legi^i in which there are eereral plamtifis, one of wboai it 
the exeeotor of a deceased leigatee, and this executor dies before satisfMcUoo 
orezecutioo sued, the right to the legacy of the deceased legatee TeetB in 
the sidQiinistrator de konis non, but he is not entitled to have ezecatiou until 
he has Made himself a party either by set. fa, or according to the coone 
«f(^urti of fruity. 

WheM seYeral legatees or distrlbuteee obtain a decree against exec- 
utors or administrators for a mooied legacy, the decree is asTeral and each 
is entitled to a separate execation for his share. 

Btaits for legacies, distributive shares, and filial portions, given ia the Courts of 
l4w by petition, are considered in the nature of proceedings in Equity, in 
respect to the pleadings, taking the accounts, decreeing and reheanng or 
reversing. And so also as to process on the decrees. 

By PEAasoif J. Where two or more joint obligees, \fho are not partners in 
trade, take a joint judgment, how far and in what manner the right of sur- 
vivorship ii abolished in this State, in regard to such joint judgments, by 
force of the aci of 1784, Rev. Stat. ch. 43, sec. 2, is an open question. 

Appeal from the Superior Court of I^w of Martin Coun- 
ty, at the Spring Term, 1851, bis Honor Judge Ellis 
piesiding. 

The action is debt on the bond of the Clerk of the Supe- 
rior Court of law for refusing, upon the demand of the re- 
lator, to issue & fieri facias on a decree in a suit by petition. 
The pleas were, conditions performed, and conditions not 
broken ; and on the trial these were the facts : A petition 
was filed by Charles H. Mizell, Stephen Long and several 
other persons, against William L. Mizell, the executor of a 
will giving pecuniary legacies to the plaintiffs. Before a 
decree Stephen Long died, and Edgar A. Long, as his ex- 
ecutor, became a party in his stead. Then such proceed- 
ings were had, that in the Superior Court of Law in August 



JUNE TERM, 1851. ISO 



Ellison V. Andrews. 



1849, the defendant William L. Mizell was found indebted 
in thej)remises to the several plaintifis in various sums, and it 
was decided, that he should pay to the petitioner Charles 
H. Mizell the sum of 8213,76, and should also pay to Ed- 
gar A. Long, as executor of Stephen Long deceased, the 
sum of 9335,23, and to the other petitioners respectively 
the various sums so due them severally ; and it was fur- 
ther added, "that the petitioners have execution therefor." 
Shortly after the term of the Superior Court and before 
any execution issued on the decree, Edgar A. Long died in- 
testate, and at the next term of the Court, which was in 
October 1849, William J. Ellison, the relator, obtained let- 
ters of administration de bonis non, cum testamento annexo, 
of the said Stephen Long deceased, and applied to the Clerk 
to issue an execution on the decree — whether for 0335,23 
only and in the name of himself or in that of Edgar A. 
Long, or whether in the name of all the petitioners and for 
all the sums decreed, is not stated. But the Clerk declined 
to give him the execution demanded — saying that he would 
not do so until he knew whether he, Ellison, was the prop- 
er person. This action was brought to the next term ; and 
by consent a verdict was taken for the plaintiff for nomi- 
nal damages, subject to be set aside andja nonsuit entered, 
in case the Court should think the action would not lie. — 
His Honor was of that opinion, and after judgment the re- 
lator appealed. 

Rodman, for the plaintiff. 
Biggs, for the defendant. 

RuFPiN, C. J. Upon the death of the plaintiff after judg- 
ment, the general rule is, that his representative must re. 
vive the judgment by scire facias, in order to have execu- 
tion. It seems that he mav have it in the name of the o- 
riginal party, if he apply in time to get one of a teste prior 
to the death. But that must needs be in the case, only, in 



190 SUPREME COURT. 

- - T . - - . - »^^» 1 _ ■ Ml 1 1 

Ellison V. Andrews. 

which the person, claiming the execution, is the representa- 
tive of the original party, that is, his executor or adminis- 
trator, who will be legally entitled to the money when rais- 
ed. It cannot apply to the present case. For, at com- 
mon law there was no privity between the executor and 
administrator de bonis non ; which was created by the 
St. 17 Car. II, re-enacted here, Rev. Stat. Ch. 31, Sec. 118, 
and established to this extent : that where a judgment is 
had after verdict by an executor or administrator who dies, 
the administrator de bonis non may sue forth a scire facias 
on such judgment and take execution. The administrator 
de bonis non, then, hath no right in the judgment until he 
shall have revived it in his own name by scifa ; and con- 
sequently he could not require the Clerk to give him exe- 
cution in any form, before he had thus made himself a par- 
ty. It is plainly right that it should be so ; since neither 
the Clerk nor the other party should be concluded as to his 
representative character, without the opportunity to con- 
test it. 

The Statute does not in terms cover our case, since there 
was not a judgment after verdict, but a decree upon petition* 
But we do not put the decision on that ground, because we 
suppose that, by force of another act, it is brought within 
the operation of the one under consideration. The act of 
1787, Ch. 278, provides, that, upon a decree in equity for 
money, execution may issue lagainst the body or estate to 
satisfy such decree, in the same manner as executions may 
issue at law, and that the decree and execution shall bind 
the estate in the same manner as judgments and executions 
do at law. It may be observed by the way, that the party 
is entitled to the execution on such a decree for money by 
force of the Statute, whether the decree give it in terms or 
not. There is as little necessity for inserting Sijiat for ex- 
ecution in a decree as in a judgment, as in each the right 
to the process is incident to the right to the money. But 
since the right to an execution on a decree is thus correla^ 



JUNE TERM, 1851. 191 



KUiBon V. Andrews. 



tive to that of taking execution on a judgment, it follows 
that an administrator de bonis non must likewise in some 
appropriate method make, himself a party in equity in order 
to take execution there. That is necessarily to be done 
according to the course of that Court for reviving suits cr 
making parties, as by bill, or by the more summary method 
given by the act of ISO 1, Rev. Slat. Ch. 32, Sec. 8 and 0. 
It is true, this is not the decree of the Court of Equity, 
technically speaking. But it is virtually so, witfiin the rem- 
edial provisions for reviving suits and having executions on 
decrees, since suits for legacies, distributive shares, and 
filial portions given in the Courts of law by petition are 
considered in the nature of proceedings in equity, in respect 
to the pleadings, taking the accounts, decreeing and rehear- 
ing or reviewing. So they must be also in respect to pre* 
cess on the decrees. We conclude, therefore, that an ad- 
ministrator de bonis non may enforce decrees for money in 
equity or on petition at law, but that to (jo so, he must first 
make himself a party. 

The counsel for the plaintiff, however, contended, that f 
it be true that an admmistrator de bonis non cannot take 
the execution on a judgment recovered by an executor, 
without first suing a scire facias, yet it is otherwise where 
there is a joint judgment for the executor and others ; and 
that, in this last case, without suggesting the death, execu* 
tion may be taken in the name of the original parties, and 
the clerk ought to have given the relator an execution of 
that kind, on which he might have the money raised, to 
which, when raised, he would be entitled. It seems true, 
that on joint judgments for or against several persons, the 
death of one of the parties does not render a scire facias 
necessary, in order to obtam execution, according to the 
course of the Courts in England ; but it may be had for or 
against the survivors upon suggestion, or if there be no 
su^estion, for or against the original parties. But it i) 
plain, the reason is. that a joint judgment survives, anl 



192 SUPREME COURT. 



Eliisoti p. Andrews. 



there could therefore be no harm in taking execution ia 
either form ; since, if the execution for conformity's saka 
followed the judgment, it could not be executed in respect 
of the dead person, and the survivors alone would be en- 
titled or liable under it — as, for example, when there are 
two executors here, and one of them dies after judgment, 
no scire facias is needful to enable the other to have 
execution. But proceedings of the nature of those in 
this case are essentially different from such judgments at 
law. If a residue or other fund be given to divers persons 
to be divided equally between them, the rule of the Court 
of equity is, that they must all be parties to a suit against 
the executor for it, in order to avoid litigation and expense. 
Yet they have not a joint interest in the legacy, and, in 
respect of unequal payments to them respectively, unequal 
sums may be found in the suit to be due to the different 
legatees. Hence, the decree in their favor is not in the na- 
ture of a judgment in a joint action, but it is, that the exe- 
cutor pay to each one what is found due to that one ; and 
so on, until every or e has a decree for his own share. — 
Therefore the decree is several, and each plaintiff proceeds 
for himself to enforce it as he may be advised, as if the re- 
covery were made in a suit in which he was the sole plain- 
tiff, and without any power in the other plaintiffs to inter- 
pose between him and the debtor on the decree The rights 
of the several parlies are entirely distinct before the decree 
and under the decree. Then, the statute, in giving execu- 
tion on decrees for money in the same manner as upon a 
judgment, must be understood in reference to this distinc- 
tion. Therefore the other petitioners could not interfere 
with the particular sum decreed to the executor Edgar A*. 
Long, viz : $339,23, but the right to that sum passed ex- 
clusively to the person entitled in law to succeed thereto, 
who in this case was the administrator de bonis non of the 
original testator. But, although he thus had the several 
light to the money, he could not, as we have seen, have 



JUNE TERM, 1851. 193 



ElliMMi V. AndrewB. 



execution for it until he should entitle himself to it in his 
own name, by the method given in the statute, or otherwise 
according to the course of the Court of equity. 

Pearson, J. In England, a judgment in favor of two or 
more plaintiffs, upon the death of one, survives, and the 
survivors become entitled to the judgment absolutely, and 
may sue out execution and collect the whole sum for their 
own use, execept in case of copartners in merchandise, &:c. 
So in this State, a judgment in favor of two or more execu' 
tors^ upon the death of one, survives to the others, by vir* 
tue of the office, which they continue to represent. For, 
there is one office, although it may be filled by several. 

But when two or more joint obligees, who are not part- 
ners for the purpose of carrying on trade, commerce, &c., 
take a joint judgment, how far the English doctrine applies, 
or how far and in what manner the right of survivorship is 
abolished in regard to such joint judgments, by force of the 
act of 1784, Rev. Stat. Ch. 43, Sec. 2, which provides^ that 
all estaies real or personal held in joint tenancy, upon the 
death of one, shall not descend or go to the survivor, but 
shall descend or be vested in the heirs, executors, adminis- 
trators &LC^ of the party dying, in the same manner as es- 
tates held by tenancy in common, is an open question. The 
Statute uses the word, "estates" which is broad enough to 
include bonds and judgment, as well as land and other 
property. 

My purpose is not to express an opinion on this point 

for it is not prevented, but simply to "exclude a conolusioh," 

se as to leave it open, until it is presented and is the point 

in the case. This seems to me to be necessary to prevent 

an inference from the opinion of the Court, as delivered, 

that it was assumed, that in this State a joint judgment at 

hm would survive as in England, i^ut which no intimation' 

of omtiion was called for. 

25 



194 SUPREME COURT. 



Fbelpi V. Chfiw. 



A judgment or decree for distribative shares or for legp^ 
cies, which is our case, very clearly so (Setr partakes of the 
nature of a decree in Equity, as to be several, and in fact 
there is a decree for each severally, according to the a- 
mounts to which they are respectively entitled. This is 
fully set out in the opinion of the Court. 

Per Curiam Judgment affirmed. 



PHELPS «. CHES80N. 

Under the Adt of lS49-'3, oh. 36,- tee. 1, tbe Liteniy Botrd can aeqjiiiiv 
BO title to land, attefedto be forfeited bj agnnteo from the State, for aoQ 
paymeot of tazei,«DleM some proc^odiofhae been fint had on the part of 
the Slate, or ita aaigneee, tbe President and DirectOre of the Literaiy 
Fond, 00 at to giTO to the grantee, hie hein or aetigDi, " a day in Coort,*' 
an opportnnity to ahew, that the arrearages of the taxeo had in fiiet been 
paid within the year. 
( An eetate oneo Tested cannot be defeated by a condition or forfettnre, without 
some act on the part of the grantor or his heirs, by which to take advantago 
of the condition or forfeiture, OTon when the words of the eondition are "tho 
estate shall theroapon be void and of no effect," which words have the same 
legal import as the words *« ip9§ /oefo Toid." 

The case of HousUn ▼• BBgU, 10 Ire. 496, cited and approred. 

Appeal from the Superior Court of Law of Washington 
County, at the Spring Term 1849, his Honor Judge Manut 
presiding. 

This was an action of trespass tt et ramis^ qtiare dau9um 
fregU. The plaintiff claimed under Frazier and Davidson, 
.to whose title he had succeeded^ the grant having issued 
U> them in 1797 for the land trespi^issed upon. The plaii^* 



JUNE TERM, 1861. l95 

- — -: : — ^ 

Phelps V. C*h68iou. 

tiff proved, that the defendant, in 1847 and early in 1848, 
i5ntered upon the lands aforeiiaid and cut down, and made 
into shingles, a large quantity of lumber, and carried them 
away ; and proved their value. 

The defendant showed in evidence a grant from the State 
to himself, dated the 8th of August 1846, for the same pre* 
mises ; and also a deed from a tenant in common with the 
plaintiff, who was not joined in the suit, dated 8th of August 
1848 ; and further proved, that the land consisted of above 
50 acres of swamp land, unfit for cultivation, and valuable 
for its timber only. He further showed, that the lands had 
not been listed for taxation, nor the taxes paid for many 
years previous to 1842 nor since. The defendant insisted, 
that the plaintiff could not recover, for the reason that the 
title to the land, at the time of the suit brought, was vested 
in the Literary Board, by virtue of the provisions of the act 
of 1842-'3. I 

No proceedings were shown to divest the title derived 
under the grant to Frazier and Davidson. It was insisted 
on the part of the plaintiff, that no title of the President and 
Directors of the Literary Board or Literary Fund could 
be set up against theur grant, because the defendant did not 
claim under them, nor has he shown any proceedings, or 
even an election on the part of the President and Directors 
aforesaid to divest the title derived under the grant to 
Frazier and Davidson. It was also insisted, that thedefen* 
dant was estopped to set up any outstanding title against 
them, because he had shown a deed for an undivided portion 
of the premises trespassed on from a tenant in common with 
themselves; and that the effect of the estoppel related back 
to the trespass in 1847* 8. 

A verdict was taken on the issues, subject to the ques* 
tions raised. His Honor, being of opinion with the defen*. 
dant on the questions reserved, set aside the verdict, and 
entered a judgment of non suit ; from which the plaintiQT 
appealed. 



196 SUPREME COURT. 



Phelps e. Chenoo. 



Heatht for the plaintifT, submitted the following ai^gu* 
ment: 

Assuming the act of lS42-'3 to be Constitutional, which 
may well be doubted, as I hope to show, it is believed, it is 
against all the analogies of the Law to permit Chesson, the 
defendant, to set up the inchoate title of the Literary Board, 
as a defence to the plaintiffs action. The defendant does 
not claim under the Literary Board ; has shown no proceed- 
ings, either by suit or entry, lo divest the plaintiff's title un* 
der the Davidson and Frazier grant, nor has he shown even 
an election, on the part of the Board, to hold or to take the 
premises, for trespassing on which suit is brought.- As the 
act alluded to, and under which the attempted defence is 
made, provides that the owners of Swamp Lands, their 
heirs or assigns, who have not listed, or have not paid taxes 
on the same, shsW forfeit them, it is submitted, that, as in 
other cases of forfeiture, before the title is transferred /rom 
the original owner, and perfected in the Literary Board, a 
recovery or entry, or at least an election to hold, by the 
Board, must be shown ; and until one of them is showny 
such inchoate and imperfect title cannot be set up by a 
mere stranger, or a trespasser. This doctrine is familiar to 
the profession, as applicable to Leases, and forfeitures by 
Aliens ; in the one case, the Alien holds until the sovereign 
acts to displace him : in the other, though the estate be for- 
feited, and the lease by its terms be declared null and void^ 
still the interest of the lessee continues, until the lessor di- 
vests it by actual entry. These principles are too familiar 
to require support from authorities : tested by them, the 
defence fails, and there is consequently error in the judg- 
ment of his Honor, who tried the cause. 

2d. The defendant is estopped to deny the plaintiff's title. 
The defendant showed in evidence, in defence, a deed for 
an interest in the premises trespassed on, from a tenant in 
common with the plaintiff, bearing date 8th of Augual, 



JUNE TERM, 1851. 197 

— - — ■ 

Fhelpt V. Che«wn. 

1848, after the defendant had committed the trespass sued 
for. It does not appear, nor is it even sus:i;ested, that the 
plaintiflf had any other title, than that derived under the 
Davidson and Frazier grant, and it is submitted there is 
error in this : that the Jud^e should have charged the jury, 
that the defendant was not only estopped to deny the plain* 
tiffs title, ab ovo, after the taking of a deed from a co-tenant 
of the plaintiffs ; but, cls no other tenancy in common was 
shown than thai derived from the grant aforesaid, the es* 
toppel extended back, anterior to the trespasses, and evea 
np to the date of that grant. The grant from the Statei 
given in evidence by the defendant, cannot aid him, for the 
reason that it is younger than the Davidson and Frazier 
grant ; and moreover, the act of 1842-'3, if it transfer the 
title ai allj transfers it to the Literary Board, and not to the 
State. In this view of the case, he should have procured a 
grant irom the Literary Board and not from the Slate. 

3d. But does the act of 1S42'3 transfer the title even 
an inchoate or imperfect title, which the Board may perfisct 
by entry, suit, or election ? Is not that act unconstitutional 
and void ? Is it a " Law of the Land," in the sense recog«> 
nized by the Constitution ? or does it not violate the ex- 
press provisions of the Constitution 1 It is contended it 
does; and, without multiplying authorities, it is perfaape 
sufficient to refer to the opinion in Hoke v Henderson, 4 
Devereux, Law, page 1 : an opinion, that has received the 
distinction of being highly complimeiued by Chancelier 
Kent, in his Commentaries, for its ability and sound Consti- 
tutional doctrine : and which, with the cases therein, cited,, 
may be said to exhaust the subject. I refer also to the pub* 
lisbed remarks of Chancelier Kent, relative to laws of this 
description, to be found in the first volume of the last edi^ 
tioo of his Commentaries, pages 454, 455. 

If this law be permitted to stand, its operations will be 
singular indeed. Without any knowledge on the part of 
tbe heir, that heir will be deprived of his freehold, for the 



199 SUPREME COURT. 



Pbelpi V. Chaasoo. 



alleged default of his ancestor, of which he will know, and 
and could know, nothing. The vendee, m like ignorance, 
will be deprived of the fruits of his purchase, by the default 
of his vendor, immediate or remote, and against which such 
vendee has no covenant. The devisee will, in like manner, 
be ousted from the enjoyment of the bounty of his testator, 
while, as if to complete the absurdity, the title is thrust on 
the Literary Board, an entire stranger, equally unknowing 
of his newly acquired rights ; while, as in the present case» 
its practical benefits will be reaped by him only, who uses 
it as a defence, to protect him in his wanton and unjust dep- 
redations on the rights of others. A law so injurious iu iis 
operations, so repugnant to all notions of natural right, it is 
submitted, cannot stand the Constitutional test : but must 
be declared null and void. 

W. H. Haywood and E. W. Jones, for the defendant. 

Pearsok, J. The defence relied on is, that the title of 
the plaintiff, derived under Frazter and Davidson, to whom 
the land was granted in 1797, had t)eeu divested by the act 
of 1842, ch. 36, sec. 1. 

To this the plaintiff replies: first, supposing the act of 
1842, to be constitutional, no proceeding had been taken, 
nor had the President and Directors of the Literary Fund 
in any way made an election to divest the plaintiff's title 
by force of this Statute. Second, the Statute is unconstita* 
t\onaL 

' Our opinion being very clearly with the plaintiff on the 
first point, we shall not enter into the consideration of the 
second, for the reason, that we deem it disrespectful to the 
legislative branch of theGrovernment to call in question the 
constitutionality of the Statute, unless the decision of the 
cause make it necessary to do so. 

The first section of the act provides, "that where a grant 
^f Swamp Land had been obtained from the State and the 



JUNE TERM. IMl. 109 

Phelps V. CheMOO. 

grantee, his heirs, or assigns have not regularly listed 
the same for taxation and paid the taxes due thereon, they 
shall forfeit and lose all right, title and interest in said land 
"and the same shall ipso facto revert to and be vested in 
the State, unless such grantee, his heirs, or assigns shall, 
in twelve months from the passage *of this act, pay to the 
Sheriff of the county, in which the land lies, all the arreara- 
ges of taxes due on the said lands, with lawful interest there- 
on from the time the said taxes ought to have been paid.'' 

The second section provides, that the land, to which the 
State shall become entitled under this act« '*shall be and 
hereby is vested in the President and Directors of the Lit- 
erary Fund of North Carolina." 

Admit, that this act has the force of inserting in the o* 
riginal grant a condition, that, if the taxes are not paid 
when due, but shall at any time be in arrear, "the land 
shall ipso facto revert to and be vested in the State ;" ac- 
cording to the well settled principles of law, if the taxes 
were in arrear at any time, the estate created by the grant 
would not be defeated and revert to the grantor, unless 
some solemn act was done by which to enforce the condi- 
tion. For the estate having commenced by a solemn act, 
viz : a grant, must be defeated by an act equally solemn, 
upon the maxim of the common law, **eo ligamine quo lig* 
atur" 

If a feudal tenant failed to perform the services, his estate 
was not defeated until the^ lord had judgment in a vmt of 
cessavit If a subject incurs . a forfeiture by committing 
treason, his estate is not defeated until "office found/' If 
a feofment is made on condition, and the condition be bro- 
ken, the estate continues until it is defeated by the entry of 
the feoffor or his heirs. Coke on Lit., Chapter on condi- 
tions. 

The law books teem with cases fixing the principle, that 
an estate once vested cannot be defeated by a condition 
or ferfeitur^ without some %;t on the part of the graator 



isu^o^^fyj 



900 SUPREME COURT. 



PbelpA V. Ch«Mon. 



or his heirs, by which to take advantage of the condition 
or forfeiture, even when the words of the condition are "the 
estate shall therefore be void and of no effect ;" which words 
have the same legal import as "ipso facto void." 
. In this act, after the emphatic declaration, that the land 
shall ipso facto revert t& and be vested in the State, there 
is the qualification, *^unles8. such grantee, hb heirs, or as- 
signs shall within twelve months pa7 the taxes &c." 

This shows conclusively, that it was contemplated to have, 
some proceeding on the part of the State or its assignees, 
the President and Directors of the Literary Fund, so as to 
give to the grantee, his heirs, or assigns "a day in Court" — 
an opportunity to show, that the arrearages of taxes had in 
fact been paid within the year. 

Our opinion, therefore, is, that, as neither the State nor 
its assignees, the President and Diiectors of the Literary 
Fund, had taken any proceedings or in any way signified 
an election to defeat the estate of the plaintiff, the estate 
was still m him, and he was well entitled to maintain 
this action. 

' This conclusion is confirmed by the fact, that the Legis- 
lature in 1850 passed an act, declaring, that the act of 1849 
shall be applicable to those swamp lands only, which have 
been surveyed and taken possession of by the President and 
Directors of the Literary Futid, or their agent ; Ch. 53 

Sec. 2. 

Without admitting that the Legislature has the right to 
say what the law was, or what it is, and supposing its prov- 
ince is to say, what shall be the law, see Houston, v. Bogle 
10 Ire. 496, we are gratified to find, that there is this con- 
currence of opinion, as to the true construction ol' the act 
of 1832. 

The Judge below was of opinion with the defendant-— 
There is error. 

Per Curiam. Judgment reversed, and a ventre de nov&. 



JUNE TERM. 18^. 801 



JOIIX BUFFALOE v. CALVIX BAUGH. 

Wheii,ia ft luit b/ le^ataaa ftraiust tha ftdministrfttor with the wilt ftnii«xed| 
it WIS decreed, that the mdminbtntor ehoald deliver to three of the Ibar 
legftteee, entitled to legacy of elavee, their reepectiTe ehftres, which wae 
done, and ae to theothor ahare (the legatee bein^ in parta onkaown) it ira« 
decreed, that this ehare <* ehould be allotted to the adminittrator Ac.** " tor 
the nee** of inch legatee, upon the tmst declared in the will dec., and the %€* 
minlstralor voder thii decree kept poaneMon of the share of the elaTet thna 
allotted, and hired them out and depoeited the hires m Coort ; HM that Ihii 
amonnted to an anent to the iiaid laat mentioned legacy. 

The caae of £^Mrn r.Kevan, 3 Ire. £q. 34 cited and approved. 

Appeal from the Superior Court of Law of Wake Coun* 
tj, at the Fall Term 1848, his Honor Judge Dick pre- 
nding. 

This was trover for a slave, which had belonged to Wil- 
liam Andrews and of which he died possessed. The will 
of William Andrews was admitted to probate in 1828, and , 
th6 executors having renounced, John Dunn was appointed 
administrator with the will annexed. Among others, there 
is this clause in the will : " 4th. I lend to my son William 
Andrews one half of my Ruffin tract of land, also one fourth 
of my other property, and at his death I lend the same to 
his lawful heirs : I leave the same in the hands of my exe- 
cutors for the support of my said &on William/' 

In 1833 a bill was filed by one of the legatees against 

Dunn and the other legatees, for a settlement and divisioa 

of the estate. Such proceedings were had therein, that, in 

1885, all the debts having been paid, a settlement was 

0iade» and the property was divided into four parts; of 

which three parts were delivered to the legatees entitled 

thereto, and the remaining fourth part, which included tha. 

mother of the slave su^ for, continued in possession of iho 

26 



SOS SUPREME COURT. 



rf^—^— av* 



BofiUoe 0. Baugh. 



administrator, under this clause in the decree : " The other 
share of the said slaves shall be allotted to John Dunn, ad- 
ministrator &c., for the use of the defendant William An- 
drews, upon the trust declared in the will of William An- 
drews deceased/* 

William Andrews, Jun., had left the State, before the 
Bill was filed, and gone to parts unknown. John Dunn 
hired out the slaves from year to year, and deposited the 
notes taken for hire in Court. 

Dunn died in 1839. The plaintiff was appointed ad- 
ministrator de bonis non, with the will annexed, of William 
Aiidrews, Sen., and soon thereafter commenced this ac- 
tion. 

Upon the trial, the Court was requested to instruct the 
jury, that John Dunn, administrator of Wm. Andrews, Sen., 
liad assented to the legacy to William Andrews, Jr., and 
that John Dunn, after the allotment under the decree of 
1835, held in trust for Wm. Andrews, Jr., and therefore 
the plaintiflf as administrator &c., could not recover. The 
Judge declined to give this instruction, and charged the 
Jury, that there was no evidence of any assent by John 
Bunn, which would prevent the plain tiflffrom recovering in 
.Ais suit. 

There was a verdict for the plaintiflf and from the judg- 
itient thereon the defendant appealed. 

W. H, Haywood, for the plaintiff. 
. McRaSy for the defendant, submitted the following argu- 
ment* 

l^hit was an iRCtioQ of trover by the plaintifii as nditiiliis- 
ttatorde bonis noii, of Wm. Andrews, Senior, and the onlf 
qttestion is, whether there. was an assent by. Dunn, admdniB- 
tratOT cum testamento annexo^ to the legacy to himself as 
itttstee for William Andrews, Jr., in the will bf Willia'mi 
Awior, The Court below instructed the jury, that th^i« 



JUNE TERHi 18BI. SM 



BoffiUM 9. Bangli^ 



was DO evidence of any assent in the proceedings adduced 
In evidence, and that they had not a right to infer any asseht 
from any proof in the case. 

The office of execntor devolves the duty of paying debts 
and discharging legacies. After the first is done, the ezec-^ 
utor has no right to withhold his assent to legacies, and to 
refuse to discharge them ; and in case of such refusal,, a 
Court of Equity will compel such assent. Such assent is 
« matter of duty and in the absence of any evidence one 
way or the other, there is a presumption of assent, because 
the Executor shall be taken to have acted in discharge of his 
duty, as if the Executor die (as was the case here) after 
payment of debts. 2nd Will on Ex. 846, 7 and 851. 2fed 
P. Williams, 931, 32. 1st Rep. L. 572. 2nd Common 
L. Rap. 81. 

Any expression or act showing concurrence in the be- 
quest, nay, a small matter, will amount to an assent Con- 
irratulations on the l^acy, ^^ Wood on Leg. L. Libraiy, 
S64. 

More especially will the assent be presumed in the ab- 
sence of evidence to the contrary, where the the executor 
IS also a trustee under a clause of the willy for here- is a 
double duty. 

Now what are the facts of the case 1 
There are no debts outstanding. 

The executor or administrator, with the will annexedi 
standing on the same bottom as the executor, answevsa 
bill calling for a settlement of other legacies. Under a de^ 
eree, he snrrenders the property bequeathed to the other leg^ 
atees, in accordance with an allotment made by conuniasion- 
ers, previously appointed by the Court ; only retaining the 
allotted share of that legatee, for whom he was trustee. 

He held possession for four years under this allolment^ 
.and when he moved away appointed an agent to hdd ia 
his place. 



204 SUPREME COURT. 



BttflSiloe V Baugtk 



He made no return from year to year of any inventory 
or account current. 

He paid all the other legacies. 

And finally died. 
. The case is precisely within that of Kearn v Kevan and 
others, 2 Ire. Eq., 34 

Pearson. J . The will of William Andrews was admit- 
ted to probate in 1828, and, the executors having renounced, 
John Dunn was appointed adminstrator with the will an- 
nexed. Arno.ng.'Qtbfi£i^ there is this clause : '\4th. I lend 
to my son \yilliam Andrews one half of my Ruffin tract of 
land : ajso one fourth of my other property ; and at his 
death, I lead the same to his lawful heirs : I leave the same 
in the hands of my executors for the support of my said 
son William." ,. , 

In 183.3 a bill was filed by one of the legatees against 
Dunn and the other legatees for a settlement and division 
of the estate. Such proceedings were had therein, that in 
1835, all the debts having been paid, a settlement was made 
and the property was divided into four parts ; of which 
three parts were delivered to the three legatees entitled 
thereto, and the remaining fourth part, which included the 
mother of the slave sued for, continued in possession of 
the administrator, under this clause in the decree: " The 
other share of said slaves shall be allotted to John Dunn, 
administrator and so on, for the use of the defendant, William 
Andrews, upon the trust declared in the will of Williwn 
Andrews, deceased." 

William Andrews, Jr., had left the State before the bill 
yfBS filed, and gone to parts unknown. John Dunn hired 
oat the slaves from year to year and deposited the notes 
taken for the hire in Court. 

Dunn died in 1839. The plaintiff was appointed admin- 
. istrator de bonis non, with the will annexed, of William 
Andrews, Jr., and soon thereafter commenced this suit. 



JUNE TERM, 1851. 805 

Boflaloe v. Baugh. 

The only question, intended to be presented to this Court, 
is, whether the part bequeathed to William Andrews was 
unadministered at the death of the first administrator, so 
as still to be a part of the estate of the testator, and, as such 
vest in the plaintiflT, as administrator de bonis non. Or 
whether the facts above stated show an assent by the first 
administrator to this legacy, the legal eflfect of which was 
to vest title in him as trustee for William Andrews, Jr. 

The assent of an executor to his own legacy, as well as 
Ills assent to the legacy of another, may be expressed or 
implied. Kearn v. Kevan 2 Ire. G^^VSw^^llM^ doc- 
trine is fully discussed. ^^^^^ ^^^^ # 

Dunn expressly assented to tha iGgftfiiea^oCthfiJDlrsons 
entitled to the other three shares, f jiAXcwnVlllrf A^ to 
them ; and it is entirely clear, tlat. WjQi^b^^Wnsning 
fourth share, there was an assent, ^L^mM^i^^f^M. 

Our opinion is, that there was noHiMi§^nirfiAmistered, 
and the plaintiff, as administrator de bonis non, consequently 
has no title in the slave sued for. 

His Honor was of opinion, that there was no evidence 
of an assent by the first administrator. In this there is 
error. 

Feb CoaiAM. Judgment reversed and venire de novo. 



906 SUPREME COURT. 



WILLIAM SHANNON w. ARTHUR JONES. 

An ofioer may hty an exeeation npoo • ttniMibg crop, proridMl it U natamL 
The net of 1844k eh. 35, pfohibitang offioen ftom lovying executions *< on 
growing crope,** embnusee only eiope which are not matured. 

If en officer sells under execution a growing crop, and the purchaser afteib- 
wards gathers it, the officer, if he had no authority to sell under his exeeu- 
lion, ii as liable in an action of trover as tho purchaser. 

The ease of Smith ▼. TVtIf , 1 Dot. and Bat. 341, cited and appcovecL 

Appeal from the Superior Court of Law of Pasquotank 
County, at the Spring Term 1861» his Honor Jud^ Divk 
presiding. 

Trover for the conversion of a parcel of Indian corn, 
tried on not guilty. The case appearing in the bill of excep- 
tions is this. In the year 1850, one Jennings planted a 
crop of corn on shares in a field belonging to one Pool - 
Pool to have one half and Jennings the other. On the 9th 
of September 1860, Jennings sold his share of the crop to 
the plaintiff lor tlSO and made him a bill of sale "for the 
one half or my entire interest in that growing crop of com 
on the lands of J. H. Pool» being in &c. ;" and therein 
covenanted to have the crop properly gathered and deliv- 
ered in merchantable order when the same shall mature 
and be demanded. In October 1850» one Williams placed a 
fieri facias on a Justice's judgment against Jennings in the^ 
hands of the defendanti a Constable, and he levied it on "the 
interest of said Jennings in a field of standing com, &c,'^ 
and advertised it for sale. On the day of sale, the defend-^ 
ant went to the field and offered one half of the com for 
sale under the execution. He and the bidders were not at 
the time within the enclosure, but stood in a public ipad 
which the field adjoined, and in view of the corn. WiU 



JUNE TERM, 1861. 207 

Sbumoii 9. JoMv. 

Hams became the purchaser, and believing -he acquired the 
title thereby, he went some few days afterwards, and with- 
out any further act of the defendant, he took one half of the 
com under the purchase. The Court was of opinion, that, 
supposing the plaintiff to be the legal owner of the corn, he 
could not maintain this action, because the defendant had 
done no act which would amount to a conversion, or any 
way interfered with the rights of the plaintiff. In submiss- 
ion thereto the plaintiff suffered a non suit and appealed. 

• Heath for the plaintiff. 
No counsel for the defendant. 

RuFFiN C. J. The case is not stated with a view to 
the question, whether Jennings was the lessee or the ser- 
vant of Pod, but assumes that he had a property in the crop 
and had effectually conveyed it to the plaintiff. Taking 
that to be so, the Court is of opinion, there was a conversion 
of the com, for which the defendant is answerable to the 
plaintiff. It is the common doctrine, that, if an officer^ un« 
der an execution against the goods of one, sell the goods of 
another, he and the purchaser are jointly and severally lia- 
fale in trover. If this com had been gathered and the sale 
made at the heap, there could be no doubt of the plaintiflTs 
remedy against the officer, or of his right to recover the 
full value, as for a conversion, if the purchaser under color 
of the purchase took it away. It seems to have, been sup- 
posed, that it was otherwise in this eas^, because the sale 
was utterly void and gave no color to take the com, though 
it had befenged to the debtor, Jennings, upon the ground 
that the parties were not in the field at the sale, and there- 
fore the defendant did not take and deliver actual possess- 
ion of the com to the purchaser. But the Court holds the 
levy and sble well enough in that respect. If the corn had 
been gathered and lying in. a pile in a stack pen, as is usual. 
Ibe officer aeed not get imo the pen, but may sell| standiog 



20S SUPREME COURT. 



SlwniMui V. Jooei. 



9a one side of the fence while the corn is on the other. — 
There being no forcible resistance at the time, that is a 
sufficient presence of the corn and possession by the officer 
to render his sale effi^ctual and must be considered as inclu- 
ding a delivery to the purchaser, especially if the latter spee- 
dily take the thing away. The sale under such circum- 
stances imports, that the right and possession shall be in the 
purchaser prima facie. It must be the same in the case be- 
tbre the Court, at least, so far as depends upon the mode of 
selling. The cases of Skinner v. Skinner, 4. Ire. 175, and 
McNeely ▼. Hart, 8 Ire. 41)2 sustain it, and lay it down, 
that in order to make a valid sale of a standing crop, the 
officer need not go inside of the field, but it is sufficient if 
he be in view at such convenient distance that bidders can 
see what is offered and judge for themselves of the quantity^ 
quality, and value thereof. Though the point does not 
seem to have been raised at the trial, yet it appears upon . 
the facts, and therefore it seems incumbent upon us to con- 
sider, whether the sale was or was not effectual by reason 
of the state in which the crop was. If a crop, not severed 
from the soil, cannot be taken in execution and sold, it may 
be that a sale by the officer, though made in the field, is so 
tttttrly void as not only not to vest the right and possession 
in the purchaser, but also not to constitute an authority or 
ooior of authority in him to take the crop by harvesting 
aad removing it. At present we are not called on to say 
how that is, since the crop in this case was, we think, the sub« 
ject of executioQ. At common law annual crops were the 
subjects of immediate sale as personal chattels, and in order 
to render the execution effectual, it was held that, of neces- 
sity, a possession passed to the purchaser, which the law 
psoteoted by investing him with the rights of ingress and 
egress to gather and take the crop away. It was upon 
olear authorities thus ruled in Smith v. TriU^ 1 Dev. and 
Bat. 241. Until the purchaser secure the crop it may well 
be, that neither he nor the officer is liable in 4rover ; fur 



JUN£ TERM, 1851. ao» 

I " r- " I ' ~ . - , 1 •^ I lim —ilMJ 

Shannoo ir. Joiim. 

by the sale merely, the crop did not become in fact separat* 
ed from the soil, so as to be purely personal and ipso facto 
converted. But, however that might be, it seems clear to 
the Court, that a sale of a standing crop, which legally pas- 
es the right, must be an authority from the officer to tbo 
purchaser to take actual possession, and in convenient sea* 
son to secure and remove the crop. It can be no less, for, 
after the officer has made the sale and thereby transferred 
the property, he is not bound to proceed further and gather 
the crop, so as to deliver actual possession after severance. 
The purchaser takes such possession by force of the sale b}* 
(he officer and under his authority. When Williams thus 
took actual possession and used the corn, he was unquest- 
ionably guilty of a conversion. It would seem plain that 
the officer, under whose authority all that was done and 
was from the beginning intended by all the parties to b* 
done, must be a partaker in the conversion and liable for it. 
From the condition of the property the acta are separated 
from each other in point of time, but in truth they consti- 
tute but different parts of an entire transaction. It was a 
conversion in him, whose hand did the act and also in him 
who authorized it ; just as much so» as if he had been again 
present at the gathering of the crop and commanded or aid* 
ed in it. Great mischief would follow, if the officers weie 
not liable ; as the purchaser might not be able to answer 
to the owner for the value of the goods. It has just bem^ 
stated, that this crop was liable to exeoution, supposing it 
to have been the property of Jennings ; for although the 
act of 1844, Ch. 35 has altered the law of execution against 
crops on the ground, it does not reach the present case. It 
enacts, shortly, that it shall not be lawful for any officers 
to levy an execution on any growing crop. The term 
•'growing" imports, that it is not come to maturity, but it 
green or not made. TW would be the construction, if it 
depended on that word in the enactment ; because it is the 

natural sense of it, and because a Statute in restriction of 

27 



am 6VPRBME CO0RT. 



Shuiooo V. JODM. 



th^ remedies of creditors against the property of debtors is 
not to receive a liberal interpretation. But the intention 
|n this enactment appears very explicitly in the title of the 
9Ct: which is, "an kct to prevent the levying of executions 
upon growing crops until said crops are matured/' That 
clearly denotes, that standing crops when ripe, remain subject 
to execution as they are at common law. It is not indeed^ 
expressly stated, that this crop matured. But facts are stat- 
ed which require that to be presumed in the absence of some- 
thing to the contrary ; as the sale must have been about 
the middle of OctoWi and it is known as a matter of com- 
mon observation, that the crop of indian corn in the East- 
wot part of the State is ordinarily ripe by that time. In- 
deed, the case states^ that ''some few days" after his par. 
qhaae Williams gathered the corn and used it. 

P%R Curiam. Judgment reversed, and venire de novo. 



JUNE TERM, tssr. in 



ELUAH GASKILL v. WILLIAM C. KING. 

I 
j • 

W6ea a deed by a hoiband for a slave was ngned and eealed, bat dot defir- 
ered, in the preaenoo of a flnbieribing witnea, bat was afterwaida deliTi;rM^ 
by the boiband to hit wife for the benefit of the grantee, HeM, >Sraf, tbitt 

' the delitory vai good and enured to the benefit of the grantee— <ll<iM» 
mc^mUfft Pbakmn, J., diaentifnU, that when the deed waa ligned, naled 
andatteited by a labscribing witness, a delivery, not in the presence of the 
attesting whnsss, might be proved by a third peiaon, so as to satisfy (h» 
rsquiaitions of oor Statute relating to the transfer of slaveib 

After the death of a husbandi the wife is a oompetent witnev to piovn th* 
execntioo of a deed pada by him in favor of- a third penon. 

The eases of Harruon v. Burg€9§, 1 Hawks 384, Tote v. 7*ate, I Dev. and Bai 
Eq.Sd,irff«frrvlfsfter,4Dev.998, Finst v Breisiirtfg»4 Dov. 3B5| aiiA 

Q4iidr««f V SkttWf 4 l)sv. 70, eited nnd approved. 

Appeal from the Saperior Court of Law of CarterM 
County, at the Spring Term 1851, his Honor Judge Cald« 
WELL presiding. 

The action is detinue for several slaves, which the plain* 
tiff claims as the administrator of James Gaskill, deceased; 
and the defendant claims under a deed of gift from James 
Gaskill to Anson Gaskill, son of the former, and an infant 
ward of the defendant. It was tried on nan detinei, and 
the defendant produced a deed from the father to the son» 
dated in February 1838. To prove the execution thereof^ 
<me Chadwick deposed, that, at the date of the deed. Jamei 
Gaskill came to a house where he was, and requested hini 
to write a deed of gift for the slaves from him to his 9od 
Anson, who was then an infant of tender years and not 
present ; saying that he did it at the request his wife, whio 
wished those negroes given to Auikmi', as they were part d[ 
those, which came by her, and Anison was the <MiIy child 
by that marriage : that be wrote thedeed, and it was sigwl 



Jii» supreme; court. 



Gaakill v. King. 



and sealed by Gaskill, the father, and at his request was 
attested by this witness and another person, as subscribing 
witnesses, and then Gaskill took it and carried it away : 
that, about two years afterwards, Gaskill saw the witness 
and said to him, *'I have changed my mind about that deed 
you wrote for me and do not wish it proved," and the witness 
replied^ that he had not seen the deed, since the day he 
wrote it, and thereupon Gaskill remarked, " I thought my 
wife had given it to you to carry to Court and prove." 
The defendant further offered Mrs. Gaskill, the widow of 
the intestate, to prove that her husband handed |he deed in 
question to her, and told her to take care of it for Anson, 
and have it proved and recorded for him, whenever she 
pleased : that she then took it, and put it in her trunk, se- 
parate from her husband's papers, and he never saw it after- 
wards to her knowledge ; and that he died in 1836, and short- 
ly afterwards she had the deed proved and registered. 

The counsel for the plaintiff objected to this evidence of 
Mrs. Gaskill. But the Court received it, and then instruct- 
ted the jury, that, if they believed the witnesses, the evi- 
dence was sufficient to establish the execution and delivery 
of the deed. After a verdict and judgment for iiie defen- 
dant, the plaintiff* appealed. 

W. H. Haywood and /. W, Bryan, for the piaintifil 
Donnell and /. H. Bryan, for the defendant. 

RuFFiN, C. J. Upon the question, whether there was 
legal evidence oi the delivery of the deed, the cases of Vines, 
V. Broumrigg, 4 Dev. 265, and Andrew v. Shaw, 4 Dev. 
70, are in point. They lay it down, that the act of 1806 
does not create any new rule, as to the proof of the execu*- 
tion and delivery of a deed of gift of slaves ; and that, if the 
-subscribing witness, from want of integrity, will not, or, 
from want of memory or knowledge, cannot, prove the sign- 
IPg, sealing and delivery of the deedi the deficiency in his 



JUiNE TERxM, 1851. 215 



Guikill V. Kiujc. 



eyidence may be supplied by that of the other witnesses. 
Those adjudications and the reasons for them are attacked 
on the ground, that the statute requires a deed of gift to be 
attested by at least one credible witness, and that he sh^Il 
prove the due and fair execution of it on the trial. It is 
argued, that delivery is an essential p^rt of the execution 
of a deed, and, indeed, that it is no deed until delivery : and 
thence, that the subscribing witness must attest the delivery 
as well as the signing and sealing. But that seems to be 
rather a play on words, and an adherence to tho letter. 
without regard to the sense and purpose, of the Statute, 
which would render it absurd and inoperative. It is truCt 
that, technically, delivery forms part of the execution of a 
deed ; that is, it. is not a deed without delivery. But, in 
common speech, execution means generally signing and 
sealing a paper, as contradistinguished from its delivery. 
It seems plain, that it is to be understood in that sense iii 
statutes, which require subscribing witnesses ; for no one 
ever thought of delivering a deed before its attestation. — 
This verbal criticism, overlooking the context and nature 
of the thiDCTt would destroy the attestation of deedsdelivered 
as escrows, unless the same person happened to be the wit- 
ness to the signing and sealing and to both the first deliv- 
ery aud the final one ; for, until the latter, the instrument 
is not a deed, and, so, the attestation could not be that of a 
witness to the deed. Thus, also, the statute of devises uses 
the language, that no last will shall be good, unless such 
last will be written in the testator's life and signed by him, 
and be subscribed in his presence by two witnesses at least; 
and, then, that the same shall be proved by at least one of 
the subscribing witnesses, but, if contested, it shall be proved 
by all. What is to be subscribed by the witnesses ? The 
will| answers the statute. But, by the same statute, literal 
ttm, it is not a will, until it be subscribed by the two wit* 
oesses ; and then, according to the argument, the attestation 
most be noil, since it was not a will— that is, a perfect will 



614 SUPREME COURT. 

Gaickni V. Kin^. 

■ PI ■ ■ p ■ ■ ■ ,t 

— upon the subscription of the first witness, nor indeed until 
the death of the testator. That cannot be the meaning of 
the statute. On the contrary, it is manifest, that " such last 
will shall be subscribed by two witnesses" means, that the 
paper' writing, purporting to be the will, shall be thussub« 
scribed. Accordingly, it has been supposed to be perfect- 
ly settled, that the two witnesses need not even subscribe 
together, but may do so at different limes and not in the 
presence of each other. The ground, on which Vines v. 
Browning and Andrews r, S»Aato are impeached, thus seems 
lo the majority of the Court altogether unsatisfactory in 
itself, and to leave those cases with alt the authority, to 
which, as judicial precedents, they are entitled. The point 
decided distinctly arose in each case; and, upon mature 
consideration, the judges held, that it was not the purpose 
of the act of IK06, more than that of 1792, to require more 
to be proved by the witnesses to the writings mentioned 
in them, than by the witnesses to other instruments, but 
that the intention was merely to restore the rule of the 
common law, that upon trials such instruments were to he 
read upon proof of them then made by the witness, and not 
upon the proof, on which they were registered. That wais * 
thought to be the whole scope of the act of 1806, and, the 
more especially, as it was but applying to it the construc- 
tion known to have been invariably put on that of 1792 
couched in like language. Those decisions were made in 
December 1833, and have been fully acquiesced in, we 
believe, ever since, by the profession, and not questioned 
until the present time. They have, besides, received the 
sanction of the legislature. In revising the body of the 
statute laws in 1836, not only is the first section of the act 
of 1806 re-enacted without alteration, but, with those de- 
cisions before the legislature^ the third section of the act of 
1792, and the second of that of 1806 are incorporated into 
one section, saying that on trials the due and fair ezecutioti 
df written conveyances of slaves, by way of gift or satej. 



JUNE TERM, 1851. 215 

^ Gatkill V. King. 

shall be proved by the subscribing witness ; thus expressly 
putting the two on the same footing, as the Court had by 
inference before held it had been intended to do. Rev. St. 
ch. 37, sec. 21. It would be a public mischief, in this state 
of the matter, to over-rule those cases ; for, if the point now 
agitated is not to be considered as' thus put to rest, it would 
seem that nothing is to be deemed settled in our law. 

It was, however, further contended in the argument, that 
although that may be generally true, here the deficiency is 
not supplied because the wite was not competent to accept 
the delivery, nor to prove it. As to the competency of Mrs. 
Gaskill to give evidence : It is true, she could not have done 
80 in her husband's life time, in a controversy to which he 
was a party, both in respect of his interest and person. Bui 
when he died, her exclusion, as far as it arose irom the in- 
terest of the husband or the policy of the law, ceased ; and 
she became competent in any suit by or against the bus* 
band's administrator, to give evidence against the adminis- 
trator, though not for him. The fiist she can do, t)ecause 
she swears against her interest, which is always allowable ; 
the latter she cannot, beeause the effect of her evideuce 
would be to increase the fund, out of which she is to have 
a distributive share, or repel a charge on iu But the ques- 
tion of her capacity to give evidence in this case is much 
like that started in Harrison v Burgess^ I Hawks, 384 : 
whether, upon a caveat of a husband's will, the widow could 
prove, that he deposited it with her for safe-keeping, so as to 
bring it within the act of 1784: on which the opinion of 
the Court was, undoubtingly, in the af&rmative. In truth| 
this communication must, from its nature, have been made 
to the wife for the express purpose that she should make 
it known so as to effectuate the deed ; and therefore, the 
case falls directly within that o( Hester v Hester^ 4 Dev. 
228. As to the other part of the proposition, namely, that 
the delivery to the wife was not a delivery of the deed in 
law : This is said on the ground, that husband and wifis 



216 SUPREME COURT. 



Gaskill V. King. 



are one, nud thence is derived the idea, that the delivery to 
her was retnitiing the custody in his own hands; and, so, 
he did not part from the control of the instrument, and it 
never became his deed. The Court cannot adopt the rea- 
soning. In the case just cited, this notion was repudiated* 
For, although to many purposes husband and wile are one, 
yet they are naturally two persons, and to many other pur- 
poses they are distinct in a legal sense, both criminaliter and 
civiliter ; and among those instances it was there held, that 
a wiie might be a depository of her husband's will as any 
other friend might be. That seems to be directly applicable 
to the case in hand. It is common doctrine, that a wife 
may be her husband's attorney, and, with the husband's as- 
sent, the attorney of another person. There is nothing in 
their relation to forbid that. If a third person, then, had 
made this deed, and delivered it to the wife for the sou, 
there can be no question of the delivery. For, not only is 
a delivery to the donee's attorney a delivery to the donee, 
hut it has been long laid down, that a delivery to a stranger 
for the donee is suilicient and makes it a deed presently, 
and until he disagree thereto. The old cases were looked 
into in Tate v Tate^ I Dev. and Bat., Eq. 22, and the con- 
clusion there drawn from them is, that when the maker df 
a deed parts from the possession of it to any body, there is 
a presumption, that it was delivered for the benefit of the 
gaantee, and it is for the maker, to show the contrary. If, 
indeed, the husband had professed to deliver the deed to his 
wife, or to any one else, to keep for him, or subject to his 
disposition, the presumption just mentioned would not arite. 
But that was not the fact in this case. The deed was ex- 
pressly delivered to tiie mother for the son. The wife did 
not take it, as wife, or the servant of the husband, but ex- 
actly the contrary. The intention was, that it should ope- 
rate as a deed to the son. It is said, however, that he had 
a legal dominion over her, and might have compelled her 
to give him up the paper. Whether he could or not, de- 



JUNE TERM, 1851. 217 



Gukill D. King. 



pends upon the question, whether she held the instrument 
as the husband's or the son's property. He might, it is true, 
by superior strength and his authority over thQ person of 
the wife, have forcibly compelled her to part from the paper. 
But he could not have done so rightfully, if he parted from 
the instrument as his deed for one instant ; for, he would 
have no more authority, legal or moral, to take from his 
wire a deed made by him to his son and in her custody for 
the son, than he would have to take a deed made by a third 
person and left with her by the donor or donee to keep for 
ihe donee. The dominion of a husband over the wife is 
given for his security and her protection, and to those ends 
will be upheld. But the law will not allow it to be abused 
and perverted to the prejudice of other persons, and such of 
their rights as are founded in justice and law. In this case, 
by the act of delivering the deed to the mother for her son, 
the husband expressed in the strongest manner he could, 
that she might act on behalf and for the benefit of their 
child in taking and keeping the deed as the son's ; and it 
became at onte as operative as if it had been put into the 
hands of the infant himself, and could not be recalled. 

