George Washington Floweis Memorial Collection DUKE UNIVERSITY LIBRARY ESTABLISHED BY THE FAMILY OF COLONEL FLOWERS ## REPORTS OF CASES IN LAW, ARGUED AND DETERMINED IN THE SUPREME COURT OF Jlodl Carolina, JUNE TERM, 186:