Pearson, J. dissentiente. The deed of gift was signed 
and sealed in the presence of two, who signed their names 
as witnesses, but the paper was not delivered in their pres- 
ence ; and, if it was delivered at all, the delivery was made 
some time afterwards to the wife of the donor, who alone 
proved the delivery after his death, when it was registered. 

The act of 1806 requires a subscribing witness to all 
deeds of gift for slaves. To hold, that in this case there is 
a subscribing witness to the deed, is, in my opinion, con- 
trary to the meaning and intent of that Statute, and T am 
forced to entei my dissent 

"A deed is a writing on paper or parchment sealed and 
delivered." Signing is now made also necessary in most 

cases by Statutes, A subscribing witness to a deed is one 

28 



218 SUPREME COURT. 



V. King. 



who sees it signed, sealed and delivered, or hears it ac* 
knowledged, and signs his name as a witness, at the instance 
of the maker — he is a witness provided by law to guard a* 
gainst frtfttd and perjury. 

One, therefore, who sees a paper signed and sealed, and 
signs his name as a witness of these two facts, but who is 
unable to prove its final consummation as a deed by delive* 
ry, does not come within the above definition of a subscribe 
ing witness to the deed ; and, therefore, the deed in this 
case has not a subscribing witness as required by the Stat- 
ute. 

What reason can be assigned,' why the Statute should 
aeek to guard against fraud and perjury in reference to two 
of the acts necessary to make a deed, and provide no such 
guard in reference to the third, which is the final and most 
in^ortant act, and the one, about which controversy is 
most apt to arise, and as to which a safeguard is most need- 
ed, «pd fraud and perjury most easily perpetrated ? As to 
the signmg, an attempt at perjury may usually be detected 
Igr the handwriting. As to the sealing, that, since the use 
of a mere scrawl, amounts to but little. The delivery is 
the act most exposed to be procured by fraud or to be pro- 
ven by penury. It seems to me a strange construction, by 
which the Statute is made to require a witnofs as to the 
former, to sign the paper at the instance of the donor, and 
yet to piovide no witness as to the fact, that the delivery 
was his deliberate and well considered act. 

The particular facts of this case show, that such a con* 
atruction makes the Statute a dead letter, so far as regards 
anjr useful purpose. It is clear from what the donor said 
to the witness, about his not wishing the deed proven, some 
two years after it was signed, that what he did was by the 
importunity of his wife to give her child a preference over 
his other children^ and he was reluctant to do it There 
was, then, a necessity of clear proof, that he made the de- 
livery, as to which there is no evidence, but that of the 



JUNE TERMi 185L 319 



GMkill V. Kioff. 



wife. Suppose, under the decision of Hester y Hester, as 
qualified by ** Jolly's case" 8 Dev. and Bat., 110, she was 
a competent witness after her husband's death, she certain- 
ly appeared in a " most questionable shape ;" and if it be 
wise to require a ** witness of the law" in any case, this is 
that case. 

The majority of the Court feel bound by Viries v Brovon^ 
rigg. The reasoning in that case is unsatisfactory and 
inconclusive, and I am persuaded, that the decision entirely 
destroys the utility of the Statute, and therefore do not feel 
at liberty to follow it. 

The learned Judge, who delivered the opinion, devotes 
more than three fourths of it to a question, which was not 
controverted, viz : whether, on the trial, the execution of 
the deed of gift must be proven, or such proof is dispensed 
with by the ex parte probate and registration. At the close 
of the opinion, he asserts the proposition, that, *'if A. is a 
subscribing witness to a writing, evidencing a gift of slaves, 
saw it signed and sealed, but could not prove its delivery* 
then B., who is not a subscribing witness, may be intro- 
duced to prove the delivery." He cites two English cases 
which establish this proposition, that, under the Statute of 
wills, if two of the three, who purport to be attesting wit- 
nesses, deny their attestation, and the fact of their being 
attesting witnesses is established by the other attesting 
witness, who knew the fact, that they did attest the will, 
such proof satisfies the Statute ; for, otherwise, any will 
might be defeated by perjury. Hence, he infers, that, if a 
subscribing witness to a deed of gift denies the fact of his 
being a subscribing witness, and thus perjures himself, the 
fact of his being a subscribing witness may be established 
by other witnesses. This is a correct conclusion. And so» 
if the subscribing witness cannot prove the delivery from 
the want of memory, other witnesses may prove, that he 
did in fact witness the ddivery as well as the signing and 
the ses^g. But where there is no perjury and no want of 



2lfO SUPREME COURT. 



Gaskill «. King. 



rnemory, and the fact is, that he did not witness the delive- 
ry, the inference from the above premises, that other wit- 
nesses may prove, not that he did witness the deed, but that 
the deed was delivered in his absence and without his 
knowledge, is a " 7ion sequitur ,\ and to assume, that he is 
a subscribing witness, is a '*petitio principii" For, whe- 
ther, under the facts agreed, (to wit. he saw the paper sign- 
ed and sealed, but did not see or know of its delivery.) he 
is a subscribing witness to the deed or not, within the mean- 
ing of the law, was the very question to be decided. 

In the case of Andrews v. Shaw 4 Dev. 70, which was 
decided at the same term, Vines v. Brownrigg is incident- 
ally referred to and approved. But Vines v. Brownrigg is 
the only case decided on the point, and the question is, does 
that give to the Statute its true construction ? The ques- 
tion, whether a writing attested by a witness subscribing 
the same, accompanied by an actual delivery of the slave^ 
passes the title, does not arise ; for, here there was no de- 
livery of the slave and a deed of gift was necessary. 

The above was submitted to the Court before the opin- 
ion of the majority was filed, as my ground for not follow- 
ing the case of Vines v. Brownrigg. 

First: My impression was, that Andrews v. Sfiaw did not 
present the point. I therefore treated it as a dictum, and 
not a decision ; because in that case the subscribing witness 
saw the deed signed and sealed, and heard it acknowledged 
by the maker, and was directed in his presence to hand it 
to the attorney, who drafted it. This, I thought, made him 
a witness of the " delivery," as well as the signing and 
sealing, and according to my own definition, he was a sub- 
scribing witness to the deed. But suppose it is in point, it 
was decided at the same term, upon the same reasoning, and 
is a mere repetition. 

Second: To support the case, it is said : "But in com- 
roon speech execution means, generally, signing and sealing 
3 paper, as contradistinguished from its deli ver}\ It seems 



JUNE TERM, 1851. 221 



Gaskill 9 King. 



plain, that it is to be understood in that sense in Statutes* 
which require subscribing witnesses; for, no one ever, 
thought of delivering a deed before its attestation." To 
this my reply is, that execution means "finishing, completing 
an act ;" and as delivery is a substantial, not a mere tech- 
nical, requisite, the execution of a deed means, that it has 
been " deliveredj" as well as signed and sealed ; and, al- 
though it is frequently the case, that the maker of a deed, 
after signing and sealing the paper, requests some one to 
attest it and then delivers it to the other party as his deed ; 
yet this request is generally made with the understanding, . 
that it is then and there to be delivered or acknowledged . 
in the presence of the attesting witness. Yet it is also, 
frequently the case, that the maker, after signing and seal- 
iug, acknowledges the delivery, and requests some one to. 
witness it as his deed ; which being done, the other party, 
takes possession of it, as a thing delivered to him before the 
attestation. The truth is, whether the attestation is before 
or after the delivery, the acts are understood to be contem- 
poraneous and continuous, and form a part of the '* res 
gesta" It makes tno difference which comes first, so that 
they both come. But, I apprehend, it is quite unu^iual for 
one to witness a paper as a deed, when the maker has no 
present purpose of making a delivery ; and except in the 
case of Vines v. Brownrigg, and the present case, I ques- 
tion if such a thing has occurred within the last twenty 
years. The thing is so unusual, that from the fact of there 
being a subscribing witness, if he is dead,proof of his hand- 
writing is deemed in law sufficient evidence for a jury to 
infer the delivery. 

JTiird: The objection, that "no deed could be delivered 
as an escrow, unless the same person happened to be the wit- 
ness to the signing and sealing and to both the first delivery 
and the final one" is met by the fact, that there is only one, 
delivery, which is, when the maker parts with the posses- 
sion and control of the paper. If there be a witness to tho 



222 6UPREMK COURT. 

GaskUl «. King. 

signing and sealing, and he also is a witness to the fact, that 
the maker delivered the paper as his deed, to be handed 
to a third person if a certain thing is done, then the Statute 
has been complied with, and if the thing is done, it is the 
deed of the maker from the time of its delivery, as an es 
crow. Hall v. HanHs, 5 Ire. Eq. 303. 

Fourth : I am so unfortunate as not to feel the force of 
the illustration from the Statute of Devises. 

Fifth: Vines v. Brownrigg VLud Andrews v. Shaw were 
decided in 1633 and have been " fully" acquiesced in by 
the profession and have received the sanction of the Legisla- 
ture; for, in 1836, when the Statutes were revised, no change 
was made in the law. 

My reply is Jirst : I presume no case of the kind has hap- 
pened, except the present, since 1833. At all events, Vines 
V, Brownrigg and Andrews v. Shaw were not cited on 
either side in the argument 

Second: Wagstaff v. Smith was decided in 1882 — ^it 
was over-ruled in 1833 — and the law was then decided to 
be, that, as between tenants in common, an account for the 
profits was cut off by the Statute of limitations, except for 
the last three years, (it is proper to say, this latter decision 
was not reported from some cause or other, Hill 1845). 
Still, the decision was one of importance and bore upon 
questions occurring almost every term. It was, of course, 
known to the profession, and we must presume.it was known 
to the members of the Legislature, not only in 1836, but in 
1834-'37 — ^and up to 1849, December Term, when N&rth- 
cot V. Casper 6 Ire. Eq. 403, " overruled it/' upon the 
ground, that it had put a construction on the act of 1715, 
Rev. Slat, ch, 65, sec. 9 ; which was contrary to the ** rea- 
Bonof the thing." and contrary to previous authorities, the 
acquiescence of the profession and of the Legislature " to 
the contrary notwithstanding." 

My idea is, that " law" is not a mere list of decided cases 
but a " liberal science^** based on ^neral principles and cor- 



JUNE TERM, 1851. S2S 

GMkill «. Kmg. ' 

reQt reasoning. Cases are mere evidences of what the law 
is ; and if a case is found to be unsupported by principle 
and " the reason of the thing," the Court is no more bound 
to fpUow it, than is a jury bound to believe a witness, who 
is discredited by proof of his bad character, or his demeanor 
or direct contradiction. In the one, there is a sworn wit- 
ness : in the other, there is a decided case — both are prima 
faoie entitled to credit, until the contrary is made to ap- 
pear. 

It is true,' law should be " fixed and steady ;" but it is 
also true, it should be " reasonable and right." The latter 
b the most important ; because, without it, the former object 
cannot be attained. There are two extremes — a disregard 
of authority, which I disclaim ; and a blindfolded following 
of oases, y^hich I also disclaim, as not only absurd, but im« 
possible, (for, suppose a Coui)^ in attempting to follow a 
case, should '* miss the point," which case is then to be 
followed ?) There is a medium, which I try to adhere to— 
lake a comprehensive view of all of the cases from the 
"year books" down to the present time — ^has not this mid* 
die course been adopted and acted on throughout ? Is it 
not supported by good sense and general practice ? Let a 
loase be taken, as settling the law, prima facie ; but if it is 
shown, not to be supported by principle and " the reason 
of the thing," let it be over-ruled — the sooner the better ; 
for, if the error is allowed to spread, it may insinuate itself . 
into so many parts, and become so much ramified, as to 
make it impossible to eradicate it, without doing more harm 
than good. But if the seed has not spread too much, pull 
it up and throw it away. 

Pbe Curiam Judgment affirmed. 



224 SUPREME COURT^ 



JOHN McRAE v«. WlNFIELD S RUSSEL. 

Where one of the lubecriben to the Wilmington end Mencheeter Rad Rom) 
Companj, nuder the charter granted by the legislature in 1846, g^re hit 
note fur the fiiet instalment to one of the CommiMonen, a|>poinled to take 
•nbeeriptaous, for the nee of the Company, ioetead of paying the cash ; 
Hdd, Pkabson. J^ disaeuL^ that the subscription was not void, and that the 
payee could recover on Che note. 

Appeal from the Superior Court of Law of New Hanover 
County, at the Spring Term 1851, his Honor Judge Manlt 
presiding. • 

This is an action of debt on a bond, oommenoed by war- 
rant before a single Justice, and brought by successive ap« 
p^als to the Superior Court. The pleas are general issued 
consideration of the bond unlawful, consideration fraudulent 
as against the policy of the law. The following facts are 
agreed. 

The Legislature of this State, at its session of 1846-'7, 
passed an act to incorporate the Wilmington and Manches- 
ter Rail Road Company. Books of subscription for stock 
in said Compauy were opened by the Commissioners named 
in the act, of whom the plaintiff was one ; and the defen- 
dant signed an agreement in the said book in the toUowing 
words : 

" Wilmington N. C, March Isl, 1847. 

** We, tFie undersigned, agree to take the number of shares 
opposite our names in the capital stock of the Wilmington 
and Manchester Kail Road (Jopipany, to be paid as follows : 
The first instalment to be paid on the formation of the 
Company ; the second and other subsequent instalments to 
be paid whenever it shall appear that seventy-five hundred 



JUNE TERM, 1851. »» 

McRae p. RuaaelL 

shares in all have been taken in the capital stock of said 
Company. But it is understood and agreed, that the sec- 
ond and other instalments may be made and paid up in 
^vork, or materials, or money at the option of the subscrib- 
ers ; and whenever materials or labor shall be so subscribed 
they shall be valued by engineers, hereafter to be appoint- 
ed to superintend the Wilmington and Manchester Rail 
Road." 

And the defendant, at the time of signing the above, 
wrote the words, "^ue shares" opposite to his name, so 
signed, but did not pay the cash instalment of five per cent. 
on the amount of said subscription, at the time of making 
the same, as required by the third section of the said act. 

Afterwards, to wit, on the 1st day of May 1847, the de- 
fendant executed and delivered to the plaintiff the bond de- 
clared on, which is in the words and figures following : 

'*On demand I promise to pay to John McRae, or order. 
Twenty Fve Dollars for value received, being the first in- 
stalment of five per cent, on five shares of stock, subscribed 
by me to the Wilmington and Manchester Rail Road. 

W. S. RU66ELL. (Seal.) 

'• May 1st, 1847." 

On the foregoing case the Court, being of opinion for the 
plaintiff, gave judgment accordingly for the amount of the 
bond, with interest from the date of the warrant, from which^ 
judgment the defendant appealed to the Supreme Court. 

/. IT. Bryan, for the plaintiff, 

D. Reid and Norwood, for the defendant. 

RvYFiv, C. J. The opinion of the Court is, that the 
judgment ought to be affirmed. As the suit was commea'' 
^ced by warrant before a Justice of the Peace, on which the ' 
proceedings are summary, the question arises without ray 
special plea on the facts agreed. In them, there ik nothing. 
we think, rendering this bond voidi as being founded on an 



QM SUPREME COURT. 



McRae V. RiumII. 



illegal and vicious coDsideration. It is not stated, whethor 
the corporation has been organised or not. If it has not, 
then clearly the plaintiff must recover on a voluntary bond, 
executed to him by the defendant, as there is no statute 
declaring it void. But it is the same if the charter took 
effect, by the requisite amount, including the defendant's 
stock, having been subscribed and a due election of a Pre* 
sident and Directors. For, giving the defendsmt the bene- 
fit of presuming all the facts he can ask, which are that the 
bond was taken for the first instalment on five shares of 
stock subscribed by him and was made payable to the plain- 
tiff in trust for the corporation, still that would not vitiate 
the bond. The provisions of the charter, material to the 
question, are, that the subscriptions are to be received for 
•1,500,000 in« shares of $100, as the capital stock of the 
Wilmington and Manchester Rail Road Company; and 
certain commissioniBrs, of whom the plaintiff was one, are 
appointed to receive the subscriptions ; and upon each share 
of stock subscribed, the subscriber is to pay to the commis- 
sioners taking the same, $5, and on non payment of said 
instalment, the subscription shall be void. Then it provides, 
that, upon the subscription of 8300,000, in manner afore- 
said, the company is declared to be incorporated, and a 
general meeting of the proprietors of the stock shall be call- 
ed, and the President and Directors elected, and in such 
meeting and others, afterwards, each share of stock shall 
be entitled to a vote ; and, in a subsequent part, it author-* 
iges a sale of the stock of delinquent stockholders, and also 
suits against such delinquents for their instalments. We 
see nothing in any or all of those provisions to avoid this 
deed of the defendant. It is true, the act says his subscrip- 
tion was void unless he paid the first instalment That 
ooly proves, that no recovery could be bad on the 6ubscrip« 
tion. But it does not show, that if, instead of paying cas^ 
he ^t a receipt for it by giving his bond, the bond would 
be also void. To invalidate the bond it is not sufficieiii 



JUNE TERM, 1861. 22T 

^ MoRm v. RmmmII. 

■ ■II M ^1 I IMI^I " I ■! I ..I I II. I I _ ■ II..I » I ■■■ . , „ 

that it is without consideration ; but there must be an iin- 
]awliil and vicious consideration. No one would impute 
much a consideration to this bond, were it not for the words 
in the Statute, that on non pajnrnent of the first instalment 
the subscription sliall be void. But they cannot have that 
effect. The provision was intended manifestly to prevent 
perK>Bs who were nominal subscribers merely and had paid 
nothing, from coming forward at the general meeting for 
the organization of the Company, and claiming to have a 
vote for every share standing in their names. The purpose 
was to protect real stockholders from such men of straw« 
It was, moreover, meant to protect men from the conse- 
quences of making such subscriptions under the influence 
of momentary excitements, which they could not fulfil. It 
^ve them a locus penitentiae, until they delil^rately chose 
to confirm the subscription by making the requisite pay* 
mant on it. The meaning was, that, until such payment, 
the one party should have no voice in the concerns of the 
Company, and the other party should not be able to recov- 
er the charter price of the share. That, it seems to the 
Courts was the whole scope and purpose of the provision. 
It is a shield to the one class of subscribers against another, 
and that merely. It involves no matter of public policy or 
morals, more than any other contract between private or 
corporate bodies. The law, for example, says, that a parol 
contract for the sale of land is void. It says so, no doubt, 
as a matter of policy ; but it is a policy affecting private 
rights, and does not involve the interest of the community, 
as such. But, although such a contract be void, yet if the 
purchaser give his bond for the price, that bond is not void, 
N6r, if the other party, though not bound, give a deed for 
the land, will that be void. So, in this case, the defendant 
couki not have been compelled to pay the 95 a share by 
f(Mroe of th^ subscription, ytt if he and the other ^bscrihers 
oliase tb waivfe the provisions thus made for their benefit 
respectively, and agreed, that, upon his giving bond for the 



SUPREME COURT. 



McRaa «. RimeU. 



same, it should be taken as cash, and he admitted into the 
Company, and he deliberately does so, it is not seen that 
any principle of law or justice is violated, or that tliere is 
any reason why he should not pay this as much as any 
▼olantary bond. The State has no concern in the question 
aa DOW presented, which simply involves the enquiry, whe- 
ther this or that man is one of these corporators, and not 
any breach of good morals or public weal. The bond, 
therefore, is not impeached, and the plaintifi is entitled to 
judgment on it 

FaABtoN, J. dissentiente. The Statute, which provides 
for taking subscriptions to the stock of the Wilmington and 
Manchester Rail Road Company, appoints certam Com - 
inisaioners, makes it their duty to require payment in cash 
of five dollars in the hundred, and to pay over the amount 
to the Company upon its organization ; and declares all 
BubscriptioDs void, if this cash instalment is not paid to the 
commissioner at the time he takes the subscription. 

The plaintiff was one of the Commissioners, and under- 
took to act in that capacity, and in violence of his duty 
accepted from the defendant, at the time he made a sub- 
scription, the note now sued on, instead of the cash, and 
reported him a subscriber entitled to five shares of stock. 
This was not true, the cash not having been paid and the 
subscription on that account being void. 

The question is, will this Court countenance a breach of 
duty in a public agent by giving its aid in the collection of 
a note, which it was a violation of bis duty to take ? How 
is the case distinguished from that of compounding a felony 
-—where, on account of the breach of duty to the public ia 
taking a note, the Courts refused to aid in its collection ? 

I cannot bring my mind to the conclusion, that the judi- 
cial branch of the government ou|(ht thus to encourage a 
departure frcm plain words of instruction, given -by the 
kgialative branch to one of its agents. 



JUNE TERM, 1831. 1!» 



McRae v. Run«ll 



The validity of the charter of the Compony is not involv* 
ed in this case. That cannot be drawn in question in ibift 
collateral' manner. When the sovereign has cruise of com* 
plaint against the Company^ it must iiiMitnte a direct pro- 
ceeding, in order to vacate the grant ; and the diflicnitks 
and many grave objections, which, in almost every instance, 
present themselves to this direct proceeding, argue strong- 
ly in favor of watching with jealousy nil dereliction of duty 
on the part of those, whoso instrumenlnlity is relied on to 
give to the Company its corporate existence. Because, 
when all th^ conditions, precedent to its coming into exis- 
tence, are faithfully performed, there is apt to be but little 
cause of complaint growing out of its future action. 

It is the duty of onr Public Treasurer to borrow money 
upon State bonds. Suppose he issues a bond, and, instead 
ol receiving the cash, takes the note of the individual| trust- 
ing to his assurance, that the cash will be paid the very 
instant it is needed for public use. No one would call in 
question the validity of the State bond ; but, I imagine, few 
would be found to insist, that the Courts ought to aid the 
Treasurer in the collection of the note, which he has taken 
in violation of his duty, although it happened, that no direct 
harm resulted from the arrangement. 

What was the object of the Legislature in requiring, that 
there should be this cash payment upon every share of stock, 
it is not for us to enquire. It may be, it was to guard against 
*' bubble corporations," which sometimes do much harm ; or 
to give the Company a fair start, and prevent the necessity 
of contracting debts. Whatever the object may have been, 
il is certain, that the Legislature, in express terms^ and as a 
condition to the subscription, directed the plaintiff to require 
the cashj and it was a breach of duty to take a note. 

Per Curiam. Judgment affirmed. 



MEMORANDUM. 

Baetbolombw F. Mookb, Esquire, resigned bis office ef 
Attorn ST General on the day of May, 1651, and on 
the 19th day of June, 1851, William Eatok, Esqtdre, of 
Warren County, was appointed by the Governor an4 
CovHOiL to succeed him. 



CASES AT LAW 



AMVBD AMD DKTIKKIiriD 



IN. THE SUPREME COURT 



07 



NORTH CAROLINA, 

AT MORGANTON. 



• •• 



AUGUST TERM, 1851. 






THE ATTORNEY GENERAL m. ADIEN CARVER k AL. 

Aq order, takiii{f a bill pro cor/pmo, for want of an answer, dispeneei with 
|iioof on the hearing, and is conclusive that the matter of the bill is tme^ 
as if the same were confessed in aii answer. 

If a bill, though confessed, does not entitle the plaintiff to a decree, it must 
be dismissed ; but if it contain matter for some decree for the plaintiff, that 
decree will be made. 

Its nature, however, wilt depend upon the consideration, whether there be or 
be not enough in the bill to shew the preciho extent of the relief, which 
the plaintiff ought to have. If, for example, the bill be for the speeifie per* 
Ibrmance of a contract for the sale of land, and it is not so described in the 
contract or bill, as to identity it by such metes and bounds as ought to be 
inserted in the conveyance to be decreed, then on the hearing the Court 
would only declare, that it was fit the contract shoo id be specifically per- 
formed, and a survey and enquiry would be directed thereon ; and, of 
course, the party might offer proof touching that matter. 

The cases of As4f rs v Lsr, 1 Dev. and Bat Eq. 318, and MeCoikiU v Me* 
Bridtf 3 Ire. Eq. 52, cited and approved. 

This was an ex officio information, filed by the Attorney 
General in the Supreme Court at Morganton. The object 
of the information was to vacate a grant from the State to 
the defendant, Carver. 



23S SUPREME COURT. 

'^ mm - . \ - . . ■- ■ ■■ ■ ■ , g- 

Attoniey General v. Carver. 

^ ■ ■ I I 1 M 

The information states, that, on the 29th of June 1851, 
the defendant, Carver, made an entry of 200 acres of land 
lying in Burke County on the waters of Toe river under 
Hump-back mountain, and adjoining his own land on the 
east: That soon afterwards he obtained a warrant thereon, 
and delivered it to David Chandler, a deputy of the County 
surveyor, and procured him to make plots and certificates 
of survey of the entry and transmit them to the office of the 
Secretary of State, purporting to be a survey of a tract of 
land containing 200 acres, with the following butts and 
bounds : ** Beginning at a white Oak, standing on the east 
bank of Toe river, and running thence east 200 poles to 
a stake on the topof Hump-back mountain; thence North 
with the mountain 280 poles to a stake on the bluff end of 
the mountaiu ; thence west down the leading ridge between 
Brushy creek and Laurel creek 200 poles to a stake on the 
bank of the river ; and thence down the meanders of the 
river tc the beginning:" And that on the 12th day of De- 
cember 18?2, he, Carver, paid into the public treasury the 
sum of ten dollars as the purchase money of the said tract 
of laud, and obteiined a grant of that date to himself for the 
same, described therein by those lines and boundaries, and 
as containing the said quantity of 200 acres. The infor- 
mation turther states, that in fact and truth the line east 
from the beginning white oak to the top of the Hump-back 
mountain, exceeds two miles in length, and the next line, 
north with the mountain, to the bluS ena of the mountain, 
is also upwards of two miles long, and the third line, west 
from the bluflf end of the mountain to the river, and that 
down the river to the beginning, each, is more than two 
miles long — so as, by reason of the calls for natural objects 
as corners, to include within the lines three thousand acres, 
instead of two hundred only: That Chandler and Carver 
well knew the length of the lines, and that the latter by col- 
lusion with Chandler procured him corruptly and contrary 
to his duty as a deputy surveyor, to make an untrue plat 



AUGUST TERM, 1851. S3» 



Attorney Geueral v. Carver. 



and certificate by giving the false description of the land as 
above mentioned, and stating falsely the quantity therein 
contained, with the corrupt and fraudulent intent, that by 
such false suggestion Carver should obtain a grant for the 
three thousand acres of land, included in the survey, with- 
out making due payment therefor, excepting only as to 200 
acres, part thereof: and that, in pursuance ot such corrupt 
and fraudulent intention, and by such false suggestion, Car- 
ver did obtain the grant covering the large quantity of three 
thousand acres, instead of the 200 acres, to which latter 
quantity alone he was justly entitled. The information 
further states, that the defendant Hyatt, with full knowN 
edge of all the facts before charged, subsequently took a 
conveyance from Carver for the land as and for three 
thousand acres. 

Copies of the warrant, plat and certificate and grant are 
annexed as exhibits ; and they are of the tenor stated in the 
information, as to the corners, lines, and quantity of land — 
the grant being dated 12th day of December 1832, and 
numbered 6601. 

Prior to August Term 1850 a subpoena, returnable to 
* that term, was duly served on the defendants and also a 
copy of the information delivered to each of them. But* 
neither of them appeared ; and, on the return of the sheriff 
and motion of the Attorney General, the Court then order- 
ed» that the Information should be taken pro confesso, and 
set down to be* heard ex parte at the present term. 

Attorney General and T. R. Caldwell, for the State. 
No counsel for the defendant. 

HuFPiiv, C. J. Of cases of this kind, when instituted on 
behalf of the State by the Attorney General, original juris- 
diction is conferred by the statute on this Court ; and the 
proceedings may be by bill, or by information in the nature 
of a bill in equity, and are to be carried on according to tlie 



A 



934 lUPRBMK OOUfit. 



Attoniey Gwf lul «. Carver. 



course of the Court of equity. The grounds, on which 
grants may be vacated or repealed, are, that they were is- 
sued against law, or were obtained by fraud, surprise, or 
false suggestion. No one can hesitate to say, that the case 
in the information, if true, tumishes grounds for annulling 
the grant The entry was for two hundred acres and the 
enterer procured a survey to be made purporting to contain 
that quantity, and describing the lines to be of lengths that 
would include no more. There was nothing, then, upon 
the f^e of the papers transmitted to the Secretary of State , 
which would raise a suspicion of any unfairness or falsehood 
in the description therein given of the land — to which de- 
scription the grant was necessarily to conform. But, by 
artfully and deceitfully calling for the natural objects of a 
river, the top and end of a mountain, and a dividing ridge 
between two creeks, as parts of the boundaries of the land, 
the distances called for are, by legal construction, over- 
ruled, and the lines are to terminate at, or go along the 
natural objects ; and thus a grant was obtained, and inten- 
ded to be obtained, for three thousand acres, professing all 
the while to be for 300 only. And all this false description 
as to the length of the lines, and false suggestions and affir* 
mations as to the quantity of land, were to the intent and 
purpose of cheating the public revenue out of the price of 
the difierence in the quantities ; that is, 2800 acres. The 
fraud on the State is palpable, whereby the party knowing- 
ly got a grant for a large tract of land by paying one 
fifteenth only of the price required by law. It is clear that 
a grant thus obtained ought not to be of force, but be de- 
creedjto be brought in, cancelled, and annulled, and the en- 
rolment thereof cancelled. 

A doubt, however, has been su^ested, whether the truth 
of the case set out in the information is established. The 
doubt is founded on a practice, which is said to have pre- 
vailed of late in some parts of the State, requiring a plain- 
tiff to prove his case on the bearing, uot withstanding the 



AUGUST TBKH, IWl. 985 

Attorney General t rnnrer. 

■ ■III^MMIIIIIII I Bl.— , ■ I I I I I I — — ^—i »^— 

bill may have been taken pro eonfesso and the cause set 
down thereon. The practice cannot be of long standing, 
and most be of limited extent ; and there seems to be no 
foundation for it. The experience of the elder members of 
the Court is entirely to the contrary on the circuits ; and 
it certainly never prevailed in this Court. Not to mention 
other cases, it was held, or plainly assumed, in Andrews v. 
Lee, 1 Dev and Batt. Eq. 318, and McCaskill v. McBride, 
2 Ire. Eq. 52, that an order talcing a bill pro eonfesso dis- 
pensed with proof on the hearing, or, rather, put the case 
into a condition, in which there was no opportunity to get 
proof extrinsic of the bill. Prior to any alteration by stat* 
ute, the appearance of a defendant, though served with a 
subpoena, was indispensable to any relief to the plaintifl^ 
because without it the Court had not jurisdiction to decree 
in personam. Various rules of Court and acts of parlia- 
ment were made t<^enforce appearance, or to authorise an 
entry of it by an officer of the Court, even against the de- 
fendant's will. But, it appears from the case of Hawkins r. 
Crook, 2 Pr. Wms. 556, that, when an appearance was thus 
entered, if the defendant still withstood process of contempt, 
and refused to answer, the plaintiff was anciently put to 
prove the substance of his bill on the hearing. It ' further 
appears there, that, prior to that case, the practice was es- 
tablished of setting down a cause, when the defendant 
would not answer after appearance, and upon the hearing 
taking the bill pro eonfesso and decreeing thereon. The 
consequence of taking the bill pro eonfesso is there stated 
to be, that every allegation in the bill is considered as con- 
fessed by the defendant. On that ground the Reporter, 
who was the defendant's counsel, calls it an extraordinary 
consequence, ^as it takes every thing pro eonfesso, which 
the fruitful fancy of Counsel could invent, suggest, and put 
into a bill, and makes all pass for truth." Yet he admits, 
that the practice was firmly established, and that it was 
founded on the sound reason, that without the order thtf- 



236 SUPREME COURT. 



Attorney General ik Carver. 

plaintiflT would be without remedy, since« by the defendant's 
contumacy in refusing to answer, the plaintiff could not join 
issue and was thereby deprived of the opportunity ol ex- 
amining witnesses, The necessity for the rule is thus ren- 
dered clear, and the effect of it must, obviously, be that 
stated : which is, taking the matter of the bill to be true, as 
if the safie were confessed in an answer. The terms, 
** taking the bill pro confesso" per se carry that sense ; and, 
when it is perceived that in the state, in which the cause is 
hereby placed, the plaintiff cannot proceed to proofs by 
witnesses, the conclusion is clear, that the truth of the bill 
is to be taken as admitted on ihe hearing, as if an answer 
confessed it in the term of the bill. It was in that sense 
those words were used in Stat 5 Geo. II, which first al- 
lowed a bill to be taken pro confesso against an abscond-v 
ing defendant, on whom process could not be served. The 
statement of the bill w«is assumed to be tiue, and a decree 
made accordingly. Smith's Ch. Pr. 153. The same 
terms are to be found in our acts of 1782 and 1787 regu- 
lating the proceedings against defendants, who do not aa* 
swer, whether served with process, or absconding or resid- 
ing abroad ; and there cannot be a doubt, that they were used 
and are to be received in the same sense. The latt^vacft 
contemplates, that the hearing may be immediately after the 
order taking the bill pro confesso^ and provides that the 
Court shall " decree thereupon," that is, upon the bill and 
order, on the security of the bond of the plaintiff for restitu- 
tion, if decreed on a rehearing; and the act of 1782 requiree, 
that, upon taking the bill pro confe»so, the cause shall be 
set down to be heard ex parte at the ensuing term, with a 
proviso, that, upon a proper ground, shown within the first 
three days of the next term, the preceding orders, may be 
discharged, and the defendant admitted to a full defence. 
The acts of 1762, ch. 79, and 1806, ch. 703, contain simi- 
lar enactments respecting petitions in the Courts of law 
for legacies and distributive shares. And all those {mtovI- 



AUGUST TEUM. 1851. UT 

Aitoraey Gvoisral v. Cary<r. 

skms distinctly evince, that the cau^ is not open for proofu, 
so far, at least, as concerns the decree to be pronounced on 
the hearing ; and the case is thus brought by the statute 
within the very reason assigned in Hawkins v. Crook for 
the rule originally. Therefore the decree is to be on the 
* billy upon the supposition that the matter thereof is true by 
ihe confession of the defendant. It seems probable, that 
the recent local practice to the contrary, which has been 
mentioned to us, has arisen from the misapplication to this 
case of the rule, that the matter in the bill, which, though 
not expressly denied, is not admitted in the answer, must 
be proved. But the distinction between the cases is plain. 
For, without insisting on the general traverse usually in- 
serted in the conclusion of the answer, there is this marked 
difference, that, as to those parts of the bill on which the 
answer is silent, the bill is not taken pro confesso. A bill 
must be taken pro confesso throughout, or not at all. — 
Hence, an answer, however insufficient, puts the plaintiff 
to the necessity of proving his case, either by witnesses, or 
by obtaining a fuller answer on exceptions. But that has 
no application to the case, in which, in default of any an- 
swer, or appearance, the bill is expressly taken pro confesso 
— ^whereby the plaintiff is allowed to insist on a decree on 
the bill as being all true. .The consequences are, that, if 
the bill, though confessed, do not entitle the plaintiff to a 
decree, it must be dismissed ; but if it contain matter for 
some decree for the plaintiff, it will be made. Its nature, 
however, will depend upon the consideration, whether there 
be or be not enough in the bill to show the precise extent 
of the relief which the |daintiff ought to have. If, for ex- 
ample, the bill be for specific performance of a contract for 
the sale of land, and it is not so described in the contract 
or bill as to identify it by such metes and bounds as ought 
to be inserted in the conveyance to be decreed, then upon 
the hearing there would be only a declaration of the opin* 
ion of the Court, that it was fit the contract should be spe- 



I 



itt supubmb oouKT. 

Attonity Geneiml «. Canrar. 

eifically performed^ and, bdcause the particular lines of the 
land did not appear, a survey and enquiry would be liirect* 
ed thereon ; and, of course, the party might offer proof 
touching that matter. So it would be likewise in bills for 
redemption, to settle partnerships, and for accounts and 
payment of legacies, distributive shares, and the like. But 
if the bill contains matter, which, at all events, entitles the 
plaintiff to a decree to the full extent of the prayer, and it is 
apparent, that, taking the bill to be true, the result of no 
enquiry could vary the terms of the decree, then it is ob- 
vious, that the decree on the hearing must be the final de» 
cree. SSuch is the present case. The information h^ but 
one purpose ; that of vacating the grant. It asks for no 
account or other relief; and upon it there can be but one 
of two decrees under any circumstances ; that is to dismiss 
it, or to vacate the grant. Therefore it is incumbent on 
the Court now to declare, that the grant was unduly ob- 
tained, as before mentioned^ and to decree definitively, that 
it be vacated and annulled, accordii^ to -the statute, and 
that the defendant Carver pay the costs. 

Per Curiam. Decree eccordingly. 

The following decree, drawn by the Court, was then en* 
tered : 

August 21st, 185L This cause coming on to be heard 
on the information filed on behalf of the State by the At« 
torney General, the exhibits and the former orders, and ar- 
gument of Counsel on behalf of the iState, and the whole 
matter being considered by the Court : and it appearing in 
and by the information and exhibits, as therein staled, that 
on the 29th day of June, 1831, the defendant, Adien Carver* 
made an entry of two hundred a6res of land lying in Burke 
county, on the waters of the Toe River* under Humpback 
Mountain, and adjoining his own land, and that the said 
Adien afterwards obtained a warrant thereon, and procured 



} 



AUGUST TERM, IWI. 839 



Attorney General v. Ceirer. 



one David Chandler, a deputy of the mirveyor of said codn- 
ty, to make out piats and certificates of survefy, piirporting 
to be upon the said entry and to be a sunrey of a tract of 
land containing two hundred acres, with the following biitts 
and bouhds, that is to say, beg[inning on a white oak stand- 
ing on the east bank of Toe River, and runs east two hun* 
dred poles to a stake on the top of Humpback Mountain^ 
thence north with the Mountain two hundred and sitty 
poles to a stake on the bluff end of the Mountain, thente 
west down the leading ridge between Brushy Greek and 
Laurel Creek two hundred poles to a stake on the bani of 
the riyer, thence down the meanders of the river to thd be- 
ginning, and transmit the said warrant, pliits, and survey 
to the office of the Secretary of State ; and that on the 
12th day of December, 1832, the said Adien Carver paid 
into the Public Treasury the sum of ten dollars as and for 
the purchase money due to the State for the said tract of 
land and then obtained a grant to be issued to him, the MaSS 
Carver, for the said tract of land, described therein by the' 
aforesaid lines and comers, and as containing two hondfed^ 
acres, and that the said grant bears date the day and year 
last aforesaid, and is irambered 5001 : and it further ap^ 
pearing thereby, that the distances between the sevend 
neural objects, which are described in the said survey and 
grant as corners of the said tract of land, are such, that 
each of the four lines thereof exceeds two miles in length, 
instead of the respective lengths in the said survey and 
grant mentioned, and that, by reason thereof, the said traist 
of land, so granted to the said Carver, contains three thou- 
sand acres, instead of two hundred acres, as^ mentioned in 
the said grant : and it further appearing theteby, thiu th^ 
said Adien and the said Chandler well knew the true lengths 
of the said lines, and that the said Adien, by collusion and 
fraud, procured the said Chandler corruptly and contrary to 
his duty as a deputy surveyor to make an untrue plat and 

certificate by giving in the said plats and certificateii, asi 

2 



340 SUPREME COURT, 



Attoniey Geueml v. Carver. 



made and transmitted by him as aforesaid, a false descrip* 
tion of the land as aforesaid, as to the lengths of the said 
lines and falsely stating the quantity therein contained, to 
the corrupt and fraudulent intent, that, by such fraudulent 
description, sug^stions and affirmations, the said Carver 
should obtain a grant from the State for a much larger 
quantity, namely, three thousand acres of land, included in 
the said survey, without making due payment therefor or 
any payment whatever, in respect of two thousand eight 
hundred acres, part thiereof : and it further appearing there* 
by, that, in pursuance of said corrupt and fraudulent intent, 
and by means of said false suggestions, the said Carver did 
obtain the said grant to be issued to him as aforesaid, cov* 
ering the three thousand acres of land instead of the smal- 
ler quantity of two hundred acres, to which alone he was 
justly entitled : and it further appearing thereby, that for 
the said causes the Attorney General on behalf of the State 
prays that the said grant so obtained by the said Adieu 
Carver, may be decreed by this Court to be vacated and 
repealed : and it appearing to the Court, that at the last 
term thereof, the information was taken pro confesso against 
both of the defendants: wherefore, and because all the 
matters, appearing as aforesaid in and by the information, 
are thus taken to be true as if the same were particularly 
confessed by the defendants, it is declared by the Courts 
that the said Adien Carver did procure the said grant to be 
issued and made to him, the said Carver, by false sugges- 
tions, surprise and fraud, as aforesaid : and that in the opin- 
ion of the Court the said grant ought, for that ojause, to be 
repealed and vacated, as prayed in the information : and 
the Court doth thereupon ordet, adjudge and decree, that 
the said grant to the said Adien Carver, numbered 5601, 
and bearing date the 12th day of December, 1832, for the 
8aidi3«ct of land herein before described, be, and the same 
ifl hereby vacated, repealed, rescinded and annulled: and 
that the defendants; after service of a* copy of this decree 



AUGUST TERM, 1861. 



iii 



Attorney Genexal e Car?*/. 



twenty days befo^ the next term, do bring the said grant 
into this Court at the next term to be cancelled ; and that 
the defendant, Adien Carver, do pay the costs of this suit 
to be taxed by the Clerk : and the Court, in obedience to 
the Statute in such cases made and provided, doth further 
order, that, upon a copy of the information, orders and de- 
crees, thereon made, being filed by the Attorney General 
on behalf of the State in the office of the Secretary of State^, 
the said Secretary of State shall record the same in the 
book by him kept for that purpose, and shall also note in 
the margin of the original record of said grant the rendet- 
iDg of this decree with a reference to the said record there- 
of in his office, and shall also cancel the enrolment of the 
said grant in his office by writing across the same the^ 
words ; '' Cancelled by virtue of the decree of the Supieraft 
Court." 



W »JVmNtE G09JIT. 



JOSEPH F0ND£K w. JAMBS CARTER, ADM'R. 

Aa>W«lT bM 09 claim npoa his pitscipalt tmUl he hu {laid tke money for 

Wb^B A. wasLpdelil^ to B.,an4 C^ for a faircoQsid^rfttiQii, eereed in writto^ 
to pmy the debt to B., and afterwards, upon demand from B^ refiued to do 
fo ;'iuhI a. eabeeqnently was compelled to pay the debt ; HeU that, ai 
hafawep A. add C.f A.waBtobeooneideredaB8Hretyand C. as principal, 
^t^(thle9taintoofluDUatwQsb^fratorlmflgeiu^ A.'8 dft'tmofiO^ ot^t 
I^D UyB.date of the agmpment er of C.'s refusal to paj B., bat only from the 
ifiib time when A. actually paid the money. 

Tbe cases of ^ibenvi ▼. WiUmm9,4Dtr. 360, BrttwRtiae ▼. JIfarfifi, 1 Ire. 
^ mi Ntimdy. ifmrtm, 2 lie* 3«7, cited and approved. 

. Appeal from the Superior Court of Law for Yancy Coun- 
ty, Special Term, July 1850, his Honor Judge Battle, 
presiding. 

The facts of the case will be found in the opinion of the 
Ckmrt. 

/• W. Woodfiri^ for the plaintiff. 

JVl IT. Wooden and Gaither, for the defendant* 

Nash, J. The only question presented to the Court is, 
as to the operation of the statute of limitations. Ponder, 
the plaintiff, was indebted to one Anderson, and, in order 
to discharge the debt, sold property to the intestate, Car- 
ter ; and it was agreed betweeti them, that the purchase 
money should be paid to Anderson in discharge of his debt 
on Ponder, which wHs reduced to writing and signed by 
the intestate. In 1848, Anderson demanded payment of 
Carter, who refused to make it ; and, subsequently, the 
plaintiff was compelled to pay it. This payment was made 
within Ihree years before the bringing of the action. * On 



AUGUST TERM, 18S1. 24$ 



Fonder v. Carter. 



behalf of the defendant it was contended, that the plaintiff's 
action was barred by the 3tatute of limitations, which be* 
gan to run, either from the time he signed the instrument, 
or from the demand by Anderson. Neither proposition is 
correct. The arrangement between Ponder and Carter 
was of a nature not to discharge the former from the claim 
of Anderson-^e was left still liable to pay it, and, under* 
this liability, the debt was recovered of him and he did pay 
it. From the latter period, the statute began to run. After 
the arrangement between Ponder and Carter* the lat^ a^ 
between themselves, beccune the principal^n the debt to 
Anderson, and the former stood in the relation of surety ; 
and it is settled by many adjudications, that a surety has no 
claim upon his principal, until he has paid the money* for 
which he is bound. It is the payment of the money, 
which gives his action, and not his liability in law to do 
so. The statute begins to run ody from the tune when lli^ 
cause of action accrued. Sherrod v, Norwood^ 4 Uev. 8§0^ 
Bri90eniine y. Sfarlin 1 Ire. 280, Noland v. MarivHt I In* 

We concur in the opinion of bis Honor, i^eoe is. ao 
error ; and the judgment is affirmed. 

PipR CviuAia. Judgment oonfimM^L 



%U SYPREMC: COURT. 



WILEY REVfiL m. F. A. PEARSON A AL. 

'iVbon a penoD, who has oommenoedaraitta/omM prntp^rU, ii afterwarda 
dJipaupared and eaten into a praeecutioo bondi be is entitled upon his ra- 
oorery in the action, to a judgment for his costs, as well those incurred 
before he was dispaupered as those incurred afterwards. 

Thecaaes of Carter v. Woodf 11 Ire. 33, Clark ▼. Dupree^ 2 Dot. 418 and 
Wiifaa Y.Hedgpetkt 3 Dot. 37, dted and approved. 

Appeal from the Superior Court of Law of McDowell 
County, Fall Term 1860, his Honor Judge Dick presi*- 
ding. 

This was a ruTe on the plaintiff to show cause, why cer- 
tain costs taxed against the defendants should not be strick^ 
en out of the fi. fa. The facts are : on the 5th of May 
1847, the plaintiff commenced bis suit in forpta pauperis 
against the defendants, and continued to prosecute the same 
without surety, up to November Term 1849, when he came 
into Court, and, on his own motion, was dispaupered, and 
tendered bond for the prosecution of his suit, which was 
accepted by the Court. The case was tried at Spring 
Term 1890, when the plaintiff had a verdict and a judg- 
ment, in the usual form, for damages and costs ; and a Ji. 
fa. issued therefor, returnable to the Fall Term of the 
Court. 

The Court, being of opinion^ that the plaintiff could not 
recover the costs of his witnesses, which accrued prior to 
the time, when the plaintiff was dispaupered, made the rule 
absolute, and ordered, that all the costs of the plaintiff's 
witnesses, which accrued prior to the November Term 1849^ 
be stricken out of the j£. /a. The plaintiff, being dissatis- 
fied, prayed and obtained an appeal to the Supreme 
Court% 



AUGUST TERU, IfSl. S45 

Revel e. Peanoo. 



/. and G.N. Baxter, for the plaintiff. 

Gaither^ T. R, Caldwell and Bynum, for the defendant. 

Nash, J. This case differs from that of Carter v. Wood, 
11 Ire. 22, in several respects. The plaintiff there, who 
sued in forma pauperis, had recovered a verdict against 
the defendant, upon which judgment was rendered, but none 
for costs. The rule was upon the defendant to show, why 
he should not be taxed with the attendance oF the plaintiff's 
witnesses. The rule was discharged upon the special cir- 
cumstances of the case. At the time the suit was tried, 
the plaintiff was still under the protection of his order.— 
Here, the plaintiff was dispaupered on his own motion^ 
while the suit was still pending, and he entered into the 
ordinary prosecution bond, given by plaintiffs in general. 
Upon his verdict, judgment was rendered for him, not only 
for his damages, but for his costs. The enquiry, then, is 
for what costs was he liable ? For, under the act of 1777, 
ch. 115, sec. 90, the ''party, in whose favor judgment shall 
be given &c., shall be entitled to full costs." Whatever 
coste the plaintiff was bound to pay, he is entitled to recov* 
er of the defendants. The doctrine as to the extent of a 
plaintiff's liability to pay oosts, who sues in forma pauperis, 
as generally understood in this State, is fully stated in the 
case of Clark V. Dupree, 2 Dev. 411. The protection, 
furnished by the act of the General Assembly Rev. Stat, 
ch. 31. sec. 47 is withdrawn, whensoever, by the order of 
the Court, it is adjudged, that the plaintiffceases to need it, 
and that will lie, whenever, in the progress of the case, and 
before its determination, it is made to appear, that, either 
^ at the institution of the suit, he had the requisite quantity 
of property, or that he had acquired it since. Our act ie 
very nearly a transcript ot that of 11 Henry IX, ch. 11 : 
and the decisions under that statute are safe guides to us 
in the exposition of our act. In a case, Anonymous, 2 
Salk. 50C 507, it is decided, that, if the plaintiff be dispau- 



246 8UPRESIE COURT. 



Revel *. PeMMD. 

pered, it is the usual practice to tax his costs against him. 
This doctrine is approved in the third volume of Bacon's 
Abridgment Title, Paupers Letter, D» page 618. Stilec' 
Rep. 386. This is a direct authoiity against the motion 
of the defendants. But in addition, the plaintiff here has 
given a prosecution bond, of course in the ordinary form, to 
prosecute the suit with efiect, and, in case of failure, to pay 
all such costs and damages, as should be awarded against 
him. The defendants say, that, although this bond might 
subject them to pay the costs, incurred subsequent to its 
execution, it did not subject them to such as were incurred 
by the plaintiff antecedent thereto, for the reason, that the 
plaintiff was not bound to pay them, as, at that time, he was 
suing as a pauper. The case from Salkeld shows, that, upon 
being dispaupered, costs shall be taxed agaihst him. What 
costs ? All those which any other plaintiff was liable to. — 
Under the English law, no person, summoned to attend as 
a witness, was bound to attend the Court, unless his expenses 
were paid or tendered to him. Our statute makes no such 
provision — the witness is bound to attend. At the termina- 
tion of the term of each Court, he may compel the party, for 
whom he is summoned, to pay his attendance, or he may 
file his certificate in the Clerk's office, term by term, to await 
the decision of the cause. At that time the successful party 
obtains a judgment for his Costs, and the attendance of his 
witnesses is taxed in the bill of costs, and is collected by 
the execution. The witnesses of the plaintiff in this case 
could not, it is true, while he was protected by his order, com- 
pel him to pay them, but they had a right to prove their at- 
tendance and to file their tickets. We are to presume, they 
did so. But again, if the defendants had succeeded in the 
suit, the plaintiff and bis sureties in his prosecution bond 
wouldr very clearly, have been bound for the attendance of 
his witnesses, as well before as after the execution of it. The 
case of Wilson v. Hedgpeth et ah 3 Dev. 37, establishes 
that. It was decided, that a bond given, after the institution 



AUGUST TERM* IMl. MT 

HanhMT «. Moon. 

ot tha gtitt oovers all the costs — ^no matter at what itagfa if 
the suit incurred. If, under the circumstances of this caae^ 
the defendant could haye'recoversd their costs, inewhred 
while the plaintiff was protected by his order, we see no 
good reason why the lattef, when he is dispaupered and 
rendered liable to them, shall not reooTer them of the de* 
fendants. 

Per CumiAic. Judgment below reversed, and the rule 
discharged. 



JACOB HARSHAW vi. E. 8. MOORE. 

la u Mtioa bnmght hf t aiortgagM SfsiDrt a creditor of tfaa man^fn^ 
elwiaiof pioperty naiUr aa exeeatiMi afaiaii Um inortgtfor, H bilaf al^ 
Icdged that the mortgage wu inada with a ftandaloat aotant, tha docilara 
tioui of the mortgagor, immediately before and in contem|iUtiOB of the aflt* 
maybegtven in OTkleiiee againit the mortgagee. Hia deelarationi after 
the aei are aoi adminiMa in arManoa. 

Aj^ieal from the Superior Coi|rt of Law of Burke Goun^ 
ty, Fall Term, 1851, his Honor Judge Dmk presiding. 

This was trorer for the conTenion of a date. Botii 
parties claimed under one Glarke» 

The plaintiff read in eridence tfie record of a suit in 

equity, in which he was plaintiff, against the said Olsaie 

for the foreclosure of certain mortgages, in wMch such prb» 

ceedittgi were had, that a sale was ord^fed to be made by 

the Clerk and Heater ; at which sale the phafttitf became 

3 



848 SUPREME COURT. 



Hanhaw «. Moan. 



the purchaser of the slave. He also proved, that the de- 
fendant afterwards took the slave out of bis possession and 
sold her at public auction. 

The defendant read in evidence an execution in favor of 
one Idiller against the said Clarke, under which he made a 
levy and sale ; and proved, that the debt, upon which the 
judgment in favor of Miller was rendered, existed long be- 
fore the execution of the mortgages upon which the above 
decree was obtained. He also proved, that, before and at 
the time of the execution of the mortgages, Clarke was 
greatly indebted to several other persons ; and he proved 
by one Presswood, that he drew the mortgages at the re- 
quest of Clarke ; they conveyed all of Clarke's property, 
and he told the witness to insert 91200, as the amount of 
his indebtedness to the plaintiff; he also told the witness, 
shortly before the execution of the mortgages, he was about 
to be pressed by some security debts — be would not pay 
them, and, to avoid it, he intended to mortgage all of his 
property to the plaintiff. 

The defendant then called one Coffy. He stated, that 
Clarke told him a few davs before the execution of the 
mortgages, there were some security debts coming against 
him, and to avoid paying them, and to keep his property, 
he was going to mortgage it to the plaintiff; in the same 
conversation, he told him he owed the plaintiff 8105, and 
die plaintiff was his surety to Murphey's estate for $120. 
The plaintiff objected to this part of the conversation. The 
defendant also called the wife of Clarke. She stated, her 
husband told her the d|iy before he mortgaged his property, r 
thatiie was going to do so, to avoid paying security debts, 
and to have the use of it ; he also said he owed the plaintiff 
$10$, and he was his surety to Murpbey's estate for $120. 
This testimony was objected to. The mortgages were 
read in evidence. 

The plaintiff then read the bill against Clarke to foreclose, 
and* Clark's answer, .and an award of certain referees, fmd- 



AUGUST TBRM, 1«51. Mf 



Hanbaw v. Moore. 



ing the amount of the indebtedness of Clarke to the* platntiff 
at the date of the mortgages, and offeredto prove what Clarke 
said was the amount he owed him, in a conversation after 
the execution of the mortgages, and before the levy of the 
execution by the defendant. This was rejected* 

The Court instructed the jury, among other things, that 
in ascertaining the amount of the indebtedness of Clarke to 
the plaintiflf, al the time he executed the mortgages, the 
finding of the referees was not conclusive on the defendant, 
because he had no opportunity of being heard before them, 
and was not a party to the suit in equity. 

The jury found for the defendant ; and the plaintiff moved 
for a new trial : 1st, because the Court erred in admitting 
the declarations of Clarke, as to the amount he owed the 
I^aiotiff, made before the execution of the mortgages : 2nd» 
because Clarke's declarations, after the execution of the 
mortgages, were rejected : Srd, for error in the charge, in 
respect to the finding of the referees. Motion refused ; 
judgment, and the plaintiff appealed. 

Avery and Gaither, for the plaintiff. 
Bynum, N. W. Wood/in and T. R. Caldwell, for the de- 
fendant. 

Peaeson, J. The case turned upon the intent, with 
which Clarke executed the mortgage deeds. The defendant 
alleged, that his intent was to hinder, delay and defraud his 
creditors. His declarations, immediately before and in con- 
templation of the act, were clearly admissible to show his 
object in doing it. He was the owner of the property. His 
declarations were against his interest, and strong evidence 
bearing upon the very point against him and the plaintiff* 
who claims under his deed. In fact, the question was con- 
cluded by admitting the first part of the conversation with- 
out objection. In that, he declared in general terms an 
ntention to avoid the payment of his debts; and the sub- 



tM aUPRSME COURT. 



•mC 



Hanimw v. Moore. 



flaquent part of the eonTersatioB, in reference to the amount 
ha owed the plaintifl^ was a mere explanation c^ the man* 
ner, in which the fraud, avowed in the former part, was to 
be effected. 

The competency of the wife is not made a question by 
this record, and we can, therefore, give no opinion upon it. 

The declarations of Clarke, after the execution of the 
mortgage deeds, were properly rejected. He was not then 
the owner of the property, for the conveyance, although 
void as to creditors, was valid as between the parties ; and 
his declarations were inadmissible to sustain his deeds a- 
gainst one, who claims under a title conferred by law. 

We are at a loss conceive of any principle, by which it 
ought to have been held, that the -' finding of the referees," 
and the decree between the plaintiff and Clarke, were con- 
elusive on the defendant. It was *' res inter alios acta^'* 
and. was evidence merely of its existence, and not of its 
truth. 

There is no error. 



Pbe CraiAM. Judgment affirmed. 



AUGUST TERM. 1831. Ml 



A. B. CHUNN vf. W. D. JONES. 

A defondant wm arrested on a ea. m. and gave bond aa requin'd by law ; ilia 
plaanUffwaa permitted to amend his execution and the defendant aHowed 
to appeal ; m the Superior Court the plaintilT moved to diimisB the appeal, 
on the ground that the appeal waa improvideotly granted, and the motion 
was Mistained by the Court and the appeal ordered to be dieroiaeed. The 
plaintiff is not then entitled in that Court to a judgment for his debt and 
ooata against the defendant and his sureties on the appeal bond. 

Appeal from the Superior Court of Law of Buncombe 
County, at a Special Term, July, 1851, his Honor Judge 
Bailet presiding. 

The defendant was arrested on a capias ad satisfacieU" 
dum, on a Justice's judgment, and entered into bond under 
the act for the relief of honest insolvent debtors. On the 

« 

return of the proceedings, the plaintiff moved the County 
Court to amend the execution, and it was allowed. The 
defendant prayed an appeal, and, having surrendered him- 
self in discharge of > his sureties and been ordered into cus- 
tody, he was allowed to appeal. In the Superior Court the 
plaintiff moved to dismiss the appeal as having been impro- 
vidently granted, and the Court allowed the motion, and 
gave judgment against the defendant and his sureties for 
the costs on the appeal. Then the plaintiff further moved 
for judgment for tKe debt and all the costs against the de* 
fendant and his su*eties for the appeal. But the Court re- 
fused it, and* ordered a procedendo to the County Court ; 
and the plaintiff appealed. 

/. W. Weodfin, for the plaintiff. 
Avery, for the defendant 



252 SUPREME COURT. 



dimini V. Killian. 



RuFFiN, C. J. The two motions of the plaintiff were en- 
tirely inconsistent. The appeal was dismissed at his in- 
stance for the want of jurisdiction, and the defendant ac- 
quiesced therein. It necessarily followed, that there could 
not be judgment for the debt, since that would imply juris- 
diction and a decision on the merits. 

PsA CuaiAW. Judgment affirmed. 



^ACOB SIMMS v«. JOHN KILLIAN. 

A. eoiitrBct«d to parchase IVaii B. a tract of land at a stipnlated pricei and 
gave hia written obligation to that ^SbeL Afterwardi, C, bj parol, agrcod 
to purchhwe A.'i interest in the contract, and A. by endorwment on hii o^ 
ligatioo directed B. to convey to C. Held, that the contnust between A. 
and C. was void by the atotuto of frandp, and, of eoune, no action coold be 
■ostained on it. 

Appeal from the Superior Court of Law of Haywood 
County, Spring Term 1851, his Honor Judge Settle 
presiding. 

This is assumpsit, in which the plaintiff sought to recov- 
er the sum of $200, part of the price, which the intestate 
promised to pay the plaintiff for his iitterest in a tract of 
land. On the general issue, the facts were these : The 
plaintiff contracted with one Wikle for the purchase of the 
land at 9600, and paid him $210, and took his obligation 
to convey to him upon the payment of the residue of the 
^purchase monevr Afterwards Jones, the defendant's intes* 
tate, contracted orally with the plaintiff for the purchase 
of his interest in the land at $800 ; whejreof he promised 



AUGUST TERMb 18tl. 253 



SimiUB V, Killiau. 

the plaintifi* to pay 9590 to Wikle in full of the balance due 
him, and to pay the plaintiff the remaining 9210. There- 
upon the plaintiff signed a written memorandum on Wikle's 
obligation/ that Jones was authorised to take a deed from 
Wikle in his own name, and delivered the paper to Jones ; 
who afterwards paid the purchase money lo Wikle and got 
a deed from him, and also paid the plaintiff the sum of 910 
in part of the $210, but died without making any farther 
payment. The defendant insisted, that the action would 
not lie, because the agreement was not in writing ; and the 
presiding Judge was of that opinion and non-suited the 
plaintiff, and he appealed. 

/. W. Woodfin, for the plaintiff. 
iV. W. Woodfin, for the defendant. 

RuFFiN, C. J. The Court concurs in the opinion of his 
Honor, which is in accordance with the case of Rice v. 
Carter, decided here a year ago. The contract concerns 
the sale of an interest in land, and by the statute of frauds 
a party to it cannot be charged therewith, unless it be in 
writing and signed by the party thus sought to be charged. 
It was argued at the bar, that the policy of the act was to 
protect owners of real estate from being deprived of it with* 
out written evidence under their own hand, and that a 
promise to pay money for land is not within the mischief. 
But the danger seems as great, that a purchase at an ex- 
horbitant price may by perjury be imposed on one, who did 
not contract for it, as that by similar means a feigned con- 
tract of sale should be established against the owner of land. 
Hence the act in terms avoids entirely every contract, of 
which the sale of land is the subject, in respect of a party* 
that is, either party, who does not charge himself by his 
signature to it after it has been reduced to writing. 

?££ Curiam. Judgment affirmed. 



254 tUPRBMU COURT. 



ROBERT GANT rt. WILLIAM IIUNSU^KRR. 

A deod is v«lid in a Coart of law, notwithttandisig any fraad in the 
tion of the deed or in any falee repreeeutation of a collateral tact, whereby 
the party wai induced to enter into the contract by executinj; the imtmnienc. 

A party, who does not except to an opinion in the Court below on a point of 
Iaw» b precluded from making the exception in the Supreme Coart, wha» 
the case comes on there. 

The eases of Philipg ▼. Smith, 1 Car. L. R. 475, WilUanu v. Beeman, S DeT. 
463, Logun v. Simmomtfl Dcv. and Bat* 13^ and Reedy. Moore, 3 Ire. 310, 
cited and approved. 

Appeal from the Superior Court of Law of Goi^ton Coan* 
ty, Spring Term, 1851, his Honor Judge Battlg presU 
ding. 

This is covenant on a general warranty of title, contain- 
ed in a bill ot sale made by the defendant to the plaintifTon 
the 31st of September, 1847, for two slaves, and expressed 
to be for the consideration of one dollar. The pleas are 
non est factum, no breach, and a special plea, that the deed 
was obtained from the defendant without consideration and 
by the fraud of the plaintiff. 

On the trial, the signing, sealing, and delivery of the deed 
to the plaintiff were not disputed. The plaintiff then gave 
in evidence a deed trom the defendant to John Hunsucker, 
dated on the 30th of August, 1847, whereby he conveyed 
the same two slaves and other chattels, in trust for the sole 
and separate use of Polly Gant, the wife of the plaintiff and 
a daughter of the defendant, during her life, and after her 
death upon a further trust for Sarah Gant, a daughter of 
the plaintiff and his wife, and for such other child or child- 
ren, if any, as the said Polly might thereafter have, and in 
case the said Sarah and such other child or children should 
die without leaving issue, then in trust for the plaintiff 



AUGUST TBRM, lAl. 295 

Qaht •. Hmmcker. 

to ft oeFrtdin* sfcare of the slaves, lind as to the residue thbfe' 
of ill ti^st for cer^n other persohe. And the plaintiff 
gave flirther eVidence> that he took the two slaves- into pos^ 
seuion when the deed was made to him, and that aft^r- 
wai<ds- John Hunsucker, claiming the slaves under the said^ 
deed made to him by the defendant, brought An action of' 
detlriue against the plaintiff for them and recovered thereiti 
and took the slaves from the plaintiff before the present ac^ 
tion was- commenced ; and that the slaves were of the vaU 
lie of tHOO. The plaintiff then produced one Cline, who 
deposed, that he was the plaintiff's brother-iti-law, and that' 
od the 21sA of September, 1647, the plaintiff cam6 to bi^' 
houee and requested him to go to the defendant's and write 
the bill of sale, and that he went with the plaintiff and 
wrotfe the deed, and, after the defendant had executed it, 
he aiiid asdn of the defendant attested it ; and that on that* 
oecasioii the plaintiff told the defendant, that the defendant' 
oeuld talce up the deed of trust he had made to John Hun* 
sucber, and that it wouM be no harm to the defetidaht to- 
ezeoutethe deedtotheplaintiff, whioh the witness was thetl 
preparing. He further deposed, that nothing was paid by 
the plaintiff for the negroes, as far as he Understood ; and 
thfld the defendant was at the- time nearly eighty years of 
age, but, in the opinion of the witness, he understood what 
be* was- doing. 

In support of the issues on the part of the defendant, he 
caHed' sever id witnetees. One of tbeth was the Sheriff of 
Ga«liwba» who deposed, that the defendant Ihred in thM' 
county and was very i^ed and an ignorant Dutchman of 
vmdiminfd^ Another was- an unmarried ' daughter ofthb' 
d^ndant wh^' lived with him. She deposed, that the d^ 
fetldant'<wlM^very oId-»(id infirm, and was a drinking matf'; 
and^tlMit h^ had been sick witb chills and fevers- {6t' thne^^ 
VMfkii^beliMe hemade-'the deed |o the pkutftiS) and was of' 
vMry<^eak%ififiiid; and etaily'persuadMto^alnNMfaAy'thing'^ 

aadtWal'dilira^'thaf period th« pfointiff w^s ofteiiaf-the' 

4 



888 : SyPREMB COURT. 



Gantv. HoDtuoker 



defendant's to get him to make the plaintiff a bill of sale 
for tlie negroes, and that he was there in the early part of 
the day, on which the instrument was executed, and went 
for Cline to write it, and they came together just before 
nighty and did the business. The defendant also called one 
d his sons, who was the other witness to the deed, and he 
deposed, that, before it was executed, the deed of trust to 
John Hunsucker was talked about by his father and the 
plaintiff and the other, persons present, and that they all ex- 
pressed the opinion, that it might be taken up and destroy- 
ed. Evidence was also given, that on the next day the 
plaintiff applied to John Hunsucker to get the deed of trust, 
but the latter declined giving it up until he could consult 
Counsel 

For the plaintiff it was contended before the jury, that 
the defendant had mental capacity to execute the bill of 
«al^; and that there was no fraud or imposition practised 
on him by the plaintifi in procuring it ; and that the plain- 
tiff was entitled to damages to the value of tne slaves. The 
Counsel for the defendant also argued before the jury the 
question of fact, as to the capacity of the defendant, and as 
to the fraud and imposition on him to induce him to exe* 
cute the deed; and contended further, that,- if the jury 
should be of opinion against the defendant on these points, 
yet the plaintiff could only recover, as damages, one dollar, . 
that being the purchase money mentioned in the deed. 

The Court instructed the jury, that, to render the instru- 
ment valid, it was not necessary the defendant should have 
«4nind equal to the most intelligent and best informed men, 
nor that his mind should at the. time of executing it have 
been equal to what it had been ; but it was sufficient, if he 
had inind and memory enough to know what he was doing, 
and understood its effects. The Court further instructed 
the jury with regard to the alleged fraud and imposition,/ 
that, if .the plaintiff knew that the deed of trust could not be- 
taken up and yet represented to the defendant that it oould» . 



AUGUST TERM, 1851. itST 

-- --• - - ... ■ ■ ^ 

Gant 0. HuDBncker. 

SO that he signed the bill of sale under that belief, induced: 
by such fraudulent misrepresentation of the plaintiff it 
would invalidate the bill of sale ; but that if both parties 
were mistaken as to the right to take up the deed of trust, 
then it would not have that effect. As to the damages, the 
Court instructed the jury, that, if upon the other points they 
should think the plaintiff entitled to recover, he was entitled 
to one dollar only, being the consideration mentioned'in the 
deed, with interest thereon. The jury found for the defen- 
dant on all the issues ; and the plaintiff moved for a new 
trial, because the verdict was against the weight of evi- 
dence. That was refused ; and he then mo^ired for a venire 
de novo, because the Court erred in the instruction upon 
the question of damages : which, being also refused, the. 
plaintiff appealed. 

Avery, Landers and Alexander, for the plaintiff.. • 
Craig, for the defendant. 

RvFFiN, C. J. This Court has no cognizance of themo- 
tion for a new trial : which was addressed entirely to the 
discretion of the Court, in which the trial was, and ought 
not to encumber the bill of exceptions. 

The point respecting the damages presented questions 
on the trial of some novelty, and, nerhaps, of not very easy 
solution. The difficulty would not, indeed, arise out of a 
supposed restriction of a purchaser of slaves to the recov- 
ery of damages to the amount of the purchase money men- 
tioned in the bill of sale, and interest thereon, in analogy, 
apparently, to the rule relative to the warranties of land*. 
For, the rule as to land stands on peculiar reasons, which 
were thought to control the usual measure of damages iti 
the personal action of covenant, which is held to lie on a 
warranty. Phillips v. Smith, 1 Law Repos. 476 ; WiP' 
liams V. Beeman, 2 Dev. 48?. But as mentioned in the 
latter case, on covenants relating to personal things, the 



lUe flUFBEUE COURT. 

G«nt 9. Hanracker. 

rocovery always is for the actual damages or loss to the 
covenantee from the breach ; as, for example, the value of 
an article at the time it ought to be delivered, or the value 
of slaves at the time of eviction. But it might not be so 
easy to say, whether there be any rule of law as to the 
measure of damages, or, if there be, what it is, in a caae 
like this ; in which the conveyance and covenant ane sub* 
slantially voluntary, and the eviction was .by a title para* 
mount in trust for the plaintifTs family and himself, of the 
existence of which he was aware at the time he took his 
<|bed, and from which he then represented to the defendant 
DO harm could come. But, whatever may be tbe rule of 
law on those points, the case, as it now stands, cannot be 
afiected by it For, it is clear, that the instructions on this 
part of the case had no effect on the verdict, since tbe jury 
did not pve the plaintiff damages on either basis, but found 
against him altogether. It Is thus reduced to a certainty 
that the verdict was upon the other parts of the case, and 
therefore that the instruction as to the measure of damages 
was perfectly inunaterial, and could not prejudice tbe plain- 
tiff. 

It was next said for the plaintiff, that there is error in the 
instruction as to the effect on the deed of tbe alleged fraud 
apd imposition in inducing the defendant to execute the 
deed, by deceitfully representing to him, that he could lawful- 
ly conceal the prior deed of trust made by him, altliougb the 
plaintiff knew at the time, that the deed of trust was irre- 
vocable, and conclusive of the title to the two slaves. The 
Court, it is true, does not ap{H*ove of that part of the in- 
structions. For, although the facts assumed in the hypo- 
thesis might in another forum affect the operation of the 
deed* so as to cause it there, according to circumstances, to 
be set aside, or to be held as a security for money paid or 
1^ out under it, yet at law they do not avoid the deed* In 
f^ Coi^rt of law the question is a naked one, of deed or bo 
dc^ ; for, if the deed be an instrument for any purpose, it 



AUGUST TERM, 18S1. 250 



JL^ 



Gant V. Hnniiacker. 



remains so to all purposes, either as conveying the thing, 
or covenanting for the title. And, s\ipposin^ the defendant 
to have had capacity to contract, and that no trick or de- 
ception was practised on him as to the terms of the instru- 
ment he was executing, but he knew the contents of it and 
executed it voluntarily, the Court holds, that upon non est 
Jaetum the instrument would not be avoided, but be held 
to be the defendant's deed, notwithstanding any fraud in the 
eonsideration of the deed or in any false representation of a 
coOateral fact, whereby the defendant was induced to enter 
into the contract by executing the instrument. Logan v. 
Simmons, I Dev. and Bat. 13 ; Reed v. Moore, 3 Ire. 310. 
But, though that be the opinion of the Court, it is not now 
open to the plaintiff to complain of that en or, because he 
took no exception to it on the trial. For the best reasons 
it is entirely settled, that the Court can take no notice of aa 
error not apparent in the record, that is, in the pleadings, 
verdict, or judgment, unless the appellant except to it at the 
trial. Besides the presumption, that every thing was done 
light until the contrary be alleged, there is another, that, for 
purposes of his own, the party assented to or acquiesced in 
every opinion of the Court, to which he did not at the tinoe 
except. In this case the exception is confined to the direc* 
tions respecting the damages, and finds no fault with that as 
to the flraud and imposition. Indeed, the plaintiff seer^ to 
have (MPeferred putting his case before the jury on the ques- 
tions of fact alone, whether he had made the alleged repre- 
aentation, and whether the plaintiff acted on it. He did not 
raise the question of law below, which he urges here, and 
therefore he cannot now raise it. 

P«E Curiam. Judgment affirmed. 



880 SUPRKMG COURT. 



JAMES SLOAN M. WILLIAM McLEAN. 

• 

Whf ro a judirmont was reii(!iered by a justice of the peace ag^nat an abeeoC 
party, and the party within ten days thereafter applied for relief, under the 
act of AMembly, Rot. Stat. ch. 62, eec. 1 5, the justice haa no right inmiiui- 
rily to vacate the judgment. Such an order is roid. 

It was the duty of the justice to issue a notice to the opposite party nod an 
order to summon witnesses and produce all the papers before him or waauB 
other justice .at some day within thirty days, in the meantime direetinf m 
forbearanoe of proceedings, on which appointed day the case alMsikl ba ra* 
eoosidered. 

When a justice, on such appUcatioo, made an order at once vacating (bejodg- 
meni, and no further proceedings were had thereon ; HM, that the order aol 
being warranted by law, the original judgment remained in full fore^^ 

Appeal from the Superior Court of Law of Iredell Coun- 
ty, Fall Term, 1850, his Honor Judge Settle presiding. 

This was an action commenced by warrant before a jus- 
tice of the peace on a former judgment, as follows : '* Au- 
gust 16th, 1844. 

'* Judgment by default in favor of plaintiff, principal SSO^ 
costs 30 cents. 

(Signed) NEIL McAULEY, J. P. (Seal.) 

The defence was, that the former judgment had been 
vacated and made void by the granting of a new trial. 

Neil Mc Auley, the magistrate, who gave the judgment, 
Rwore, that the defendant, eight days after the rendition of 
the judgment, applied to him for a new trial. He could 
not say, whether he swore the defendant or not ; but the 
defendant was absent on the day he gave the judgment, and 
upon his application he granted a new trial and drew up 
and signed a paper as follows : 



AUGUST TER3J, 1851. 261 



Sloin o. McLean. 



^ ST ATE OF NORTH CAROLINA— Iredell County. 

To Thomas McConnell, Const: Whereas, William Mc- . 
Lean hath this day applied to me, Neil McAuIey, one of 
the justices of the peace for said county, for a supersedeas, 
or new trial, in the case wherein James Sloan is plaintiti' 
and the said William McLean is defendant, tried before 
me at James Sloan's, on the 15th of this inst.,*when and 
where the plaintiff obtained a judgment in the absence of 
the defendant : I do hereby supersede and make void the 
said judgment. This is, therefore, to command you to no* 
tify the plaintiff, that a new trial in the said case will be 
held before me at the School House, on the 2d Saturday of 
September next, when and where you are to return the 
said judgment, together with all the proceedings in the case. 
Given under my hand and seal, August 22d, 1844. 

(Signed) NEIL McAaLEY, J. P., (Seal.) 

He tendered this paper to the defendant, who declined 
taking it, but requested the witness to hand it to the officer, 
as he would be more likely to ^ee him first : Witness put 
the paper among his private papers, where it has remained 
ever since, until a few days before the term of the Court : 
He did not see the officer until a few weeks after the " sec- 
ond Saturday of September :" He then told him what had 
been done : He had no recollection of attending on the day 
appointed for the trial. One Graham swore, that, accord- 
ing to his recollection^ the justice of the peace and the de- 
fendant did appear at the '* School House" on the day 
named, but neither the plaintiff nor the officer was present. ' 
There was no evidence, that the plaintiff had any notice of 
the application for the new trial. 

The jury rendered a verdict for the plaintiff, subject to' 
the opinion of the Court, upon the question of law reserved ; ' 
and the Court, being of opinion with the defendant, set 
aside the verdict, and directed a non suit ; and the plain- 
tiff appealed. 

Osborne, for the plaintiff. 

Bpyden, for the. defendant. . i 



262 SUPKBME COURT. 



81mo 0. Mcljeuu 



> ■ 



Pbasaon, J. The question depends upon the legal effiMt 
of what was done by the magistrate, and involv^es tbe^oon- 
struction of the statute, Rev. Stat. ch. e2, sec. 15; We* 
think the matter was left unfinished, and was not carried' 
out, so as to have the effect of vacating and making void 
the first judgment. We lay no stress on the fact, that it 
does not appear that the defendant was sworn, or gave the 
security required. The magistrate misconceived the pow- 
er conferred on him by the statute. He had no power, 
upon the ex parte application of the defendant, to vacate 
the judgment. He had power only to issue certain process, 
the result of which would be^ if carried out, a reconsidera- 
tion or "new trial." If that took place, the first judgment 
was, of course, vacated.' If it. did' not, then the first judg- 
ment remained in full force.. Accordingly, the Statute cU- 
recta the magistrate to issue an order to the party or officer 
who has the papers in possession, to forbear all further pro* 
ceedings, and inunediately to bring all the persons before 
him, or some other jtistice of the peace, for *' reconsidera* 
tioa." It further directs him to issue his sumoions to.some 
proper officer to cause the parties, with their witnesses, to 
appear, before him, or some other justice of the peace, with* 
in thirty days, when ** the matter shall undergo a fair ia« 
veetigation." It is this <* fair investigation," " reconsdera- 
tion»" or " new trial," which vacates the first judgmenit; and 
o£ course, ii it never takes place, the judgment stands in full 
force. The magistrate is directed, without enquiry intatlv 
merits of the case, to issue process, for the purpose of havilig, 
the parties together. If the party, who applies for the pro- 
ce88,.or one, whom he chooses to depend on, as his* ag^nt,' 
neglects to have it served, and, in consequence tliereofr no 
** reconsideration" or ''new trial," takes places it is his mis- 
fortune. In consequence of his being absent at the trial, if • 
it is sufficiently accounted for, an opportunity is given him 
to have a new trial, provided he uses the4iieatui neeessikry 
for that purpose. This meets the jnecessit}'* of thft'tttle. 



AUGUST TERM, 1851. 863 



81o«o V. MeliMO. 

The construction, contended for by the defendant, goes be- 
yond it, and would lead to injustice ; for, if the application 
or order for process had the eflect of vacating the judg* 
ment, that end being efiected, roost defendants would not 
take the trouble to proceed any further ; so the plaintiff 
would be left to find out by accident, that their judgments 
were void, and to get new judgments in the best way they 
could. 

This strange view of the Statute, no doubt, was suggested 
by a supposed analogy between a new trial before a single 
justice, and a new trial in Court. But ther6 is a very great 
difierenc^. In the one, the matter is " in fieri^" and the 
parties are "in Court," until the end of the term; so that, 
if a new trial be granted, the parties are ^pso faoto put in 
«< statu quo.** Not so in the other. As soon as the justice 
gives his judgment, he isfknetus oficio^ and the parties are 
''out of his Court *," so that, nothing can be done to affect 
flie judgment, until the parties are brought into "hia Court" 
again by a new process. There is a greater analog to the 
writ of error. There, the parties being ** out of Court,'' the 
judgment is merely suspended, until die proceedings are 
** carried out" and finished by a new judgment. 

The judgment below im^t h6 re^tinodi «M a jud^thtet 
for the plaintiff. 



M4 lUPREME COHRT. 



THC STATE TO THE TOE OF SALLY POTTS •#. JEREMIAH 

B. ELU& 

Wh«r«» under an order of the County Couxt io a bastardy eate« the defeadant 
gave a bond, toconnply with any order of the County Court in that caae, 
and the Coart ordered (hat he should immediately pay to the woman a 
certain wm then aaoertained to be due ; HM^ that the woman might re 
leeee her intereet in the aaid mim, and that aack «eleaie would bar aa actini 
for the same, where ahe waa the relator and the suit brought in the name 
of the State, to whom the bond was payable. 

The cases of State ▼. Har^kaw, 4 Dor. and Bat 471, and Stmtt t. Curiam, 
'8 Ire. 179, tiled and a|fprof«d. 

Appeal from the Superior Covrt of Law oS Davie Coun- 
ty, Spring Term, 1851, hie Honor Judge Battle |>residing. 

This was an action of debt upon the bastardy bond of 
the defendant. PleaB^-conditions performed, and net bro- 
ken, release, and payment. The facts are set 4brtb in the 
opinion ot the Court 

jlttomay General^ for the plaintiff. 
Oraig^ for the defendant. 

NAtB» J. The defendant was charged by the relator 
ivith being the father of her bastard child, which had been 
previously thereto born. The defendant was regulariy» 
«nd by the proper authorities, declared to be the father of 
4he child, and. under the order of the County Court, c^ 
JDavie County, of which county both parties were citizens* 
l^ve the bend, upon which this action is brought. The 
County Court, at the same Term, made an order, " that J. 
B. Ellis pay to Sally Potts, sixty dollars, in three annual 
payments, to wit : 925, $20, tlS, the first instalment to be 
paid at thin Terok'' The actkm is brought to recover the 



AUGUST TERM, IWl. fles 

State «. ESHa. 

first instalment of $25. The pleas were, conditions per- 
formed and not broken, release, and payment. On the 
trial, the defendant offered in evidence a release, executed 
by Sally Potts, for whose use the action is brought, to him» 
'*of all claims against him, founded either in law or equity/' 
His Honor, who tried the case, among other things, charged 
the jury, " that nothing but payment could discharge the 
defendant from liability, under the order of the Court, and ' 
that the plaintiff (the relator) had no such interest in tkt 
record^ that she could release so as to defeat this recovery.^ 
In this we think there is error. One of the conditions in 
the bond is, " an(l perform any order of said Court re« 
lative to said child, &c." The Court made the order set 
forth in the case. The money was to be p«id to Sally 
Potts ; and the breach assigned in the declaration is for not 
paying this •25. Not paying it to whom ? and who under 
the order was entitled to receive it? Certainly, Sally 
Potts. How long the child had been bom before the order 
of filiation, we are not informed, but its mother had main- 
tained it up to that time ; and she was entitled to be reim* 
bursed for her outlays ; and it is usual in such cases for the 
Court, in its order, to provide for their immediate repay- 
ment by the father. In this case the twenty-five dollars, 
ordered to be paid during the Term of the Court, were in- 
tended to cover the expenses so incurred by the mother 
and which originally rested on the defendant. Her claim 
to them is very much in the nature of a claim for money 
laid out and expended for the use of the defendant — ^imper-^ 
feet, it is true; but after the order it became perfect and ob« 
ligatory. Sally Potts, therefore, had an interest, which 
she could release ; State v Harshaw, 4 Dev. and Bat. 47 K 
It is true, she could not, by any act of hers, release the de* 
fendant from his bond. The county, for whose use, as well 
as her own, it was given, still had claims under it against 
the defendant ; but she could discharge him from all obliga-. 
tion, which was exclusivelv to her, as the allowancefor 



m atJPKEMB COUI(T. 



State «. Elbi. 

her pu9t seryices. In their yerclict the jury find, ond^r tho 
instruction of his Honor, against the defendant, " and assess 
her damage for the breach." Now, it was competent for 
the defendant to show, that he had performed the order of 
the Court, and any eyidence would be admissible, which 
proved, either that no damages ever arose to the relator » 
either in consequepce of the performance of the covenant 
in the bond, or that the obligor was discharged from the 
performance, or that amends had been made for the breach 
assigned. ** The Court is obliged in these ^nd similar cases 
to look to the purposes of the action and the nature of the 
recovery, sought. It is not given to any officious perscHiy 
but to such only, as are aggrieved by the non-perforroaiHS^ 
of any of the conditions. The action on the bond is, there* 
fore, answered by any patter showing that the relator has 
no demand against the defendant, and, therefore, has suii* 
tained no damage." &ate on the relation of Clarke 4^. v. 
Cordon, 8 Ire. 179, whichi in principle, covers this case. 

We are of opinion there was error in hiif Honor's charge* 
for which the judgment is reversed ^nd a venire d^ novo is 
awarded. 

P^i^ CuftiAM. Jqdgmenl 



AUGUST TERM, 1851. 867 



THOMAS S. DEAVER vs. JAMES CARTER'S ADM*R. 

Od the eoinproniise of a raitf tho defendant agreed to pay the fe« of the 
pIkintiiPa attorney— ne|[lected to do so, and the plaintiff was oblig^ to pa^r 
it himaelfi HM^ thai the statute of limitations did not begin to ran afainst 
the plaintiff's claim, until he paid the money, and that it was not necessa- 
ry to give notice of the payraeni to the other party to entitle the plaintiff to 
bring hb suit. 

Appeal from the Superior Court of Law of Yancy Coun- 
ty» Spring Term 1851, his Honor Judge 3ettlb, presid- 
ing. 

This was assumpsit. The facts of the case are stated in 
the opinion of the Court. 

/. W. Woodfin^ for the plaintiff. 

N. W. Wooden and Gaither, for the defendant. 

Nabh, J. A suit existed between these parties. It was 
compromised ; and one of the conditions was, that Carter 
should pay the fee of the plajntiffs attorney, and for which 
he held the plaintiffs note. This money Carter neglected 
to pay, and the plaintiff was obliged to discharge the note. 
The action is in assumpsit to recover the money so paid. 
The defendant relied on the Statute of limitations and the 
want of notice — more than three years having elapsed 
since the promise was made upon the compromise of the 
suit, but less than three years since the payment made by 
the plaintiff. 

The decision of his Honor, who ruled against the defen- 
dants on both points, is correct. The Statute did not begin 
to nn until the plaintiff discharged the note given to bis 
attorney. Before that time, he had, and could have, no 
canseof action against the defendant. No notice of the 



268 SUPREME COURT. 



Parris v, Roberts. 



payment was necessary. The parties, after the compro- 
niise. stood towards each other in the relation of principal 
and surety. The whole of this case is covered by that of 
Ponder against these same defendants, decided at this 
Term. In addition to the authorities there cited, may be 
added, 1 St. N. Pri. 316. 



PcR CuEiAM. Judgment affirmed. 



DAVID FARR18 vt. PIERCE ROBERTS. 

A. tod B. entered into the following agreement in writing : ^ Sold to B. one 

fgray filly for one hundred and fifteen bushels of com, which the said fill J- 

lotands good to the said (it.), as his own right and property, until she In paid 

Jbr." Signed and sealod by A. Held, that the legal title to the mare atill 

renf^ned in A. and that the sale was only condition il. 

The cise of BUutn t. Jonet, 4 Ire. 48, cited and approred. 

Appeal from the Superior Court of Law of Buncombe 
County, Special Term, July 1851, his Honor Judge Bailbt 
presiding. 

This was an action of trover. 

The plaintiff owned a horse, which he agreed to sell to 
one W. D. Jones upon the terms set forth in a paper writ- 
ing, which is as follows : 

<« March the 20th day, 1848» This day sold to Wm. U. 
Jones one gray filly for one hundred and fifteen bushels of 
corn, whicn the said filly stands good to the said David' 



AUGUST TEUM. 18SI. :269 



iPairii V Roberta. 



Parris as his own right and property, until she is paid for. 
Given under mj hand and seal, signed and delivered in the 
presence of WM. D. JONES. (Seal.) 

••Test. M. M. JoMBs." 

The horse was delivered to Jones. In July 1848 one 
Leander Mills levied an execution upon the said horse, as 
the property of Jones, and sold the same, the plaintiff being 
present and forbidding the sale. Mills was at the time of 
the levy and sale the deputy of the defendant, who was the 
sheriff of Buncombe County. 

Two questions arose in the case : 1st, whether the pro- 
perty in the horse passed to Jones according to the written 
agreement, or did it remain in the plaintiff/ And 2ndly : 
Suppose it remained in the plaintiff, did Mills, by what he 
did under the execution, subject himself, and consequently 
the defendant, as his principal, to this action ? 

The Court charged the jury, that, according to a proper 
construction of the written agreement, the property in the 
horse remained in the plaintiff; and that, if Mills sold the 
same under an execution, and was acting at the time as the 
deputy of the defendant, the defendant would be liable. 

The jury found a verdict for the plaintiff, and the defen- 
dant appealed. 

Avery, for the plaintiff. 

/. W. Woadfin, for the defendant. 

Mash, J. In the charge of his Honor there is no error. 
By the contract between the [^ntiff and Jones, the legal 
<itle to the horse sold is expressly reserved. The title did 
not puss to Joiie»— the sale was hut conditional. ElU$on 
T. ./oJieff, 4 Ire. 48, QaUher v. Teagwt, 4 be. 65. The 
present case in principle is the. same with those. Here, 
the plaintiff expressly reserves the title to the horse sold, 
until the price is paid, and Jones, the purchaser, gave his 



y 



«70 SVPREME COUilT. 



Stale 9. Curtii. 



note for the price, which was tiot due when the constable 
«old. We are at a loss to perceive upon What principle 
the case was brought here. 

Paa CifftiAlf. Judgment affirmed. 



tll ESTATE us, WESLEY CURTIS. 

On M) iudictinent for peijury in swearing thAt A^ oiie dfthe aerehd ■oafltfsis 
inftn affray, ttruck the defeu(Unt» when it appeared that A. didaot« bat 
another aBMiiant did strike the bloir, it was cou^etent (or the defendant, m 
trder to disprove a corrapt motive, to shew that, Imnlediately on hit n^ove- 
ry from the unconsdousness occasioned by the blow, he bad ^eb the 
same account of the transaction be did in his tflatimony before the eonrt, oo 
the trial of the case, in which the perjury was charged. 

Appeal from the Superior Court of Law of tiiiticoihbe 
County, Fall Term, 1850, his Honor Judge Dick presiding. 

The defendant ia indicted lor perjury. The peijury is 
tilleged to have been committed in an oaih tHken by the 
•defendant, before one LemuEel Pagett, a magiflr^tCi Of file- 
Dowell county, on the trial of a warrant for an assault and 
Smttery against four persons — ^Archibald HefenpUH, Benja- 
<tom Hemphill, John HempliiU, aiid J«sse Wiaikitla. Updb 
4lie trial of the warrant, Benjamin HciiifpiiiU, tM btMag 
jiieen tifeken^ the defendant, CurttSi wa^-eMmiiledaiilWit- 
udds for the State, a«d sWore, tMt ari aMmlt aid tillery 
was dommitt^ upon hkn by the defendants ; and tllM^- 
<;hiftnkM UemphiU fcni»clceii hMii dovvn with 'an -a^' h^lye : 
that he was stitfnaei by lae iutcc 4jFt tlus WoW arkl kn^w no* 



AVQUST TfiRU, IMl. a?i 

Sute V. Curtis. 

thing further of the transaction. The ease states, that» upoa 
the trial of the indictment, the warrant was oflered in evi- 
dence, and the magistrate called on to state what was pro* 
▼ed before .him. The testimony was objected to by the 
defendant's Counsel, upon the ground that it did not appear 
on the face of the warrant, that any trial had taken place, 
or judgment reversed, and that it was incompetent to prove 
those facts by parol. The objection was overruled, and 
the testimony sMlmitted. It was proved, that Archibald 
Hemphill did not touch the defendant during the affray, but 
that Curtis was knocked down by Benjamin Hemphill, who 
jumped on him while down, and Archibald pulled him off*. 
The defendant then oflered to prove by a Mrs. Allison, to 
whose house he was carried, ''that the defendant was 
knocked senseless by the blow, but recovered his conscious- 
nese in a few minutes, but after the State's witness had 
left ; and, on being asked by her who inflicted the blow, he 
gave the same account of the transaction, that he had 
sworn to before the magistrate." This evidence, upon ob- 
jection by the State, was rejected, and the defendant con- 
victed by the jury. 

A rule for a new trial was obtained by the defendant and 
discharged by the Court; and judgment being rendered 
against the defendant, he appealed to the Supreme Court. 

Attorney Oenerat^ for the State. 

/. BaxUr and Bynum, for the defendant. 

Nasb, J. The first objection to evidence, made in the 
court below, has been very properly abandoned in the ar- 
gument here. It certainly cannot be maintained ; and the 
exception to be considered, contained in the case properly 
speaking, is as to the admissibility of the testimony of Mrs. 
Allison. His Honor, who tried the case, rejected it. In 
this, we think, there is error, To sustain a charge of per- 
jury, it is necessary for the State to prove, not only that the 

6 



273 SUPREME COURT, 



State V. CurtM. 



oath was false, but that the defendant took it oorruptl/ and 
wilfully, against his better knowledge. Hawkins says, a 
jury ought not to convict where it is probable, that the fact 
of the falsity of the oath was owing rather to the weakness 
than the perverseness of the party ; as where it was occa* 
sioned by surprise or' inadvertence, or by mistake. 1 Haw. 
cb. 69, 4 Bl. Com. 137. Corrupticm is an essential ingre- 
dient in constituting the crime ; and in this, as in other cases 
of intent, the jury may infer the motive from the circum- 
stances. KnitCs case, 5 B. and Al. 029 (7th E. C. L.. R. 
306), Roscoe'sCr Ev, 822. The oath taken by the defen- 
dant, it may be admitted, was not true : — was it corruptly 
false, was the enquiry. To enable the jury to come to a 
conclusion, satisfactory to themselves, on a question of such 
vital importance to the defendant, they ought to have^ had 
submitted to them every fact attending the transaction — 
not those alone, which preceded and accompaniea the af- 
fray, but also such as immediately followed ; and it was the 
r^ht of the defendant to lay before them every circumstance 
connected with the transaction, which could aid them in 
coming to a conclusion upon the question of intent. Was 
2U)t the evidence rejected highly important in this point of 
view ? An assault and battery was made upon the defen- 
dant by several individuals, and from one of them he received 
a blow, which rendered him senseless. Immediately upon 
recovering his senses, within a few minutes after being 
knocked down, being asked who struck the blow, he an- 
swered, it was Archibald Hemphill. It is admitted, that 
the latter was there, and of the company of the assailants. 
Mrs. Allison was not present when the assault was made, 
and the question she asked was a natural one, such as any 
one under similar circumstances would have put. The 
answer was made as soon as consciousness returned, un- 
premeditated, and without the possibility of concocting a 
false tale. It was strongly put in the argument here, that, 
i( oa the trial of the defendants, Curtis had sworn, as no 



AUGUST TERM, 1851. 973 

State 0. Cartis. 

doubt he did, before the magistrate, what he told Mrs. Al- 
lison would have been evidence to sustain him. And why 
is not that declaration, so made, evidence to prove the'want 
of corruption? — evidence to show, that he believed what 
he had sworn to ? We can see no possible reason for his 
fixing the infliction of the blow upon the wrong individual. 
If they were all theze with a common intent to commit the 
assault and battery, it was a matter o[ indiflerence in law» 
which one of them gave the blow — ^they were all equally 
guilty of giving it. If A. and B. are engaged in an affray, 
any person may interfere to separate them; but, if a oerson 
interferes for the purpose of assisting either party, or to pre- 
vent others from parting them, he is guilty of the affray.-*- 
This is common learning ; and it is prudent on such occa- 
sions for the interfering party to make known his intention, 
before he does interfere; and nothing is more common upon 
tne trial of such cases, than to give such person's declara- 
tions in evidence, as proof of his intention. The jury, it is 
true, are not bound by them, but the evidence is competent. 
Here, the declarations were made before th^ act was com- 
mitted, for which the defendant is indicted — to wit, the 
taking of the oath, and was not offered to show, that Archi- 
bald Hemphill was guilty, but to show the absence of cor- 
ruption on the part of the defendant in saying he was guilty.. 
In that point of view, the declaration, made by the defen- 
dant to Mrs. Allison, was competent evidence. 

Pbr Curiam. Judgment reversed, and venire de nova, 
awarded. 



274 tirPRUMC COWRT. - 



CARTER A AL »#. COLMAN A AU 



Where there is a dormant jndf;ment, the plaiotifT may have a aeirefacins to 
rcrne, and an action of debt to recoveri the amount of the judgment, both 
pending «t the same time ; and a judgment on the icire facia* cannot be 
pleaded in bar of the action of debt. 

Appeal from the Superior Court of Law of Buncombe 
county, Special Term, July, 1851, his Honor Judge Bailet 
presiding. 

In 1842, the plaintiffs recovered a judgment in debt against 
the defendant, which became dormant In 1847, they sued 
out a scire facias to revive, which was served. In Octo- 
ber, 1849, they brought debt on the judgment to March 
Term, 1850, in the same Court ; and at that Term, the de^ 
fendant confessed judgment on the scire facias, and pleaded 
the same in bar of the action in debt. Upon these facts, 
as a case agreed, it was submitted, whether the plaintiffs 
were entitled to judgment or not ; and, after a decision for 
the plaintifis, the defendant appealed. 

N. W. TFoo4/in, for the plaintiff. 
Gaither and /. Baxter for the defendant. 

RuPFiN, C. J. The judgment on the scire facias is, that 
the plaintiff have execution on his original recovery, and 
nothing more, except as to the costs. It is not at all incon- 
sistent, that the creditor should also have another judgment 
to recover the debt, and it cannot prejudice the defendant, 
as they are but different securities for the same debt, and 
satisfaction of either would be satisfaction of both judgments. 
A plaintiff may sue on a judgment, on which he may at the 
time have execution ; and, indeed, the purposes of justice 



AUGUST TERM, 18SL 27$ 



Holland v. Crow. 



may sometimes require it, as it may be necessary to the 
recovery of interest on a judgment for damages, or, as in 
this case, to obtain new bail, after the discharge of the for* 
mer bail, under the statute of limitations. The debtor can 
always defeat a disposition to oppress him with costs by 
paying the debt. 

Per Curiam. Judgment affirmed. 



JAHE3 HOLLAND'S HEIRS w. JOHN CROW A AL. 

On ft petitioa to yacftto a jnnkxr gnnt by moro than one poiaon, when one ooly 

had any oziitiog title to Uie premiiee, the mbjoinder is no bar to a judgment 

Tacatingtbe grant 
The relaton hare a right to this remedy, whether they proTe any actual dam. 

age er not ; for the enbeeqnent grant ie per ft a cloud npeo the owner'a title 

and, eo^ a grieTanoe to him. 
Where then was an order to amend and the subsequent proceedings in the ease 

are based upon the assumption that the amendment has been made, the 
eourse is, to consider the order as standing for the amendment itself. 
Eaities claiming under a junior grant cannot impeach an elder one diraeUy . 

mueh less can they do it in a collateral manner. 
Tlie casM of MeRae ▼. AUsander, 3 H awks 322, 1 De?. 321 , HoyU t. £sf en, 

4 Dot. 495, Uffwd ▼. Lueagy 2 Hawks 214, Hoyt t. RicA, 4 Dev. 533, and 

Cnm T. IhlUnid, 4 Der. 417 cited and apprared. 

Appeal from the Superior Court of Law of Haywood 
County, Spring Tenn, 1848, his Honor Judge Battlb pre- 
siding. 



27« SUPREME COURT. 



Holland v. Crow. 



This 18 a petition and scire facias to vacate a grant for 
640 acres of land in Haywood, obtained by the defendant, 
John Crow, on the 17th day of November, 1820, upon the 
ground, that the greater part of the same land had been 
granted to James Holland, the elder, on the 5th day of Sep- 
tember, 1798, and that at the time Crow made his entry 
and obtained his grant, he knew of the said prior grant to 
Holland, and that the same covered the greater part of the 
land included in the entry and grant to Crow, and, there- 
fore, that the land was not then subject to entry, and with 
such knowledge fraudulently made his entry and obtained 
his grant. The petition was exhibited in October, 1838» 
by Hardy Perkins and his wife, Selina Sophia, and by Pe- 
ter R. Booker and his wife Cynthia, and represented that 
James Holland, the elder, died in the year 1825^ seised of 
the land and in possession thereof, leaving the petitioners, 
Selina Sophia and Cynthia Booker, and one James Holland 
the younger, his only children and heirs at law, to whom the 
8sdd land then descended from their said father ; and that 
James Holland, the younger, afterwards died, and the pe- 
titioners entered into possession of the land and so contin- 
ued up to the filing of the petition : The petition further 
states, that, by color of the grant to Crow, he and the other 
defendants, claiming under him, by petition in Crow's name 
instituted a scire Jacias against the said children and heirs 
at law of James Holland, the elder, for the repeal of the 
grant to Holland, for certain pretended frauds in obtaining 
the Sjime, and otherwise disturbed them in their possession, 
and that in the suit so instituted by Crow, judgment was 
rendered for the defendants therein. 

The defendant, Crow, did not appear ; and the other de<» 
fendants put in answers to the petition, in which they state 
the manner in which they respectively claim under Crow, 
all the land included in the grant to him : and further al- 
lege, that the grant* to Holland was, itself, void, because it 
was founded on an entry by one Felix Walker, which he. 



AUGUST TERM, 1851. 2*7 



Holland v. Crow. 



being surveyor, surveyed for himself, and then transfered 
to Holland, and because of other defects assigned : The 
answers then deny, '* that Crow procured his grant with a' 
knowledge, that the land was not the subject of entry, as 
the defendants are advised,- and beliei^e that the said land 
was vacant and unappropriated and the subject of entry at 
the date of the entry of the said Crow, the said grant to 
said James Holland being fraudulent and void as aforesaid/' 
The answers further admit, that some of the defendants 
instituted the proceedings in the name of Crow to vacate 
Holland's grant, and that the several defendants still set up 
various claims to the land under Crow. The answers deny 
a knowledge by the defendants of the children and heirs at 
law of the elder Holland. In 1840, the death of Peter R. 
Booker was suggested and his wife Cynthia Booker was 
allowed to prosecute the suit for herself ; and at this same 
time, on the motion of the relators and of Sarah Ann Hol- 
land, iMary L. Holland, and Cynthia lioUand, the tliree in* 
fant children of James Holland, the younger, deceased, and 
his heirs at law, by their guardian and next friend, an or* 
der was made for amending the petition by making those 
three children parties, as some of the heirs of James H6L- 
land, the grantee ; and the Court ordered the wire facias 
to issue, as prayed for. The amendment was not actually 
made in the petition, but the scire facias was issued, as up- 
on the relation of Perkins and wife, Cynthia Booker, and 
8arah Ann Holland, Mary L. Holland, and Cynthia Hol- 
land, as the heirs at law of James Holland the elder. On 
the scire facias issues were joined, on which the jury found, 
amongst other things, that, at the time the defendant Crow 
obtained his grant and made his entry, he knew of the pre- 
vious entry by James Holland the elder and of the grant to 
him, and that the two entries and grants interfere in a cer* 
tain manner specified ; and that the relators, Cynthia Book- 
er and Sehna Sophia, the wife of the relator Hai*dy Perkins, 
heirs at law of the said James Holland the elder, and 



S78 9UPRBMS COURT. 



IlolUud 9. Crow. 



that the other relators Sarah Ann, Mary L. and Cynthia 
Holland are not heirs at law of the said James the elder. 

Upon the trial the relators produced as a witness one 
Andrew Welch, who deposed that many years ago a man 
came to the house of the witness in Haywood County, who 
told him, the witness, that his name was John Crow, and 
that he had lately entered " The Holland Old Fields," being 
the premises in dispute ; and that the witness asked him, if 
he did not know, that James Holland had entered the same 
lands long before, and he. Crow, replied, that he did : and 
thereupon the witness further asked him, why he had done 
so, and Crow replied, that he did it because Holland's grant 
might be void, and as it would only cost him forty cents to 
make an entry, he thought he would try it. On the part of 
the defendants it was objected, that there was no evidence 
to be left to the jury of the identity of John Crow, of whom 
the witness spoke, with John Crow, the patentee, and pray* 
ed the Court so to instruct the jury. But the Court was of 
opinion to the contrary, and left the evidence to the jury 
with directions, that they were to judge of its weight. 

The relators also produced in evidence the deposition of 
Thomas Love, who, being asked to state, who are the heirs 
of James Holland, Sen'r., replied : " I was acquainted with 
James Holland deceased in his life time, and from reputik 
tion I understand that Cynthia Booker and Selina Solphia 
Perkins are the only daughters, and Sarah Ann, Mary L. 
and Cynthia Holland, children and heirs at law of James 
Holland, Jun'r. deceased, (whose guardian is Alcalem 
Thompson) are, as I am informed and verily believe, the only 
heirs at law, who have claim to Holland's Old Field tract, 
in Haywood County, North Carolina ;" and the witness 
further stated, that he had once been the agent of all those 
persons to attend to these lands and to have this suit insti* 
tuted for them. On the part of the defendants it was objec* 
ted, that the testimony of the witness did not tend to prove 
thai Sarah Ann, Mary L. and Cynthia Holland were some 



AUGUST TERM, Itil. *n 

_■ -- - ■ ^^ - ■_ ■ - ■ _■ ^ j — ^-^ — 

Holland v. Crow. 

— , ■ . ■ ■ ■ - m ... ■- « ■■» ■ , I.- 

of the heirs at law of Janie« Holland, the patentee, for want 
of evidence of the relationship, if any, between him, the paten • 
tee, and James Holland the younger; and of that opinion was 
the Court, and so instructed the jury, who found accordinglj. 
Thereupon the other relators moved the Court for judgment^ 
that the grant to Crow be vacated and for their costs against 
the defendants. That was opposed by the defendants : Isl, 
because of the variance between the petition and the scirt 
facias in stating the persons who were the heurs of the 
patentee, Holland : 2ndly, because three of the persons, who 
were stated in the scire facias to be some of the heirs at 
law of James Holland the elder, are found not to be his 
heirs : and thirdlv, because the relators offered no evidence 
that the defendants had disturbed or in any manner inter- 
fered with the relators' possession of the land granted to 
James Holland ; and upon those grounds the Court refused 
the motion of the plaintiffs and gave judgment for the de- 
fendants, and those relators appealed. 

No counsel for the plaintiffs. 

Bynum, N. W. Wood/in and Baxter, for the defendants. 

RuFFiN, C. J. The Court is inclined to the opinion, that 
the testimony of Love, though not as definite and precisd 
as it might and ought to have been, is so expressed as to 
render it probable, that the witness meant to depoae» that 
the patentee left the two daughters named in the deposi- 
tion, and also a son, James Holland, Junior, who afterwanb 
died leaving the three infant children, who are the other 
relators ; and that they and their two Aunts were, therefore* 
believed by the witness to be the heirs of the elder James 
Holland, deceasecf. That seems to have been so probably 
the meaning of the witness, as to have rendered it proper 
to leave the evidence to the jury for their inference upon that 
point. But it is not requisite to decide that question, since,. 
^ held to be for the appellants, it would entitle tbem Qsfy 



Me SUPRBMB COURT. 



Holland «. CroK. 

» 

to ft ¥tnite de not>0 ; whet^as they were entitled in law to a 
judgment vaoating the grant upon the verdict as it stands, 
and supposing it right in respect of the finding as to the 
heirs of the elder Holland. The judgment rendered on the 
SCATS facias was in behalf of the 3tate ; and it was held in 
McRee v. Alexander 3 Hawks ?22, that where the scire 
fmcias was awarded at the instance of three relators, of 
whom one only had any existing title to the premises, the 
misjoinder was yet no bar to the judgment vacating the 
grant, and that judgment was given. Afterwards in eject' 
nient upon the demises of the three, there was judgment 
against the defendant for the one third in favor of one of 
the lessors of the plantiff and in the defendant's favor as to 
the other two thirds, because those two lessors had been 
barred by the statute of limitations operating on the de* 
fendant's possession for more than seven years under the 
vacated grant. McRee v. Alexander, 1 Dev. 321. In 
Hoyle V. Logan, 4 Dev« 495, the first case of McRee v. 
Alexander is mentioned as establishing, that a suit at the 
instance of several relators may be maintained upon the 
right of one of them alone, and the determination of the 
Court expressed to adhere to the decision. Those authori* 
ties are conclusive, that there ought to be judgment vacat- 
ing the grant non obstante veredicto, unless there be other 
grounds for refusing it. Several are alleged ; but they ap* 
pear to the Court to' be all insufficient. The variance be- 
tween the relators in the petition and the scire facias is 
cured by the order lor amendment. It is true, the amend«> 
ment was not actually made. But tlie scire facias was is- 
sued upon the assumption of the amendment, and all the 
Atrbsequent proceedings were based upon the supposition, 
that one was as properly a relator as the other ; and in such 
case the course is to consider the order as standing for the 
amendment itself. Vfford v. Ltuas, 2 Hawks 214. 

It is contended further for the defendants, that there 
o^ffht not to be judgment against them, because there was 



AUQU8T TERM, 1851. 9ti 



HoUaad v. Cnm, 



error in leayiog the case to the jury upon iosufficient evi« 
denoe as to the knowledge of Crow, the patentee* of the 
previous grant to Holland, at the time he made his entry. 
But the Court thinks the evidence was competent, and that 
its sufficiency depended on the conviction it produced in 
the minds of the jury, that the John Crow, of whom the 
witness spoke, was or w^ not the same person, who by 
that name obtained the patent. Under the circumstances, 
the evidence was not only competent, but in the judgment 
of most persons would be deemed sufficient. There was 
no suggestion, that there were about that period two per« 
sons of that name in that part of the couptry--*much lesa 
that the Holland Old Fields had been entered by more than 
one of them. Besides, the knowledge by the patentee^ 
Crow, of Holland's grant, when he made his own entry, is 
but a reasonable inference from that part of the i^swer, in 
which the defendants insist, that Crow did not procure hia 
grant with a knowledge, that the land was not subject ta 
entry, not because he was not aware that Holland had en<^ 
tered it and got his grant, but because Holland's entry and 
grant were void for certain reasons assigned, and, for that 
reason, the land was vaeant and unappropriated. The 
facts were, therefore, properly left to the jury on that is^ 
'Site. 

The answers also refute in point of fact, the last objec^ 
lion of the defendants — that the grant to Crow did not ag- 
grieve the relators, as it had oauaed them no disturbance. 
For, the defendants state exf^icitly, that under the grant ta 
Crow, some of them had at different times, during nearly the 
whole period from 1820, disputed the title under Holland's 
grant and been in litigation in some form with the tenants 
of the relators for the possession of the land. Indeed, if 
that were not the fact, the relators would have a right ta 
this remedy ; since the subsequent grant b per se a cloud 
upon the owner's title, and, so, a grievance to him ; Hoyt 
▼ Kichf 4 Dev. 533. As to imputations in the answem 



H 



lUPREMG COURT. 



Farmer v. Franeta. 



against the grant to Holland, upon which it is alleged to be 
▼oid, it is to be remarked, that these parties, claiming under 
a junior patent, cannot even impeach it directly, and much 
less can they do it in this collateral manner ; Crow v Hol- 
land^ 4 Dev. 417. Besides, those matters, though stated 
in the answers, are not pleaded to the scire facias. There- 
fore, the judgment must be reversed, and a judgment given 
according to the statute, that the grant be repealed and va- 
cated, and for costs against the defendants. 

Faa CuKiAM. Judgment accordingly. 



JNO. D. FARMER m. M. FRANCIS 

• 

Whaa vfllk is done undar a ipecial contract, and not eompletod within the 
tune limited, bat ia carried on after the day, with the aaaent of him for 
whom it was done, the party contractin|r to do the work is confined under 
the common coont, to the rate of eompenoation fixed by the eontiaot, 
when no further apecial contract is made. The rule to ascertain the dam* 
•fes is, if the work contracted for is worth the sum agreed on, what is it 
worth, as done. 

Hm case of DUkoon v. OdUoytll Ire. cited and approTod. 

Appeal from the Superior Court of Law of Haywood 
County, Fall Term, 1850, his Honor Judge Dick presiding. 
Case set out in this opinion. 



/• W. Woodfin and Henry^ for the plaintiff, 
g N. W. Woodfin and /. Baxter, for the defendant. 



AUGUST TERM, 18»l. «8$ 



Farmer t. Francis. 



Nabh, J. The declaration contains two counts-*-om 
upoD a special contract, and the other upon a quoTituM 
rafe^onf, for work and labor done and materials furnished 
by the plaintiff. The defendant employed the plaintifi to 
build him a house within a certain time and at a specified 
price. It is admitted the work was not done agreeably to 
contract, but a house was built, which the defendant used. 
- The plaintiff is entitled to a verdict on the second count ; 
and the only question is, as to the inile, by which his dam^ 
ages are to be assessed. On the part of the plaintiff it is 
contended, that the damages are to be assessed, according 
to the value of the work and materials, irrespective of the 
i^um specified in the contract. By the defendant it is con- 
tended, that they are to be assessed in reference to the 
price agreed. The Court coincided with the rule express* 
ed by the plaintiff, and directed the jury to ascertain the 
value of the work and materials^ disregarding the price 
fixed by the special contract, as that had nothing to do with 
the case. 

In this opinion, we do not concuV. It is manifestly un- 
just, and, if correct, would enable a workman, at any time 
it suited his own interest, to vary from his contract. An 
individual, wishing to have particular work done, applies 
to a workman, and upon consultation it is agreed, that it 
can be executed for a particular sum : afterwards, the con* 
tractor finds, he has made an improvident bargain, or prices 
of work or materials may have risen — all he has to do, if 
the opinion we are examining be correct, is to vary from 
his contract, spin out the time in which the work is to be 
done, and thereby entitle himself to compensation — ^not 
such he had agreed for, and which he had admitted was 
sufiicient, but such as it might be proved the work was 
worth. In this way the contract would be entirely super- 
seded, and compensation recovered upon an entirely differ- 
ent one. It is no answer to say, that the person, for whom 
the work is done, may refuse to receive it So he may. 



9M SVPRBUK COURT. 



Farmer v. Fraocw. 



but he may be so situated, as to render it necessary for 
him to do so, and the law does not allow him to be so oor* 
nered. It has established a rule, whereby justice is done to 
both parties, and the spirit of the contract retained. It 
says to the contractor, you shall not abandon the original 
contract at your will and pleasure : if you do not e:[(ecute 
it as agreed on, you shall not forfeit all compensation, but 
it shall be measured to you in reference to the stipulated 
price : you shall not exceed that. Where there is no spe* 
cial contract as to the price of the work, and it is not finish- 
ed according to contract, but is accepted and used by the 
person tor whom done, there the rule is different — the con- 
tractor is paid according to value. In this case bis Honor 
who tried the case^ below, applied to it the Matter rule ; and 
in this erred. 1 Steph. N. P. 306, Merritt v ike Ithaca 
and Oswego Rail Road Company j 16 Wend. 586. In the 
ease of Dicksoii, Mallory 6r Co, v Jordan 4* Co., tried at 
the June Term, 1851, ot this Court, at Raleigh, the princi* 
pie is recognised and stated. Where work is done under 
a special contract, and' not completed within the time lim- 
ited, but is progressed in after the day, with the assent of 
him for whom done, the plaintiff is confined under the com* 
mon count to the rate of compensation fcced by the cofntractp 
where no further special contract is made ; and the rule i^ 
thus familiarly stated in the case last referred to-— if the 
house contracted for is worth the sum agreed on, what is 
the house, as built, worth ? 

For this error judgment must be reversed and a venire de 
novo awarded. 

fn^ CuBiAH^ Judgtnent «ccordin|;Iy. 



AUGUST TERM, ;1861. 985 



JOHN LEDFORD vs. VINCENT F£RRELL*S AD'R. A AL. 

A pMol agreement by C, to execnte at another time a eorenant to ceovey 
to D. title to a certain piece of land, is void under our Statate of Frauda. 

Appeal from the Superior Court of Law of Cherokee 
County, Spring Term 1851, his Honor Judge Settle pre* 
siding. * 

This is assumpsit upon a special promise of Vincent 
Ferreli, to execute to the plaintiff a covenant to convey to 
the plaintiff in fee a certain tract of land. Upon non as* 
^umpsit, the evidence was, that one Standridge purchased 
a tract of Cherokee land at the public sales in 1888» and 
paid the grantee part of the purchase money and gave hii 
bond for the residue, and took a certificate from the Com* 
missioners. He afterwards agreed to sell a part of the tract 
to the plaintiff and received the pride, and gave the plaintiff 
his covenant to pay the residue of the purchase money to 
the State, and obtain a grant, and then tO' convey to the 
plaintiff the part of the tract so sold to him. Subsequent-* 
ly, Standridge entered into a treaty with Ferrell for the sale 
of the residue of the tract upou the terms, that Ferrell should 
oooept an assignment of the Commissioner's certificate for 
tile whole tract, and pay the residue of the purchase money 
to the State, and obtain the grant in hts, FerreU's namev 
and then convey to the plaintiff the parcel he had purchased. 
Upon this arrangement beini; communicated to the plain- 
tiff he assented thereto, and thereupon Standridge transfer" 
red and assigned his interest in the whole tract of land, and 
the plaintiff gave him up his covenant, an^;! Ferrell promised 
the plaintiff to give him his covenant and obligation to ob« 
tain the grant from the State and to convey to the plaintiff 
in fee the ixirt of the land which the plaintiffhad purchased 



286 SUPREJIli COUUT. 

\ s ^ 

i<edtord r. Ferrell. 

and paid for ; but he failed to do so by reason of his sudden 
death a few days thereafter. A verdict was rendered for 
the plaintiff for the value of the land, upon an agreement 
that, if the Court should think the plaintiff was not entitled 
to recover upon those facts, the verdict should be set aside 
and anon suit entered. That was subsequently done, and 
the plaintiff apiiealed. 

/. Baxter, for the plaintiff. 

J, W. Woodjin, for the defendant. 

KuFFrN, C, J. The plaintiff may have relief in another 
iorum against the heirs of Ferrell upon the ground, that, by 
the written contract with Siandridge, the plaintiff had a 
valid equitable title to the land, and that by FerrelFs pur- 
chase, with notice of the plaintiffs title, he became his trus- 
tee, and is liable as such, notwithstanding the plaintiff haJ 
cancelled Slandridgc's covenant upon Ferrell's promise to 
give his own, and his being prevented from aoing so by the 
act of God, Hut, as an independent verbal promise from 
Ferrell to the plaintiff to execute a covenant or obligation to 
the plaintiff to »convey the land, the contract is within the 
statute of frauds, and the plaintiff cannot maintain an ac- 
tion at law on it. The words are, that " all contracts to 
sell or convey any lands, or any interest in or concerning 
them, shall be void, unless such contract be put in writing 
and signed by the party to be charged therewith." The 
plaintiff's counsel admits, that, if Ferrell's promise had been 
to convey tho land to the plaintiff, no action would lie on 
it But a distinction is taken, that the promise is not of 
that kind, but is to execute a valid obligation, binding him 
thereafter to convey — vvhicli is supposed not to be within 
the statute. But the Court is clearly of the contrary opin- 
ion ; for both the obligation to convey the land and the 
promise to give the obhgation are *' concerning'* land, and 
within the words of the act. Indeed, it would be absurd to 



AUGUST T£RAf, 1851. SST 



Feimeiter o. McRorie. 



say, that an oral promise to convey land is void, but that a 
promise, that the party will thereafter bind lumself to con- 
vey the land, is valid. By the same reason, although the 
promise to pay the debt of another be void under the lOth 
section of the act, a promise to give a bond for the debt 
would be good — which cannot be. Such a construction 
would be a palpable evasion of the statute, and let in all the 
evils against which it is directed. 

Paa CuiiAM. Judgment affirmed. 



DEN ON DEMISE OF WILLIAM R. FEIMESTER wt. THOMAS 

H. McRORIE. 



Wisera ft deed of tnnt, oonveyiog a debtor*! property for Uie MtitfMtien of 
ceitein ersditon, u neeeMaiy to rapport an actioo agaiut penoM okimiaf 
•■ porchasen under eieontiont agaiMt the grantor, and it ii not shewn that 
independent of the property conyeyed the grantor had enoagh, at the data 
of the deed, to satiify other credltom, the party relying upon the deed mnat 
prodnce evidence of the existence of the debts therein mentioned, as the 
bonds, notes, jadgments Ac., or at least of snob an amount of them aa will 
shew prime /acte that the transaction was bona fide. 

When this prima fade evidence has been given by tho grantee, the onu» of 
proviug any fraud, alleged to impeach the deed, is thrown upon the party 
alleging such fraud. * 

The eases ef Ctay^otU t. UcQimpty^ 4 Dev. 89 and Hafner v. Er»in, 4 In. 
529, cited and approved. 

Appeal from the Superior Court of Law of Iredell Coun- 
ty, Fall Term, 1850, his Honor Judge Settle presiding. 

6 



28S SUPREME COVRT. 



Feimetter v. McRore. 



One James R. Feimester was seised of the premises in feft 
and on the 17th of February. 1847, m consideration of five 
dollars, as expressed in the deed, he conveyed them to the 
lessor of the plaintiflfin fee, upon trust to sell them and pay 
certain debts mentioned in the deed, and therein stated to 
be due on notes and bonds made by the bargainor to sun* 
dry persons specified. James R. Feimester owed a number 
of debts to other persons, at the execution of the deed, 
which were not secured in it, and the deed purported to 
convey the pi*emises and all the personal effects of the bar- 
gainor and assign all debts due to him. Upon some of the 
debts thus left out, judgments were taken before a justice 
of the peace, and executions levied on the premises in May 
1847 ; and at the sheriff's sale the defendant became the 
purchaser and took a deed. At the trial, on not guilty 
pleaded, after evidence of the case as above stated, the 
Ck>unsel for the defendant insisted, that, as he was a pur- 
chaser under the judgments and executions of creditors, the 
plaintiff ought to give evidence, that the debts enumerated 
in the deed of trust, or some of them, were subsisting at the 
time the deed was executed, so as to render it valid as 
against judgment creditors. His Honor declared that to 
be his opinion ; but the plaintiff declined producing any of 
the bonds or notes mentioned in the deed, and submitted 
to a non suit, and appealed. 

Guion, for the plaintiff. 
Boy den, for the defendant. 

RuFFiN, C. J. As the plaintiflT gave no evidence, that 
his bargainor retained property sufficient for the satisfac- 
tion of his other creditors at the time he made the deed, it 
would, by force of the acts of 1715 and 1840, be void as 
against those creditors, unless founded upon an adequate 
valuable consideration. That position cannot be contested. 
Bui it is agreed, that the debts mentioned in the deed con- 



AUGUST TERM, 1861. 289 

Feimeiter v. McRorie. 

I 

stitute a sufficient consideration to render the deed bona 
fide and sustain it. So they would, if the plaintiff had made 
it appear, that those debts existed ; for, it has been often 
held, that deeds of trust of this kind are not invalid by rea- 
son of the nominal sum stated in them to have been paid 
by the trustee, in order to make the instrument operative 
under the statute of uses, but that recourse may be had to 
the debts to supply the consideration necessary to the bona 
fides of the deed, which would otherwise be deficients It 
seems manifest, then, that the existence of the debts must 
be established, or a sufficient number of them, to satisfy 
the jury, that the deed was not intended as a colorable ae^ 
curity for fictitious debts, but was made to the intent of 
honestly securing real debts. For, if the deed, instead of 
purporting to be a mortgage or deed of trust for the secih 
rity of debts, purported to be an absolute conveyance for 
an adequate consideration in money paid, the deed itself 
would not be evidence, as against purchasers or creditors^ 
that any part of the money was paid, but the bargainee 
would be obliged to prove the fact mliunde. Claywell t 
McGimsey, 4 Dev. 89. Of course, it is equally necessary the, 
trustee in support of this deed should show the debts it pro- 
fesses to secure — since the debts, as a consideration, stand 
in this deed in the place of the pecuniary consideration in 
the other. The Court does not mean to lay it down, that 
the debts must be traced back by the trustee to their origini 
so as in the first instance to be conclusively established to 
be bo^afide ; for, to the purpose under discussion, the se- 
curities for the debts, as judgcaents, bonds, or notes, in 
themselves create debts, and, therefore, they prima /acts 
sustain the deed, until impeached by its being shown, that 
they were given for pretended, and not true, debts ; Haf- 
ncr V Irwin, 4 Ire. 520. But, the onus is clearly on him 
who sets up title under the deed, to give the /rima/acie 
evidence of the existence of the debts in the schedule, or 
some of them, at least, by producing and proving the evi- 



SOe SUPREME COITRT. 

_ -^ ■ - - - . _ . 

Ly«riy p. MTtiaeler. 

dencM of them, as constituting the bona fide consideration 
necessary to support the deed. Indeed, if the law did not 
impose that duty on that side, it would be almost impossiUe 
for the other side to investigate the origin and subsistence 
of the alleged debts, and fraudulent and false recitals wouM 
be allowed to establish their truth i^inst those, whom it is 
the purpose of the law to protect. 

Pee Curiam. Judgment affirmed. 



k _. 



DOS OM I^MISE OF ISAAC LYERLY m. CLAUDIUS B. 

. WMBELER. 

Th« dai« of a deed or other writiog is prima faeU evidence of the time of ito 
exeeaUon, vpoo the principle, that the acts of e?ery peiaoo, in traneactin^ 
hBiineei, are presumed to be consistent with truth, in the absence of any 
HHlhre for falsehood. 

Appeal from the Superior Court of Law of Rowan 
County, Spring Term 1851, his Honor Judge Battle pre- 
siding. 

This was an action of ejectment. The facts are stated 
in the opinion of the Court. 

Creig and Osh^me^ for the plaintifT. 
Bojfdmi, for the defendant. 



AUGUST TERM, 18S1. 291 



Bradford «. Erwin. 



Pearson, J. The lessor claimed title under a sberifT's 
sale and deed. The demise was on the Gth of November 
1848. The deed was dated on the same day. 

The defendant contended, that the date of the deed was 
no evidence that it was executed on that day, and the plain- 
tiff could notreccver without proving, that it was executed 
on the day it bore date. 

The Court charged, that the date of the deed was prima 
/arte evidence of the time of its execution. To this, the 
defendant excepts ; which is the only point made in the 
case. 

There is no error. The date of the deed or other writing 
is prima facie evidence of the^ime of its execution, upon 
the general principle, that the acts of every person, in trans- 
acting business, are presumed to JIMi^MlMilKi^'^ truth, 
in tbe absence of any motive foi 

Psa CUKIAM. If I llfiililfflilUiflAiiii il 




DEN ON DEMISE OF DAVID BRADFORD ot; CALEB ERWIN. 

It is error in a judge to leave it to the jury to docide who were the heira of a 
deceased penoa. That is a question of law for tho doterroraation of tke 
Coort 

Appeal from the Superior Court of Law of Mecklenburg 
County^ Special Term, l85l, his Honor Judge Ellis pre- 
siding. 

This was an action of ejectment. Plea not guilty. The 
facts are stated in the opinion of the Court. 



392 SUPRBUE COURT. 

m ■ ■ ^ ' II ■ " I 11 ~ m ' ~ ' - 11 ^11 II p ^M ^ ■ M^^M ■ ■ ■ I I ■ ^^^ 

Bradford «. Erwin. 

Buyden, for the plaintiflT. 

Wilson^ ITiampson and Alexander, for the defendant. 

Peabsok, J. The case is very long, and presents many 
points. Most of them are not stated distinctly, and we 
prefer to put the decision upon one, in which there is mani- 
fest e? ror. 

There are some twentv lessors, who claim as the heirs at 
law of one David Bradford, Junior. David Bradford, Sen- 
ior, died in 1770, having devised the land sued for, (as the 
plaintiff alleges.) to his son, the said David Bradford, Junior ; 
and, to show that, the plaintiff examined one Greorge Erwin 
who swore, that *' said David died without children," (be 
does not state the time of his death,) '' leaving two brothers 
James and Michael Bradfoixl." He also swore, David died 
in possession of the land and that the lessors of iheplainiijf 
were the heirs at law of said David Bradford^ Jitnior, He 
further swore, he knew all of the children of the said James 
and Michael, except two, whom he had never seen, but he 
had frequently heard those two spoken of in the family, 
and among the relations, as the children of said Michael and 
James. He also swore, that James and Michael died before 
the commencement of this action. Witness was the uncle 
of David, James and Michael. He also swore, that David 
Bradford, junior, had sisters and other brothers, besides 
James and Michael. There was no proof of their death. 

The defendant moved his Honor to charge " that there 
was no evidence that any of the lessors of the plaintiff were 
the heirs at law of David Bradford, Junior; and that the 
statement of the witness Erwin, that they were his heirs at 
law, was not a question of fact, but one of law to be decided 
by the Court, and could not be proved by a witness in that 
way." 

His Honor refused to give the instruction, but told the 
jur}', it was true, that, who were the heirs at law of a de- 
ceased person, was a question of law, and not one of fact. 



AUGUST TERM, 1831. S98 

Hicd V. WoodanL 

to be proved by witnesses ; yet, if the jury eoald collect 
from tlie testimony, offered in the case, that the lessors of 
the plaintiff were the heirs at law of David Bradford, Junior, 
they should find for the plaintiff on that point. 

In this there is error. His Honor correctly decided, 
that the heirs at law of a deceased person are to be ascei- 
tained, as a question of law, according to the canons ot 
descent, in force at time of his death. But he then leaves 
it to the jury to " collect from the testimony, that the lessors 
were the heirs of David Bradford" — thus committing a dou- 
ble error, by leaving a question of law to the jury, and by 
leaving a question to the jury, in reference to which there 
was no evidence. 

There must be a venire de novo. 

Per CoRiAM. Judgment accordingly. 



JAMES HICE vt. JOHN WOODARD. ' 

IC a judge omiU to ehtxge upon a point presentod by the evidence, it is no 
error, untesi he b requested togire the charge. Bat, if he makes a charge 
against law, it is error, unless it be upon a mere abstract proposition, and it 
is apparent U|1oq the whole case, that it could not have misled the jury. 

Appeal from the Superior Court of liaw of Yancy Coun- 
ty, Fall Term 1850, his Honor Judge Dick presiding. 

This was trover for four cattle. The plaintiflT proved, 
that, in 1838, the cattle were levied on and about to be sold 
under an execution in favor of one Ray against one Lao* 
ders : On the day of sale, the cattle were brought to the 
muster ground, (the place appointed for the sale,) by the 



294 SVPREUE COUBT. 



U'to9 •WoodanL 



wife of Laaders : She sold them to tho plaintiff for the price 
of $30 76» which he paid to the officer and satisfied the 
execution, and then told her, she might take them home 
and use them, until he called for them. 

The defendant proved, that in 1843, he, as a constable, 
held a judgment and execution against Landers, and levied 
on the cattle and sold ihem ; and that the cattle had re- 
mained in the possession of Landers from the time they 
were taken home by his wife in 1838, up to the time of the 
levy. He also proved by Ray, that some time after Mrs. 
Landers had made the sale to the plaintiff, witness said to 
him, ** he doubted, if he had got a good title by his purchase 
from Mrs. Landers ;" plaintiff replied, " he did not care, for 
his money had been paid back to him, or nearly so." He 
also proved by one Metcalf, that the plaintiff told him " Lan- 
ders had agreed to work for him, until the money advanced 
was repaid, and he wished witness to tell Landers, if he did 
not come and work, he would take the cattle away." 

The Court charged, " that the plaintiff acquired no title 
to the cattle by his purchase from Mrs. Landers, unless her 
husband had authorised her to sell at, or before, the sale, or 
had subsequently assented to it: That there was no evidence 
that he had authorised his wife to sell, at, or before, the sale ; 
nor was there any evidence^ t/uU he had said any thing on 
the subject, after the sale : That, if the jury believed from 
the testimony of Ray and Metcalf, that the plaintiff had 
entered into an arrangement with Landers, subsequent to 
the sale, that Landers was to work for the plaintiff, until 
his wages amounted to the price paid for the cattle, and they 
iurther believed, that Landers had done the work as agreed 
on — the piaintid was not entitled to recover; how that was 
they were to decide from the testimony of Ray atid Met- 
calf, and the additional fact, that Landers had been in pos* 
session of the cattle from the time thev were taken home 
until the levy by the det'enJarit, a period of between four 
and liv<; ytars. ' 



A.vai;sT vmit, mi' m» 



llice 9. Woodard. 



Verdict /or the defendant, .^^t)ie. plaintiff ^fpeal^. 

/. •KK TFooc^n, fpr the plaintiff. 
.J^i^cry, for the d^fefiduut. 

P^ASsoir, J. The only difiicultjr ^we ha,ve, i^tp^iU,^ 
coqstruc^on upon the charge. If hi^ ;HpQQr .meant *f|id^ 
was noeyid^lK^e of ^.ratification of a sale, clearly .thff 1^1 ja 
^rror; for the testimony of Kay and Metcalf, apd the iOact 
th^t the wife took the cattle hqnie, and the hushand JsMi 
them in his.possessiqi^ for four or.five years, wfis thfd:8trpqg« 
est kind of evidence. The 3tructure of the sentence ^f^voi^ 
this construction-rr-<* the plaintiflf acquired no title, .^nlqi^ 
the husband had authorised his wife tosell ati or befoj^c^tj^^ 
sale, or had .sub;iequently assented to it — there 4s .no^eFi- ' 
dence that he authorised the sale, nor is.there/iny e^videpce 
tliqt he su^seqiiently assented to it'* This is what the 91:* 
der of the sentence called for, and we are at a loss to^^on* 
ceive, Mfhyheused the wordsr— " that he had. said a^y thing 
on the subject after the sale," ^except on the suppp;jti9n, * 
that he considered them as meaning the same thing, ^bje 
must be so, unless he meant to drop "a part of the idea" 
apd depart from the order of the, sentence. 

If the meaning is, that, to constitute a 8ubsequent,§i(s«at^ 
it was necessary he should hace said something on the sub* 
ject, after the sale — there is error ; because an assent can 
be implied from acts as well as words. 

But taking the words literally, there is error ; for, there 
was evidence, that he had said something on the subjeot, 
after the sale. The defendant's own witnesses prove, that 
the plaintiff and Landers had been talking on the subject. 

It is suggested, that, in the latter part of the charge, a 
ratificatioii is assumed ; and thus, all objection to the for« 
mer part is removed. It is true, the jury are told, if they 
believe there was a subsequent agreement, that Landers 
should repay the price in work, and be did so^ then the 

9 



SM SUP&BMB COURT. 

Hice ». Woodard. 

— ■ — II . - . - . - ■ _ 

plaintiff is not entitled to recover. But here the charge 
stops ; and in any point of view, in which the case is pre- 
sented, the plaintiff is not entitled to recover. Usifally, 
when the jury are charged, that, if a certain fact is estab- 
lished, the plaintiff is not entitled to recover, it is implied^ 
that otherwise he is entitled to recover. But, when this 
alternative branch of the proposition is required to remove 
a ground of objection to a preceding part of the chai^ it 
is necessary, that it should be expressed, and not be left to 
implication. In this case, if his Honor had gone on to say : 
^ But, unless the defendant ha^ satisfied the jury, that Lan* 
ders did, in fact, repay the plaintiff by work, then he is en- 
titled to recover'* — the objection might have been removed. 
As it is, we think the plaintiff has good cause to complain 
of the manner in which the'tase was put to the jury. 

If a Judge omits to charge upon a point presented by the 
evidence, it is no error, unless he is requested to give the 
charge. But, if he makes a charge against law, it is error, 
unless it be upon a mere abstract proposition, and it is ap- 
parent upon the whole case, that it could not have misled 
the jury. 

Pe& CuBiiM . Judgment reversed, and venire de novo 
awarded. 



AUGUST TBRII, 1891. 39T 



DANIEL WFNTZ m. BENJAMIN FINCHER A AL. 

When a mma buili a rail-fence upoD a piece of land, to which ha had no (HIei 
and the owner of the land removed the rails and kopt powe a eion of them, 
the former has no right of action against the latteri nnlesi the remoral han 
baen effected bj a bnacb of the peace. 

The case of MareAtMa t. WkiU, 8 Ire. 59 cited and approved. 

Appeal from the Superior Court of Law of Mecklenburg 
County, Special Term, June, 1851, his Honor Judge Smr- 
TLB presiding. 

This was trover. The plaintiff declared for the taking 
of a quantity of rails, which belonged to him, and the con- 
version thereof by the defendants. To sustain his allega- 
tions, he introduced a witness, who testified, that the plain- 
tiff, some five years previous to the bringing of this action, 
had enclosed a small piece of land by a fence, containing 
about one acre and a half, and had cultivated the patch. 
The plaintiff then introduced a second witness, who testi- 
fied, that the defendants had taken down and hauled off 
about six hundred of the rails, of which the fence was made^ 
claiming them as their own. 

The defendants then offered in evidence deeds covering^ 
the land, of which the plaintiff had taken possession, and 
on which he had built the fence, and showed that he had 
no title thereto. 

Upon this evidence, the Counsel for the defendants asked 
his Honor to charge the jury, that the plaintiff was not en^ 
titled to recover, for the reasons — first, that, as the fence 
was a part of the real estate, the action for trover could not 
be maintained ; and secondly, that, as the defendants had 
showed title to the land, upon which the fence stood> in 



9IRf S0FRBMB COURT. 



Wentz V. Fincher. 

law the fence was their property, and the plaintiff, conse- 
quently, could not recover. 

The Court refused to give the instruction asked for, but 
charged the jury, that, notwithstanding the defendants had 
showed title to the land, upon which the fence stood, still, 
if the testimony satisfied them, that the plaintiff had built 
with his own rails the fence, as proved by the witnesses, 
a'nd had possession of the land, and the defendants had ta- 
ken the rails away, or any portion thereof, and converted 
the rails to their own use, the jdaintiflT was entitled to r6- 
cover the value thereof. 

Verdict for the plaintiff, and the defendants appealed. 

- (fsborne and Hutchinson, fot the plaintiflT. 
Wilson, for the defendants. 

NxiR, J. The charge of his Hoiior affirms a priiidiplei 
which, Mre think, cannot be maintained. The instmctiM 
to the jury was, that *' notwithstanding the defetidants had 
shbwed title to the land, upon which the ibhce stood, yet 
the plaintiff could r^bover, if he had built the fence with his 
own nlils and hckl possession of the lahd, and if the defen* 
daiits took them away." The action is in trover, in which 
it is M^ntial to prove property in the plaintiff and a right 
of {>o83es$ion at the time of the conversion ; and this prop- 
erty may be either absolute or special, and upon the lattet 
an action may be maintained against a wrong doer, but not 
agdnit the rightful owner. 2 Star, on Ev. 1485. The 
able question then, in this case, is, in whom was the legal 
title to the rails ? in whom was the legal possession ? The 
fenee was built by the plaintiff on the land of the defendants, 
without their consent. It becomes by the act of building) 
a part of the freehold of the defendants, upon the common 
Uw ihAximi cujus est solum, ejus est usque ad caelum. If 
tha dsftiidftnti had brought an Actioii of ejectment Against 
Ikd i^teiAtiff f6r thi land» they Would ha\^« recot^i^ed it, tip* 



/ 



AUGUST TfiRM, 1851. 89» 



McEntyro «. MeEotyiv. 



on Cite tdmhted facts of the case, and, with it, all that was 
upon it, coostitating a part of the freehold. Could the de« 
iendant, in that action, have justified a removal of the fence 
to land belonging to himself ? Certainly not. Neither, in 
this case, can the plaintiff maintain this action against the 
defendants for converting the rails to their use. They, in 
law, belonged to them, and they had a right to take them in 
such a way as not to violate the peace* Murchison v White^ 
8 Ire 52. There cannot be two adversary rights, existing 
in different persons at the same time. 

There was error in his Honqr's charge, for which the 
judgtnent is reversed and a venire de novo awarded. 

Pfit CuRtAM. ^ Judgment accordingly. 



A. C. McENTTRE 9«. BURGESS McENTYRE. 

WImo property bargained for iedeliTered, ad aetion/er Me ptice agreed mpen 
oaDnot be defeated, except ii\ caaee, where, if the money had been paid, 
it might be recovered back in an action *< for money had and received." — 
There must bea total failure of consideration. As, when the property is 
retained by mutual eonsDnt, or is never delivered, or a oouuterfeit bill is re- 

• ceived, an action for the price agreed to be paid may be defeated ; but 
otherwise, if the propetfy is delivered, although it turns out to be unsound 
and of no value ; or if the bill is genuine, though upon an insolvent bank. 

The cases of Waehbum v Picot, 3 Dev.390, and Caldioell v. Smith, 4 Dev. 
and Bat 64, cited and approved. 

Appeal from the Superior Court of Law ot Rutherford 
County, Spring Term, 1851, his Honor Judge Settle pre- 
siding. 



300 SUPREUE COURT. 

McEotjrre *. McEotyr*. 

This ill an action of assumpsit brought to raoover $200. 
part of the price of a negro, named Juno, which the plain- 
tiff alleges, he had sold and conveyed to the defendant. 
The facts are set forth in the opinion of the Court. 

G. W. Baxter, for the plaintiff. 
/. Baxter, for the defendant. 

Pearson, J. The defendant's Counsel did not insist, in 
this Court, upon the first two exceptions. It is, therefore, 
only necessary to state, that, in February, 1848, the parties 
executed an instrument in writiDg, duly attested ; the legal 
effect of which was to transfer from the plain tiff to the defen- 
dant a negro woman for the price of 8300, of which one hun- 
dred was paid at the time, and the remaining 8200 was to be 
paid by the defendant on the 25th day of December, 1848 ; 
and the plaintiff had the privilege of repaying the $100 and 
taking back the negro at any time before the said 25th of 
December. This instrument was put into the hands of a 
third person to be kept for the parties ; and the negro was 
delivered to the defendant. This action is for the $200. 

The defendant offered evidence tending to prove, that 
the negro was unsound, and that the plaintiff knj^w it at the 
time of the sale ; and that, in consequence of her unsound- 
ness, the negro was " almost worthless." He also proved, 
that some two months after he discovered the unsoundness, 
he offered to return the negro, and insisted upon rescinding 

the contract. 

• 

The defendant's Counsel moved the Court to chaise, 
that, if the plaintiff had practised a fraud upon him, he had 
a right to rescind the contract and return the negro : and 
his offer to do so discharged him from all liability. Sec- 
ond : That, if there was a partial failure of the considera- 
tion, and the plaintiff had practised a fraud, the defendant 
was entitled to a deduction Irom the price agreed on. 



AUGUST TERM, IMl. Ml 

McEntyn v. McEntyre. 

m 

The Ck>urt refased to give the instructions prayed for ; 
and charged, that, if the jury were satisfied that the negro 
was unsound, and plaintiff knew it at the time of the con- 
tract, and that, in consequence of her unsoundness, the ne« 
gro was worth nothing, they should find for the defendant. 
But, if she was worth any thing, then, they should find for 
the plaintiff; and the measure of damage would be the $200 
and interest from the 25th of December, 1848. Motion for 
a new trial refused, judgment for the plaintiflf) and the de* 
fendant appealed. 

When the property is delivered under a contract of sale, 
neither party can rescind it, without the consent of the 
other. If the purchaser desires this privilege, he must stip« 
olate for it expressly, as a part of the contract ; otherwise, 
the remedy given by the common law is an action for dam« 
ages upon the warranty, or for deceit. There is no im- 
plied condition, that he may return the property, if it turns 
out to be unsound. How would this doctrine operate ? If 
the money is actually paid, the property may be tendered 
and the contract rescinded. But, if it is secured by bond, 
this implied right does not exist. So, one, who goes so far 
as to pay the price, may rescind the contract ; but one, who 
merely secures its payment, had no such right* This is 
absurd. Such an idea was advanced as far back as the 
time of Lord Mansfield. It was then rebuked, and has 
never since been revived, except to a very limited extent ; 
Power V WelU^ Cowper 818. There, the plaintiff had ex« 
changed a mare for the defendant's horse, and given 20£s 
as boot. The horse being unsound, the plaintiff tendered 
him to the defendant and demanded the mare and money, 
which was refused ; and he brought trover lor the mare, 
and an action for money had and received for the 20£8, 
treating the contract as rescinded. The Court held both 
actions were misconceived. The remedy was by an ac- 
tion for the deceit ; and the plaintiff was non suited. 



^aOS JSV^REME COURT. 



Mciiliityra v. Mefiatyra. 



The passage cited from 2 Kent's Com. ^6, to show that 
this doctrine has been revived, is not expressed with suffi* 
oient clearness to confine the idea, as revived, within Hs 
▼ery narrow limits. The cafes go only this far. If jooe. 
not having seen them^ orders goods of a certain description 
at a certain price, and the goods sent do not answer the 
description, he may return them, or ofier to return them, 
within a reasonable time, and rescind the contract, or if 
he uses them, he may mitigate the damage in an action for 
the price ; because, the vendor cannot maintain an action 
on the special contract, as the goods do not answer the de- 
scription, and must declare upon a ** quantum valebant ;'' 
and then, the price agreed to be given, will be the standard 
by which to measure the damage, according to this rule: if 
goods answering the description be wortli the price agreed 
on, how much less are those goods worth? Farmer v^ 
Francis, decided at this Term. 

The defendant has no right to complain of the first part 
of the charge. 

We concur in the latter part. The fact, that the negro 
was unsound, and her value to some extent impaired, ought 
not to have been allowed to reduce the damage. Jf a de- 
ceit was practised, the defendant has his remedy. It would 
be inconvenient and the plaintiff's case would be madetHK) 
complicated, if the jury, while tryir^ his case, were requir- 
ed to go into the trial of an action .of deceit at the instMOe 
of the defendant; which action the pldintiflfis not preaooMd 
to have come prepared to defend. Besides, suppose :tfaa 
damages are reduced in the manner here attempted, aoji the 
defendant should afterwards bring his action of .deceit ; 
how is the plain till to avail himself of that iact? Wa^ 
bum V. Picoty 3 Dev. 3U0, CaidweUv. .SmithyADeY.idSid 
Bat.M. 

It may be proper to add, the same reaseoiog, which tesip* 
ports the conclusion, that the defendant was not At liberty 
to reduce the damage by proving the negro to be unsound 



AUGUST TERM. IMl. tOS 



McEntyrd v. McEntyre. 



to a limited extent, will alsio support the conclusion, that the 
defendant could not defeat the action by proving the negro 
to be so unsound as to be worth nothing — ^the only differ* 
ence being in the degree of the unsoundness. 

In fact the charge is inconsibtent. It amounts to this— 
if the negro was so unsound as to be of no value, the plain- 
tiff is not entitled to recover. But, if she was worth any 
thing — five cents for instance — the plaintiff is entitled to 
recover 9200 and interest : whereas, upon the principle 
assumed, the recovery should have been only five cents. 

Although there are some loose expressions to the con* 
trary, the true principle is this— when the property, bar- 
gained fory'is delivered} an action for the price agreed fm 
cannot be defeatedi except in cases where, if the money 
had been paid, it might be recovered back in an action for 
** money had and received." There must be a total failure 
of consideration, and not a mere right to recover damages* 
although the damage may amount to the whole price. For 
instance, if the property is retained by mutual consent, or 
if it is never delivered, or if a counterfeit bill be received, 
an action for the price, agreed to be paid, may be defeated ; 
otherwise, if the property is delivered, although it turns out 
to be tinsound and of no value ; or if the bill be genuine, 
although upon an insolvent bank. In these cases, the re- 
ception of the property, or of the bank bill, is a considera* 
tion to support the promise to pay the price agreed on; and 
the defendant must resort to the warranty, if" he had the 
prudence to require one, or to his action for the deceit, if 
one was practised. 

It is suggested, that to allow the action to be defeated 

by showing that the property was so unsound, as to be of 

no value, wo\iId prevent a multiplicity of suits. The same 

suggestion may be made in favor of allowing the damage 

to be reduced, by showing unsoundness to a limited extent. 

But neither can be allowed, without a violation of principle, 

for the reasons above stated. 

10 



S(M flCPABMB COURT. 

Lo?e M. Scfaenek. 

It would h&vo been a taring of time in the case under 
consideration) had all the evidence, in reference to the nxt* 
soundness of the negro, been rejected as irrelevant 

« 

PfiE CvRiAic. JudgiDeDl4iffiniied. 



ANDREW LOVE vf. B. W. SCHENCK. 

JUthB fo£;liktim may coDstitoto tWo coontiefl oat of one, it may abo^ aa io* 
ddeot to that power, direct a fair and reaaooable dmsion to be made be^ 
tweea them of any fund before raised by levtee on the iDhabitante of both the 
eeQDtiee in common, and to provide for enforctas paymeat thereof by thoM, 
who hare it id hand. 

Interpretation by the Court of the iereral acts relatmg to the division of the 
Counties of loncohi, Catawba and Union. 

Appeal from >the Superior Court of Law of Mecklenbui^g 
County I Spring Term, 1849, his Honor Judge Ellis pre- 
aiding. 

Craig and Lander for the plaintiK 
Guion and Thompson, for the defendants 

RuFFiN, C. J^ The declaration is in debt for $948,12 3-8. 
Flea, nil debet. It was submitted to the Superior Court 
upon a case agreed, with a provision for an appeal to this 
Court by either party. The fjpi^ts'are as follows : In March 



AUGUST TERM, 18St; |0S 



Lore 9. Scheock. 



1642, the County Court of Lincoln laid a tax for the pur^*. 
pose of raising a fund for building a Court House and Jail- 
in that County. In the session of 1842, the General As-, 
sembly passed an act establishing Catawba County out of 
a portion of L*incoln, and by a supplemental act of the same 
year, ch. 9th, it was enacted, that the County trustee of 
Catawba, or such officer as the County Court of that coun- 
ty might appoint, should be authorised to demand and re*, 
ceive from the County trustee, or such officer of Lincoln 
oounty as might have the fund in charge, such amounts as, 
had bc^n collected from the citizens resident within the 
bounds of Catawba, for the purpose of erecting a new Court 
House in Lincoln, and that the trustee or othe! such officer 
of Lincoln should pay over on demand said amount thus 
collected from and paid by the kihabitants of Catawba. At 
the time of passing the acts of 1842, a part of the fund, to. 
wit, 91200, had been collected from the citizens of that part 
of Lincolui which formed Catawba, and from the other cit- 
izens of Lincoln. The County trustee of Catawba in 1843 
brought an action against the Sheriff of Lincoln, who then 
had the fund in charge for a certain part thereof as the pro- 
portion to which Catawba was entitled under the act above 
mentioned ; and the same pended, sometime and before the 
erection of Gaston County, as herein after mentioned, when 
it abated by the death of the Sheriff, and it has not been re- 
vived nor any new action brought. 

At the oession of 1846 the Assembly established Gastou. 
County out of a portion of the remaining territory of Lin- 
coln on the South, and re-annexed to. Lincoln oo the other 
side a part of the territory, which constituted Catawba.— ^^ 
By a supplemental act of that session, ch. 25th^ it was ea^ 
acted, that the county trustee, or such officer as the County 
Oourt of Gaston might appoint, should be authorised to de« 
mand and recover from the Treasurer of public buildings, 
or such officer of Lincoln as might have the fund iQ charge,, 
two-thijrds of all the moueys, which bad then been cpUect^d 



SOS SUPREME COURT. 



LoTe V. Scbenck. 



from the citizens resident within the limits of Lincoln, since 
March 1842, for the purpose of erecting a new Court-house 
and Jail in Lincoln ; and that the treasurer of public buil- 
dings, or such officer of Lincoln, should pay over, on de- 
mand, to the county trustee, or to such officer as the Coun- 
ty Court of Gaston might appoint, two-thirds of the said 
moneys; and that on failure of such officer of Lincoln to pay 
oyer two-thirds of the moneys as aforesaid, the county trus- 
tee, or such officer as the County Court of Gaston might ap- 
point, was authorised to sue for and recover the same — ^to 
be appropriated to the building of a Court-house and Jail in 
the county of Gaston. ,The whole sum raised under the 
order of Lincoln County Court, made at March Term, 1842, 
was •2723,521-2; whereof the sum of 91200 had been 
applied by order of the County Court in payment of the 
debts of Lincoln County, before the passing of the said acts 
of 1846, establishing Gaston and supplemental thereto. On 
the 3d of March, 1847, the defendant was appointed Treas- 
urer of public buildings ior Lincoln, and received from the 
former Treasurer, as part of the said fund, the sum of forty 
cents in cash, and bonds given by sundry persons to the 
amount of 91421,79 1-2, then due, and he held the same on 
the 5th day of the same month, when the present plaintiff 
demanded of him the sum of $1815,68, as the two thirds of 
the whole fund of $2723,52, to which the plaintiff alleged 
Gaston to be entitled. Between the 5th of March and the 
1st of November, 1847, the defendant collected on the said 
bonds the sum of $607,68, and expended the same under 
orders of Lincoln County Court, towards the building of a 
public jail in Lincoln ; and on the 1st day of November, 
1847, the defendant had in his hands, as part of the said 
fund, the sum of $230,30 in cash, and part of the said bonds 
remaining unpaid to the amount of $814,10 ; and then the 
present plaintiff demanded of him the sum of $948,12 2-3, 
as the share of Gaston County, of the said fund unexpend- 
ed at the erection of that County ; and afterwards the 



AUGUST TERM, 1831. 807 



mm •' •• 



Love 9. Schenck. 



te^^lM^ 



whole of the said sum of $614,10 was received and expen* 
ded by the defendant under the orders of the County Court 
of Lincoln towards the building of the said Jail in that 
County. The plaintiflf was duly appointed by the County 
Court of Gaston, at February Term, 1847, Treasurer of 
public buildings for that county, with special directions and 
authority to demand and receive the money to which that 
county became entitled under the before mentioned stat- 
utes; and, the defendant having refused to pay him any part 
of the sums demanded by him, he brought this action in 
April, 1648. 

It was agreed by the parties, that, if the Court should be 
of opinion the plaintiff was entitled to recover by reason of 
his first demand, there should be judgment for him for the 
sum of $943 12 2-3 with interest thereon from the 5th of 
March 1647, or for such other less sum as the Court might 
think the plaintiff entitled to recover ; and if the Court should 
be of opinion the plaintiff was not entitled to recover there* 
on, but was entitled by reason of his second demand, that 
their judgment should be given for $543 53 1*3 with in* 
terest from the 1st of November 1847, or for such other less 
sum to which the plaintiff might be entitled : but that, if 
the Court should be of opinion the plaintiff was not entitled 
' to recover any thing from the defeudant, there should be 
judgment for the defendant, and that in each case the costs 
should follow the judgment. The Superior Court rendered 
judgment for the defendant, and the plaintiff appealed. — 
The point principally discussed at the bar was, as to validity 
of the grant to Gaston of money raised by crderof the Court 
of Lincoln. Indeed, considering the two Counties as the 
re&l parties, one would think, that the object of the contro- 
versy was to have the rights of the Counties declared, so 
that each might do or receive what pertains to it ; and 
therefore that the parties should consider that the only ma- 
terial point. Upon it, the Court apprehends there is no 
doubt. Unquestionably, the legislature can divide an ex- 



908 SUPREME COURT. 



Love V. SchoDck. 



isting County, so as to make two, or unite two Counties, so 
as to make one.. It is a political power, necessary to a con- 
venient local police and also to the general welfare, and 
wems to be inherent in the legislative authority, unless 
prohibited by the Constitution. There is no such prohibi- 
tion in the Constitution of this State, and these powers have 
been habitually exercised by the legislature. Ineidental to 
them is the further power of providing for the defraying of 
the necessary expenses arising out of County organization 
and the administration of County police. It may be true, 
that, upon the principle of the inviolability of properly, con- 
secrated by our fundamental law, and in the minds of our 
people, the legislature cannot direct funds, levied by one 
county or municipal corporation, from the uses of those who 
raised it to that of another wholly unconnected with them^ 
But, that point need not be mooted, as it does not arise here* 
and it is not to be supposed, that there will ever be such 
legislative action as will raise it. If, however, two counties* 
for example, be united by a new name, it is clear, that the 
oontributions of their citizens, then in the hands of county 
officers, ought not to be lost by leaving the fund with the 
<lfficers without any authority in the new County to recover 
it. It is, then, a wholesome and necessary function of the.- 
)aw-*making power to provide in this new state of tilings. 
for the accountability of the officers, having the funds, to 
those to whom they originally belonged, and who remaia 
justly entitled to it, as the means of saving them from again 
imposing on themselves new levies to meet the indispen-^ 
sable expenditures of their new condition. By the same 
reasMi it must belong to the legislature, which makes two- 
Counties out of one, to make also a fair and reasonable di- 
vision between them of any fund before raised by levies on 
in(iabitants of both the counties in common, and to provide 
for enforcing payment thereof by those who have it in hand. 
That power is likewise necessary, and it is perfectly just 
when fairly exercised. But it is said, it may be abused, and 



«AUQUST TBlUf, ISfl. 800 



Lovet. Bcbenok. 



wben it is, that the Courts are bound to interpose and pro- 
tect the citizens from even l^pslative wrong ; and that there 
«re here an apparent inequality and unreasonableness in the 
disposition of the fund. But the difficulty is, that it cannot 
be judicially perceived, that the provisions of the Statute 
are unreasonable and unjust. The reasonableness of the 
enactments depends upon a variety of considerations, which 
may properly influence the mind of the legislature but 
<^annot be judicially ascertained or acted on. It may de- 
pend much on the proportion of territory, population, and 
wealth falling within the respective counties, raising a pre- 
aumption that a large part of the fund had been drawn 
from the pn^rty or people of one of the counties, anid 
therelore ought togo to it« A material circumstance may, 
also, be, that the expenditures on permanent public erec- 
tions in that part of the territory, forming one of the coun- 
ties, were greater than in the other, as in building a Court 
House, Jail, bridges or poor house. As the people of the 
new county constituted their quota to those purposes, it 
may be entirely just, that they should, upon the division^ 
have a larger portion of a fund, happening to be on hand, 
than they contributed to that particular fund, in order to 
bring them up to an equality in respect to their public erec« 
tbns. It is, thus, a case, in which there is no certain mea- 
sure of the shares the two counties ought to receive, but 
one for the exercise of a sound discretion by a just law- 
giver ; and, of course, if there be an abuse of power in its 
exercise, it is like most other cases of such abuse, beyond 
judicial perception or redress — as, for example, in the case 
of taxation. The right of Gaston County to the fund, aa 
against Lincoln, must therefore be sustained to the extent 
of the grant. Other questions were made : whether the 
action will lie, and, if so, for what sum there should be judg* 
ment The opinion of the Court is, that it lies for auy sum 
that was in the defendant's hands, which belonged to Gas- 
ton, under the Statute, and which, at the demand or at any 



aiO SUPRSMfi COURT. 

■■ , -I — ... i^, - — ■ ■ ■ ■■ . ....^i .I M I ■ » , 

Love V. Scbeock. 

time afterwards, the defendant ought to have paid to the 
plaintiff for Gaston. It was objected, that the defendant 
was the officer of Lincoln and bound to account to that 
County for whatever money he received in his office, and 
to pay the same as the Court of that County might order ; 
and therefore that an order of the justices was requisite 
to the completion of the plaintifi^'s right. That is true 
in reference to a fund belongiDg to Lincoln. But the 
defendapt's duty in respect to the part which the act 
allots to Gaston, is not subject to the control of the jus* 
tioes of Lincoln. It may be that the defendant, on go* 
ing out of office, should transfer the fund to his succes* 
sor, if not before made directly liable to Graston by suit 
or demand. But, in reference to the sum belonging to 
Gaston under the act, the defendant's liability to Lincoln 
was discharged, and that to Gaston arose by the statute, at 
all events upon the demand. For the legislative power to 
grant the thing, imports that of prescribing the mode of re- 
ceiving or recovering it. In respect to the sum assigned 
to Gaston, the act makes the defendant the bailiff ot tliat 
county ; and on his failure to pay it to the person appoint- 
ed to receive it, the statute expressly gives to that person 
an action for it ; which may be maintained as any other 
action given by statute for the benefit either of the party 
suing or of another. It was urged turther, that, by the ad« 
missions in the case agreed, the plaintiff cannot recover 
either of the sums in numero, which he demanded, and this 
action for a different sum and one not demanded, will not 
lie. But it was not requisite that the plaintiff should de- 
mand a particular sum, in order to. have his acUon. The 
act does not fix an exact amount, but gives a certain pro- 
portion of A fund, that was in iu nature uncertain. Even 
in an action of debt, less than the sum demanded in the 
declaration may in such a case be recovered ; Dawd v 
Seawell, 3 Dev. 185. Much more can the sum recovered 
be different from that demanded in pais. The demand 



AUGUST TERM. iSdl. 811 



Love V. Schenck. 



was not necessary to entitle the plaintiff to any sum in 
particular ; but, if at all, it was for the sole purpose of no* 
tice of the claim of Gaston, and of the plaintiff's authority, 
to receive the money, so as to enable the defendant to pay 
without suit. 

It was next said, that the action cannot be maintained, 
because, without the defendant's default, the fund consisted 
of bonds, when the demand was made ior payment in mo« 
ney. But that doea not answer the plaintiff's case at the 
commencement of the suit. We are not to say, what 
would have been the remedy at the time of the demand and 
refusal. In point of fact he waited after demand until the 
defendant had converted the securities into money or dis* 
posed of them as money for the use, of Lincoln ; and, there* 
fofe, (he {laintiil was then entitled to recover in debt. 

But, upon the facts agreed, the precise sum due to Gras* 
ton cannot be ascertained, and, therefore, there cannot be 
judgment on the case in favor of either party. The reason 
*is, that prior to the grant to Gaston, there was one to Co* 
tawba of so much of the fund as had been levied for build- 
ing a Court House in Lincoln, and had been collected be* 
tween March and the third Monday of November, 1842, 
from such citizens of Lincoln as, upon the division, fell into 
Catawba. The subsequent act in favor of Gaston, must 
receive the reasonable construction, which will let it stand 
consistently with the previous grant to Catawba ; for it 
cannot be supposed the Legislature meant to interfere with 
the rights of Catawbu, on which Gaston had no claim, nor. 
on the other hand, meant that Lincoln should pay over 
again to Gaston the money, which it must have been as- 
sumed Lincoln had either then paid, or, at all events, was 
bound to pay to Catawba. The grant to Gaston, then, 
must btf understood to be for two thirds of the fund raised 
for building a new Court House and Jail in Lincoln, after 
deducting them from the grant to Catawba. It is, there- 
fore, immaterial to this controversy, whether Catawba has 

11 



312 SUPREME COURT. 

Love P. Scbenck. 
_ . — " — -^-^ ^ 

recovered or relinquished her portion — since, in efiect, that 
was excepted out of the fund in the first place, and Gaston's 
dividend comes out of the residue. Now, the amount thus 
excepted is undefined, so that it cannot be told what the 
residue is after the satisfaction of Catawba's claim. The 
case agreed states only, that before the year 1842, the 
sum of $1200 was collected for both of the purposes of 
building a Court House and Jail in Lincoln, from all the 
citizens of Lincoln before the division then enacted. But 
it does not state whether there was any distinction between 
that part of the fund, which was to pay for building the 
Court House and that for the Jail ; or, if so, how much was 
raised for one purpose and how much for the other. Nor 
does it state how much of the sum ot $1200, thus raised in 
1842, for either or both of those purposes, was paid by thoise 
living on the Catawba side of the line. Before the Jury on 
nil debet, evidence may be given by the defendant on those 
points, so as to adjust the proper deduction to be made on^ 
account of the grant to Catawba ; and, of the sum not thus 
shown to belong to Catawba, be it more or less, the plain- 
tiff ought to recover two thirds, provided it be within the 
sum demanded in the declaration, and also does not exceed 
the sum in the hands of the defendant. It is conjectured 
very confidently, that the sum, thus to be found due to 
the plaintiff, will exceed that demanded in the declaration, 
vi2 : $948, 12 2-3, which is also the larger sum, for which 
in any case, judgment was by the case agreed to be given 
for the plaintiff; and, therefore, it is regretted that the con- 
troversy cannot be terminated by a judgment for that sum 
at once. But it cannot be done ; because the Court is un- 
able to see certainly, that it would be right, by reason of 
the vagueness of the statement in reference to the sum be* 
longing to Catawba. It is true, the case states, that $1200 
of the fund was spent in paying the debts of Lincoln before 
the act of 1846. But it does not appear that it was the 
same $1200 which was. collected in 1842, or that this kst 



AVQUST TERM, 1861. SIS 



HomtoD V, Starnei. 



sum had been kept separated from the residue of the fund. 
Hence, we are unable to disconnect the claim of Ca« 
tawba from the fund in the defendant's hands, so as to see 
that out of it the plaintiff is absolutely entitled to any par« 
ticular sum. The result is, that there cannot be judgment 
for the defendant, because it is certain, that he is indebted 
to the plaintiff and that there must be judgment against 
him for some amount ; yet judgment cannot be given here 
against him, because, by reason of the imperfection of the 
case agreed, it cannot be ascertained in what sum in par- 
ticular he is indebted. The judgment must, therefore, be 
reversed, and the cause remanded mth directions for a 
venire to try the issues. 

Pn CuxiAM. Judgment accordingly. , 



JOHN P. HOUSTON vs. CHARLES STARNES. 

In an action for a breach of coreoant in a warranty of the soandneai of a alare 
tho plaintiff may shew what the slaye afterwarda sold for, to aid the jury in 
eatimatingthe damagea. 

Appeal from the Superior Court of Law of Union Coun* 
ty, Spring Term 1651, his Honor Judge Battlb presid- 
ing. 

, The action is in covenant for the breach of a warranty 
of soundness in a bill of sale of a negro woman. The de« 
fendant sold the negro to the plaintiff, and warranted her 
soundness. It was in evidence, that^ at and before the sale^ 



814 SUPREME COURT. 



Houston «f. Starnes. 



the purchaser was apprised, that she had symptoms of disease 
upon her ; and it was proved, she died of consumption, and 
that she hi^ at the time of the sale the disease upon her. — 
The defendant contended, that the covenant did not extend 
to that disease, upon the alleged principle, that a general 
warranty does not extend to visible defects. The Judge 
held, that no defect, except such as was apparent to the 
senses, could be excluded from the operation of the coven- 
ant ; and so cliarged. There was a verdict and judgment 
for the plaintiff, and the defendant appealed. 

Thompson and Wilson, for the plaintiff. 
I Osborne and Hutchinson, for the defendant 

Nash, J. The defendant has no reason to complain of 
the opinion upon this point It was as favorable to him as 
it could be. 

- In the course of the trial the plaintiff oflered evidence to 
show, that he had by his agent sold the negro in Mississippi 
for $175. This was objected to by the deiendant's counsel, 
as incompetent on the question of damages. The objection 
was over-ruled and the testimony admitted. The witness 
then, in answer to a question, stated, that in her diseased 
state the negro was not worth more than 75 or 8100. 

There was no error in the admission of the evidence. The 
plaintiff was at liberty to show he had sold the slave, and, 
as a fact, to prove what he got for her. It did not estab- 
lish her value, but was a fact, proper to be laid before the 
jury in the assessment of damages. The enquiry was, what 
was the extent of the injury the plaintiff had sustained? 
and the measure was the difference of the value of the ne- 
gro, as sound, and diseased as she was — to be estimated by 
what she would bring in market. If the purchaser has sold, 
what he got for her may, or may not, assist the jury in esti- 
mating the damages. It is a fact he may prove. But, if 
the evidence ought not to have been received, still the 



AUGUST TERM, 18«1. SKJ 

Hice V. Cox. 

judgment should not be disturbed. It has done the deren- 
dant no injury, as it is evident the jury were not influenced 
in their verdict by the price given, but by the value fixed 
by the witness. 

Vsk CvfLiAM. Judgment affirmed. 



DEy ON DliMISE OF JONES HICE m. AMOS COX 4> AL. 

On Uie tri«] of an ejectment, it became important to proTe that t^e defendant 
waa the tenant of A. To prove thie the plaintiff called A., who proved the 
fact, and, on croei examination, produced a conveyance, dated more th»Q 
seven yeare before the commencement of this suit, and iwore that he had 
been cootinnally in the peaceable and adverve pooMtsion. The counsel 
for the plaintiff was then about to ur^jre to the jary that A*8 testimony, as to 
the time he obtained said deed, wns false, and that the deed was antedated. 
The Court informed the pounsel, that, as he had introdnced A. as a witnesn^ 
he coold not discredit him berore the jury ; that he might have proved by 
other testimony, that the witness was mistaken, and that the facts were 
otherwise. The Court permitted tho deed to be given to the jury for their 
inspection^ Uiat they might determine from the face of it, whether it was 
antedated or not. The Court then histructed the jury, that if they believed^^ 
from an inspection of the deed, that it hud not been in existence for seven 
years or more before the action was brou<;ht, they should find for the plain- 
tiff; but it did not lie in the month oftiie plaintiff to say, that his witnesi^ 
A., was unworthy of credit ; and, particularly, as the plaintiff was not en- 
titled to recover, unless that part of A's testimony, in relation to the pos- 
session, was believed. The plaintiff had no right to ask them to believe so 
mneh of A's testimony, as was in his favor, and to discredit him as to the 
balance. 

Htld, thai the chaise of a Judge should be taken as a whole — that all he 
says npon any one particular point should be taken together, and that, thus 
viewing it, the charge of the judge in this caso was vcorrcct. 



S16 SUPREME COURT. 



# 



Hice V. Cox. 



Th» party prodactn|r a wUnen ihall not be allowed to prove him oorrapt. He 
may prore that be is mistaken, or that the fact iworn to is other than ie re- 
preeented by hhn. 

Thereisadietinetion between dieereditin^ a witnese, and ■hewni(f tbat the 
facu are different from what he hae represented them. In the latter case, 
the discrediting of the witness is incidental, not primary. The evidence 
may be discredited, and the integrity of the witness remain imimpeached- 

FsAasoN, J. dissentedi as to the construction of the Judge's charge. 

Appeal from the Superior Court of Law of Yancy Coun- 
ty, Fall Term, 1850, his Honor Judge Dick, presiding. 

The case is stated in the opinion of the Court. 

J. W, Woodjin, for the plaintiff. 

Avery and N. W. Woodfirij for the defendant. 

Nash, J. The only question presented by the case is. 
as to the charge of the Court below, and the remarks made 
to the Counsel. The case is : An execution was levied 
upon the land in question, as the property of one Joseph 
L. Ray, and at the sale the plaintiff became the purchaser. 
The action is brought against the tenant in possession, 
Amos Cox, the defendant ; and it became important to the 
plaintiff to show, that he was the tenant of Ray. To prove 
this, Ray was himself called and proved the fact. Upon 
his cross examination, he stated, that, at the time of the 
sale, he had no legal title, but that he acquired it afterwards, 
and produced a conveyance, which bore date more than 
seven years before the commencement of this suit ; and 
that he had been continually in the peaceable and adverse 
possession ever since. 

The Counsel of the plaintiff then proposed to urge to the 
jury, that Ray's testimony, as to the time he obtained said 
deed, was false, and that the deed was antedated. The 
Court informed the counsel, that, as he had introduced Ray, 
as a witness, he could not discredit him before the jury ; 
that he might have proved by other testimony, that the 



AUGUST TERM, 1851. S17 



Hke V. Cox. 



witness was mistaken, and that the facts were otherwise. 
The counsel then contended, that he was at liberty to show 
to the jury, from the face of the deed, that it was antedated; 
and the Court permitted him to give the deed to them for 
their inspection. His Honor then instructed the jury, that 
if they believed from an inspection of the deed, that it was 
antedated, and had not been in existence seven years oi 
more before this action was brought, then they ought to 
find for the plaintiff. But, as the plaintiff had introduced 
the witness Ray, it did not lie in his mouth to say, he was 
unworthy of credit, and, particularly, as the plaintiff was not 
entitled to recover, unless that part of Ray's testimony, in 
relation to the possession, was believed. The plaintiff had 
no right to ask them to believe so much of Ray's testimony, 
aa was in his favor, and to discredit him, as to the balance. 
The charge is, in our opinion, correct, and sufficiently 
explicit to show the meaning of the Judge, and not to mis- 
lead the jury. The general rule of evidence on this subject 
is, that a party shall not be permitted to produce general 
evidence to discredit his own witness. He shall not, in 
that way, prove him to be of such bad character, as would 
render him unworthy of credit. It would be a fraud upon 
the administration of justice. But the rule does not extend 
to the exclusion of testimony to show, that the facts sworn to 
by the witness are otherwise, or to show by other testimony 
how the facts really are ; for, such facts are evidence in the 
cause. The other witnesses, in such case, are not called 
to discredit the first, but the impeachment is incidental and 
consequential only ; 2 St. N. P. 1785-6. The same doctrine 
is- laid down by Justice Buller, in his Nisi prius, 207. In 
the case of Holdsworth v. the Mayor of Dartmouth^ 2 M. 
and Rob. 158, cited by Mr. Stephens, Baron Park obser- 
ves, that the party calling a witness cannot, if he give tes- 
timony unfavorable to him, prove that he has given a differ- 
ent account of the matter before ; for, the object of the ev- 
idence is to discredit him ; and he lays it down, " as a clear 



318 8UPJIE1AE COURT. 



Hioe V. Cooc. 



rule, that a party has no right to put a witness into the box, 
as a witness of credit, and when he gives unfavorable evi- 
dence, to call witnesses to discredit him." To the same 
effect are the opinions of all the Judges in the case of 
Emer v Ambrose, 10 E. C. L. R, 220. All these authorities 
state, that the party calling the witness may prove by other 
testimony, that the facts are not such as he has sworn ; and 
they advert to th^ difference of the rule, as to witnesses* 
whom the law makes such, and those which the party pro- 
duced. The farmer the party is compelled to call, as in 
cases of wills. He, therefore, is under no responsibilty, as 
to their character, and he may impeach their evidence by 
proving they are not worthy of belief. The latter are wit- 
nesses of his own selection ; and, in the language of some 
of the cases, he has the whole world to select from, and 
stands as their endorser, that they are worthy of credit. 
To me it is obvious, that the Judge intended, and, in sub- 
stance, did lay the rule down to the jury, as sanctioned by 
the authorities above cited. The Counsel was stopt by 
the Court, assigning as his reason, that he could not dis- 
credit his own witness, but he proceeds and explains to the 
counsel, what he might have done — he mijy;ht have proved 
that the witness was mistaken, and that the facts were oth- 
erwise. But his Honor leaves no doubt as to his meaning ; 
for, upon the request of counsel, he suffers the deed to be 
handed to the jury for inspection, to ascertain from it how 
the fact was as to its date — ^a very important fact in the 
cause — and he directs them, that, if they believe from in- 
spection, there being no other evidence^ it had been anteda- 
ted, to find for the plaintiff, in other words, to thrpw tho 
deed aside, put it out of their view. Of this portion of the 
charge, the plaintiff certainly has no right to complain ; 
and it plainly and fully shows the meaning of the Judge in 
his remark to the counsel. The latter part of the charge, 
however, it is said, is contradictory of the first. I do not 
think so ; or, if it iHf it is so in appearance only. Justice 



AUGUST T£RM, IMl. •» 



Hiee «. Cot, 

to his Honor requires, that the charge should be taken as a 
whole, that all he says upon any oue particular poiat* should 
be taken together, and not as disjecta membra. It is true» 
the latter cluase might have been omitted, without any ia^ 
jury to the whole, but, looked at with reference to what 
preceded, it is but a reiteration of its different terms, and as 
a corolMiry from it. It cannot for a moment be supposed* 
that his Honor intended to take back what he had stated 
immediatetly before, that the party might prove the fact tea* 
titled to by Ray, as to the date of the deed, not to be as be 
had declared it. As a result of the rule, contended for by the 
plamtiff, his Honor goes on to remark, if adopted, it would 
lead to the discarding of Kay's testimony altogether. In us« 
ing the words he did, the Judge intended to show, that the 
plaintiff was, in truth, discrediting his own witness, upon 
the ground that his evidence upon the date of the deed was 
corruptly ialse. The authorities all draw a distinction be- 
tween discrediting the witness and showing that the facts 
of the case are different from what he has represented them. 
In such case, the discrediting of the witness is incidental 
and not primary — the eviaence may be discredited, and the 
integrity of the witness remain unimpeached. It is nothing 
to the purpose, in my estimation, to say, that, if the fact 
sworn to by Kay, as to the date of the deed, was false, it 
must be corruptly false. This was a matter for the jury, 
into which no one had a right to enquire. They might* 
upon proper evidence, have found against the deed, either 
upon the ground of corruption or mistake. If upon the 
former, as before remarked, the discrediting of the witness 
Would be incidental ; ii upon the latter, he would remain 
unimpeached. Mr. Stephens, it is true, does say, that the 
rale is still unsettled. 80 far as authority can go, I Con- 
sider the principle as firmly settled as it can be. It is plain 
and intelligible ; and the only question is, shall this Court 
adhere to it ? I see no reason to alter it. It forbids tbe 

attaining of right ends by corrupt means* and tW^bf 

12 



S3» SUPREME COURT. 



Hice V. Coi. 



tributes to the purity of the administration of justice. The 
party producing the witness shall not be allowed to prove 
him corrupt. He may prove he is mistaken, or that the 
fact sworn to is other than as represented by him. Believ- 
ing that his Honop was sustained both by authority and 
principle in his charge, as we understand his meaning, we 
cannot say there is error in the charge, nor are we willing 
to unsettle a rule of evidence ot so much importance in 
practice, and of so long standing, because it ought to have 
been originally other wide settled. 

KuFFiw, C. J. I cdncur in affirming the judgment. 

Peaeson, J. I think it evident from what was said dur- 
ing the trial and in the charge, that his Honor was in errot*, 
as to the law of evidence in two particulars. This error 
would, as a natural consequence, communicate itself to the 
charge, and have a tendency to mislead the jury. 

It was formely considered to be a settled rule of evidence, 
that a party was not at liberty, in any way, to discredit his 
own witness. If he called him, it was for " better or for 
worse>" and he was bound by what he swore. His Honor 
3eems to have been of this opinion. 

The rule lias never been changed in one particular. A 
party is not at liberty to discredit his own witness, by prov- 
ing his geneial character to be bad, because* by calling him 
as his witness, he vouched for his good general character, 
and canoot be heard to say, that he attempted a fraud on 
the jury by calling a witness, who, from his general charac- 
ter* was not worthy of credit* 

But it has certainly been changed in this particular. 

When a party is compelled by law to call a witness, as a 

ubscribing witness to a deed or will, if the witness denies 

that he attested the instrument, he may be discredited by 

proofi that he is perjured, and that he did witness it and 



AUGKJST TERM. 1851. «U 



Hlco V, Cox. 



subscribe his name as an attesting witness ; Lowe v Joliff^ 
1 Bl. ?65, Peter v Bahington, 2 Strange, 1069. 

More recently it has been changed in another particular. 
If a party calls a witness, who is not a subscribing witness^ 
and is, therefore, not forced on him by law, and he proves 
a/oc^ in the cause against the party calling him^ the party 
may discredit him by calling other witnesses to prove the 
fact in contradiction to his oath ; and the reason given is*. 
'' that the other witnesses are called to pro^ a fact in the 
cause, and not directly to discredit the first witness, but the^ 
impeachment of his credit is incidental and consequential 
only." Emet v Ambrose, 10 E. C. L. R. 320. 

Still more recently an attempt has been made to change 
the rule in another particular, and thus, in effect, to abolishi 
it, and allow a party to discredit a witness called by him 
self, with the exception, that he is not at liberty to do so 
by proving him to be a man of bad general character^ for 
the reason stated above, which is admitted on all sides, 
to be a sound one. In 3d Chitty's General Practice, 896» 
it is said, " still to be a disputed point, whether a party can 
be allowed to discredit his own witness," The witness 
proved a fact against the plaintiff, who called him, and the 
question was, if he could be discredited by proof, that he 
had stated the fact to the plaintiff's attorney, whose busi- 
ness it was to prepare the evidence, and who took down 
this witness' statement in writing, and read it to him, and 
he then said it was correct, and yet, on the trial, contradict- 
ed it. Denman, C. J. was of opinion in the affirmative, but 
BoLLAND, J. in the negative. For this, is cited Wright v 
Beckett, 1 Moo. and Kob., 414, which is not in our library.- 
Afterwards, Parke, Baron, in citing this case, agrees with 
Bolland ; but he expresses some hesitation, how it would 
be, if the fact had been called out on cross examination, as 
it was in our case ; HoUsworth v Dartmouth, 2 M. & Robk 
153, cited in 2 Stephens' Nisi prius, 1785. I regret, that I 
have not had the opportunity of seeing Lord Denman's 



33» supreme: court. 



Ilice V. Cox. 



opinion ; for, although the question » not presented in this 
case. I confess I have never been entirely satisfied wtth 
the reaaoaing, upon which this part of the old rule has been 
retailed. If a party expects he can prove a faet by two 
wimessea, and oalls one who proves it, he may stop ; but if 
he happen to call the other first, and he disproves it, the 
party can then call his other witness to prove it ; and the 
reault ia a flat contradiction. Why may he not be allowed 
to turn the f oal^ by proving that the first witness had made 
diflbrent statements, just as he could have done, if that wit- 
ness had been called by the opposite party ? Why should 
not the jury be put in possession ol all the (acts, and let 
them judge between the witnesses ? Will not a knowledge 
of this impunity tempt designing men to put themseivea 
in the way of a party with a view to impose on him ? If 
his general character is bad, the party should turn away 
from him ; but, if his character is good and h^ says he wilt . 
be able to prove a fact, which the party knows to be true 
and wishes to prove, why say to him, you call this witness 
at your peril ? 

In this State it is settled, the State may discredit its 
own- witnesses by proving, that, on a former occasion, he 
had given a difierent account of the transaction. SttOe 
V Morris, 1 Hay. 429^. The reason given is, that the So- 
lieitora ttre not presumed to be well acquainted on the Cir^ 
cults, l^his, certainly, is not very satisfactory. In most 
casea there are prosecutors, and in all there are persons 
ready to aid the Solicitor in the matter of procuring testi- 
mony. I am inclined to the opinion, that the Court felt the 
incoaveniemce of the old rule, and were not altogether sat- 
isfied with the reasoning upon which it was put. At al{ 
events, the law is so settled in regard to State cases ; and it 
aeama to be proper, that the rules of evidence should be the 
same^ whether the trial be on the civil or the State docket. 

The other particular, in which I suppose the Judge wa^ 
in eoor, is in reference to the applieation of the nil'e>, "/4f^ 



r 



AUGUST TEKM, 1851. 3S3 



Hice V, Cox. 



sum in uno,falsum in omnibus" The rule is settled, and 
I am not disposed to disturb it, although, if it was an open 
question, it might be urged with force, that the jury ought 
not to be interfered with, in what is said tr. be the peculiar 
province of a jury — to pass upon the credibility of witness- 
es, for the reason, that juries are composed of twelve men, 
who are presumed to have a knowledge of human nature, 
which qualifies them, especially, for their duty; but I do 
insist, that the rule did not apply to the present case, and it 
ou^ht, under the special circumstances, to be made an ex* 
ception. 

The plaintiff calls a witness to prove a fact, which is di- 
rectly against the interest of the witness. The witness 
could not object — Jones v Lanier, 2 De^. 480— -on account 
of his interest. He proves, or rather admits, the fact, on 
oath, it may be, because he was afraid to deny it. He is 
then cross-examined, and swears to a fact directly on the 
side of his interest, and which gives him a good title to the 
land in controversy. Suppose he is fake as to this fact. 
A jury would, nevertheless, believe his admission of the 
other fact, because it was against his interest — a stronger 
guaranty of its truth than his outh. His Honoris charge, 
and the aj^plication of the rule, put the plaintiff in this pre- 
dicament: If the testimony is true, the plaintiff eannol re- 
cover, because the land belongs to the witness. If the te9- 
timony in regard to the date of the deed is not true, and 
the plaintiff discredits the witness, by showing that it wa3 
antedated, inasmuch as the deed was made to tbe witnesa, 
and he knew its true date, he is thereby shown to be per- 
jured and false, and being so in this particular, the jury 
must reject the whole of his testimony, and not even give 
credit to that part in which he swore against his interest ; 
and so the plaintiff cannot recover, because he has no 
proof that Cox was in possession as the tenant of the wit- 
ness; and the only way in which the jury can find for the 
plaintifl^ is by coming to the conclu^Ji<>n, that the deed, un- 



3X4 8UPRKMU COURT. 



• m 



Hokev. Carter. 



der which the witness was attemptiDg to hold the land, was 
antedated by mistake, 

I think there should be a venire de novo. 

Per Curiam. Judgment affirmed. 



J. F. HOKE'S Ex'». w. JAMES CARTER'S Adm'r. 

The le^l effect of the sale and delivery or a bond, without endoreeixieDt, k 
not to paa the legal tiUe to the parchaaer, for the vendor may releaae it 
if helhinkuproper, to the maker of the hood. Bat the purchaaeris ooo- 
aiituted the agent of the Tender, and the money veeted in him aa legal own- 
ner, the moment it m collected ; for the ehote in action, of which the vendor 
was the legal owner, is extinguished by an act, which he had authorised to 
be done, to wit, the reception of the money. The money then vests in the 
porehaaer, aa legal owner, by force of the contract of aale, which thereby 
.became executed. 

Therefore, where such a purchaser obtained judgment in the name of the 
vendor, and the sheriff collected the judgment, and, after notice by the pur- 
ohaaer, paid the money to the vendor ; Held, that he wa% notwithstanding, 
anawerable to the purchaser for the amount. 

Appeal from the Superior Court of Law of Burke coun- 
ty, Spring Term, 1851, his Honor Judge Settle presiding. 

This was Assumpsit for "money had and received." One 
Fleming held a bond for $297 on one Holcomb and one 
Brigman. Fleming sold the bond to the plain tiflTs testator, 
and delivered it to him without endorsement. The testator 
instituted suit on the bond, in the name of Fleming, and 



AUGUST TERM, 18il. ilSU 

I 

Hoke 9, Carter. 

took judgment, from which there was an appeal ; and the 
defendant's intestate was security for the appeal. There 
was judgment against Holcomb, Brigman, and the defend- 
ant's intestate. The testator sued out execution, directed 
to the Sheriff of Yancy, and put it into the hands of the 
defendant's intestate, who was then Sheriff of Yancy, and 
directed him to collect the money out of Brigman ; and in- 
formed him that he (the testator) had bought the bond from 
Fleming, and was entitled to the money ; and gave him 
special instructions not to pay the money to Fleming, but 
to pay it to him. The defendant's intestate received the 
money from Brigman. It was demanded by Fleming, who 
alleged, that there were certain conditions annexed to the 
sale of the bond ; and the defendant's intestate paid it to 
him, taking a bond of indemnity. The plaintiff's testator 
demanded the money of the defendant's intestate, who re- 
fused to pay, on the ground that he had paid it to Fleming. 
The defendant's intestate endoised on the execution, " sat- 
isfied," and returned it to office. Both parties soon after- 
wards died ; and this action is brought by the executors of 
one against the administrators of the other. Upon the 
above state of facts, the jury returned a verdict for the plain- 
tiff, subject to the opinion of the Court, upon a point of law 
reserved, as to the plaintiff's right to recover upon the facts 
in the case. His Honor, being of opinion against the 
plaintiffs, set aside the verdict, and directed a non suit. 
The plaintiffs appealed. 

Avery and Bynum, for the plaintiffs. 

JV. W. Woodjin and Gaither, for the defendants. 

Pearson, J. As the intestate was sheriff and also one 
of the defendants in the execution, he had no power to act 
in his official capacity. The question can, therefore, be 
presented in a plainer view by relieving it from both of 
those circumstances, and treating it, as if the testator had 



996 SUPREME COURT. 



Hoke V, Cuter. 



handed the execution to a third person, who was nei* 
ther sheriff nor one of the defendants, with the instructiotis 
above stated : the money is accordingly received and is 
paid to Fleming ; and the question is, is this payment to 
Fleming an answer to the action ? 

Fleming was the legal owner of the bond, after the sale 
and delivery to the testator. He was, also, the legal owner 
of the judgment, had control of it, and might have released 
it at any time, while the ** chose in action" was in esis* 
tence. 

The legal effect of the contract of sale and delivery of 
the bond, was to constitute the testator an agent of Flem* 
ing, to receive the money. But the money vested in the 
testator, as legal owner, the moment it was received ; for 
the ckose in action, of which Fleming was the legal owDer, 
was extinguished by an act wiiich he had authorised to be 
done — viz : the reception of the money ; and the money 
vested in the testator, as legal owner, by force of the con- 
tract of sale, which thereby became executed, in the same 
way, as if Flenung had himself received the money, and 
handed it to the testator in execution of the contract. 

If, therefore, the testator had called on Brigman, and re- 
ceived the money, it would have been his ; and Fiemtng 
would have had no right to it, or cause of action for it. 

The circumstance, that the testator, instead of going 
himself, sent the defendant's intestate, for the money, can 
make no difference. The instant he received it, it bectaie 
the money of the testator, and the payment to Fleming 
" was in his own wrong" He must look to his bond of 
indemnity. 

Per Cubiam. Judgment reversed, and judgment for the 
plaintiffs, according to the verdict. 



AUGUST TKRM^ ISSI. 327 



J. F. HOKF/S £x*Ai vs. JAM£S CARTER'S Aon'it. 



A party cannot appaal. when the judgment it in liii fkror, jiasi a« ha waotad 
it. 

It it only when both partiet except to the judgment at tmnuwt^ thai both 
hare a ground for appeal. 

Aopeal from the Superior Court of Law of Burke coun- 
ty, S[/ring Term, 1851, his Honor Judge Settle presiding. 

This is the same ca^e, which has been decided at this 
term, upon the appeal of the plaintiffs, and is brought up 
here upon the appeal of the defendants, with a view of pre- 
senting an exception, because of the rejection of Fleming, 
who was offered by the defendants, for the purpose of pro- 
ving, that the sale and delivery of the bond had certain 
conditions annexed thereto. 

Aoery and Bynum for the plaintiffs. 

N. W. Woodfin and Gaither for the defendants. 

Pearson, J. We cannot entertain the appeal. The de- 
fendants do not except to the judgment. It is just what 
they asked for — they are not " dissatisfied therewith." How 
can they appeal ? 

It is only when both parties except to the judgment, as 
erroneous, that both have a ground ior appeal, as in the 
case of Devereux v Burgwin. The defendant excepted, 
because of error in not giving judgment in his fiavor ; and 
the defendant excepted, because of error, in that ha was 
not aUowed interest upon the 61,000, for which he had 
judgment. 

The appeal must be dismissed, and the defendants wilt 
pay the costs of appeal. 



I'ca Uluiam. Judgment acconlin^lv. 

13 



o 



338 SUPREME COURT. 



ANDREW LOVE e«. JACOB RAMSOUR. 

The Act of Anembly, requiring the payment of certain moneyi by the county 
of LoDcoln to the county of Gaston, (referred to in Love y Scbenck, ante p. 
304) applies only to such persons as had thefund, or a part of it, in band at 
the passing of the Act, or might have it afterwards. It does not charge 
one, through whose hands the money had merely passed, and from whom it 
had been taken by the Court before the enactment of the Statute. 

Appeal from the Superior Court of Law of Mecklenburg 
County, Spring Term, 1849, his Honor Judge Ellis presi* 
ding. 

This case is similar to that of Love v Sckenck, decided 
at this Term, except that the defendant was appointed 
County Trustee for Lincoln County, in March, 1846, and 
in the summer after, the sheriff of the county, by order of 
the County Court, paid to the defendant the sura of $1200. 
which he then had of the fund, raised since March, 1842, 
for the purpose of building a Court House and Jail in Lin- 
coln ; and except further, that on or before the 1st of Sep« 
tember, 1846, the defendant, by order of the County Court, 
disbursed the whole of that sum in the payment of debts of 
Lincoln county, then including what is now Gaston coun- 
ty. After demand made, the plaintiff -brought this suit in 
the Spring of 1848, for $800. There was judgment for the 
defendant on the case agreed, and the plaintiff appealed. 

Craig and Lander for the plaintiff. 

Guion and Thompson, for the defendant. • 

RuFFiN, C J. The judgment must be affirmed. The 
act gives an action against " the treasurer of public build- 
ings or such oflicer of Lincoln as may have liie lunj i:i 
charge ;" and it appears that the defen I: nt was neither the 



AUGUST TERM, 1851. , 889 



State V, Jackson. 



one nor the other. The act only applies to such persons 
as had the fund, or a part of it, in hand at the passing of the 
act, or might have it afterwards. It could not charge the 
defendant upon the ground merely, that the money had 
passed through his hands and been taken from him by the 
Court before the enactment of the statute. 

Pbr Curiam. Judgment affirmed. 



THE STATE v9. RUEL JACKSON. 

An indictment for malicions mischief mnst either expressly chai|;e malice 

agaiBst the owner, or fully otherwise describe the offence. 
Setting forth in the indictment that the act was done " feloniously, wilfully 

and maliciously,'* without averring that it was done '* mischieyously ," or 

with malice against the owner, is not sufficient 
The cases of the State v Robiruon, 3 Dev. A Bat 130 ; State ▼ Coekmanf 

1 Ire. 381 ; State v Simpeon, 2 Hawk. 460, and State ▼ Scott,2 De^. 4 

Bat 35, cited and approved. 

Appeal from the Superior Court of Law of Surry countyi 
Spring Term, 1851, his Honor Judge Battlb presiding. 

The defendant was indicted for malicious mischief, in 
burning, and thereby destroying, two ploughs and gears, 
upon the following indictment : 

State of North Carolina, ) Superior Court of Law, 
Surry County. ) Fall Term, 1850. 

'<The Jurors for the State upon their oath present, that 
Ruel Jackson, late of the county of Siury, laborer, on the 



SUPREME COURT. 



State V, Jackson. 



first day of April, in the year of our Lord, one thousand, 
e^ht hundred and fifty, whh force and arms, in the county 
Moreaaidt into a certain field, there situate, then and there 
ifid enter said fiel^, then being in the poaaesaion of one 
Winston Fulton, and the said Kuel Jackson, in the field 
aforesaid, two ploughs and two sets of horse-gears, the pro- 
perty of the said Winston Fulton, then and there being, 
then and there feloniously, wilfully and maliciously did set 
fire to and burn, against the form of the Statute in such 
case made and provided, and against the peace and dignity 
of the State. 

Upon this indictment the defendant was convicted ; and 
appealed from the judgment on the conviction. The ques- 
tion, presented by the case, will be found in the opinion 
of the Court. 

Attorney General for the State. 
Boyden, for the defendant 

Nash, J. The defendant is indicted for malicious mis- 
chief, in burning a couple of ploughs and gears belonging 
to the prosecutor. The crime consists in the wilful destruc- 
tion of personal property, from actual ill-will or resentment 
towards its owner or possessor. State v Robinson, 3 Dev. 
& Bat. ISO— 4 Bl. Com. 254. The charge of his Honor 
was, in every respect, correct. There cannot be a doubt, 
that the acts charged upon the defendant, if true, amounted 
to malicious mischief, nor did it make any diflerence where 
the articles destroyed were found by him, or where burnt ; 
the crime was complete. The judgment, therefore, would 
be confirmed, but for a fatal defect in the indictment itself. 
There was no motion below to arrest the judgment, and, of 
course, the indictment was not particularly brought to the 
notice of the Judge. An indictment is a compound of law 
and fact, and must so set out the oflence, that the Court 
may be able, without resorting to' any evidence dehors, to 
perceive the alleged crime. It must be certain to every in- 



AUGUST TGKM, 18S1. S31 



State V. Jbckion. 



tent. It is of the essence of the crime charged against the 
defendant, that it was perpetrated from ill-will against the 
owner of the property destroyed. It is necessary, there* 
fore, that the indictment should either directly charge this 
malice towards the owner, or so describe the offence, that 
the Court may see that the charge is sufficiently explicit to 
support itself. 1 Ch. Cr. L. 172 — State v Cockman^ 1 Ind* 
381. The indictment in this case does not charge the 
crime to have been perpetrated from malice against the 
owner. And in the cases of the State v Simpson, 2 Hawk. 
460, and State v Scott, 2 Dev. & Bat. 35. the Court de- 
cide, that it was not necessary so to lay the offence, be* 
cause the indictment was according to the precedents. But 
in both those cases, the crime was sufficiently charged with- 
out those words. The charge in Scott's case was, "unlaw- 
fully, wickedly, maliciously and mischievously" &c.; in 
Simpson's, *' unlawfully, wickedly, maliciously and mischiev* 
ovsly" &c. In each of those cases the generic term, des* 
ignating the crime, is used ; and, therefore, we presume that 
the precedents did not call for the express charge of malice 
against the owner, because the description contained in the 
indictment necessarily embraced it. In the case before us, 
the word '' mischievously" is omitted, and the description is 
legally incomplete. If the indictment had gone on and 
charged malice against the owner, the charge would have 
been sufficiently explicit to support itself. An indictment 
for malicious mischief must either expressly charge malice 
against the owner, or fully, otherwise, describe the offence. 
For this defect in the indictment^ the judgment should be 
arrested : which will be certified to the Superior Court of 
Surry county. 

Pke CciiiAM. Ordered accordingly. 



332 SUPREME COURT. 



. DOE EX DEM. JEFFERSON DULA t#. LUCY M'GHEE. 

Wben a grant calls for tba line of an old gruai, the rule ii, that it muat go to 
it, uoWsa a natural ol»ject or a marked tree is called for, and, before the calls 
of the junior grant can be ascertained, those of the old mnst be located. 

The case of Miller y White, 2 Hay. 160 ; ▼ Heritage^ 2 Hay. 3S7 ; 

Bradbury t ilo0lr«,No. Oa. Rep. 1, and Tate v Southard, I Hawk., 45, 
cited and approved. 

Appeal from the Superior Court of Law of Wilkes Coun- 
ty, Spring Term, 1851, his Honor Judge Battle presiding. 

The facts of the case are set out in the opinion of the 
Court. There was judgment lor the defendant, and the 
plaintiff appealed. 

Guion, for the plaintiff. 
Boyden, for the defendant. 

Nash, J. The action is ejectment. The plaintiff claims 
under a grant issued by the State to him in 1848, which 
oovers the locus in quo. The defendant introduced a grant 
from the Stale to David McGhee, dated in 1788, which 
commenced at the index in the plat and ran around to fig« 
ure 3. Its call is for a line thence west, crossing Beaver's 
Creek to a Hickory corner on said Creek ; then oouth to 
the beginning. The defendant then gave in evidence a 
conveyance from David McGhee to his son Bluford Mc- 
Ghee, under whom she claims. This deed for the northern 
part of the Patent, has its calls for a chesnut tree pn the top 
of the Low mountain, and run around to the corner of the 
grant at the figure 3 ; and it calls thence west to the corner, 
a Hickory ; then South to the beginning. A grant from 
the State to Bluford McGhee, dated in 1818, was then ex- 



AUGUST TERM, 1851. S3S 



Dula V. M'Ghee. 



hibited. The calls of that grant are, " lying on Beaver's 
Creek, beginning on a Hickory on the hiil-side, west of the 
field, being Ellison's, now Horton's, Hickory corner— in 
said McGhee's own line ; then west with Ellison's line 62 
poles to a gum, poplar and a white-oak on a ridge ; then 
south to a stake in his own line near the conditional cor- 
ner ; then north with his old line to the beginning/' It is 
evident from these calls in the two grants to the McGhees, 
and the mesne donveyance to Bluford, there is no vacant 
land between the two former. The plaintiff contends, that 
the third line of the old grant stops at the letter D. on the 
diagram, and runs a direct course to the letter C. : the de- 
fendant, that it continues on to A., and then a direct course 
to the index. To the present enquiry it is not important 
at which of the two points the true terminus is ; for, the 
closing line from that point to the index must be the boun- 
dary or line of the grant of 1788 ; Hough v Horn^ 4 Dev. 
and Bat. 228. The grant to Bluford McGhee calls for a 
beginning in his own line and closes the third line at a 
stake in his old line, and makes the old line his closing line. 
His father had in 1808 conveyed to him the northern part 
of his grant, and the third line runs ** west to the corner, a 
hickory" — evidently meaning the hickory, which is the ter- 
minus of the third line of the grant, and then to the begin- 
ning. The surveyor proves, that the conditional corner 
mentioned in the conveyance to Bluford McGhee and call- 
ed for in his grant, was near to the letter H. in the plat, 
and nearly on the line A. B. Where a grant calls for the 
line of an older grant, the rule is, that it must go to it, un- 
less a natural object or a marked tree is called for, and be- 
fore the calls of the junior grant can be ascertained, those 
of the elder must be located. This is established by many 

decisions ; Miller v White, 2 Hay. 160, v Heritage, 

2 Hay. 327, Bradbury v Hooks, N. C. T. Rep. 1, TaU r 
Southard, 1 Haw. 45. Now it is claimed by the plaiutifT, 
that the closing line of the old grant runs from D., either 



334 SUPREME COURT. 

^— — »^^i-^ - » I . I I 1 . . .^^-^.^ I - ■ .1 I 111 ■ I ■^^»— M 

SampMO 9. Fullenwider. 

I » ■■ ■ •• . ■ ■ ., , , , 

to the index or to tho letter C. If so, the closing line of 
BIttford's ^ant must go to the same ; for, by the convey- 
ance to him in 1808, the same line is called for. 

No error is perceived in the charge of the Court, and 
judgment is affirmed. 

Paa Curiam. Judgment affirmed. 



S. P. SIMPSON M. WILLIAM FULLENWIDER. 

P«noii« mty change notes for their mntaal accoramodation, with a Tiew to 
raiie money by having them discounted, and they will respectively cootti- 
tute a considen^ion, which will make them all binding oo the makeis — ^pro- 
vided, however, that they be not made with a view to their being illegally 
diseonnted. Bat a note, made to the intent of being legally disooanted for 
the accommodation of the maker, or ike payee, or both of them, wonid not 
be obligatory between the parties, and is void in the hands of one, who dis- 
counts it at a rate exceeding six per cent ; and there is no difference between 
a man's making his own note to the lender, and getting a friend to make a 
note to himself and his passing that to the lender. 

Whether the lender was cognixant of the intcntioQ of the parties to the seta 
or not, is not material m a question of usnry ; for the statnte has no provisioa 
in favor of the anignee, and it is the fact, and not the assignee's knowl* 
edgo of it, which determines the validity of the instrument. 

The case of Rujjin v. Armtirongt 3 Hawks 411, cited and approved. 

Appeal from the Superior Court of Law of Iredell countj^ 
Spring Term, 1851, liis Honor Judge Battls presiding. 

Inis js debt on a bund tor <;^i50u, and the defence was 
u.'^uiy. Gn the trial the defendauL gave evidence, thut in 



AUGUST TBRM. 1861. Ui 



Simpion v. Fnllenfrider. 

1840 he and his brother, Henry Fullen wider, executed to 
each other several promissory notes for the purpose of rais« 
ing money thereon, by having them shaved or discounted* 
at a greater rate of interest than 6 per cent.; and that three 
of the notes, for 8500 each, thus made by the defendant to 
Henry, were passed by the latter to the plaintiff, at 15 per 
cent, discount. One Miller also deposed, that about ten 
years before the trial, the plaintiff delivered to him three 
notes for 8500 each, which had been made by the defendant 
to Henry FuUenwider, with the words, *' satisfied by tloU^* 
written in the face of them by the plaintiff, and directed 
him to give them to the defendant ; and that he did so on 
the same day, at the door of defendant's house, and thede* 
fendant said, when he took the notes, he would burn them^ 
and immediately walked towards the fire for that purpose, 
and, returning, he said he had burned them, and he wad 
sorry he had settled them by giving his bond, with a surety 
for them. The declarations of the defendant were object- 
ed to by the plaintiff, but were admitted by the Court. The 
defendant gave further evidence, that the bond now sued 
on, was given in place of the three notes passed by Henry 
FuUenwider to the plaintiff. 

The counsel for the plaintiff insisted, that, supposing the 
evidence to be true, it did not make out a case of usury : 
1st, because the plaintiff took the defendant's notes from 
Henry FuUenwider, without notice of any unlawfiil agrees 
ment between the maker and payee ; Sd. because Henry 
and William, the defendant, exchanged notee for the same 
amount, so that the set 6i notes of the one was a good con* 
sideration tor those ot the other, and each of them had a 
right to part from those payable to him, upon What terms 
he pleased, without makii^ the transaction usurious as be- 
tween the purchaser and the maker ; and ddly, because the 
defendant took up the original notes, and gave the present 
bond in lieu thereof, and the latter security is not infected 

With usury, though the notes might have been. The Court 

14 



336 SUPREME COURT. 



Simpaon v. FuUenwider. 



refused to give those instructions, and directed ^he jury, 
that, if the facts were true, as stated by the witnesses, the 
bond was usurious. The jury found the issue for the de- 
fendant, and the plaintiff appealed from the judgment. 

Chiion, Thompson and Osborne for plaintiff. 
Craig, Botjden and Alexander for defendant. 

RuEFrN, C. J. The objection to the evidence is untena- 
ble. The defendant had to account for the non-production 
of the notes at the trial, and his declaration, contempora- 
neous with the delivery of them to him, and his going, ap- 
parently, to burn them, was proper evidence, as tending to 
est&blish their destruction. It is said, however, that the other 
part of the declaration ought not to have been received, be- 
cause the effect was to raise an inference, that those notes 
form the consideration of the bond sued on, and the party 
ought not to be allowed thus to fabricate evidence for himself. 
But that is not a proper view of the subject. The witness 
Miller had stated, that it appeared on the notes themselves, 
under the plaintiff's own hand, that another security had 
been taken in satisfaction of them. The defendant, then, 
did no more than express regret at having given the note, 
thus admitted by the plaintiff. His declaration introduced 
no new matter in respect to giving another security, but 
amounted to his admission merely, that, as stated by the 
plaintiff, he had given some security in lieu of those then 
delivered to him. It still lay on him to connect the present 
bond with the notes, by the other evidence, which he of- 
fered to that point. 

Upon . the main question there seems to be no doubt. 
Assuming the evidence to be true, it very clearly establish- 
es the usury. It is true, that persons may exchange notes 
for their.mutual accommodation, with a view to raise money, 
by having tliem discounted, and they will respectively con- 
stitute a consideration, which will make them all binding 



AUGUST TERM. 1851. ' 837 



Simpson V. Fullanwider. 



<m the makers — ^provided, however, they be not made with 
a view to their being illegally discounted. But a note, 
made to the intent of being usuriously discounted for the 
accommodation of the maker, or payee, or both of them, 
would not be obligatory between the parties, and is void in 
the hands of one who discounts it at a rate exceeding six 
per cent. It is plain, when a man wants to borrow money 
at an illegal rate, that, within the mischief and the meaning 
of the act, there is no difference between making his owa 
note to the lender, and getting a friend to make a note to 
himself, and his passing that to the lender. The friend's 
note, is, in truth, as much made for the borrower's use as 
his own note would be ; and it is not the less so, because, 
at the same time, he made to his friend a note for the same 
amount, to be used by the friend for a like purpose of his 
own. Each note is, in its concoction, and in the use made 
of it, in contravention of the statute, and is avoided by it. 
The purposes of the act require, that, whatever shape may 
be given to the dealings, the contract should be held void, 
if in reality there was a lending and borrowing. It follows 
that every case is open to evidence of the intent and pur- 
pose with which the security is made. If the transaction 
appear upon the evidence to be a contrivance, under coloc 
of doing a difierent and lawful thing, of effectiDg in fact an 
illegal borrowing and lending, it is vicious ; for the stat\|te 
applies as well to indirect, as to direct, modes of dealing, 
and no shift for the purpose of veiling the intention can 
make the case difierent from a borrowing and lending in 
the simplest form, provided that in substance there was a 
borrowing and lending. That was the fact here ; for the 
defendant's notes, being made for the accommodation of 
his brother Henry, had no vitality, according to the inten- 
tion of those parties, until they passed into the plaintiff's 
hand for the money advanced by him to Henry. It was» 
therefore, in substance, a borrowing by the party, who was 
intended to get and did get the money from the plaintiS* 



Mt SUPREME COURT. 



Shnpion «. Fallenwider. 



upon the discount of the note, thus made for the accommo- 
dation of that party. Whether the plaintiff was tognizant 
of the intention of the two Rillenwiders in making the notea 
if not material to the question under consideration ; for the 
atatute has no provision in favor of the assignees, and it is 
the fact« and not the assignee's knowledge of it, which de« 
termines the validity of the instrument. That is, a fortiori^ 
true of an instrument, made for the express purpose of be« 
ing usuriously discounted, in the hands of the person, who 
thus discounts it, though he may not be privy to the ma- 
king of the instrument, or to the intent with which it was 
made. If it were not so held, the most flimsy device would 
be allowed to defeat this important statute ; and, indeed, it 
might be considered as judicially repealed. These positions 
are lully sustained by numerous adjudged cases ; and they 
are decisive of this controversy ; Floyer v Edwards, Cowp. 
114, iittJEnv Armstrong, 2 Haw. 411, Dunham vDey, 
13 John. 40, Munn v Commission Company, 15 John. 44, 
56, Bennet v Smith, 15 John. 355. Of course, the taking 
of a new bond by the usuer, himself, cannot remove the 
taint in the original transaction. It was an inherent vice 
in it, and attaches itself to every security taken by the ten- 
der> including the illegal interest or any part of it. 

Per Curiam. Judgment affirmed. 



AUGUST tBRU, 18S1. SM 



ROBERT POSTEN m. ROBERT HENRY. 

A jrarcfaaaer of land is a priry in ottata with the bargainor, and has the right, 
where Deceanry, to me the name of the bargainor to efftot a recovery in 
ejectment, and, alao, to take po w e eei on in hie name. 

Appeal from the Superior Court of Law of Buncombt 
County, Special Term, July 1851, his Honor Judge Bailkt 
presiding. 

This was trespass for mesne profits. The plaintiff 
read in evidence the record of a recovery in ejectment-p- 
The declaration contained three counts upon the several 
demises of the plaintiff, of Rebecca Fosten, and of George 
W, Jones. At the trial, the issue on the demise of the 
plaintiff was alone submitted to the jury. The writ of pos- 
session recited a recovery on the demise of the plaintiff.— 
Under it the sheriff put George W. Jones in possession ; 
and afterwards this action was brought. To show a privity 
of estate between the plaintiff and said Jones, and that the 
latter had authority to take possession in the name of the 
plaintiff, a judgment, execution, and sheriff's deed were 
read in evidence, from which it appeared, that the land had 
been sold by the sheriff, as the property of Posten, and was 
bought by, and conveyed to, the said Jones. The sale was 
made in 1844. The deed was executed in 1847. 

A deed from the plaintiff to Jones, executed in 1834, was 
also read in evidence. It is an ordinary deed of bargain 
and sale, for the consideration of six hundred dollars. At 
the foot of this deed is a memorandum, that Jones is to 
have " full possession'* at the death of Rebecca Posten. 

The Court was of opinion, that the plaintiff had not made 
out his case, because there was no evidence of an entry by 



340 SOPREME'COURT. 

Posteo V. Henry. 

him after the recovery in ejectment. The plaintiff submit- 
ted to a non-8uit, and appealed. 

N. W. Woodfin, for the plaintiff. 

/. Baxter and Henry, for the defendant. 

Pearson, J. When this case was before us at August 
Term, 1850, it was decided against the plaintiff, upon the 
ground, that no connection had been shown between him 
and Jones. We think that objection is now fully met by 
the two deeds, which were read in evidence. By them 
Jones is made a privy in estate with the plaintiff; and this 
case is the ordinary one of a purchaser, who brings eject- 
ment, on the demise of the bargainor, to obviate an objec« 
tion, on account of an adverse possession at the execution 
of the deed. 

Tt^ bargainee is a privy in estate, and has the right to 
use the name of the bargainor to effect a recovery, and to 
take possession in his name. 

Per Curiam. Judgment reversed, and venire de novo. 



AUGUST TERM, 1861. 341 



THOMAS BEATTY m. H. W. CONNER. 

In a proceeding to recover damairet for ponding water by a mill dam, under 
our act of ^aeembly, the yerdict of the jory and the judgment of the Coart 
thereon are concluaiye as to the aaeeasment of damages, up to the time 
when euch judgment was rendered . 

An application for relief from damages, assessed for a period subsequent to the 
time of the judgment, can only be heard if the dam is taken away or low- 
ered. The washing out of the channel and other causes of a similar kind, fiu- 
nish no reason for abating the damages. 

The case of Pugh y Wkeeler, 2 Dey. and Bat. 50, cited and approyed. 

Appeal from the Superior Court of Law of Catawba 
County, Spring Term, 1851, his Honor Judge Battlb pre. 
siding. 

At Spring Term, 1849, oi the Superior Court of Cataw- 
ba county, in a proceeding by the plaintiff against the de* 
fendant, who was the owner of a mill, for damage by rea- 
soii of the ponding of water on the land of the plaintiff, the 
jury returned a verdict assessing the annual damage at the 
sum of 870, and judgment was entered, that the plaintiff 
recover of the defendant the sum of $350, the execution to 
be staid, except for the sum of $140, the damages assessed 
for the two years, commencing on the second Monday in 
June, 1846, (which was one year prior to the filing of the 
petition,)and ending on the second Monday in June» 1848. 
This part of the judgment was satisfied. 

The plaintiff afterwards took out execution, returnable to 
Spring Term, 1850, for the $70 damage from June, 1848, 
to June, 1849. At the return term of the execution. Spring 
Term, 1850, the defendant filed an affidavit, in which he 
states, that, in two weeks after the first finding of the jury, 
on the premises, in June, 1848, he lowered his dam 36 or 
37 incheSi whereby the water was taken off of the land <^ 



MS SUPREME COURT. 

Beattj V. Cornier. 

the petitioner and no longer did him any damage. Upon 
this affidavit, a rule was taken on the plaintiff to show cause 
why the execution should not be set aside. The rule was 
made returnable to Fall Term, 1850, and the amount of the 
execution was paid into Court. At Fall Term, 1850, the 
rule was discharged by his Honor Judge Battle, who 
states, that, in addition to the fact set forth in the affidavit, 
the delendant offered to show, that, by the washing out of 
the channel of the creek, since the rendition of the judg- 
ment, and other causes, the water has been so lowered as 
not to injure the plaintiff; but he was of opinion, that the 
defendant could not be permitted to show any thing not 
set out in the affidavit. The defendant appealed. 

Boyden, for the plaintiff. 

Craig and Landers, for the defendant. 

Pearson, J. Lord Coke says, *' good matter must be 
taken advantage of in apt time, proper order, and due form." 

in debt upon a former judgment, the defendant cannot 
avail himself of any matter, the benefit of which lie could 
have had on the first trial. So, upon a scire facias to re- 
vive a dormant judgment, or upon audita querela, the par- 
ty is confined to matter arising since the judgment, by 
which it has been satisfied, in whole or in part, and is not 
heard to allege any matter existing prior to the judgment, 
upon the presumption, that he has had the benefit of it. 

The principle is decisive of the present question. In 
Pugh V Wheeler, 2 Dev. and Bat. 50, it is held, " if the 
jury can see that more or less damages have arisen to the 
plaintiff at different times, they are at liberty to increase or 
diminish those found accordingly." In that case, the wheel 
of the petitioner, who owned a mill above that of the de- 
fendant, was burned after the first year, and, in consequence 
thereof, the damage was greater afterwards than during the 
first year, and the jury assessed the damages at V2 1*2 cts. 



AUGUST TEKM. imt. 343 



Beaily v. Connor. 



for the first year, and at $10 for the aDnual damages after- 
warrds. This wa3 held to be right, and according to the 
proper construction of the statutes of 1809 and 1613 ; for 
although the first statute, which provides for a jury on the 
premises, seems to have contemplated, that the jury would 
find i^n average sum as the annual damages, yet, when the 
second statute allowed an appeal to the Superior Court and 
a trial at bar, under which the proceedings would most 
usually be pending for several years, there was then no 
reason why the jury should not find the actual damages 
up to the time of the trial, so as to assess a less sum for the 
first, and a larger sum for the other years, if, in fact» the 
damage was greater as in the case above cited ; or a larger 
sum for the firsts and a less for the other, years, or none at 
all, if, during the pending of the proceedings and at^ any 
time before the trial at bar, the dam was lowered, so as to 
diminish the damage, or remove it altogether. This was 
the necessary construction ; for, the dam was not kept up» 
(say after the first year,) and the jury at bar were still re- 
quired to assess the annual damage, taking no notice of that 
fact ; as soon as judgment was entered pursuant to the 
verdict, the defendant must take a rule to show cause why 
it should not be ordered, that no execution issue, except for 
the damage of one year. This would be absurd ; and it 
would naturally be asked, why could not this matter haTd 
been enquired of by the jury, so as, to let them fix the «c« 
tual damage ? Why the force of assessing high damages^ 
and the instant thereafter having an afiidavit to strike it all 
outy except for one year ? 

In this case, the defendant says, he lowered his dam in 
June, 1848, so thai, after that time, the water did the plain* 
tiflf no damage. Why did he not prove this upon the trial 
at bar« Spring Term, 1849? That was the ''apt time." 
and the jury would, in that case, have assigned no daipageii 
after June, 1848. He cannot now be heard, upon the prin« 

ciple above announced. 

16 



344 8UPRBMB COURT. 

Bettit o. Reynoida. 

We also concur with his Honor upon the other question, 
without deciding on the sufficiency of the reason given by 
him, that ** the washing out of the channel, and other causes/ 
are not set forth in the affidavit, for this reason — such cases 
do not come within the meaning of the Statute. The dam- 
ages are not to be abated, if ** the dam is kept up ;" so, the 
application can only be heard, if the dam is taken away or 
lowered. If the question of damages was open upon every 
suggestion of diminution from other causes, there would be 
a contest every year, when an execution was applied for, 
and the petitioner's right would depend upon, whether it 
bad been a wet or dry season. 

P«i CuRiAMk Judgment affirmed. 



'•.A. 



T. A. BETTis V9. Daniel Reynolds. 

A boDd, giYon for money lost'npoa a wagor on the retolt of a pnbtic oloettoiii 
thongfa neither of the partioi be a voter, ie baaed npoa an ilk^ eonaden* 
tiott, being againet pablic poUey, and ii therefore Toid. 

Appeal from the Superior Court of Law of Burke coun* 
ty. Fall Term, 1850, his Honor Judge Dick presiding. 

This is debt on a bond for $100. The defence relied on 
was under a special plea, that the bond was given for an 
Illegal consideration, to secure money lost upon a bet on 
the election of James K. Polk as President of the United 
States by the people. The defendant proved, that» pending 



AUOUST TERM, 1851. M 



Bettis V. Rffyoolda. 



the election, the plaintiff let him have a watch worth $40, 
for which the defendant was to pay him $125., if James K*. 
Polk was elected President of the United States by the 
people. Under this agreement the plaintiff delivered to the 
defendant the watch, and the defendant delivered to the 
plaintiff a bond for 9125., with the above condition express*, 
ed therein. After the election, the defendant made a pay^^ 
ment of $25., and executed the bond sued on, to secure th» 
balance of the $125. bond. The jury returned a verdict, 
for the plaintiff, subject to the opinion of the Court upon 
the question reserved. The Court being of opinion with, 
the plaintiff, he h^d judgmezit, and the defendant appealed, 

Avery, for the plaintiff. 

J, W. Wood/in and TatCi for the defendants. 

Pbakson, J. It is clear that this was " a bet" upon the- 
result of the Presidential election ; aad, the bet being lost, 
by the admission of the parties, the bond sued on was exe« 
cuted to secure the balance remaining unpaid. It was not 
proven that the parties, or either of them, were voters, and' 
no presumption of that fact can be made to aid the defence. 
We are, therefore, to take it, that neither were voters ; and 
the question is presented, can a bond, given to secure money- 
lost upon a wager on the result of a Presidential election, 
then pending! made by persons who are not voters^ be re- « 
covered ? 

It is settled that the action cannot be maintained if either 
of the parties is a voter. AUen v Heame, 1 T.[K. 56, Bums, 
V Riker, 4 Johnson, 426. We think it cannot be maintain- 
ed, although neither of the parties is a voter, and put our 
opinion on the broad ground, that the wager is against pub^ 
lie policy ; and the Courts ought not to countenance it, by 
aiding in the collection of a bond given to secure the mo%. 
Bey won.. 



%it SUPRSMl COURT, 

Bettis V. Ke3rno1d8. 

Ours, both Fedei^l and State, are representative, repub« 
ls6an (;oveminentd, and rest upon elections by the people, 
as *' the comer stone." Everything, not merely the proper 
tetion, but the very etistence, of our institutions, depends 
dn the free and unbiased exercise of the elective franchise ; 
and it is manifest, that \rhatever has a tendency, in any 
W!ay, unduly to influence elections, is against public policy. 
Hiis position we assume, as self-evident. It seems equally 
clear, that the practice of betting on elections has a direct 
tendency to cause undue influence. For, by the wager, 
Are parties acquire a pecuniary interest in the election, al- 
t^ether foreign, and at war with its true purpose and de- 
sign, which leads them into temptation, more or less strong, 
according to the amount of the wager, to exert every and 
any means, by which to effect the result, and to strengthen 
one side and weaken the other. One, who has a wager de- 
pending, follows but the instinct of interest, when he resorts 
to the perversion of facts, the circulation of falsehood, treat- 
ing and bribing, for the purpose of gaining votes. The evil 
is not confined to hinnself. His relations and friends be- 
come excited and stimulated to exercise, not for the good 
of the country, but for the pecuniary interest growing out 
of the wager. Such a state of things is against the public 
good. 

Putting our decision on this broad ground, the fact 
that the parties to the wager are not voters, has no bearing 
on the question ; because the evil eflects of the practice of 
betting on elections, pointed out above, do not at all depend 
on that circumstance. One who is not a voter, may be 
tempted as strongly as one who is a voter, to pervert facts, 
circulate falsehoods, treat and bribe, and the infection ex- 
tends as readily to his relatives and his friends. 

While concurring in the correctness of the decisions ia 
the two cases above cited, we must be allowed to say, that 
the ground upon which they are put is very narrow, to wit : 
that, as both, or one, of the parties were voters, the wager 



AUGUST TERM, 18*1. 847 



Bettis V. Re\'noldf. 



Nvas illegal, because it created a pecuniary interest, calcu- 
lated to swerve him from his duty ; for, although he may 
have bet upon the candidate for whom, at the time, h^ in* 
tended to vote, yet, perchance, but for this pecuniary inter- 
est, he would have changed his vote ; whereas, after the 
bet, he was not open to conviction, and did not " stand in- 
different." 

The probability, that a single vote might have been 
changed, but for the fact that the door lo conviction was 
shut by the wager, is certainly very narrow ground* It 
presented itself, however, in those two cases, and the Judges 
chose to rest on it, without deciding how it would be, if 
neither of the parties had been voters. No case is founds 
in which the question presented to us is decided ; and we 
are at liberty to put our decision upon the broad jiground. 
which we have assumed, as the result of principle and the 
•* reason of the thing." This ground is so broad as to make 
it immaterial whether the parties are voters or not. 

The case of Bunn v Riker aids our conclusion. There, 
the parties were both voters, but one had cast his vote ; so» 
the reasoning in Allen v Hearne, where the bet was laid 
before the poll was opened, did not apply to him. The other 
was on the day the bet was made, fifty miles from his resi- 
dence, where alone he was entitled to vote, and the polls 
would be closed at sunset on that day The difference, in 
the opinion of the Judges, turned upon the possibility of his 
being able, in 1807, (before the age of railroads,) to ride the 
fifty mites in time to cast his vote ; and to carry out the 
reasoning upon the further possibility, that, in thus riding, 
he might have concluded to change his vote, but for the 
pecuniary interest created by the wager. 

The broad ground, which we assume, is recognised and 
acted upon, in Atherton v Beard, 2 T. R. 610, where the 
Court refuse to support an action for a wager, as to the 
future amount of a branch of the public revenue, and 
BuLLiB, Judge, sayS| Lord Mansfield was of opinioUi that 



S48 8UPRBMS COVRT. 



Shupe V. SteplMoaon. 



any wager as to a public event would be void. So in GiU 
bert y Sikes, 16 East, where it was agreed to pay certain 
sums per day^ as long as Buonaparte lived : this was held to 
be a wager, and illegal, as tending to create a private pe* 
cuniary interest in a matter of public concern. 

Per Curiam. Judgment reversed^ and venire de novo 
awarded. 



MIRANDA 6HARPE m. JAMES STEPHENSON. 

lo an action of slander (under onr etatnte) for chargini^ that the plaintiff faac^ 
enminal hiterconne with aoe A. at a particular time and place, the defend^ 
ant cannot juatify hy ahowing that ahe had aneh intefoonne with A. ni aiw 
other time and place. 

The defendant in such an actioui in a plea of juatification must a^er, and must, 
profCy the identical oSbnce; and when any circumstance la stated^ 
which ii deecriptive of and identifiee the offence, it must he aTeirad and 
profed, for the purpose of ahewing, that it is the same oflftoce. 

Yet, though the plea la not farored when other descriptiTe cireumstaDcea are 
proren, ao as to show clearly, that ii is the oflbnce charged, a slight Tariv 
lion in Bome of the other circumstances^ which may he aaerihed to mistake, 
woold^not ha Altai, aa, ht nslanee, that it was en Satniday instead of Sun* 
day, and the like. 

Appeal from the Superior Court of Law of Caldwell 
Coantjt Fall Term^ 1850, his Honor Judge Dies presiding^ 

Sharpe and Bynum^ for the plaintiff. 
Avery and T. R. Caldwell^ for the defendant. 



AUGUST TBRM, 18Si. M9 



Sharpe v. StepheMon. 

PsAEBON, J. This waa case for slanderous words. The 
defendant said of the plaintiff: " He saw her and Eli Low- 
ranee apparently come from the same place out of the bush- 
es, along Mrs. Sbarpe's lane, about one hundred or two hun- 
dred yards from the house, in a stooping position ; they 
must have been down at it, or he would h^ve seen them 
^sooner, for he was in ten or fifteen steps of them before they 
saw him, and the fence was low, and the bushes were low. 
There had been old reports, but he had never seen any 
thing amiss and knew nothing against her, until now. 
They looked just like a man aud his wife, if any body was to 
come along and catch them at it. The plaintiff had said that» 
on that occasion, she was looking for a turkey's nest ; but 
if she had looked behind her, she would have found the tur- 
key's nest. They were the worst confused people he ever 
saw — they were confused to death. The plaintiff's face 
looked like it would light a torch, it was so red. If it ever 
came to a suit he would make Abner swear hard. He did 
know things against her, and on oath he would be obliged 
to tell it. He was now done with her^ and he would stop 
his daughters from school — they should not associate with 
her any more." 

The defendant relied on the plea of justification, and 
''offered some evidence on that plea; and then proposed to 
prove an act of illicit intercourse between the plaintiff and 
Eli Lowrance, at another time and place from that charged 
in the declaration, under his plea of justification. This ev« 
idence the Court rejected : and for this the defendant ex- 
cepts." The other exceptions are clearly against the de- 
fendant, and are not debatable ; so it is unnecessary to state 
them. 

The jury found for the plaintiff, damage $500, judgment, 
and the defendant appealed. 

The defendant, in the words of his bill of exceptions, hav- 
ing offered some evidenccy under the plea of justification, 
4hen proposed to prove an act of illicit intercourse between 



350 SUPREME COURT. 



8harpe tr. Stephensoo. 

*-■ - — ■ " - 1 1 ■ — ■ — ■ — ■ ■■■ 

the plaintiflTand Eli Lowrance at another time andplace^ 
from that charged. In other words, having failed to prove, 
that the plaintifT was guilty of the particular offence^ with 
which he had charged her, he offered to prove, that she 
was guilty of a like offence with the same man. This, he 
was not at liberty to do. The question is settled ; Walters 
V Smart, 11 Ire. 315. " When the charge is particular, 
and the defendant at the time he speaks the words, selects 
a specified offence, he is bound by it, and his plea must rest 
on that particular matter." The principle is, the defend- 
ant in a plea of justification must aver, and must prove, the 
identical offence ; and when any circumstance is stated, 
which is descriptive of, and identifies the offence, it must 
be averred and proved, for the purpose of showing, that it 
is the same offence. Accordingly, it was held in that case, 
that, although, whether A. or B. be the man, forms no part 
of the essence of the offence, and is not material in regard 
to the guilt of the plaintiff", still, if, by way of describing the 
ofTence, A. is named as the man, an act with A. must be 
averred and proved. 

Upon this principle, a charge, that C. passed to A. a 
counterfeit two dollar South Carolina bill, is not sustained 
by proof, that he passed to A. a counterfeit thirty dollar 
Virginia bill : that C. committed perjury on a trial at Mor- 
ganton in a suit between A. and B., is not sustained by 
proof, that he committed perjury on trial at Salisbury in a 
suit between A. and B. : that C. stole the black horse of A., 
is not sustained by proof, that he stole the white mare of 
A. These circumstances are descriptive, and, unless they 
be proven, it is not the same offence. It is merely an of- 
fence of the same kind. If the "ear marks" are given, 
they must be proven. 

The defendant in this case gives, then, other descriptive 
circumstances, besides naming the man, place, time. — 
" There had been old reports, but he had never seen any 
thing amiss, until now" So it was recent in point of time 



AVaUST TERM. ISll. «•> 

Sharpe v. Stepheosoo. 

-^ut a few days at farthest, and the circumstance, that he 
was an eye witness^ almost saw them in the very act* 
Th^re are authorities requiring each of these circumstances 
to be averred in the plea, and, of course, to be proven; 
Craft V Boite, 1 Sanders' Rep. 242. The words were, "he 
stole two hundred pounds worth of plate out of Wadham 
College.'* The plea, (drawn by Sanders) sets out, " he, 
the said Joseph Craft, three ounces of silver plate of the 
goods and chattels of the warden, fellows, and scholars of 
the College, called Wadham College, in the University and 
City of Oxford, in the county of the same city, at the said 
city of Oxford in the county of the said city, within the 
said college, found, feloniously, and as a felon, stole, took 
and carried away." Sergeant Williams, in his note, says: 
^' This plea of Justification seems to be properly pleaded» 
It confesses the speaking of the words alleged in the decla- 
ration, but says, the plaintiff was guilty of a felony, and 
specifies the nature of it, together with the time when, and 
the place where, the plaintiff committed it ; so that the plea 
alleges the plaintiff to be guilty of that species of felony^ 
which the defendant charged him with ; and, therefore, the 
plaintiff may come prepared to answer and disprove it at 
the trial." In Upshur v Betts, Cro. J. 678, the words were, 
" he t^ a bankrupt." The words were spoken the first of 
April, in the 17th year of James, 1st. The plea averred, 
that the plaintiff was a bankrupt on the 15th of April, in 
the year of the same reign. Held, ill. The Court remark, 
" from that is averred, he may now he a good merchant.'' 
There, time was material, and it was necessary to aver and 
prove it ; otherwise, the charge made was not shown to be 
true ; 3 C kitty's Pleading, 1040, is this precedent, words: 
"I saw the ship," and the scaff of the keelson was open, so 
that I could put my four fingers in edgeways." Plea : " be# 
fore speaking the words — to wit, at &c," (venue,) *' he, the 
said defendant, had seen the said ship, apd the scaff of the 

keelson of the said ship was open, so that ke, the said de* 

16 



S5S SUPREME COURT. 

Sharpe 9. Stephemoo. 

fendant, could put his four fingers in edgeways/' This is 
an authority as to the descriptive circumstance of being an 
eye-witness. But the authorities even require quality and 
number, when descripitive of the act, to be precisely aver- 
red and proved. Cook on defamation, 78« refers to a case 
as cited by Starkie — words, " he has robbed me to a serious 
amount. Flea, he robbed him of a loaf of the value of three 
pence. The jury found the justification as pleaded, but 
were directed to give some damages in respect of the words, 
" to a serious amount," which were not justified." Johns 
V Gettings, Cro. Eiiz. 239, words, " thou hast stolen my 
cloth and half a yard of velvet" — plea, " he did steal the 
velvet" — bad, for it did not answer the words, thou hast 
stolen my cloth; Tisk v Thorowgoord, Cro. Eliz., 623. 
The plaintiff and one F. S., under a commission, issued out 
of Chancery, took and returned the examination of several 
witnesses — words, " the plaintiff had returned, as deposi- 
tions, the examination of divers that were never sworn :" 
plea, " the plaintiff did return the examination of one F. S., 
who was never sworn" — ^upon demurrer, adjudged, no good 
justification, because it is of one witness only, whereas the 
charge was placed in the plural number." The authorities, 
then, sustain the position, that the defendant must aver in 
his plea, and prove, the very charge. As it is said, in 
Walters v Smart: "This is obviously right, because, 
having, for the sake of giving point and force to his charge, 
gone into particulars, and having had the advantage of 
thereby making his accusation the more plausible, he has 
no right to complain, that he is not allowed to make a de« 
parture and run over the plaintiff's whole life to see, if 
there be no shame in it." If a woman some twenty years 
ago, had* fallen into error, but had since atoned for it, as 
far as was in her power, by an irresponsible life, and it be 
said of her. ** many years ago she was guilty ot fornication:" 
although the allusion be prompted by a cruel and malicious 
npirit, she must submit ; for, it is true ;^ and it may be, if it 



AUGUST TERM. lesi. aS8 



Sharpe 9. StepbeDMO. 



be said, ** she is an unchaste woman/' she must submiti 
(although probably it would come under the case of Up* 
shur V Beits.) But, if it be said, "she was caught last 
night in A's bed roam, and they were in bed * at it\" the 
slanderer cannot protect himself by proving her former 
guilt, although it may happen to have been committed with 
A. ; because he has made a particular charge and must 
prove it, or stand convicted of falsehood. The bare suggest 
tion, that such a plea can justify such a charge, shocks com* 
mon sense. 

It is said, if this strictness is required in proving the par* 
ticulars, which are descriptive of the offence, the plea never 
can be made out, as a few hundred yards, in reference to 
place, and a day, in reference to time, would be fatal. 

It is true, this plea is not favored ; but, when other de* 
scriptive circumstances are proven, so as to show dearly^ 
that it is the offence charged, a slight variance in some of 
the other circumstances, which may be ascribed to mistake^ 
would not be fatal. Like all questions of identity, the en* 
quiry would be, does the proof establish it ? notwithstand* 
ing a mistake in a part of the description, as if the place 
was a few hundred yards from the lane, or it was Saturday 
night, instead of Sunday night, or the man turned out to be 
B. instead of A, in the case above sui^sed, the mistake 
being accounted for by the fact, that it was in the bed-room 
of A. 

It is so usual for time and place to be laid as a mere for* 
mal part of the pleading, where they are not material, and 
need not be proven as laid, and ought to be set out under a 
*« videlicU," that we are apt to fall into error in regaid to 
them, and look upon them as immaterial, when, in truths 
they are material, as forming a part of the description, and 
must be averred and proved with as much certainty, aa 
any other part of the description — ^for this .reason, a full 
extract was taken from Sanders, as an instance where " the 
place" was material. The plate was alleged to have been 



»S4 SUPRBME COURT. 



Sharpe «. Stephentoo. 



stolen out of Wadham College. The place there iodenti- 
fied the oflence, and it is not put under a videKcit, as an or* 
dinary venue, but is specially stated. This, it will be re- 
marked, was after 17 Car. ii. Ch. 8, dispensed with a par* 
ticular venue, and it was sufficient to lay " the county," for 
the purpose of an ordinary Venue, where place was not tna* 
terial. But, if the place was material, it was specially laid, 
as in that case. So, in trespass for an assault and battery, 
laying the venue in the county of Burke, if the defendant 
justifies, as Sheriff of the county of Iredell, under an exe- 
cution, his plea must aver, that the act was done in Iredell, 
at a certain time, when the execution was in force, and tra- 
verse the venue and time formally laid in the declaration^ 
because time and place are made material by the plea. 

It is said that a variance in the proof of the words charged 
in this case, in reference to time and place, would be fatal. 
That is merely stating the same question in a different way. 

If time and place be material, as a part of the descrip- 
tion, the proof must correspond with the words as laid. It 
may be that, where the words charged are general, proof 
of words, in which the charge is made with more particu- 
lars, .would not be a fatal variance, because the defendant 
is benefitted by being let into a more general plea. But 
where the words charged go into particulars, and time and 
place are descriptive, as in the case of the bed-room before 
supposed, the proof of words, in which the charge is made 
in general terms, would be a fatal variance, as, in that case, 
if the words proven were, that the defendant said, " the 
plaintiff and A were caught at it"; for, in such a case, the 
defendant would, by making the charge, as set out in the 
declaration, a particular one as to the bed-room and night 
time, be taken at a disadvantage in regard to his plea. 

It is not necessary to consider, whether the words in re- 
ference to Abner import a general charge, and so would 
have let in a more general plea ; because, the point is not 
made by the bill of exceptions, and such a plea would still 



AUGUST TEEM, 18S1. aU 



Sharpe •. Stepbentoii. 



have left the particular charge ttnanswered ; and the ver- 
dict must have been for the plaintiff. 

Pam CvixAif. Judgment affirmed. 



JAMES R. LOVE S AL. w. HUGH JOHNSTON ^ AJL 

UnpaUiiHad wiUt of the rappoaed tatUtor are admiaaibla in aTtdaoeat aa to 
qnaatiooa of capaeity and undna iDfiaeoce, aa they tend to ahow intelliganca 
and a aettlad purpoaa to make diapoaitioiia, like thoia oootained m the aoripC 
in eonteat 

Where, oo the trial of an iarae, tfmaaati vel nait, the deelaratiooa of a party 
mia giTen in oTideneab and it appeara afterwmrda, that thoae deolaratioQa 
were in fact in favor of hie own intereat* though apparently againat it, the 
Cottrt may, at any atage ef the trial, direct the jury to disregard them. 

The proceeding, in probate cansea, ia not aimilar to thoae at eommoo law, far 
la ita natora, it ia a piooeadiiig in reai, to which there are no partiaa in iba 
atriet aanaa of the common law, and the Conrt retaina that exclnaiTe power 
cnrar the aubject, which ariaea from the proviiion in the statute, that the iasna 
•* ia to be made np under the direction of the Court" The Conrt may mod* 
iiy the iaane, both in respect ol the seripta and parte of acriptat and of tha 
paaitiona of the partiea in interest, ao aa to have the cooteat vpon the kna 
determined ooncluaivaly, and upon ita merita aa existing in fact. 

There cannot be republication, by oral declaratious merely, of what parporta 
to be an attested will ; and it ia doubtful whether there can be of a holograpli. 
Aa to a paper purporting to be an atteeted will, there cannot be a repablica» 
tion, anlaas by a re«exacntion of the aame inatnimant» or by the axeoatlao 
of a codicil, with the ceramoniea required by the atatnte. 

Whan one acripi only ia put in iasna, and that ia but part of the will, the re^ 
diet Might not to ba against it altegether, but ihoald, rather, ba aeoardlDg la 



SM ' SUPRBUU COURT. 



Love V. Johnston. 



the tfath— that it k a part Upon mieh a findini^, the parties would be on • 
der the neces w ty of asking the Coort to set it asidf , and re-noodel the iaoe» 
BO as to embraca both scripts ; and thus the whole case would be properly 
hfonght ap. 



Appeal from the Superior Court of Law of McDowell 
county. Spring Term, I850» Judge Caldwell presiding. 

This is an issue of Devisavit vd nan, to try the validity 
of a script* bearing date May 13, 1842, offered for probate 
as the will of Robert Love, deceased. James P. Love, Dil« 
lard Love, John B. Love, William Welch, Dorcas Henry, 
and Robert Love were parties to the issue, as propounders. 
They were all among the heirs at law, and next of kin of 
the party deceased, and the script contained a devise or 
legacy to each of them, and the four first-named were nom« 
inated as some of the executors thereof. The probate was 
contested by others of the heirs and next of kin, upon the 
ground of want of capacity, and undue influence ; and it 
was also insisted, that the script did not contain the whole 
of the will, but only a part ot it. 

The script is set out in the bill of exceptions, and pur- 
ports to be signed by the party deceaseii, and attested by 
two witnesses, William H. Thomas and William Allman. 
They deposed on the trial, that, at the date of the script, 
they went, by request from Love, to his house, and were 
told by him, that he wished them to witness his will ; that 
some one, without his knowledge, had cut his name from a 
will he made in 1834 ; that he then produced the script in 
contest, and that of 1834, and after making some additions 
to the former. Love executed it, and they attested it ; and 
then Love re- executed that of 1834; and that both the 
papers were then put under one cover, sealed up together, 
and locked up. The witness AUman further deposed, that 
when the script of 1842 was executed. Love said, if that 
did not stand, or any accident happened to it, he wished 
that of 1S34 to stand, and that, upon saying so, he executed 



AUGUST TERM, 1861. S8T 

Lore V. Johnston. V 

* " ... . I ■^——1 ■ ■ 

the latter. The witness Thomas further deposed, that Love 
said, that the old will was signed to cure the defect caused 
by his name being torn off; that the new will was made to 
provide for the change made necessary in the disposition of 
his property. The witness further deposed, that the larger 
part of the party's estate was not embraced in the will of 
1842. 

On the part of those opposing the probate, the declara- 
tions of John B. Love, William Welch, Dorcas Henry and 
Robert Love, that the party deceased was of unsound mind 
at the time he executed the writiugs, on the l?th of May» 
1842, were given in evidence, without objection from the 
other side. The propounders then offered in evidence two 
writmgs, purporting to be two unfinished wills of the party 
deceased, written by himself, and containing numerous dis« 
positions of parts of his estate, which, as far as either went, 
conformed to those of the script in contest. They wei« 
objected to, but were received by the Court* 

In the argument to the jury, the counsel in support of 
the will insisted, that in point of fact, John B. Love, Wil« 
Ham Welch, Dorcas Henry and Robert Love were inter* 
ested against the probate, and therefore, that their declara- 
tions ought not to be heard in opposition to it. Counsel on 
the other side did not deny, that the interest of those per« 
sons was in opposition to the probate, but urged that the 
evidence of their declarations was, nevertheless, corope* 
tent. 

In summing up to the jury, the presiding Judge advised 
them, that, as those four persons were interested to break 
the will, their declarations ought to have no weight against 
iL He further instructed the jury, that it was competent 
to re-publish a will by parol, and also competent for the 
party deceased to declare, at the time of executing the two 
writings, which of them was his will ; and, consequently, 
that, if thev believed the statement of the witness Allman» 
the script in contest, dated in 1842, was his will ; but 



SM MIPIUEIU COUKT. 



Lore V. JohnttoD. 



that, if they believed the statement of the witness Thomas, 

then the two scripts together, namely, that dated in 1834, 

and that of 1842, constituted but one will, and then they 

ought to find against that of 1842, because it was not the 

last will, but only a part of it. 

' The jury found for the propounders, and the other side 

appealed. 

Avery and Gaither, for the plaintiSls 
/. W. Woodfin, for the defendants. 

RuFFiN, C. J. The unfinished wills were admissible as 
evidence to both of the points of capacity and undue influ- 
ence ; as they tended to show intelligence and a settled 
purpose to make many of the dispositions contained in the 
script in contest. Minutes for a will are common evidence 
of capacity and the animus testandi ; and letters, or verbal 
declarations, containing expressions of preferences for par* 
ticular persons, or importing a voluntary purpose of making 
particular dispositions, are the ordinary means of rebutting 
the imputation of undue solicitation or influence. 

With our mode of trying contests about the validity of 
wills, by jury, there is naturally associated the ideas of par* 
ties and the rules of evidence applied to similar trials in a 
proceeding at common law — ^in which the side, on which 
one is a party, corresponds with his personal interests. 
Hence, a notion seems to have been somewhat prevalent* 
that in contests of this kind, a party in interest one way 
may be most useful to himself and those in the like inter* 
est, by taking on the record a position in opposition to the 
side on which bis interest lies, so as to make declarations, 
apparently against, but in reality for, himself, and have 
them oflered in evidence by those in interest and conspiring 
with him. The case of Enloe v Sherrill, 6 Ire. 212, is an 
instance of such an attempt, which was defeated ; and thia 
cafie seem^ to be another, which also properly met the same 



AUGUST TERM, Ilfil. tst 

Love 9, JobnitoD. 



fate. Against sooh practices the Profession onght to guard 
the Court, and, no doubt» would, if oognusant of the fraud* 
at the firanung of the issue. But, if not discovered then» 
it is the duty of the Court, whenever it may be discovered* 
to protect itself and the parties in interest from imposition ; 
and it is, of course, within the province of the Court to 
frame such rules, as to the mode of conducting such pro- 
ceedings, as may be effectual to that end. The proceeding 
in probate causes is not similar to those at common law, 
though the trial in each be by jury ; for, in its nature, it is 
a proceeding in rem^ to which there are not parties in the 
strict sense of the common law, and the Court retains that 
exclusive power over the subject, which arises from the 
provision in the statute, that the issue is ^ to be made up 
under the direction of the Court*' There is no doubt, we 
think, that, when the purposes of justice require it, the Court 
ma^ modify the issue, both in respect of scripts and parts 
of scripts, and of the positions of the parties in interest, so 
as to have the contest upon the issue determined condu* 
sively, and upon its merits, as existing in fact, and not as 
they may be made to appear upon the declarations of fie- 
tions fabricated for the purposes of defeating a decision ac* 
cordant with the very fact. In the Courts of Probate in 
our mother country, the prc^unding is on oath ; and pro* 
bate in common form may pass on that alone. Our statute 
requires proof by at least one witness, in every instance ; 
and hence it has come to be the usage not to swear the ex* 
ecutor at the propounding, but only to adnnnister to him 
the oath, for the execution of the will, after sentence haa 
been pronounced for it. Perhaps it were better, if the ex« 
ecutor were still required to propound on oath in the first 
instance, as weU as to take the other oath. For, he cannot 
honestly propound a script which he knows, or believe!^ 
not to be the will of the party deceased. Indeed, by pro* 
pounding, he stands pledged to take his oath to that effect* 

since it is a part of the oath of an executor, prescribed in the 

17 



360 SUPREME COURT. 

Love V, Johnston. 

"- — — — ■ ■ — L 

statute, that he " believes this writing to be and contain the 
last will and testament" of the party deceased. If he believes 
otherwise, though it be proper to summon him to see pro- 
ceedings in order to make the sentence, whatever it may be> 
conclusive on all in interest, his duty to the Court and to 
the ends of justice plainly is, either to contest the probate 
openly, or, at the least, to see proceedings, literally speaking, 
and not be an actor in the proceeding. It is a fraud upon 
the law to take part in the propounding, in collusion with 
the caveators. He ought to act as he would, if all the other 
parties, besides himself, were propounders ; in which case, 
he would be obliged to stand forth in opposition to the pro- 
bate' In cases of such fraud and collusion, whereby one, 
for his own interest, aims to have such control directly, or 
indirectly, over the trial of the issue as to secure a decision 
against himself and those with whom he acts in pretence, 
and in favor of their adversaries, the ground fails, on which 
the rule for admitting declarations is founded — namely, that 
they a!e against the interest of the person making them; 
and, therefore, the rule itself has no application in those in- 
stances. It seems to the Court, therefore, that, in cases of 
reasonable suspicion of good faith in an executor, in uniting 
with the other executors or parties in interest in propound- 
ing a script, he might and ought to be required to take at 
once an oath as to his belief of its validity, and upon his 
refusal the Court should allow those in interest to prosecute 
by themselves. That would have been a proper course 
here, and, perhaps, the court would have adopted it, if it 
appeared that the other propounders had been aware oflhe 
collusion in time to have asked it before the trial. But as 
far as appears, this evidence was sprung upon them with 
out any ground of suspicion ; and, therefore, in furtherance 
of the principle mentioned, the Court might have rejected 
the declarations when offered in evidence, and consequent- 
ly, his Honor was right, after they had been inadvertently 



AUGUST TERM, 1861. 361 



LoTe V. Johnstoo. 



admitted, in advising the jury, that they ought to allow no 
weight to them. 

Whatever error may exist in the other instructions to- 
the jury, it would seem not to entitle the appellants to a 
venire de novo, because, upon the facts stated, it does not 
appear, that it could be injurious to them. The instruc- 
tions relate exclusively to the validity of the script in con- 
test, as affected by the other paper, called the will of 1834. 
Now, if that paper was of no force as a will, its existence 
could not in any degree operate upon that in contest. It 
does not appear in the exception to have been executed, so 
as to make it a will. As a will of 1834, it was revoked by 
an express clause of revocation in that of 1842, if the latter 
be a will to any purpose. Then, looking at it as executed 
also in 1842, as part of the wilt, it is not seen, that it could 
have been a will or part of a will ; no copy is set forth iu 
the bill of exceptions, whereby it might appear to have 
been attested ; nor is it otherwise stated, that it was either 
a holograph, or attested by the witnesses, Allman and The* 
mas, or any others. Those persons state merely, that the 
party. Love, " re-executed it ;" and one of them said, that 
Love mentioned, that he " signed'* the old will to cure the 
defect caused by '*his name" being torn off. His Honor, 
who is to be supposed to speak more accurately, applies to 
the transaction in reference to that paper the term " repub- 
lication" merely, which he informed the jury might be by 
parol. It cannot be inferred, therefore, that the execution 
in 1842 of the paper of 1834, was any thing more than the 
re-signing it by the party deceased ; and, hence, it was not 
a will, because it is not stated to have been written by him- 
sdlf, nor witnessed as required by the statute. It could, 
consequently, have no effect upon the paper of 1842, unless 
it was correct, as laid down by the jury, that it might be 
republished by parol, and was thus republished. That is 
understood to mean, that republication may be by oral de- 
clarations merely ; and with that position the Court does ^^ ^'V 



an supitSMS COURT. 

liDTe •• JohnloQ. 

G<meiir, either at applied to this ca&e, or as a general doo- 
trine. It had no applicaiion to the case, because, in point 
of £act, if there was a republication at all, it was not by 
words alone, but by the party's act of signing the paper, 
with the declaration that he did so to make it his will again, 
either absolutely or sub modo. But supposing that in that 
respect the case were otherwise, and that there had been 
nothing more than a declaration made animo rqiublicmndi 
in 1842, that the paper, even with his name to it, as at first, 
was then his will, it was not correct to say, that would be 
a republication. Supposing it to have been a holograph, 
with the origiial date left in it, it is at least, very doubtful, 
whether there could be an oral republication, as there was 
occasion to say in the cases arising on Wilsan*s will in 
Edgecombe. But, as just said, this does not appear to be 
a paper of that kind ; and, consequently, it cannot be acted 
on as if it were. Then, as a paper not written by the par- 
ty deceased, and, therefore, requiring attestation, and sup* 
posing it to have been duly signed and attested, in 1834, it 
could not be republished by word of mouth merely ; be* 
cause it was decided early after the statute of frauds and 
has been ever since considered as settled, that there cannot 
be a republication, unless by re-execution of the same in- 
strument, or by the execution of a codicil, with the cere- 
monies required by the statute. Masten v Savage^ I Yes. 
Sr. 440. It is obvious the contrary doctrine would contra- 
vene the statute, since it would allow after purchased land 
to pass upon a verbal declaration alone. It is true, there 
might have been such a republication of the will in respect 
of the personal estate prior to July, 1841 ; but after that 
time, the act of 1840 puts will of real and personal estate 
on the same footing. There was, therefore, no fact to 
make out the paper of 1834, to have been in form of a will, 
and the controversy was exclusively upon the validity of 
theacriptd 1842, within itself, unless it be sujqposed, that 
I , the one of 1834 was not only '' executed" by the party de« 



AUGUST TBRIf, lUl. aes 



LOT» 9, JohDftOP. 



ceased, but also attested by Allman and Thomas. If it 
were in the power of this court to send cases back to have 
the facts more fuUy stated in the bill of exceptions, as we 
might if the case came here upon a defective special ver- 
dict, the Court would not proceed to a final adjudicatiout 
mthout having the fact on this point explicitly stated, one 
way or the other. This is adverted to, in oider to engage 
the attention of Counsel, in drawing their exceptions, to the 
necessity for stating every fact distinctly, which is requi* 
site to show, that in laying down a rule of law there was 
error to the prejudice of the appellant The Court, though 
allowuig much for the haste and multifarious engagements 
of their circuit, is unable to infer facts, upon which the ex- 
ception is altogether silent But in this particular case it 
is not of so much consequence, because, if those witnesses 
did attest the papers of 1848, as it is called, the Court is of 
opinion, that according to the evidence of Allman — ^which 
the verdict affirms to be true — it was not the will or a part 
of the will. Publication is as necessary to constitute a will, 
as delivery is to a deed. The statute, in prescribing partic* 
ular ceremonies in the execution of wills, though not using 
the term publication, does not dispense with it, and it has 
never been considered as merged in the other ceremo- 
nies. It is as necessary now as it ever was, though now, 
as ever, it may be inferred from circumstances as well as 
directly established ; 1 Powell Dev. 90. Publication is a 
declaration or act of the party, showing the instrument to 
be his will ; and the question is, whether what was done 
here can, in law, be deemed a publication of the paper of 
1884, in that sense. How it might have been if the paper 
itself had in the attestation clause said, that it was publish- 
ed or ** republished," as well as signed by the party, we do 
not say. But, nothing of that kind appearing, it was nee* 
essary, that the republication should be affirmatively shown ; 
which, of course, could only be by the testimony of the 
witnesses to the acts or declarations of the party. Now, 



864 SUPRKME COURT. 



Love V. Juhnstou. 



the declaration of this party was, that the instrument was 
not his will — at least, not then. He published one paper 
as his will in presenti aud absolutely, and of the other he 
said, that he published it as a paper, which might be his will 
in certain events, which would be destructive of the former. 
The doubt, if there be one, is, whether the paper of 1834 
ever could become a valid instrument upon such a publica- 
tion. It certainly was not published as being immediately 
the will, and cannot impair the validity ot the other or ils 
efficacy as being alone the w^ill ; and, therefore, the sen- 
tence must be affirmed. 

These observations dispose of the controversy between 
the parties. Yet it is proper the Court should notice the 
closing direction to the jury to find against the script of 
1834, upon the ground, that it would be then only a part of 
the will — because it lays down a rule of much importance 
in practice, which the Court deems erroneous. By such a 
finding, the script would be finally pronounced against, 
though it be admitted to be a part of the will ; which seems 
manifestly wrong. The proper course in the case would 
have been to embrace both of the papers in the issue, and 
to have it special, whether both were, or one was, the will ; 
or whether parts, and which parts, were. But when one 
script only is put in issue, and that is only part ol ihe will, 
the verdict ought not to be against it altogether, but should, 
rather, be according to the truth — that it was a part. For, 
although such a finding would be imperfect, yet it is better 
it should conclude nothing, than that it should untruly con- 
clude a thing, as being in no part the will, because it was 
but a part. Upon such a finding, the parties would be un- 
der the necessity of asking the Court to set it aside, and re- 
model the issue, so as to embrace both scripts ; and thus 
the whole case would be brought properly up. But in the 
other way an intestacy would be effectually established ; 
because, after sentence against one script, that the party 
did not devise thereby, because it did not contain all his 



AUGUST TERM, 185L 365 



Love V. Johustou* 



dispositions, a like sentence must follow against the other 
script, for the same reason ; and thus both would be set 
aside, and the party left without a will, though the rule sup- 
poses that he had a will, and the two together made it. 

Pearson, J. I concur in the opinion, that it was not 
error to advise the jury to put out of the case the declara- 
tions, which had been offered in evidence — it being admit- 
tedy that the persons making them, although they stood on 
the record as jiropounders, were in fact interested to defeat 
the probate. If the objection had been made in the first 
instance, before the evidence was heard, Enloe v Sherrill^ 
6 Ind. 212, is direct authority for its exclusion, upon the 
ground, that, if one, whose interest it is to defeat the pro- 
bate, makes himself a propounder, with a view that his de- 
clarations may be given in evidence by the caveator, this 
is a fraud, which the Court should defeat by striking out his 
name as propounder, and placing him as caveator. This 
right of the Court is deduced from the position, that it is 
not an adversary suit, but a "proceeding in rem," to which 
there are strictly no parties, — both sides being equally clcU 
ors *• in obedience to the order of the Court directing the 
issue," as had been before held in St. Johns Lodge v Cat- 
lender, 4 Ire . 343. 

The only difficulty arises from the fact, that the objec- 
tion was not made before the evidence was beard ; and it 
is insisted, that, not being taken in " apt time,'' it came too 
late, under the rule, that, if a party permits evidence to go 
to the jury, so that he will have the benefit of it, if it be 
in his favor, he is not at liberty to object to it, should it 
turn out to be against him. This is a rule of the common 
law, founded on good sense ; and, if this was a suit to be 
conducted according to the course of the common law^ 
where the parties necessarily take adversary positions, 
corresponding with their legal interests and liabilities, and 
are left by the Court to take care of themselves, the difli- 



3M tUPRBME COURT. 

Love V. JobMUML 

cttlty would be insuperable. But the rule is not applied to 
the present proceeding, where, by the statute, the issue is 
made up and tried by a jury under the directicm of the 
Court. The Court, in such cases, ought to protect itself 
and the jury from fraud and collusion at any time, even 
after the evidence is closed ; for, the Court will not pre* 
sume the bona fide propounders to have been aware ** of 
traitors in the camp," which is the only ground for an un- 
favorable inference from the fact of the objection not being 

ft • 

made before the evidence was heard. 

Whether the declarations of a legatee or devisee, tending 
to defeat the whole will, as if he says, the testator was in« 
sane, although against his inierest, can be given in evidence, 
inasmuch as, if they affect him, they must necessarily af- 
ieot the other next of kin ; or whether, in this proceeding 
the persons opposed in interest may not call and examine, 
as a witness, a legatee, devisee, heir or distributee-rare 
questions to which I have given much consideration ; but 
they are not presented by the present case. 

Pm CciiAM. Sentence affirmed. 



AU3UaT TBRM, 19»1. MT 



JAMfiS S. LOVfi AND kL ««. HUOH JOBNSTCfN AKP At: 

Wfaera thvra is an appeal from an interloeatory decree hi a eaaiet aad tkk 
pardee proceed to the trial of tbe caoee , without waitiof far the deohMi 
«f tha matter appealed from, tbe appeal will be diimiwed at the aoeti af 
the appellant. 

Appeal from the Superior Court of Law of McDowell 
county. Spring Term» 1849, his Honor Judge Sailey pre- 
ttding. 

Avery and Gailhtr for the plaintiffs. 
J. W. Wood/in^ for the defendants. 

RuppiN, C. J. This appeal arose out of the oiase betweenl 
these parties upon the caveat of Robert Love's will, deci« 
ded at this term. At a previous term of the Superior Court, 
upon affidavit, James R. Love, one of the propounders and 
an etecutor, moved the Court for a rule on one James 
Gudger, who was a devisee in the will of 1842, and named 
an executor, to bring in the unfinished wills of the deceas- 
ed, to be used as evidence for the ptopoulnders ; and also, 
for another rule upon the caveators and Gudger, to show 
cause why Gudger's name should not be struck out of the 
record, as a propounder, upon the ground, that he was act* 
ing in collusion with the caveators. Both rules were re* 
fund, upon the ground, that the Court had not the power 
to do those acts, although the presiding Judge oonsidei^ 
tfad &els set forth in the affidavit to be true ; bat he allows 
td aa »PpMl to this Court Before the case was bsoogbC 
en in thti Coort, the parties breugbt tbe issue on the will le^ 

18 



9M 



8UPRBHB COURT. 



Lovo t. Jobaiioo. 



L and there was sentence for the script of 1843, pro* 
pounded by the said James R. Love and others, and the 
other party appealed. It appeared in the latter transcripti 
that before the trial* Gudger withdrew from the cause* as a 
propounder, and took the other sidci and also^ that the un« 
finished wills were produced on the trial. -^ 

The Court perceives in the record of the other case be« 
tween these parties* that the appellants have tb6ught proper 
lo go to trial, without awaiting the decisicm of this Court 
M the interlooutory oitlers^ from which this appeal was al«* 
lowed ; so that, in fact, the present does not, in substance, 
diflbr from a feigned case. It is not proper, thereforei to 
decide the questions ; but we think the appeal should be 
dismissed withcosts* 



Pia CuaxAM. 



Ordered accoid!ti^y« 



».-» 



AUGUST TERM, 1851. teS. 



DEM^ON DEMISE OP THE HEIRS OF J. W.CARSOK »c HllUlt 

SMART. 

OH Um trial of aa aoiion of ejeotmcot, the Conri may^ in iti jIkmUoo, all«ir 
one of tbe leiiora to be stricken out of the declaraijoa, upon the coits btiDg 
dbpoeited i9 Court, and mntnal releases ezeeated. The party striekeQ e«l 
may then bo a witness, as if his name had never been in the dedaratioo. 

IMer the aet of 184$» a party may read a registered copy of a deed to the- 
other party, who has it in pos scss ioni without notieo taprodaae 1iiftsn|iaa!^ 
in the same manner as he cap read a copy of a deed to himself. 

Tbn title to land^ sold under ezeeution, vesta m him to whom. tbo^oAosr makeft 
thedeed. 

A deed made by a SherifT or Coroner, under a sale by executioo^ passes' (h» 
title, notwithstanding a third person may, at the time, be m the adveiae poi- 

Itt ejectment all the co-tenantaneed not be joined in the demise. 

When a penon takes a deed from a debtor, while the land is subject to a lory, 

under which it is afterwaidi aold, he stan^ in no better situation than tW 

debtor, whoeo place he has taken. 
The eases of Brooks v Rudelift.'kl Ire. 39Uand Bordou ▼ Cb«, 11 in, 456 

cited and approved. 

AppMKfroin the Superior Court of Law of Rutherford 
county, Spring Term, 1S51, his Honor Judge Settle pre*-* 
siding. 

G. W» Baxtsr for the plaintiffs^ 
Bj/num, for th& defendant. 

Pearson, J. The lessors daimed title under a judgment*, 
execution, constable's levy, order of sale, venditioni expo* 
nas^ and a sale and deed made by the Coroner. James W» 
Carson, the plaintiff in the judgment, was high Sheriff, and 
at the sale became the purchaser, but died before a deed 



m SUPREME COURT. 



^ 1 ■ 1 1 'i 



Carwn r. Smart. 



was execqted, and the Coroner made the deed to the lessors, 
!• 85 hi^ hv irs at 1 »\v.** 

0.1 the t *i.il. the dednration was amended bj striking 
out the nam 3 of W P. Cj^rson, as one of the lessors, and 
he was called as a witness by the plaiqtifT, and proved that 
the defendant wa; in possession, and l^ad been i^qttf|ed ''to 
qwi.*' This witness was objected to as incompetent; 
whereupon the amount of the costs was deposited in Court 
by Tan^s, one of the lessors, to whom the witness release^ 
a|l of his interest in the land, and he released the witness 
fr<ODi all claim or liability in regard to the costs. His Hon- 
or then admitted Jiis testimony. 

*rhe plaintiffs read in evidence a registered copy of a 
d'eed from one Roberts, the defendant in the execution, as 
>vhose property the land was levied on, to the defendant, 
dated October 1st, 1840, after the constable's levy and be- 
ftrfe the sale. This was objected to, because the defendant 
had received no notice to produce the original. 

The defendant proved, that James W Carson died in 
184<J, and that he had frequently said, that the defendant 
had settled the purchase money, pail by Carson for tf^c 
land; and "that tJie land was his (Smith's),'' who was thci 
brother-in-law of Carson, and, from October, 1640, claimed 
the land. 
* The defendants insisted, that the plaintiff could not re- 
cover, because there was no evidence that the lessors were 
the heirs at law of James W. Carson ; because the defend- 
ant was in possession at the time the Coroner executed his 
deed to the lessors ; because W. P. Carson did not join in 
Ifhe demise; because Roberts had no title to the land at 
the ^ime of the levy ; and because the defendant's title had 
ripened into a perfect one under the deed of Roberts to 
him in October 1840, if the jury believed the defendant 
had claimed the land, as his, from its date up to the issuing 
vi the declaration, March 1SI8, Hi«: Tlonr^r decide^] all 



AUGUST TERM, 18$1. Wl 

Cnrpon t*. Smart. 



thesia potuis against the defendant — venltct for the plaintifl*. 
judgment, and the defendant appealed. 

First : We think it was a matter witl^in the discretion of 
the Court, during the trial, to allqw one qf the lessQni to be 
stri^kfin out of the declaration. It is common on the cir. 
cuit, when, in the opinion of tho Cou)*t, the purposes of jus* 
(ice i;equiro it, to allow oqe, who is security for an appeal, 
or fqr tho prosecution, tq be stricken QfT^ and a new bond 
given* so as tq make liim a witness. Tt^e present was the 
exercise of i^ similar discretion. 

3ecpndly : Under the ^ci of 4840, rogistef^d copies qf 
deeds for land are made evidence, and the production of 
thd originals ^ dispensed with, except under certain cir- 
C4|m«tances. The words are very general, aqd the present 
c«ise is embraced hy them* Wo can see nothing to take it 
out of its meaning. If a party may read a copy of a deed 
to hin^self, of ^hich he has the possession, there can be mo 
reason why he may not read a copy of a deed to the oilier 
party, who has it in possession. Of tho polic}* of this sta* 
tute, we have nothing to say. Our duty is to put on it a 
fair eonstruction^ and mako it consistent in its operations* 

Thirdly : Our statute gives a power to SharifTs and Cor- 
oners to sell all land, and pass tho title by deed. 7Vy 
roust see to the prctper execution o.t this power. The C<h:- 
oner, in this instance, having made tho deed to tho leasors 
of th(t plaiuti(r, as ^ho heirs of James W* Carson, the title 
vest^ in them^ pn tho same prmciple that i) vests in one, to 
whof\i the deed is niado as assignee of thu bidder. This is 
settle^, Brooiif v Rc^dcUff, U Ired. 321. 

Fourthly : A deed, made hy ^ Sheriff or Corouori under 
the power conferred by the statute, (iko a descent, %vbich is 
the act of the law — ^passes the t^tlo, notwithstanding ^ third 
person may, at the time, be in tl^o aciversc possession. There 
is no danger of tho evils of champerty and the sale of** pre- 
. tended titles" in such case^ ; indeed, few pci^sons, w|^ are 
5olJ out for debt, willingly .'Tjve up posscssioiu The power 



379 SlU'REAIi; fX>UUT. 



Oarann r. Sinuri. 



of tho SheriflT to sell \raul(l be nugatory, if the position 
contendecl for be true, unless the ndditional power \va» 
conferred on the sherifT to put the (!ebtor in the execution 
out of possesfMon, an<l deliver it to the purchaser. 

.Fifthly : All of tbo eotenants need not be joined in the 
^ei||i»e. This is settled by 5$everdl cases. 

Sixthly : In Borden v Coj, 1 1 Ire. 4.10, it was held» 
that one» who takes a deed from the defendant in the exc** 
cution, after tbo levy, is at liberty to show, that tho^ie «rn 
crued ^fter the levy, and thereby avoid what would other- 
wise have been the eflect of a subsequent sale under a oen* 
itUioni exponas. That case has no application to the pre- 
sent, because it i^ not shown, that the tiile of Roberts did 
accrue afUr the hvy ; and we have but the ordinary case ' 
of one« who takes a deed from the debtor, while the land b -■ 
subject |o a levy, under which it is afterwards sold. Of • 
course, ^uch person, comin^i; in, pending the proceeding, ca»* 
stand in no l)etter situation than the debtor, whose place he^ 
has taken. 

Seventhly: The last [xxint is against the defendant oil' 
two grounds. There was no evidence, when tkedefendant 
took possession. The evidence was. that he ''claimed the- 
land as his." So there is no proof ot a seven years adverse 
possession. But suppose there had been, and suppose 
further, that the statute commenced running* so as to beai^ 
on the defendant's color of title» before the deed was anode 
to the lessors of the piaintiiF, and in the life time of James ' 
W. Carson, wl>ose laches it was not to take a deed after, 
the coroner's sale-r-it i* certain, thjkt his light of entry did 
not accrue, until l^ became the purchaser at the coroner*.'* 
sale in July 1841 : from which time to March 1848, when 
the declai'alion iusued, theve was not tht seven years, nc^ 
qessarj' to ripen tbQ cfet'n<lanVs color of tilfe. 



Tea CcRiAM. Judgment aftirjoed. 



» \ 



AUGUST T£UM, 18;^1. »8 



CALEB OSBORNE vi, JOIIK BAhU^W. 

Ad entr)', uoder a deed, ioto a pert of a tract of land, shall, as a^iintt a tdrre 
wroogdoer, be considered an entry into the whote*— h not appeanugthatatfy 
«iae else baa posspwion of aof pavL 

The ease of MfprUk t. Bi$koj^, I Uairka 485} cited and approred* 

Appeal from the Superior Court of Law of Wilkes Coun- 
ty. Spring Term 185li his Honor Judge Battle presid- 
ing. 

The action is quare clausum fr^git, and the plea, not 
guilty. On the trial the plaintiff gave in evidence a deed 
to himselfi covering the locus in quOi He also gave in 
evidence a grant to another person, which likewise covered 
the locus in quo ; but he was unable to deduce title from 
the grantee to his bargainor. U])on taking his deed, the 
{daintiff went to reside in a house situate on the land and 
cultivated a field that was enclosed ; and soon afterwards 
the defendant committed the alleged trespass on an unen- 
closed part of the wood land included in the plaintiff's 
deed. 

The counsel for the defendant moved the Court to in- 
struct the jtu'y, that the action could not be maintained, 
because the plaintiff had not shown himself to be in posses*' 
sion of the locua in quo by having it enclosed, or other- 
wise in his actual occupation, or by having a title for it 
against all the world. But the Court refused to give the 
mstructioni and directed the jury, that the plaintiff's actual 
entry under hia deed into a part of the land covered by the 
deed waSfj^rtnia/octe, sufficient to maintain trespass against 
the defendant, who set up no claim to the locus in quo, and 
was a mere wrong doer— no other person appearing to be 
in possession of another part of the land under a conveyance, 
also covering the locus in quo. 



suprbul: couftTi 



(>«tM)roe V. Dal lew. 



Ouion, for the plaintifH 
BoydeUy for the defendant. 

UcrriN, C. J. Althou<;h, as between iwo persons claim- 
ing under deeds which interfere, the possession be with the 
belter title, unless the otlicr party have an actual possession 
within the disputed part, yet, as applied to the case of a 
mere wrong-doer, the instructions conform to our adjudica- 
tions, and seem, indeed, to follow from the doctrine of con* 
Mructive possession, which is indispensable^ in the present 
state of the country, to t(ie protection of peaceaible poiaes- 
sors and claimants against lawless intrusions. The case 
of Wyrick y. Bislidp, 1 Hawks 4S5, is 2n point, and cjivea 
"^ery satisfactory reasons, why an entry under a deed into 
a part of a tract of land should, as against a mere wrong* 
doer»be considered an entry into the w^ole-^itnot appeal^ 
ing that any one else has possession of any part. 

VBn CvftiAik.' Jtidgment affirmecL 



AUGUST TBRM, 18»l. y» 



THOMAS CRAIQ tt. THOMAS B. 



Ay ownmc a •!«▼•« die^ wtMtate, and no administratioD waa ever gfaated 6d 
his eetate. The sext of kin took peasesaion of the aUve, an(j kept him fof 
aaven yean. They then sold him to B« who kept him for ten years, and ha* 
Wiia then aold by B*a execvtora to C. After remaintn; in C'e poeiewluo, foav' 
yaatf t ha ran away, waa oanght and oonfiaad in jail^ ftan wfaioh ha wa» 
tokao by D> wl|o, upon demand, refaeed to deliver him to C- ilel<i,tha| 
&9 poaa o MJon entitled him to an action of Trover against D, who was 4 
mere wrongdoei', setting up no title in himself. 

The <Mes oV White v Ray, 4 Ire. 14, and PmoM v Ansetf j 1 1 lie. M, dited. 
•ommenCad oa, and approved. ..^^^ 

Appeal from the Superior Court of Law of Hendersoii 
County, Spring Term 1851, his Honot Judge Sbttls prev 
siding. 

This is trover for a slave, and wad decided on the follow^ 
ing[ oa9^4igreed, Thomas Rhodes, of Buncombe County,* 
owned the slave and died intestate in the year 1827, leav* 
ing a widow and an only child then married to John Millen, 
No administration was tal(en on the estate, but Mrs. 
Rhodes and John Miller paid all the debts and took the 
property of every kind into their possession, claiming and 
iisiiig it aa their own ; and in 1634 they sold the negro to, 
John Craig, who lived in South Carolina, and kept thtf 
slave in his possession there for ten years, and then died, 
and his executors sold him to the plaintiff, who had posses-* 
sion of him for four years. The slave then ranaiway, and 
came back to the residence of Mrs. Rhodes, with whom thtf 
defendant lived ; and the slave was committed to jail as a 
mnaway, but was afterwards taken out ot jail by the de^ 
fendant, who is a son of John Miller, and upon demand of 
the plaintiff refused to deliver him; and then this action 

^as brought. Judgment was rendered thereon hr tbof 

1» 



SW SUPREME COURT. 

Craig V. Miller. 

plaintiff for the value of the slave, as stated in the case 
agreed, and the defendant appealed. 

N. W. Woodjin, for the plaintiff. 
/• Baxter, for the defendant. 

^RuFFiN, C. J. Without having recourse to the presump- 
tion of a good title from a sale by the next of kin and up- 
wards of twenty years' possession by the plaintiff and those 
und^ whom tie claims, since the death of the original owner, 
Rhodes, the Court is of opinion, that under the circum- 
stances the plaintiff's possession entitled him to hold the 
slave as against the defendant, who is a mere wrong-doer ; 
and, therefore, that he may maintain this action of trover. 
It is distinguishable from the cases of White v. Ray, 4 Ire. 
M, and Powell v. Powell, 1 1 Ire. 80 ; in the former of 
which the action was brought by the administrator, and 
in the latter, the true owner was in existence, and known. 
But this is more like the case of the lost jewel, for which 
the finder was allowed to maintain trover against the gold- 
smith/to whom it had been submitted for his opinion, and 
who refused to deliver it back. Armory v. Delamirie^ I 
8tr. 505. For, although the rightful owner was not known 
then, it was known, that there must be some owner ; and, 
therefore, if the mere possibility of an owner's appearing or 
coming into existence would defeat the action, the plaintiff 
ooidd not have had judgment. It would seem, therefore, 
that, if the defendant had received the slave from the plain- 
tiff and refused to re-deliver him, or had taken him from the 
plaintiff's actual possession, he would be liable in trover. 
This is much the same ; for, the plaintiff did not lose his 
possession by the slave's running away, but he was still the 
subject of larceny, as his and in his possession. Indeed he 
was taken by the defendant and committed as a runaway. 
F^m whom ? Plainly, from the p3rson, in whose posses- 
taxm he was at the time of absconding ; and as such he wag 



AUGUST TERM. 1851. 907 



«• Byid. 



rightly detained as a runaway. The defendant, ibereforei 
cannot bar the plaintiff by setting up his subsequent wrong- 
ful act of taking the slave out of prison and holding him 
against the plaintiff. The defendant wrongfully interfered 
with the plaintiff's possession, which gave him such a right 
of property, as entitled him to hold against every person, 
except an administrator of Rhodes, if one should ever exist ; 
and, there being none, he may have trover against a meia 
wrong-doer. 

Per Curiam. Judgment aflkmed. 



ROSANNAH BRIGGS 9$. CHARLES BYRIX 

A pemn » not usweiable, in ui action of sbnder, for may thiqg ho Myi in 
boneoUy preferring, before a judicial officer, complainis againet an individ- 
ual for offences alleged to have been committed by him ; and frimm /mm 
every nppiication is to be deemed honest and to have been made upon good 
mocivee* until the contrary be shown. 

In each oases, whether the party complaining acted h9nmfid§ or from a wiek* 
ed and malioious miud is always an open qneslion. The oppsoite party* 
therefore, is at liberty to prove malice, either by exprese ovidenooi or by 
attending or collateral circumstances. 

In an action of slander, evidence of the sense, in which the words were under- 
stood by the hearers, most be of the sense in which they were nndentood^ 
at ike time they were uttered. 

Although a juror may sit on the trial, against whom there waa good naio of 
challenge, yet the party, by not having made Uie objection in time, waived 
it 

Appeal from the Superior Court of Law of Yancy ooun- 
ty. Spring Term, 1851, his Honor Judge Ssttlb presiding. 



0n SUPREME COURTi 



Briggs V. Byrd. 






This is an action for words spoken, with the intent to 
charge the plaintiff with having stolen biscuits. Plea not 
guilty. The declaration stated, that a report had been in 
circulation, that the plaintiff had stolen some biscuit belong* 
ing to one Elisha Hunicutt, and that the defendant, speak- 
ing of the plaintiff, and of the said report, said, in the hear- 
ing of divers persons, of and concerning the plaintiff: ^I 
will make the biscuits roar under the cloak before Saturday 
night," with inuendoes and averments, applying the words 
to tl}e plaintiff, and that the defendant meant thereby, and 
was understo<>d by the hearers, to charge het with feloni* 
fHisly stealing the biscuits. 

On the trial, fwo witnesses deposed, that on a certain day 
|he defendant and the plaintiffs father had a dispute about 
a line and fence between them, and the plaintiff passed by 
%he defendant and the witnesses, and the defendant saidi 
f'if they do not mind^ | >^'ill make the buiscuits roar under 
(he cloak before Saturday night/' But each of the witness- 
es said, he did not understand what the defendant meant. 
Another witness, L. Phillips, deposed, that he was a justice 
of the peac6, and that on the day spoken of by the other 
witnesses, the defendant asked him, what he would think, 
if he were to see a woman take a parcel of biscuits, and 
slip them under her cloak ; and he ansV^'ered, that he woald 
think it was stealing ; and thereqpon the defendant told him 
he wanted a State s warrant, and said that on that day he 
was talking with the other two witnesses, *' as a certain 
woman passed by, and he said that he ^youId make the bis. 
ouit roar before Saturday night, and she looked worse than 
any one he had ever seen." The witness further deposedi 
that he had previously heard of a report, that the plaintiff 
had stolen biscuits at Hunicutt's, and he understood the 
defendant as alluding to die plaintiff, and that he intended 
to charge her with stealing those biscuits ; that he. the wit. 
ness, declined issuinp the warrnnt at that time, and promised 



AUGUST TERM, 1851. 079 



Brings V, Byrd. 

— - - ■ ■ J I ■ ■ ■— 1 I _ _ _ L —U ^ ^^^_- 

to attend \o it at sume other lime« but the defendant made 
no further application. 

The counsel for the defendant ini^sted, that the action 
would not lie, becwse the words were not understood by 
the two first witnesses in the sense imputed to thetn in the 
declaration; and because the communication to Phillips 
wvs for the purpose of obtaining a warrant for the lelony, 
and was, therefore, privileged. The counsel for the plain- 
tiff insisted, on the other hand, that the communication to 
the magistrate was not priviteged ; and further, that, al- 
though the two first witnesses did not at the time under- 
stand the defendant's allusion, the action will lay, if they af- 
terwards heard the repo!t, and then understood the defend- 
ant's allusion, or if they believed the defendat)t really meant 
\o charge the plaintiff with larceny ; and other persons, be- 
sides those two witnesses, were present, who might, or 
n)lght not have understood the allusion. 

The Court instructed the jury, if they believed the api- 
plioation to the magistrate was bona fide for the purpose of 
obtaining a State's warrant, and tor no other purpose, the 
defendant was not answerable for the words then spoken ; 
but that, if be had any other purpose, then the defendant 
was answerable in this action ; and that, for the purpose of 
arriving at the defendant's intention, the jury should con- 
sider all the circumstances, including the facts, if the jury 
believed the witness, that the defendant did not at the time 
insist on then having a warrant, nor apply for one after- 
wards* The presiding Jud.(;e did not express any opinion 
on the other points insisted on, in the argument of theplahi- 
tiff's counsel to the jury, and was not requested to give 
any instructions on them. The jury found for the defend- 
ant, and the counsel for the plaintiff moved for a venire de 
7WV0, upon the ground of error in the instructions as to 
the words spoken to the witness Phillips, and in his Honor's 
not giving any instruction on the other two questions made 
in llic argnniewt ; ancl ol^o. because one of the jiirors on 



380 SUL'RGME COURT. 

BrirrgR V. Byrd. 

this trial had been on a jury on a former trial of this case» 
and then concurred in a verdict for the defendant. The 
motion was refused, and judgment rendered for the defend* 
aot ; and the plaintiff appealed. 

N. W. Woodfin for the plaintiff. 
Gaither for the defendant. 

RuPFiN, C. J. The privilege of charging persons with 
offences in a judicial proceeding, or with a view to one, is 
given by the law, because the public interests require com- 
plaints tu be made against offenders, or those really suspect- 
ed of being such, and the complaints cannot be made with* 
out the use of such words, as would, if spoken on a differ- 
* ent occasion, be slanderous. Hence, a person is not an- 
swerable for anything he says, in honestly preferring a com- 
plaint before a justice of the peace ; andy prima facie, eve- 
ry application is to be deemed honest, and to have been 
preferred upon good motives, until the contrary be shown, 
because it is a duty to bring offenders to justice. That, 
we believe, is all that is meant by the phrase, " privileged 
communication '/' namely, that the words are uttered in a 
legal proceeding, or on some other occasion of apparent 
duty, which prima facie imports that the party was actua- 
ted by a sense of duty, and not by th3 malice, which is 
generally to be implied from speaking words imputing a 
crime to another. Cockyane v Hodgkison, 6 Car. dfc P. 643. 
Johnson v Evans, 3 Esp. 32. It is always open, however, 
to the opposite side to prove malice, either by express evi- 
dence, or by circumstances attending the accusation, or by 
others that are collateral ; as, for example, that the accuser 
had a particular grudge against the accusoH, and knew the 
accusation to be unfounded. It is, therefore, the question 
in all such cases, whether the party acted QDna fide in ma- 
king the complaint, or from a wicked and malicious mind. 
It follows, that the iustruclions to the jury were as strong 



AUGUST TERM, 1851. 381 

BriggB V. Byrd. 

as they could possibly be, with any regard to the rights of 
the defendant — ^being, that if he had any other purpose be- 
side that of bona fide, in instituting a prosecution against 
the plaintiff, she would be entitled to recover ; and allowing 
^he plaintiff the benefit of the intrinsic, as well as all other, 
evidence of some malicious purpose. It is apparent, there- 
fore, that the plaintiff has no ground to complain of the in- 
struction. 

There are several answers to the other exception. The 
silence of the Judge is not error, unless he be moved for a 
proper instruction. Here the party chose to take the 
chances before the jury, without the help of the Court on 
either of the two points. But, if instructions had been 
asked, they ought to have been refused. The declaration 
is, that the words — ^not importing, per se, a charge of larce- 
ny by the plaintiff — were meant by the defendant to be so 
understood by those to whom they were spoken, and were 
then so understood by them. Hence, the Court held, in 
this case, on a former occasion, that the plaintili might 
give evidence as to the sense in which the hearers under- 
stood them. But that must, of necessity, be referred to the 
time of speaking the words ; else, it might happen, that the 
words would be understood differently, at different times, 
and be actionable or not, as the witnesses might ap- 
prehend their sense, more o^ less correctly from time to 
time. Besides, there was no evidence, that the report sub* 
sequently reached the two witnesses, or that it imparted to 
them a better understanding of the defendant's meaning ; 
and the Court ought not to submit a point to the jury, on 
which there is no evidence. This observation is equally 
applicable to the other point, as it did not appear that any 
other person was present when the defendant spoke the 
words proved by the two witnesses, or that such person, if 
present, understood the allusion to be to the plaintiff. 

There was good cause of challenge to' the juror. But 
that does not vitiate the trial ; for the juror might have 



882 SUPREME COURT. 



SUto P. Rash. 



conceived, that he was bound to serve, and by not maluog: 

the objection, the parly waved it. 

Pbs CuauK. Judgment affirmed.* 



tllC STATE v«. DC>V£RI/Y WAH. 

6d a trial for murdor, charged to have been committed by a bitobaod on hiv 

wife, the State baa a right to prove ii long course of illtreatmeoi by the 

husband towards the wife. 
Whether an alleged subaeqoeDt reconciliation between the partial is real or 

pretended, ao as to afiect the question of malice, is a oiaiter for the dedsioD 

of the jury. 
"Proot of the declaratiovfi of the deceased wife, offered by the hus^d, that 

flbe bad been guihy of adultery, was properly rejected by the Court, be- 

eaosa' it Iras irrelevant to the issue, and because it would have goae strao^ 

If to prote the malice duurged on the husband. 
In criminal, as well as in dvil cases, all the testimony on both sides should ha 

introduced before the argument commences. After that, the parties bare 

flo right to introduce additional (estitnon^, though the Court, in its discretion . 

may permit It to be done. ^ 

A Jndga is never bound to instruct a jury upon an abstract proposttioii. Hia 

duty is to lay down the law to them; as applicable to the evidence intro^ 

It never can tie error in a Judge to assume that as true, which the prisoner, in 
Ms defence, has treated as troe^ ; as, where a prisoner indicted for murder, 
dM8 not pretend that, if guilty of the homkide, be if guilty of anything bat 
murder ; but relies, in hia defence^ solely upon the ground that be waa 
not gniUy of the homicide. 

It ivnot error in the J'uc%o to tell the ju^y, that, if the witness is credible' 

' ' it ts tlftfr duty to believe him ;• when he adds, at the aame tuna, ^'yilitiB 

"^'^pairilla tb»iritBe« may be mistaken or peijured." 



AUGUST TERM, 1851. SSS 



Stale V. Ruh. 



H.kiiQl«rrariot Judfttoimtroet tha jorj, tbu '*aUtb*dieiimitMic«tv 
and agiiost the pruooer, which wen proTed beyond a reMooable doQ^ 
must be taken all together, and not separately.'* 

The cases oC Sut§ r HopkinM,6 Ire. 40«. WiUianu j Aventt, 8 Hawk% SOS, 
Simpmm r Blount, 8 Der. 84, jr<;iVcil r JTatffy, 8 Hawks, 81, SlotoT 
Seef <, 9 Der. <b Bat. 85. Stole t JVartie, 8 Ire. 101, StmU t MilUr, 1 Dav 
A Ba*, 500, NoUnd r MeCr^ken, 1 Der. a Bai 504, and StmU rSwmk[ 
2 DeT.ife Bat 9, cited and approved. 

Appeal from the Superior Court of Law of Cabarrua 
County, Spring Term, 1851, his Honor Judge Battli pre^ 
siding, f 

The defendant was indicted for the murder of his wife» 
Maiy Rash, and convicted. Several objections were taken 
to the charge of the presiding Judge, which are set out in 
the opinion of the Court. The facts are also stated there- 
m. 

Attorney General^ for the State. 

Boyden and //. C. Jones, for the defendant, 

t 

Nash, J. The bill of exceptions contains several objec- 
tions to the charge of the presiding Judge, We will eon* 
skier them in the order, in which they are presented. 

The first is, that his Honor admitted improper testimony. 
The testimony objected to by the prisoner, is that portion 
relative to the treatment of his wife. After much testimo- 
ny had been given in, the case states, " that the 3tate then 
introduced several witnesses to prove a long course oi iU- 
treatment of his wife by the prisoner, for the purpose of show- 
ing that he had malice against her, and wished to get rid of 
her." Was this a legitimate purpose, and the means used law- 
ful ? No person was present when the alleged homioide waa 
committed. There could be no direct and poeitive proof 
of the fact of the person of the perpetrator, and the juiy 
were left to draw their conclusions from such &cts» as couU 

inform their understanding on the subject The first en« 

20 



384 SUPREME COURT. 

Stale V. Raah. 

quiiy would be, who could be the^ perpetrator ? and the 
mind would naturally turn upon the person, who, either 
from interest or malice, might desii^ her death. Interest, 
in this case, could not exist, and malice alone could lead to 
the deed. Ordinarily, the eye of suspicion cannot turn 
upon the husband, as the murderer of his wife, and when 
charged upon him, in 4he absence of positive proof, strong 
and convincing evidence — evidence that leaves no doubt 
on the miod, that he had towards her that mala mens, 
which alone could lead him to perpetrate the crime — ^is al- 
ways material. How else could this be done than by show- 
ing his acts towards her, the manner in which he treated her» 
and the declarations of his malignity ? What stronger 
proof of malice can be imagined than a husband sending 
his own brother into his wife's bedroom, in order to found 
a charge of adultery, wherebj^ he might get rid of her by a 
divorce ? What stronger proof of malice, than stripping 
her naked, and, in that condition, turning her out of his 
doors? On behalf of the prisoner, it is, however, said, the 
State was permitted to go too far back for its facts, and by 
that means the general character of the prisoner was 
brought before the jury to speak against him. Not so. In 
the domestic relation, the malice of one of the parties is 
rarely to be proved, but from a series of "acts ; and the long* 
er they have existed and the greater the number of them, 
the more powerful are they to show the state of his feelings. 
A single expression and a single act of violence are most 
Irequently the result of temporary passion, as evanescent 
as the cause producing them. But a long-continued course 
of brutal conduct shows a settled state of feeling, inimical 
to the object We are of opinion, then, that his Honor 
did not err in receiving the testimony objected to ; because 
malice may be proved as well by previous acts as by pre- 
vious threats, and often much more satisfactorily. Kos* 
ooe*s Crim. Ev. 96, 740, 2 Phil, on Ev. 498. 



AUGUST TERM, 1851. MS 



State V, Rash. 

It isy however, said in the defence upon this part of the 
case, that, after the prisoner had turned his wife out of 
doors, they had become reconciled, and he had taken her 
back ; and that, therefore, all the antecedent ill-blood oa 
his part could not amount to malice in law. His Honor's 
instruciion to the jury on this point was full. They were 
told, " that the circumstance of malice was relied on by the 
State to aid in pointing out the prisoner as the murderer ; 
they must enquire whether it ever existed : That a recon* 
ciliation was alleged on the part of the prisoner ; they must 
enquire whether it was made, and whether it was real or 
pretended, and, if they believed it to be real, then the cir« 
cumstance of malice was not to be taken into account." 
This was going as far as the Judge was authorised to go. 
The rest belonged to the jury. 

Second : As to the testimony rejected by the Court. 
The prisoner offered to prove by the declarations of the 
deceased, that she had been guilty of adultery ; and also to 
prove by an exposition of his foot, that his account of her 
ploughing was correct, as showing, that the tracks in the 
row of the ploughed corn could not have been made by 
him. The first branch of the evidence above mentioned 
was properly rejected, because it would have gone stroo^^y 
to prove the malice charged against him, and, therefore, its 
rejection could do him no possible harm, and because, it 
was irrelevant to the issue before the jury ; and it is never 
error to reject evidence of such a character. 

The Court committed no error in not suffering the de* 
fendant's Counsel to exhibit to the jury the foot of the prb> 
oner. It is the duty of the respective parties to a cause, as. 
well criminal as civil, to adduce their testimony in apt time 
and in apt order, and, if not so done, it is a matter of dis-- 
creiion with the Judge, who tries the cause, whether iv» 
will suffer it afterwards to go to the jury ; and all the tea- 
timony must be given to the jury before the argument com- 
mences. After thati the parties have no right to introduce 



SUPREME COURT. 



State 0. Rwh. 



additional testimony ; l^ate v HopkifiMj 5 Ire. 406, WU" 
liams y Averitt, 3 Haw. 308, Simpson v Blount, 3 Dev. 
34, although it is often done, and will always be allowed in 
a case of life and death, when the Court sees that its omis* 
sion was clearly an oversight, nnless at the same time it is 
seen, that it is irrelevant and uncalled for. If, however, 
the Court does refuse, to receive it, at such time, it is bo 
error of law — it being a mere exercise of a discretionary 
power. Here the testitfiony had been closed and an argu- 
ment submitted to the jury. But another reason why its 
rejection was not erroneous, is found in the fact, that the 
State had withdrawn that portion of the evidence, to which 
it was intended as a reply. It was not relied on in the ar- 
gument in behalf of the State* and the opposing testimony 
was rendered unnecessary or rather irrelative ; neither did 
his Honor in his cHarge, advert to it. In ruling it out, no 
error was committed. 

The next exception in point of order is, that the Judge 
told the jury the prisoner was guilty of murder» if guilty at 
all. His Honor commenced his charge by stating to the 
jury, " that it was unnecessary to explain to them the prin** 
ciples of the law of homicide, ancf to point out the distinc- 
tion between its different grades, because the prisoner was 
not guilty at all, or he was guilty of murder." This ex^ 
ception cannot be entertained : first, because it never is er* 
ror to omit to charge upon a particular principld. If a party 
wishes the Judge to do so, it is his duty to require it. iMb» 
NeU V Massetf, 8 Haw. 01. Simpson v Blount, 3 Dev. 34. 
Staie V Scott, 2 Dev. & Bat. 35. Secondly, if the instruo- 
ti<m bad been asked for, it would not have been the duty of 
the Court to have given it. A Judge is never bound to in* 
struct a jury upon an abstract proposition. His duty is ta 
lay down to them the law, as applicable to the evidence be- 
fore them. State v Martin, 3 Ired. 101. Here, there was 
not the slightest evidence to mitigate the ofience, if com* 
mhted by the prisoner, from murder to manslaughter. And, 



AUGUST* TERM, 1851. M7 

State V. fiaah. 

thicdijr, it ne^er can be error in the Jud;a;e to assume that 
as trae» which the prisoner, in his defence, has treated as 
true. Siaie v Miller, 1 Dev. d& Bat* 500. On looking 
through the case sent here, we do not find it anywhere sug. 
gested, that the prisoner was guilty of manslaughter — the 
whole aigument, on his part, is bottomed upon the proposi- 
tion, that the prisoner did. not commit the homicide. In this 
port of the charge there is no error. 

The next exception is, that tlie Judge, speaking of the doc* 
tcine of one credible witness, told the jury that it was their 
duty to believe him. The first remark to be made is, that 
the language used by the Judge was upon a hypothetical 
case not called for, and used gnly in pointing out to the 
jury the difierenoe between positive and presumptive evi- 
dence. But, if there had been such evidence of the killing, 
still, put as it was by his Honor, there would have been no 
error. He winds up what he has to say upon that point* 
and in stfict connection with it, " yet it was possible the 
witness might be mistaken or perjured." 

The charge of the Court in Noland v McCracken, 1 Der* 
& Bat. 594, was essentially difierent from the one we ai;e 
considering. There, the jury wer^ told, '* that when a wit- 
ness was heard by a jury, who was neither impeached, nor 
contradicted — ^whose story was credible, and in whose man- 
ner there was nothing to shake their confidence — they were 
bound to believe him." In the case before us, the Judge 
clearly did not intend to lay it down aa a rule of law, that, 
in such case, they must belieye the witness ; for, he imme* 
diately goes on to guard them from such a conclusion, by 
stating, that the witness might be mistaken — a caution 
omitted in Noland^s case. The remark of his Honor was 
gienera], and properly qualified, and could do the prisoner no 
injury. 

The two last exceptions run into each other, and will be 
considered together. The first is, that his Honor instruct- 
ed the jury, they must take all the circumstances together. 



368 8UPRBUU COURT. 



State V. Rash. 



and not separately. His language is, *' all the circumstaD" 
ces for and against the prisoner which were proved beyond 
a reasonable doubt, must be taken all together, and not sep* 
arately." Now, in order rightly to understand the precise 
meaning of the Judge, we must advert to the argi^ment of 
the prisoner's counsel, addressed to the jury on that point. 
He contended, " that the circumstances, testified to by the 
witnesses, ought all to be considered separately by the jury^ 
and then classedt as either conclusive, or inconclusive, ac- 
cording to the force and effect they might deem them enti- 
tled to." The rule, thus laid down by the counsel, was 
well calculated for a philosopher in his closet, but little suit- 
ed to a jury in coming to any conclusion whatever. The 
object of all evidence is, to satisfy the mirid of the enqui^ 
rer : and that satisfaction is to be derived from the effect 
of the whole. One particular fact, isolated from the others, 
viewed by itself — might appear entirely unimportant : con- 
nected with others, it may become very important. Every 
one acquainted with circumstantial testimony, knows this 
to be 80. In fact, its force and power to convince is this 
uhion of separate and distinct circumstances into one con* 
tinuous chain, which, being at last connected with the pris* 
oner, produces that state of mind in the jury, which enables 
them to pronounce him guilty. It was this principle which 
the Judge had in view-^he did not intend, that the jury 
should not look at, or consider, the several circumstances 
given in evidence ; for, they could come to no just conclu^ 
sion without doing it. All that he meant, was, that they 
must draw their conclusions from the whole of the circum- 
stances, and pronounce their verdict, as that conclusion 
should direct. If, m the concluding remarks of his Honor 
there is error, it is one in favor of the prisoner, and which 
could certainly do him no injury. The widest range was 
given to them. They had just previously been instructed* 
*nf there is any reasonable hypotheses, consistent with his in* 
uooence, {believing the facts to be true bdvond a reasooabb 



AUGUST TERM, 1851, 369 



Stale V. Rash. 



doubt,) then he ought to be acquitted" ; and, in conclusion, 
he tftlls them, in substance, '* if you believe the facts to be 
as testified to, and can suppose any case, in which they do 
not apply to the prisoner, it is your duty to make the sup- 
position, and acquit him." Taking the whole of what the 
Judge said on this point, we repeat, the prisoner has no* 
thing to complain of, and there is no error. State v Swink, 
2 Dev. & Bat. 9. 

In the ar^ment of the case, it was contended by the 
prisoner's Counsel, that, from the discrepancy in the testi- 
mony of the medical witnesses, the jury could not, and ought 
not, to say, that the deceased came to her death by violence 
at all. His Honor instructed the jury, that that was the 
first point to be ascertained by them ; and then left it to 
them to say, how the fact was under the evidence. This 
was all he could do. It was a matter of fact, exclusively 
for their consideration. 

We have carefully, and with much solicitude, examined 
the evidence in the case, and the exceptions brought before 
us, fully sensible of the importance of the enquiry and our 
own responsibility, and are constrained to say, that in his 
Honor's charge, and in the reception and rejection of evi- 
dence, there is no e'rror-^that the law has been fairly ad- 
ministered, and that the prisoner has no just cause of com- 
plaint. 

We have examined the record, and find no cause there, 
why the judgment should be an;ested. 

This opinion must be certified to the Superior Court of 
Cabarrus County, that it may proceed to judgment accord- 
ing to law. 

Per CirxfAM. Ordered accordingly. 



INDEX. 



■**w»»#i##^»y#<<— . 



ADMINISTRATORS, 
Ser Ezccutorb and Admr's. 

APPEALS. 
SsB Practice AND Pleaoinc. 

BAILMENT. 
Where a bailment is made by 
one of two tenants in com- 
mon, and the bailee under- 
takes to hold for him, and 
subject to his order alone, 
the bailee is not estopped 
as to the other tenant in 
common, but, in an action 
by the two jointly against 
him, may show that the 
true title is in a third per- 
son. Pitt V AJbritton^ 74. 

BASTARDY. 
1. Where, under an order of 
the County Court, in a 
bastardy case, the defend- 
ant gave « bond, to com- 
ply with any order of the 
County Court in that case, 
and the Court ordered that 
he should immediately pay 
to the woman a certain 
sum then ascertained to 



be due*; Held, that the wo<- 
man might release her in*- 
terest in the said sum, and 
that such release would 
bar an action for the same, 
where she was the relator 
and the suit brought in the 
name of the State, to 
whom the bond was pajr- 
able. State v Ellis, 264. 

2. Although a bastard be 
born in one county, yet if 
the mother and child after- 
wards remove to another 
county, and there acquire 
a residence before procee* 
din^ in bastardy are had 
ogamst her, those procee- 
dings must be in the latter 
county, which is alone re- 

' sponsible for the mainte- 
nance of the bastard. State 
Y Jenkins^ 12L 

BONDS AND NOTES. 
1. A bond was given to an 
officer, to indemnify him 
for selling under an execu- 
tion at the instance <^"J. 
U. against W." Held, that 
to entitle the of&cet to re- 



392 



INDEX. 



cover on this bond, he 
roust show that he sold un- 
der the execution mention- 
ed in the bond. Dickinson 
V Jones, 45. 

2. Where one of the subscri- 
bers to the Wilmington and 
Manchester Railroad Co., 
under the charter granted 
by the legislature in 1846, 
gave his note for the first 
instalment to one of the 
Commissioners, appointed 
to take subscriptions for 
the use of the Company, 
instead of pay ins the cash; 
HeU, Pearson, J. dissent. 
that the subscription was 
not void) and that the pay- 
ee could recover on the 
note. McRae v Russell, 

224. 

3. The le^l effect of the sale 
and delivery of a bond, 
without endorsement, is 
not to pass the legal title 
to the purchaser, for the 
vendor may release it if 
he thinks proper, to the 
maker of the bond. But the 
purchaser is constituted 
the agent of the vendor, 
and the money vested in 
him es legal owner, the 
moment it is collected; for 
the chose in action,o[ which 
the vendor was the legal 
owner, is extinguished by 
an act, which he had au- 
thorised to be done, to wit, 
the reception of the mon- 
ey. The money then vests 
in the purchaser, as legal 
owner, by force of the con- 
tract of sale, which there- 



by became executed. Hoke 
v Carter, 324. 

4. Therefore, wlj^re such a 
purchaser obtained judg- 
ment in the name of the 
vendor, and the sheriff col- 
lected the judgment, and, 
after notice by the pur- 
chaser, paid the money to 
the vendor : Held, that he 
was, notwithstanding, an- 
swerable to purchaser for 
the amount. Ibid, - 

5. Where A ^ave B a bond 
for fifty dollars, and, at the 
same time, it was agreed 
by parol, that, whenever A 
paid certain costs in a suit 
then pending between the 
parties, the bond should be 
surrendered and given up, 
and A afterwards paid tne 
costs ; Held, that this was 
competent and sufficient 
evidence of the discharge 
of the bond. Walters v 
Wheeler, 28, 

CONSTABLES. 
Where a Constable was ap- 
pointed at February Term 

1848, and in August 1848, 
a claim was put in his 
hands for collection, oa 
which he obtained a judg- 
ment and stay wa» granted 
by a magistrate, which ex- 
pired d u r i n c February 
Term, 1B49. when the said 
constable was not re-ap- 
pointed at February Term 

1849, but in July following 
was appointed deputy she- 
riff*, and then took out ex- 
ecution on the claim* col- 



INDEX. 



lected it, and failed to pay 
it over ; Held^ that he was 
not responsible on his con- 
stable's bond, no default 
havinfi: been committed du- 
ring the year of his ap- 
pointment. State V JHc- 
Gawan, 44. 

CONTRACT. 

1. In an action on express 
contract for the price of 
Rope sold and delivered, 
where no price was agreed 
upon, the defendant can 
only show what was the 
market price, generally, of 
rope of this kind, at the 
time of the sale, but cannot 
show what was the real or 
actual value of the article 
sold, so as to reduce the 

• amount, which the plain- 
tiff would be entitled to re- 
cover, below the market 
price at the time, Dickson 
V Jardan, 79. 

2. Where an agreement pur- 
ported to be between A.. B. 
"for and on behalf of the 
Albemarle Swamp Land 
Company of the one part," 
and *• B. R. of the other 
part," and stipulated, that 
the party of the sec- 
ond part should get "on the 

* land of the party of the 
first part" a certain quan- 
tity of lumber, and deliver 
it, &c., and in the conclu 
sion it is said, **ia witness 
whereof A. B. for and on 
behalf of the party of the 
first part, being the Albe- 
marle Swamp Land Com- 



pany," and B. R. as the 

Earty of the second part, 
ave hereunto set their 
hands and seals, and the 
agreement was signed by 
"A. B. for and in behalf of 
the Albemarle Swamp 
Land Company;" Hela, 
that this was a contract 
between the Company and 
B. R., and that A. B. could 
support no action for a 
breach of it in his own 
name, but that the action 
must be in the name of the 
Company. Whitehead y 
Reddick, 95« 

3. A and B entered into the 
following agreement in 
writing! "Sold to B one 
gray filly, for one hundred 
and fifteen bushels of corn, 
which the said filly stands 
good to the said (A) as his 
own right and property, 
until she is paid for." Sign- 
ed and sealed by A. Held^ 
that the legal title to the 
mare still remained in A, 
and that the sale was only 
conditional. Parris v /io- 
herts, 868, 

4. When work is done under 
a special contract, and not 
completed withtix the time 
limited, but is carried on 
after the day, with the as- 
sent of him for whom it 
was done, the party con- 
tracting to do the work is 
confined under the com- 
mon count, to the rate of 
compensation fixed by the 
contract, when no further 
special contract is made. 



llfPCX. 



The rule to ascertain the 
damages is, if the work 
contracted for is worth 
the sum affreed od» what 
is it worth as done? — 
Farmer v Francis, 282. 
5. When property bargained 
for is delivered, an action 
for the price agreed upon^ 
eaanot be defeated, except 
in cases where, if the mo- 
ney had been paid, it might 
be recovered back in an 
action for money '^had and 
received." There must be 
a total failure of consider- 
ation. As, when the pro- 
perty is retained by mutu- 
al consent, or is never de- 
livered, or a counterfeit 
bill is received, an action 
for the price agreed to be 
paid may be defeated ; but 
otherwise, if the property 
is delivered, although it 
turns out to be unsound, 
and of no value ; or if the 
bill is genuine, though up- 
cn an msolvent bank. Mc- 
Entire v MeEntire^ 299. 

COUNTIES. 
1. As the legislature may 
constitute two counties 
out of one, it may also, as 
incident to that power, 
direct a fair and reasona- 
ble division to-be made 
between them of any fund 
before raised by levies on 
the inhabitants of both the 
counties in common, and 
to provide for enforcing 
payment thereof by those 
who have it in hand.-^— 
Love V Schenck^ 804 



1 2. Interpretation by the 
Court of the sevenl acts 
relating to the division of 
the Counties of Linceln. 
Catawba and Union. — 
Ibid. 

3. The act of Assembly, re- 
quiring the payment of 
certain moneys by the 
County of Lincoln to the 
County of Gaston, (refer- 
red to in Love v Schenck^ 
ante p. 304,) applies only 
to such persons as had the 
fund, or a part of it, in 
hand at the passing of the 
act, or might have it after- 
wards. It does not charge 
one, through whose hands 
the monev had merelv 

Eassed, and from whom it 
ad been taken by the 
Court, before the enact- 
ment of the Statute. — 
Love V Ramsour, 328 

DEEDS. 

1. Although a deed is made 
to include more land than 
was sold, it is not, on that 
account, fraudulent, but it 
is only void for the excess. 
Jtu^e V Houston, 108 

2. Where a deed fen* land, 
after setting forih the par- 
ties, the description or the 
land and the interest con- 
veyed, goes on as follows : 
^' to have and to hold the 
above described peice or 
parcel of land, free and 
clear from me, my heirs, 
executors, administrators 
and assigns, and from all 
other persons whatsoever, 
unto the said, d&c." Held, 



INDBX. 



thai this clause contained 
a covenant for quiet en- 
joyment. Midgett v 
Brooks, i 145 

9. No precise or technical 
language is required by 
law, in which a covenant 
shall be worded — any 
words, which amount to, 
or import an agreement, 
being under seal, are suffi- 
cient. Ibid. 

4. Am having a life estate in 
two negroes, executed an 
instrument, in which were 
the expressions " which 
right and title I relinquish 
to B. for value received," 
which instrument was 
signed, sealed, witnessed 
and delivered. Held^ that 
if this be not good as a 
release, technically, it is 

Sood as a bill of sale or 
ced of gift. McAlister v 
McAlisUr, 184 

5. When a deed by a hus- 
band for a slave was sign- 
ed and sealed, but not de- 
livered, in the presence of 
a subscribing witness, but 
was afterwards delivered 
by the husband to his wife 
for the benefit of the gran- 
tee : Held, first, that the 
delivery was good and 
enured to the oenefit of 
the grantee — Held, see- 
ondly, Pbarson, J., dif- 
BetUiente, that when the 
deed was signed, sealed 
and attested by a subscrib- 
iug witness, a delivery, 
not in the presence of the 
attesting witness, might 



be proved by a third per- 
son, so as to satisfy the 
requisitions of oar Statute 
relating to the transfer of 
slaves. OaskiU v King, 

211 

6. A deed is valid in a Court 
of Law, notwithstanding 
any fraud in the consider- 
ation of the deed or in any 
false representation of a 
collateral fact, whereby 
•he party was induced to 
enter into the contract by 
executing the intrument. 
Gaiit V Hunsucker, 254 

7. The date of a deed or 
other writing is prima fa- 
cie evidence of the time of 
its execution, upon the 
principle, that the acts of 
every person, in transact- 
ing business, are presunted 
to be consistent with 
truth, in the absence of 
any motive for falsehood. 
Lyerly v Wheeler, 290 

See Frauds — Frauds,Stat. 

OF, 

DEVISES & LEGACIES. 

1. A bequeathed as follows : 
"I loan to my wife Chari- 
ty, one negro man Primus" 
(and other negroes); "also, 
she may take choice of 
any one of the negroes be- 
longing to my estate, which 
I may not give away," dec. 
"and at the death of my 
wife, the negroes I have 
loaned to my wife, and 
their increase, I want to 
be e()ually divided between 
my tour grand-children, A, 



INDEX. 



B &c/' Held, that the wife 
took a life estate only in 
the negro girl selected by 
her from those not given 
away. Hyman v Williams, 

92 

2. A residuary clause opo- 
rates as a limitation of the 
interest of the tenant for 
life, and passes it over as 
efTectually as if there had 
been an express limitation 
over of the specific thing. 
Ibid. 

3. Where a decree is made 
in the County Court in fa- 
vor of the plaintiffs, on a 
petition for a legacy, in 
which there are several 
plaintiffs, one of whom is 
the executor of a deceased 
legatee, and this executor 
dies before satisfaction or 
execution sued, the right 
to the legacy of the deceas- 
ed legatee vests in the ad- 
ministrator de bonis non, 
but he is not entitled to 
have execution until he has 
made himself a party, eith- 
er by scufa. or according 
to the course of Courts of 
Equity. Ellison v. An- 
drews ^ 188. 

4. Where several legatees or 
distributees obtain a de- 
cree against executors or 
administrators for.a mon- 
ied leaacy, the decree is 
several, and each is enti*^ 
tied to a separate execu- 
tion for his share. Ibid. 

5. Suits for legacies, distrib- 
utive shares, and filial por- 
tions; given in the Courts 



oflnw by petition, are con- 
sidered in the nature of 
proceedings in Equity, in 
respect to the pleadings, 
taking the accounts, de- 
creeing and rehearing, or 
reversing. And so, also, 
as to procc^'s on the de- 
crees. Ibid. 

G. When, in a suit by lega- 
tees against the adminis- 
trator with the will annex- 
ed, it was decreed that the 
administrator should de« 
liver to three of the four 
legatees, entitled to legacy 
of slaves, theiv respective 
shares, which was .done, 
and as to the other share, 
(the legatee being in parts 
unknown) it was decreed 
that thid share should be 
allotted to the administra- 
tor, &c. "for the use" of 
such legatee,upon the trust 
declared in the will, &c., 
and the administrator un- 
der this decree kept pos- 
session of the share of the 
slaves thus allotted, and 
hired them out, and depos- 
ited the hires in Court; 
Held, that this amounted 
to an assent to the said 
last mentioned lesacy. 
Buffaloe v Baugh, 201. 

7. The act of 1844, ch. 83, 
making devises to operate 
on such real estate as the 
testator may have at the 
time of his aeath, was al- 
together prospective, and 
did not extend to wills 
made and published before 
the time when the act went 



liXUKX. 



307 



into operation, though the 
testator did not die until 
afterwards, unless there 
be a re-publication of the 
will, after the act went 
into operation. Williams 
V Davis, 21 

8." The term "property," in 
its legal sense, does not 
include choses in action, 
and in reference to person- 
alty, is confined to ' goods/ 
which embraces things in- 
animate, as furniture, &c. 
and to ''chattels," which 
term embraces living 
things, as horses, &c. — 
Pippin V Ellison, 61 

9. \Vhere a testator devised 
all his " property" to his 
wife for life, and directed 
that, after her death, " it 
should be sold," &c. Held, 
that choses in action did 
not pass. Ibid. 

10. A devised to his son a 
tract of land " for and du- 
ring his natural life," and 
after his death ''to the 
heirs of my body, to be 
equally divided between 
them, to them and their 
heirs forever," and if he 
dies without heirs of his 
body, living at the time of 
his death, then to his 
d&ughter. Held, that un- 
der this devise, the son 
took only a life estate. — 
Moore v Parker^ 123 

EJECIMENT. 

1. A. in 1793, took posses. 

sion under color of title, 
to land, which had been 
previously grniUed to an- 



other, and died in 1794, 
leaving a will. In 1795, 
B. a son, but not a devi- 
see of A., took possession 
without color ot title, and 
continued in the uninter- 
rupted possession, exercis- 
ing acts of ownership, for 
more than twenty years ; 
Held, that fi's title was 
perfected bv such posses- 
sion. Smith V Bryan, 1 1 

2. Even if B. were a trustee 
under the will of C., C.'s 
heirs cannot dispute his 
title at law, much less can 
a mere wrong-doer. Ibid. 

3. Where A. had leased land 
to B. for the year 1848, 
and during the year 1848, 
while B. was in possession 
under the lease, A execu- 
ted to C a deed purporting 
to convey to him the fee 
simple, and thereupon, C, 
on the 25th of December, 
1848, commenced an ac- 
tion of' ejectment against 
B ; Held, that the action 
would not lie, because at 
the date of the demise, C 
had not the right of entry. 
Price v Osborne, 26 

4. Where A lives upon land 
together with B, who 
claims the title, and the 
land is sold under an ex- 
ecution against A in an 
action of ejectment, by the 
purchaser under the exe- 
cution, brought against A, 
the latter cannot protect 
himself from the action by 
setting up the title of L. 
Judge V Houston, 10^ 



3d8 



INDEX. 



6. But, by Pearson J., if B, 
in such a case, after yidg- 
tnent, can satisfy the 
Court, by proper affidavits, 
that he had a bona fide 
claim of title and is iu pos- 
session, the Court has pow- 
er to order the writ of 

• possession not to be issued 
until the plaintiflT brings 

' an action of ejectment 
against him. Ibid. 

6. A purchaser of land is a 
privy in estate with the 
bargainor, and has the 
right, where necessary, to 

' use the name of the bar- 

• gainor to effect a recovery 
' m ejectment, and, also, to 
' take p o s s e 8 s i o n in his 

name. Poslen v Henry, 

839 

7. On the trial of an action 
of ejectment, the Court 
may, in its discretion, al- 
low one of the lessors to 
be stricken out of the de- 
claration, upon the costs 
being deposited in Court, 
and mutual releases exe- 
cuted. The party strick- 
en out may then be a wit- 
ness, as if his name had 
never been in the declara- 
tion. Carson y Smart, S69 

8. In ejectment all the co- 
tenants need not be joined 
in the demise. IbidL 

9. An entry, under a deed, 
into a part of a tract of 
land, shaH, as against a 
mere wrong-doer, be con- 
sidered an entry into the 
whole — it not appearing 



that any one else has pos- 
session of any part. 0«- 
bome V Balkw, 373 

ELECTIONS. 

1. One, who votes illegally 
at an election of sheriff, 
cannot defend himself a- 
gainst an indictment, upon 
the ground that the elec- 
tion was conducted irreg- 
ularly. State V Cokoon^ 

178 

2. The County Court, a ma- 
jority of the acting justi- 
ces being present, is the 
tribunal to decide all con- 
tested elections of Sheriffs; 
and the validity of th) 
election or any alleged ir- 
regularities can only be 
objected to in a direct pro- 
ceeding before that tribu- 
nal. Bnd. 

3. A bond, given for money 
lost upon a wa^r on th3 
result of a public election, 
though neither of the par- 
ties be a voter, is based 
upon an illegal considera- 
tion, being against public 
policy, and is therefore 
void. Bettis v Reynelds^ 

344 

EMANCIPATION. 
1. The plaintiff, a colored 
person, claimed to be free, 
and for the purpose of pro- 
ving it, introduced a rec- 
ord of Craven County 
Court in ISOT, setting forth 
a petition in the name of 
William Jessup, praying 
for liberty to emancipate 



TNDEJ. 



399 



certain slaves owned by 
him, for meritorious servi- 
ces*-the order of the Court 
that William Jessup have 
leave to emancipate the 
slave mentiened, among 
whom was the slave by 
the name of Sinah — and 
the copy of the bond filed, 
as directed by the act of 
17d6. Held, that the eman 
cipation of the said Sinah 
was completely efi'ected by 
these proceedings; that the 
petition settins forth the 
master's wish, then to 
emancipate for meritorious 
services, the judgment of 
the Court, and the grant- 
ing to the niaster liberty 
to emancipate, being en- 
tered of record, make the 
liberation required by law 
Shringer v Burcham, 4 1 . 
2. After an acquiescence for 
thirty years by the public, 
in the enjoyment of her 
freedom, every presump- 
tion is to be made in favor 
of her actual emancipa- 
tion, espccinlly against a > 
trespasser and wrong-docr. ' 
Ibid. 

EVIDENCE. 
L Where A gave B a bond 
• for fifty dollars, and, at the 
same time, it was agreed 
by parol, that, whenever 
A paid certain costs in a 
suit then pending between 
the parties, the bond should' 
be surrendered and given 
up, and A afterwards paid 
the costs ; Held, that this 
2 



w^as competent and suffix 
cient evidence of the dis- 
charge of the bond. Wah 
ters V Walters, 28 

3. The delivery of a deed is 
a question of fact, and the 
law has prescribed no par- 
ticular form in which it 
shall be made. Floyd y 
Taylor, 47 

3. When any circumstances 
are proved, no matter how 
slight or inconclusive, — 
from which a delivery may 
be inferred, the party rely- 
ing on them has a right to 
have them submitted to a 
jury, and it is error in a 
Judge to instruct them that 
there is no evidence of a 
delivery. Ibid. 

4. The presumption of deaths 
arising from the absence 
of a party for more than 
seven years, is not remo* 
ved by proof of a rumor, 
during that time, of his be- 
ing alive, which rumor, 
upon investigation, turns 
out to be without founda- 
tion. Moore v Parker, 123. 

5. It is an established rule in 
the law of evidence, that 
in matters of art and sci- 
ence, the opinions of ex- 
perts are evidence, touch- 
ing questions in that par- 
ticular art or science, and 
it is competent to give in 
evidence such opmions, 
when the professors of the 
science swear, they are able 
to pronounce them in any 
particular case, although 
at the same time they $ay 



400 



IVMX. 



that precisely such a case 
hid not bbfore fallen under 
their observation, or under 
their notice in the course 
of their reading. State v 
Clark, 161. 

The effect of the evidence is 
of course to be decided by 
the jury. Ibid, 

6. After the death of a hus- 
band, the wife is a compe- 
tent witness to prove the 
execution of a deed made 
by him in favor of a third 
person. GaskiUwKing;ill 

7. In an action brought by a 
mortgagee against a cred- 
itor ot the inortgHgor, 
claiming property uiider 
.an execution against the 
mortgagor, it being alleged 
that the mortgage was 
made with a fraudulent in- 
tent, the declarations of 
the mortgagor, immediate- 
ly before and m contem- 
plation ol the act, may be 
given in evidence against 
the mortgagee. His dec- 
laratious ai ter the act are 

. not admissible in evidence. 
Harshuw v ignore, 2^7. 

8. Uq an indictment tor per- 
jury, in swearing that A, 
one of the several assail- 
ants in an atlr.ty, sir^^cK 
the defendant, when it ap- 
peared that A did Hot,' but 
another assailant did strike 

. the blow, it was compe- 
tent lor the defendant, in 
order to disprove a corrupt 
iDOtivC} to shew that, im- 
mediately on his recovery 
from the unconsciousness 
occasioned by tne Dlow, 



he had given the same ac- 
count ot the transactionas 
he did m his testimonv be- 
fore the court, on the trial of 
the case, in whicii the per- 
jury was charged. State v 
Curtis, 270 

9. On the trial of an eject- 
ment, it became important 
to prove that the defend- 
ant was the tenant of A. 
To prove this, the plaintiff 
called A, who proved the 
fact, and, on cross-exami- 
ination, prcxluced a con- 
veyance, date J more than 
seven years before the 
commencement of this 
suit, and swore that he 
had been continually in the 
peaceable and adverse pos- 
session. Tiie counsel for 
the plaintiff was then a- 
bout to urge to the jury 
that A's testi lumy, as to 
the time he«obtaned sad 
deed, was false, and that 
the deed was antedated. 
The Court informed the 
counsel, mat, as he had in- 
trojuced A as a witness, 
he could not discredit him 
before the jury; that he 
might have proved by oth- 
er testiajonv, that the wit- 
ness was miaiaKeu^ and 
thai the facts were other- 
wise. The Court permu- 
te J the deed to oe given to 
the jury tor their lusj.ec- 
tio.i, tnui they mig .t de- 
termine troiu tne iace of 
it, whether it was anteda- 
ted or not. Tae Ct)urt 
then instructed the jury, 
that it they believed, iroiii 



iK»tz. 



401 



ati inspection of the deed, 
that it had not been in ex- 
igence for seven years or 
more b> (ore the action was 
brought, they should find 
for the plain'tiflT; but it did 
not lie in the mouth of the 
plaintiii to say, that his 
witness, A^was unworthy 
of credit; and particularly, 
as the plaintiff was not en- 
titled to recover, unless 
that part of A's testimony 
in relation to the posses- 
sion was believed. The 
plaintiff had no right to 
ask them to believe so 
much of A's testimony as 
was in his favor, and to 
discredit him as to the bal- 
ance. Nice V Cox 315^ 

10. Held thiit the charge of 
a Judge should be taken as 
a whole^^that all he says 
upon any one particular 
point should be taken to- 
gether, and that, thus view- 
ing it, the charge of the 
Judge in this case was cor* 
rect. Ibid 

11. The partv producing a 
witness shall not be allow- 
ed to prove him corrupt. 
He may prove that he is 
mistaken, or that the fact 
sworn to is other than is 
represented by him. Ibid, 

12. A here is a distinction 
between discrediting a 
witness, and shewing that 
the fact? are ditiereut fnim 
what he has represented 
them. In the latter 
case, the discrediting of. 
the witness is incidental, ' 



not primary. The evi*. 
dence may be discredited, 
and the integrity of the 
witness remain unirn**. 
peached. Ibid. 

13. Pearson, J. dissented, 
as to the construction of 
the Judge's charge. Ibid. 

14. When a grant calls for 
the line of an old grant,, 
the rule is, that it must go 
to it, unless a natural ob« 
ject or a marked tree is 
called for. and, before the 
calls of the junior grant 
can be ascertained, those^ 
of the old must be located. 
Duia V McGhee, 332 

15. Under the act of 1846, 
a party may read a regis- 
tered copy ot' a deed to the- 
other party, who has it io^ 
possession, without notice 
to prrnluce the original, in 
the same manner as he can 
read a copy of a deed to« 
himself. Carson v Smarts 

369 

16. On a trial for murder, 
charged to have been 
committed by a husband 
on his wife, the State has 
a right to prove a long 
course of ill-ireatment by 
the hushaiid towards the 
wn'e. tState v Hash, 3h2 

17. Wiiether an alleged sub- 
Sequent x^^coiiciliatiou be-, 
t^een the parties is real 
or pretended, so as to af- 
fect the question of malice, 
is a matter tor the decis- 
ion oi the jury. Ibid. 

16. Proof OI the declarationa 
ot the deceased wilOi olTer- 



r 



402 



INDEX. 



cd by the husband, that 
she had been guilty of 
adultery, was properly re- 
jected by the Court, be- 
cause it was irrelevant to 
the issue, and because it 
would have gone strongly 
to prove the malice charg- 
ed on the husband. Ibid. 
EXECUTI9NS. 

1. If, in the case of a fieri fa- 
cias for the sale of the 
lands of a deceased debtor, 
the heirs should be named, 
yet this is not necessary, 
when the will is a vendi- 
tioni ezpoTias, the land ha- 
ving been ascertained by 
the levy and return of a 
constable. Smith v Bryan, 

11 

2. A sheriff is not bound, like 
a constable, to any partic- 
ularity in his return of a 
levy on a fi. fa. Judge v 
Houston, • 108 

3. An officer may levy an 
execution upon a standing 
crop» provided it is matu* 
red. The act of 1844, ch. 
85, prohibiting officers 
from levying executions 
"on growing crops," em- 
braces only crops which 
are not matured. Shannon 
Y Jones, 206 

4. If an officer sells under an 
execution a growing crop, 
and the purchaser after- 
wards gathers it» the offi- 
cer, if he had no authority 
to sell under his execution, 
is as liable in an action of 
trover as the purchaser. 
Ibid. 



5. The title to land, sold un- 
der execution, vests in him 
to whom the officer makes 
the deed. Carson v Smart, 

369. 

6. A deed made by a sheriff 
or Coroner, under a sale 
by execution, passes the 
title, notwithstanding a 
third person may, at the 
time, be in adverse {KTSses- 
sion. Ibid. 

7. When a person takes a 
deed from a debtor, while 
the laud is subject * to a 
levy, under which it is af- 
terwards sold, he stands in 
no better situation than 
the debtor, whose place he 
has taken. Ibid. 

EXECUTORS AND AD- 
MINISTRATORS. 

1. Upon the death of an ad- 
ministrator, the duty of 
settling up the estate de- 
volves on the administra- 
tor de bonis non. The 
representative of the first 
administrator has nothing 
to do with it, except to 
account for and deliver 
over to the administrator 
de bonis non, such assets 
as may remain undisposed 
of. Ferebee v Baxter, 64 

2. Creditors cannot sue him 
directly, nor have they a 
right of action on the first 
administrator's bond; for 
the bona does not vary 
nor add to the duties or h- 
bilities of an administra« 
tor, but merely increases 

I the security for perform- 



IXD£X. 



403 



ance of his duty. Ibid. 
3. A judgment obtained by 
a creditor against the ad- 
ministrator de bonis non, 
ascertaining the amount 
of the debt, but declaring 
that this administrator has 
no assets, will not vary 
the principle. Ibid. 

FRAUD3 AND FRAUDU- 
LENT CONVEYANCES. 
1. Where a deed of trust, 
conveying a debtor's pro- 
perty, for the satisfaction 
of certain creditors, is ne- 
cessary to support an ac- 
tion against persons claim- 
ing as purchasers under 
executions against the 
grantor, and it is not shown 
that, independent of the 
property conveyed, the 
grantor had enough, at the 
date of the deed, to satisfy 
other creditors, the party 
relying upon the deed must 
produce evidence of the 
existence of the debts 
therein mentioned, as the 
• bonds, notes, judgments, 
&c., or at least of such an 
amount of them as will 
show prima facie, that the 
transaction was bona fide. 
Feimester v McRorie, 287. 
2. When this prima facie ev- 
idence has been given by 
the grantee, the onus of 
proving any fraud, alleged 
to impeach the deed, is 
thrown upon the party al- 
leging such fraud. Ibid. 



FRAUDS— STAT. OP. 

1. A contracted to purchase 
from B a tract of landj at 
a stipulated price, and gave 
his written obligation to 
that effect. Afterwards, C, 
by parol, agreed to pur- 
chase A'a interest in the 
contract, and A, by en- 
dorsement on his obliga- 
tion, directed B to convey 
to C. Held, that the con- 
tract between A and C 
was void by the statute of 
frauds, and, of course, no 
action could be sustained 
on it. Simms v Killian fi52, 

2. A parol agreement by C, 
to execute at another time, 
a covenant to convey to 
D title to a certain piece 
oi land, is void under our 
statute of frauds. Ledford 
V Fenell, 286 

GRANTS. 
1. Under the Act of 1842-'3, 
ch. 36, sec. 1, the Literary 
Board can acquire no title 
to land, alleged to be for- 
feited by a grantee from 
the State, for non payment 
of taxes, unless some pro- 
ceeding has been first had 
on the part ot the State, 
or its assignees, the Presi- 
dent and Directors of the 
Literary Fund, so as to 
cive to the grantee, hia 
heirs or assigns, "a day in 
Court," an opportunity to 
show, that the arrearages 
of the taxes had in feet 
been paid within the year. 
PMps V C'esson, 101 



4M 



IKDMX. 



2. An estate onoe vested can • 
not be defeated by a con- 
dition or forfeiture, with- 
out some act on the part of 
the grantor or his heirs, 
bv which to take advan* 
tage of the condition or 
forfeiture, even when the 
words of the condition are, 
''the estate shall thereupon 
be void and of no effect," 
which words have the 
same legal import as the 
%vords ** ipso facto void." 
Ibid. 

.3. On a petition to vacate a 
junior grant by more than 
one person* when one only 
had any existing title to 
the premises, the misjoin 
der is no bar to a judg 
ment vacating the grant. 
Holland v Crow^ 1^5 

4. '1 he relators have a right 
to this remedy, •I'heiher 
they prove any actual da 
mage or not ; for the sub 
8e<)uent grant is per se a 
cloud upon the owner's ti 
tie, and so, a grievance to 
him Ibid, 

5. Partiis claiming under a 
junior grant cannot im 

!)each an elder one direct 
y ; much less can they do 
it in a collateral manner. 
Ibid. 

INDICTMENT. 
L Where an indictment 
for libel, charged thai the 
defendant set up, in pub- 
lic, a board, on which was 
a painting or picture of a 
human head, with a nail 
driven through the ear and 



a pair of rfiears hunfir on 

the nail, and the proof was* 
that a human head, shew- 
ing a side face with an 
ei\\\ a nail driven thri>ugh 
the ear and a pair of shears 
hung on the nail, was in- 
scribed or cut in the board, 
by means of some instru- 
ment, but was not paint- 
ed ; IJeld, that there was 
a fatal variance between 
the allegation and the 
p*-oof, and that the defend- 
ant must be acquitted. — 
State V Poweri, 5 

2. It is not a sufficient justi* 
fication for a person, who 
does an unlawful act, to 
shew that he did believe 
it unlawful When the 
act is unlawful and volun- 
tary, the quo animo is in- 
ferred necessarily from the 
act itself. State v Pres^ 
nell^ 103 

3. A proprietor of a mill, 
who cuts a canal across a 
public roud, whereby the 
passage along the higti- 
way is obstructed, and 
those who are in posses*- 
sion of the mill claiming 
under him and using the 
canal, are liable to an in- 
dictment for such obstruc- 
tion, the one ibr ereating 
and the others tor contin- 
uing the nuisance. But, 
il a bridge is erected ever 
the canal» neither is in- 
dictable, simply for suder 
ing the bridge to be out of 
repair. StaU v Yarrell^ 

130 



IXBBK. 



406 



4. Where a publie law im- 
p<«cs a public duty,, the 
omission to perform the 
duty IS indictable ; but, it 
it IS not an absolute duly, 
but a conditional oue, de- 
pendent upon the honest 
exercise ot the judgment 
Qt'the person or persons, 
to whom It is submitted, 
whether it is ti> be per- 
formed or not, the omis- 
sion to peri'orm it, per se, 
is not an indictable onence. 
State V WUtiams, IIZ 

5. Thus, where an indict- 
ment charged that the 
Wardens ot the Poor had 
otnitted to make by-laws, 
rules, and regulations tor 
.the Qomtori ot the |>oor, 
under the act, Uev. 6t.it. 
ch. 89, sec. 13, Held that 
the indictment would not 
lie, because the duty, nn- 
posed upon ttie wardens 
by that act, was a discre- 
tionary one. to be exe* cis- 
ed as they migtit deem ex- 
pedient, loid. 

6. An indictment for mali- 
cious miscDiei, must either 
expressly charge maiice 
against the ownt*r, or tully 
otlierwise descriiie the ol- 
fence. State v Jackson, 

7. Setting forth in the in- 
dietmeut tiiAt tlie act was 
<loiie '* feloniously, wil ui- 
ly and mahciousl^ ," witn- 
out aveiriug lUui it was 
done *' in.scnicvuu:$<y, ' or 
wan malice ugaiust the 
owner, is wi suiDcieut. 
Ibtd. 



INSOLVENT DEBTORS. 

Where a pfirty who has beea 
arrested upon a ca. sa. 
gives bond for his appear* 
ance, &c., he may, when 
a judgment is moved for a 
breach of the bond, aiiduoe 
any matter, which amounts 
to a defence. Robinson v 
McDugald, 136 

JOINT JUDGMENTS. 
By PfiAEsoN, J. Where two 
or more joint obligees, who 
are not partners in trade, 
take a joint judgment, liow 
far, and in what manner, 
the ri^ht of survivorship is ' 
abolished in this ibtate, in 
regard to such joint judg 
meiits, by iorce ot the act 
oi 17^4, iiev. ;Stat ch. 43, 
sec. 'Zy is an open question. 
Ellison V Andrews^ 188. 

. JURY. 

A person who is exempted 
by law from serving on ju 
ries, is not t>ouud to serve 
on dk sped. I oenire Stite 
V iVhujord, 99. 

JUSTICESofthbPEACB. 

1. Where a judgment was 
rendered by a justice of 
the peace against aa ab- 
sent party, a.id the party 
wiinin leu days tnereatter 
apphed tor rebel, under the 
act ot A8semiily,&iev. otat. 
sec. io, the justice has no 
right sunitnariiy to vacate 
the judgment, ouch an or- 
der IS Void. Sloan v i)f> 
Lean, 2tiO. 

•4. it was the duty of the jus- 



4M 



mOEX. 



lice to issue a notice to 
the opposite party, and an 
order to summon witness- 
es, and produce all the pa- 
pers before him, or some 
other justice, at some day 
within thirty days, in the 
meantime directing a for- 
bearance of proceedings, 
on which appointed day 
the case should be recon* 
sidered. Ibid. 
3. When a justice, on such 
application, made an order 
at once vacating the judg- 
ment, and no further pro* 
ceedings had thereon; — 
HeM, that the order not 
being warranted by law, 
the original judgment re- 
mained in full force. Ibid. 

LESSOR AND LESSEE. 

1. Where the owner of land, 
to which a ferry is annex- 
ed, as a franchise,, leases 
the land together with the 
ferry, he is not responsible 
for any damage sustained 
by a third person, from the 
mismanagement of the fer- 
ry, while in possession of 
the lessee, iiiggs v Fer- 
relU 1. 

2. When tliere is a lease of 
a house, and a person lives 
in it by an assignment or 
undertaking from the les- 
see, or by her license 
merely, and at her will, he 
he is concluded from ques- 
tioning the lessor's title ; 
for he came in under him, 
and cannot withhold the 
]K>ssession« when the term 



has expired or been legailjr 
surrendered. Kluge v. 
Lacbenour, 180. 

LIMITATIONS— STAT- 
UTE OF. 

1. In detinue by a husband 
and wife for a slave, when 
it appeared that the slave 
had been given to A for 
life, and after death to the 
feme plaintiff, who, at the 
death of the tenant for life, 
was an infant and married, 
and had never since been 
discovert; Held, that the 
action was not barred by 
the statute of limitations. 
McLean v Jackson, 149. 

2. On the compromise of a 
suit, the defendant agreed 
to pay the fee of the plain- 
tiff's attorney — ^nedected 
to do so, and the plaintiff 
was obliged to pay it him- 
self. Held, that the statute 
of limitations did not begin 
to run against the plain- 
tiff's claim, until he paid 
the money, and that it was 
not necessary to give no- 
tice of the payment to the 
other party, to entitle the 
plaintiff to bring his suit. 
Deaver r Carter ^ 267. 

MILLS. 
1. In a proceeding, under our 
statute, to recover dama- 
ges for overflowing land 
by a mill pond, it is not 
necessary that a copy of 
the petition should be 
served on the defendant. 
It is sufficient for the plain- 



INDRX. 



m 



tiflr to give the defendant 
ten days notice, in writing, 
of hig intention to file the 
petition. Coz v Buie, 130 

8. In a proceeding to recov* 
er damages for ponding 
water by a mill dam, un- 
der our act of Assembly, 
the verdict of the jury and 
the judgment of the Court 
thereon are conclusive as 
to the assessment of dam- 

. ages, up to the time when 
such judgment was ren- 
dered. Seaity v Connor, 

841 

3. An application for relief 
from damaaes, assessed for 
a period subsequent to the 
time of the judgment, can 
only be heard if the dam 
is taken away or lowered. 
The washing out of the 
channel and other causes 
of a similar kind, furnish 
no reason for abating the 
damages* Ibid. 

PRACTICE AKn PLEAD- 
INC. 

1. Where a judgment has 
been had in the Superior 
Court, and, on appeal to 
the Supreme Court, the 
judgment is reversed fdr 
error, the whole judgment 
as well for the costs as for 
the other matters, is set 

. aside, and the costs must 
be taxed by the Court be- 
low, which finally deter- 
mines, the case. Stafford 
V Newsom, 17 

U. After an appeal from a 
County to a Superior 

3 



/ Court, a procedendo will 
not be ordered to the 
County Court to give 
ludgment for the costs» 
because the (question was 
to be determmed by the 
Superior Court in deciding 
on the appeal. jRoy v 
Ray, 24 

3. Where there has been an 
appeal to the Superior 
Cfourt and thence to the 
Supreme Court, ^^proce* 
dendo cannot issue to the 
County Court to give 
judgment for costs* be- 
cause that question is in*' 
volved in the appeal. Jhid. 

4. If, after the decision of 
an appeal, the Superior 
Court refuses to obey the 
mandate of the Supreme 
Court, an appeal cannot 
again be had, for the«'e is 
no question to be review* 
ed, but the party grieved 
must apply for a manda* 
mus, ibid, 

5. If, at the time a judgment 
is obtained, the parties 
agree, that an execution 
shall not issue for a certain 
time, which is duly enler'> 
ed of record, the tine, 
within which a plaintiff 
can take out his execution, 
is extended to twelve 
months and a day from 
the termination of the spe- 
cified time, and no execu* 
tion can regularly issue in 
the meantime, exce pt by 
order of the Court. Wood 
v Bagley, sa 

6. When a judgment is con- 



408 



IlfOEX. 



fessed upon terms, which 
arts duly entered, it is, in 
effect, a conditional judg- 
ment, and the Court will 
take notice of the terms 
and enforce them. Ibid. 

7. Where a rule or order is 
entered on the record, by 
a proper officer of the 
Court in the clerk's office, 
but during Term time, and 
the Court meets and sits 
afterwards, the conclusion 
of law is, that it was re- 
cognised and adopted by 
the Court. IMd, \ 

6. Every Court has the con- 
trol of its own records, 
and may alter or amend 
thenn, or refuse to do so 
at its discretion. Bagley 
y Wood, 90 

§. Where the County Courts 
exercise this discretion 
their decision is subject to 
an appeal to the Superior 
Court and is hereby vaca- 
ted, and the trial in the 
Superior Court is de novo. 
Ibid. 

10. In considering the mat- 
ter in appeal, the Superior 
Court is not confined to 
the evidence in the Court 
below, but may hear and 
will hear any additional or 
new evidence, which may 
•be offered by the parties. 
Rid. 

11. Whether the decision in 
the Superior Court is one 
purely in the discretion of 
the Judge, or one which 
is subject to review here, 
the judgment is final and 



conclusive, because the 
Supreme Court is a Court 
for the correction of errors 
in matters of law, and not 
matters of fact. Ibid. 

12. When the Superior 
Court, upon the facts sub- 
mitted to and determined 
by them, refused a motion 
to dismiss a guardian ; 
Held, that an appeal could 
not be taken from their 
decision. Jones v Jones, 98 

13. In a writ of error coratn 
nobis, only such errors in 
fact can be assigned, as 
are consistent with the 
record before the Court, 
in which the case was 
tried. Williams v Ed- 
wards, 178 

14. In order to obtain a ve- 
nire de novo for the ad- 
mission of improper evi- 
dence, it is not sufficient 
to state matter rendering 
it probable that such evi- 
dence may^ have been re- 
ceived, but it is indispen- 
sable to state the evidence 
itself; otherwise, the Court 
cannot see that the evi- 
dence was illegal; and 
judgment will be affirmed. 

' State V Clark^ 151 

15. Where, in an appeal 
bond given by the defend- 
ant, the plaintiff's name is 
omitted, although the 
Court at the first term 
would dismiss the appeal 
unless the defendant gave 
a sufficient bond, yet they 
will not do so as a matter 
of course, when several 



I!fBKX» 



409 



terms have elapsed. Rob" 
inson v Bryan, 183 

16. A Court may correct a 
slip, by withdrawing im- 
proper evidence from the 
consideration of the jury, 
or by giving such explan- 
ations of an error, as will 
prevent it from misleading 
a jury. McAlister v 3fc- 
AlisUr, 184 

17. When in detinue there 
is a verdict for the plain- 
tiff and error in the assess- 
ment of damages only, a 
venire de novo will not be 
awarded. Ibid, 

18. An order, taking a bill 
pro confessOf for want of 
an answer, dispenses with 
proof on the hearing, and 
18 conclusive that the mat- 
ter of the bill -is true, as if 
the same were confessed 
in an answer. Atto. Gen. 

V Carver, 231. 

19. If a bill, though confess- 
ed, does not entitle the 
plaintiff to a decree, it 
must be dismissed; but if 
it contain matter for some 
decree for the plaintiff, 
that decree will be made. 
Ibid. 

20. Its nature, however, will 
depend upon the consider- 
ation, whether there be or 
be not enough in the bill 
to shew the precise extent 
of the relief, which the 
plaintiff ought to have. If, 
for example, the bill be for 
the specifio performance 
of a contract for the sale 
of land, and it is not so de- 
scribed in the contract or 



bill, as to identify it by 
such metes and bounds as 
ought to be inserted in the 
conveyance to be decreed, 
then on the bearing, the 
Court would only deciafe, 
that it was fit the contract 
should be specifically per- 
formed, ana a survey and 
enquiry would be directed 
thereon; and, of course, the 
party might offer proof 
touching that matter. Ibid. 

21. When a person who has 
has commenced a suit 
in forma pauperis, after- 
wards is dispaupered^ and 
enters into a prosecution 
bond, be is entitled, upon 
his recovery in the action, 
to a judgment for his costs, 
as well those incurred be«^ 
fore he was dispaupered, 
as those incurred after- 
wards. Revel V Pearson. 

244 

22. A defendant was arrest- 
ed on a ca. sa. and save 
bond as required by law ; 
the plaintiff was permitted 
to amend his execution, 
and the defendant allowed 
to appeal; in the Superior 
Court the plaintiff moved 
to dismiss the appeal, on 
the ground that the appeal 
was improvidentl^ grant- 
ed, and the motioo was 
sustained by the Court,, 
and the appeal ordered to 
be dismissed. The plain- 
tiff is not then entitled in 
that Court to a judgment 
for his debt and costs 
against the defendant and 
his sureties on the appeal 



410 



INDEX. 



bond. Chunn'y Jones, 251. 
88. A party who does not ex- 
cept to an opinion in the 
Court below, on a point of 
law, is precluded from ma- 
*ding the exception in the 
Supreme Court, when the 
case comes on there. Crant 

V Hunsucker, 254. 
24. Where there is a dor* 

mant judgment, the plain- 
tiff may have a scire facias 
to reTive, and an action of 
debt to recover, the a- 
mount of the judgment, 
both pending at the same 
time ; and a judgment on 
the mre facias cannot be 
j^eaded in bar of the ac- 
tion of debt. Carter v CoU 
man, 374. 

SI5. Where there was an or- 
der to amend,and the subse- 
quent proceedings in the 
oase are based upon the 
assumption that the amend- 
ment has been made, the 
course is to consider the 
order as standing for the 
amendment itself, Holland 

V Crow, 275. 
96« It is error in a judge to 

leave it to the jury to de- 
cide who were the heirs of 
a deceased person. That 
is a question of law for the 
determination of the Court. 
Bradford v Erwin, 89 J . 
07. If a judge omits to charge 
upon a point presented by 
the eviaence, it is no error, 
unless he is requested to 
give the charge. But, if he 
msJce acharge against law, 
U is error, unless it be up- 



on a mere abstract propo- 
sition, and it is apparent 
upon the whole case, that 
it could mislead the jury. 
Hice V Woodard, 293. 

28. A party cannot appeal, 
when the judgment is in 
his favor, just as he want- 
ed it. Hoke V Carter, 827. 

29. It is only when both par- 
lies except to the judg- 
ment as erroneous, that 
both have ground for ap- 
peal. Ibid. 

30. When there is an appeal 
from an interlocutory de- 
cree in a cause, and the 
parties proceed to the. trial 
of the cause, without wait- 
ing for the decision of the 
matter appealed from, the 
appeal will be dismissed at 
the costs of the appellant. 
JjQ^e V Johnston, 367. 

31. Although a juror may sit 
on the trial, against whom 
there was good cause of 
challenge, yet the party, 
by not having made the 
objection in time, waived 
it. Briggs V Byrd, 377. 

32. In criminal, as well as in 
civil cases, all the testimo- 
ny on both sides should be 
introduced before the ar* 
gumenl commences. Af* 
ter that, the parties have 
no right to introduce ad« 
ditional testimony, though 
the Court, in its discretion, 
may permit it to be done, 
State V Rash, 882. 

33. A Judge is never bound 
to instruct a jury upon an 
abstract pro|K)sition. Jlis 



INDEX. 



411 



duty is to lay down the 
law to them, as applicable 
to the evidence introdu- 
ced. Ibid. 
94. It never can be error in 
a Judp^e to assume that as 
true, which the prisoner, 
in his defence, has treated 
as true : as, where a pris 
oner indicted for murder, 
does not pretend that, if 
guilty of tlie homicide, he 
is guilty of anything but 
murder; but relies, in his 
defence, solely upon the 
ground that he was not 
guilty of the homicide. 
Ibid. 

35. It is not error in ihe Judge 
to tell the jury that, if the 
witness is credible, it is 
their duty to believe him ; 
when Jie adds, at the same 
time, "yet it is possible the 
witness may be mistaken 
or perjured." Ibid. 

36. An omissioti by a Judge 
to instruct a jury upon a 
particular point, is not er- 
ror. If the party deeming 
them material, ask for in- 
structions, und they are 
improperly granted, the 
question may be brought 
before the Supreme Court 
for review. Avery y Ste- 
phenson, 84. 

PRINCIPAL AND AGENT. 

1. An agent, who, in making 
a contract, discloses the 
name of his principal, is 
not legally responsible to 
the person wiili whom he 
contracts, and, therefore, 



if he pays any damages 
arising from a breach, he 
cannot recover the amount 
so paid from the principal, 
unless paid by his special 
request. Meadows v Smiih^ 

18. 

2. A principal cannot main- 
tain an action against his 
agent for money had and 
received, until a demand 
and refusal ; but the proof 
of a demand and refusal is 
not restricted to any par- 
ticular form of words, but 
any declaration of the 
agent to the principal, 
which shows a denial of 
his right, puts him in the 
wrong, and gives to the 
principal a right of action. 
Moore v Hyman, 38. 

3. Where the plaintiflf had 
employed the defendant to 
sell for him a quantity of 
fish, and in attempting to 
make a settlement, tney 
differed as to six barrels of 
the fish, the plaintiff wish- 
ing the defendant to pay 
for six barrels of fish more 
than he was wiliinff to ac- 
count for ; Held, that this 
was not only evidence of 
demand, but was, in law, a 
demand. It was a denial 
of the plaintiff's right, and 
whether correct or not, 
gave him an immediate 
right of action, and set the 
statute of limitations in ac- 
tion. Ibid. 

PRINCIPAL & SURETY, 

1. A surety has no claim up. 

Oil his lirincipal, until ne 



41& 



IXIlKJ^'. 



has paid the money for 
whicn he was bound. Pon- 
der V Carter, 242. 
2. When A was indebted to 

B, and C, for a fair consid- 
eration, agreed in writing, 
to pay the debt to B, and 
afterwards, upon demand 
from B, refused to do so : 
and A subsequently was 
compelled to pay the debt; 
Held, that, as between A 
and C, A was to be con- 
sidered as surety, and C as 
principal, and that the sta- 
tute of limitations began 
to run against A's claim on 

C. not from the date of the 
agreement or of C's refu- 
sal to pay B, but only from 
the time when A actually 
paid the money. Ibid. 

SLANDER. 

1. In an action of slander, 
(under our statute) for 
charging that the plaintiflT 
had criminal intercourse 
with one A at a particular 
time and place, thedefend- 
antcaunot justify by show- 
ing that she had such in- 
tercourse with A, at ano- 
ther time and place. — 
Sharpe v Stephenson, 346. 

2. The defendant in such 
an action, in a plea of jus. 
tification, must aver, and 
must prove, the identical 
offence; and when any cir- 
cumstance is stated, which 
13 descriptive of, and iden- 
tifies the offence, it must 
be averred and proved, for 
the purpose of showing, 



5. 



6. 



that it is the same ofience. 
Ihid. 

Yet, though the plea is not 
favored when other de- 
scriptive circumstances 
are proven, so as to show 
cicarly.that it is theoffence 
charged, a slight variation 
in some of the other cir- 
cumstances, which may be 
ascribed to mistake, would 
not be fatal, — as, for in- 
stance, that it was Satur- 
day instead of Sunday, and 
the like. Ibid, 
A person is not answera- 
ble, in an action of slander, 
for anything he says, in 
honestly preferring, before 
a judicial officer, com- 
plaints against an individ- 
ual for offences alleged to 
have been committed by 
him; and prima facie, eve- 
ry application i s t o be 
deemed honest and to have 
been made upon good mo- 
tives, until the contrary be 
shown. Briggs v Byrd, 

377. 
In such cases, whether the 
party complaining acted 
bona fide, or from a wick- 
ed and malicious mind, is 
always an open question. 
The opposite party, there- 
fore, is at liberty to prove 
malice, either by express 
evidence, or by attending 
or collateral circumstan- 
ces. Ibid. 

In an action of slander, ev- 
idence of the sense in 
which the words were un- 
derstood by the hearers, 



IVDBt. 



41S 



must be of the sense in 
which they were under- 
stood at the time they were 
uttered, Ihid. 

STEALING SLAVES. 

1. To constitute a capital fe- 
lony in the case of stealing, 
&c. slaves, the taking and 
conveying away oi the 
slave must be from thepos- 
session of the owner. The 
felony is not created by 
our statutes, when, before 
the taking or carry- 
ing away, the owner 
has lost the possession of 
the slave by the act of an- 
other, even though such 
act was procured to be 
done by the person char- 
ged with felony, for a felo- 
nious purpose. State v 
Martin^ 157. 

2. Neither the act of 1779, 
Rev. Stat., ch. 84, sec. 10, 
nor the act of 1848-0, ch. 
35, constitutes a telony in 
such a caae. llnd. 

TROVER. 
1. A, owning a slave, died in- 
testate, and no administra- 
tion was ever granted on 
his estate. The next of kin 
took possession of the slave, 
and kept him for seven 
years. They then sold him 
to B, who kept him for ten 
years, and he was then 
sold by B's executors to 
C. After remaining iu C's 
possession four yeard, he 
ran away, was caught 
and confined to jail, fruin 



which he was taken hy D» 
who, upon demand, refused 
to deliver him to C. Held, 
that C's possession entitled 
him to an action of Tro- 
ver against D, who was a 
mere wrongdoer, setting 
up no title in himself. — 
Craig v Milter, 375. 

2. In our State, it is held, 
that, if a tenant in common 
takes a slave out of the 
State to parts unknown, 
and sells him, the co ten- 
ants may treat this as a 
destruction of the proper* 
ty. But a sale to a citizen 
of the State is not tanta- 
mount to a destruction, 
and, therefore, does not 
amount to a conversion. 
PiU V Petway, 69. 

3. When a man built a rail 
fence upon a piece of land, 
to which he had no title, 
and the owner of the land 
removed the rails, and 
kept possession of them, 
the former has no riffht of 
action against the latter, 
unless the removal has 
been effected by a breach 
of the peace. Wentx v. 
Fincher, 207. 

TRUSTEES. 
1. Where A, B and C, were 
interested as the principal 
cestuis que trust, m a deed 
of trust of slaves, for the 
payment of debts, m which 
A was the trustee, and, by 
an agreement between the 
three, B, at a public sa *, 
under the dee^l bv the 



414 



INDEX. 



trustee* bid off the slaves, 
for the benefit of the three; 
HM^ that by this sale, the 
k^I title vested in all, as 
tenants in common. JPiU 
V. Peiwatf, 69. 

8. The position, that "a trus- 
tee cannot buy at his own 
sale/' must be taken with 
some qualifications. He 
mav buy at his own sale, 
andl charge himself with 
the bid; and the cestuis 
que trust may, at their 
election, hold him bound 
by it, or may repudiate the 
sale and treat the proper- 
ty as still belonging to the 
trust fund. Ibid, . 

USURY. 
1. Persons may change notes 
for their mutual accom- 
modation, with a view to 
raise money by having 
them discounted, and they 
will respectively consti- 
tute a consideration, which 
will make them all binding 
on the makers — ^provided, 
however, that they be not 
made with a view to their 
being illegally discounted. 
But a note, made to the 
intent of being legally dis- 
counted for the accommo- 
dation of the maker»or the 
payee, or both of them, 
would not be obligatory 
between the parties, and is 
void in the hands of one, 
who discounts it at a rate 
exceeding six per cent ; 
and there is no difference 
.between a man's making 



his own note to the lender, 
and getting a friend to 
make a note to himself, 
and his passing it to the 
lender. Simpson v Fulleu" 
wider, 334. 

2. Whether the lender was 
cognizant of the intention 
of the parties to the note 
or not, is not material in a 
question of usury; for the 
statute has no provision in 
favoR of the assignee, and 
it is the fact, and not the 
assignee's knowledge of it, 
which determines the va- 
lidity of the instrument. 
Ibid. 

vend6r add vendee. 

Where a vendee takes an ar- 
ticle at. his own risk, or 
with all faults, he becomes 
his own insurer, and the 
seller is relieved frojn alt 
obligation to disclose any 
fault he may know the ar- 
ticle has ; but he must re- 
sort to DO trick or contri- 
vance to conceal the de- 
fect from the pureha^r. 
Pearce v Blackwell^ 49. 

WARRANTIES. 
1. A, by deed, conveyed a 
tract of land by n^tes and 
bounds, specifying the 
number of acres, and cov- 
enanted as follows ; *' To 
have and to hold to him 
the said R. S., his heirs 
and assigns, the right and 
title of the same, I warrant 
and will ever defend;"— 
lield^ that this was only a 



IKDBX. 



415 



covenant for quiet enjoy- 
ment, and not a warranty 
as to the number of acres 
mentioned in the deed. 
Huntly y Waddell, 82. 
*2. In the sale of land by deed, 
there are no implied war- 
ranties. Ibid, 

3. In the sale of a slave, a 
warranty of soundness in- 
cludes soundness of mind 
as well as of body. Simp- 
son V McKay , 141. 

4. The soundness of mind 
meant in the warranty of 
a slave, means only such 
a degree of mental capa- 
city, as renders him fit to 
))erform the ordinal y du- 
ties of a slave. Ibid, 

6. In an action for a breach 
of covenant, in a warran- 
ty of the soundness of a 
slave, the plaintiff may 
show what the slave after- 
wards sold for, to aid the 
jury in estimating dama- 
ges. Houston v Starnes, 

313. 

6. When one, having only a 
life estate, sells and con- 
veys the land, with war- 
ranty in fee, this warranty 
does not bar nor rebut the 
purchaser. Moore v Par* 
ker, 123. 

WIDOWS, 

A widow is not barred of her 
right to her year's provis- 
ion, under our Statute, — 
Rev. Stat. ch. 121, sec. 
18, by her adultery, &c., 
•as she is of her dower by 
the Rev. Stat. sec. 11. — 
Wallers v Jordan, 170. 
4 



WILLS. 

1. A mere wrong-doer, who 
has only a color of title, 
cannot pass any estate by 
his will to his devisees. 
Smith V Bryan, II. 

2. The act of 1844, ch. 83, 
maKing devises to operate 
on sucn real estate as the 
testator may have at the 
time of his death, was al- 
together prospective, and 
did not extend to his wills 
made and published before 
the time when the act 
went into operation, tho' 
the testator did not die till 
afterwards, unless there 
had been a republication 
of the will, after the act 
went into operation. Wil- 
liams V Daoia, 21. 

3. Unpublished wills of the 
supposed testator are ad- 
missible in evidence^ as to 
questions of capacity and 
undue influence, as they 
tend to show intelligence 
and a settled purpose to 
make dispositions, like 
those contained in the 
script in contest. Love v 
Johnston, 855. 

4. Where, on the trial of an 
issue, devisavit vel non, 
the declarations of a party 
are given in evidence, and 
it appears afterwards, that 
those declarations were in 
fact in favor of hi& own 
interest, though apparent- 
ly against it, the Court 
may, at any stage of the 
trial, direct the jury to 
disregard them. Ibid. 



410 



INDEX. 



5. The proceeding, in pro- 
bate causes, is not sinnilar 
to those at common law, 
for in its nature, it is a pro- 
ceeding in rem, to which 
there are no parties in the 
strict sense of the common 
law, and the Court retains 
that exclusive power over 
the subject, which arises 
from the provision in the 
statute, that the issue is to 
*' be made up under the 
direction of the Court." 
The Court may modify 
the issue, both in respect 
of the scripts, and of the 
positions of the parties in 
interest, so as to have the 
contest upon the issue de- 
termined conclusivel^,and 
upon its merits as existing 
in fact. Ibid. 

0. There cannot be republi- 
cation, by oral declara« 
tions merely, of what pur- 
ports to be an attested 



will ; and it is doubtful 
whether there can be of a 
holograph. As to a paper 
purporting to be an attest- 
ed will, there cannot be a 
republication, unless by a 
re execution of the same 
instrument, or by the exe- 
cution of a codicil, with 
the ceremonies required 
by the statute. Ibid. 
7. When one script only is 
put in issue, and that is but 
part of the will, the verdict 
ought not^to be against it 
altogether, but should, ra- 
ther, be according to the 
truth — that it is a part. 
Upon such*' a finding, the 
parties would be under the 
necessity of asking the 
Court to set it aside, and 
re-model the issue, so as 
to embrace both scripts; 
and thus the whole case 
would be properly brought 
up. Ibid. 



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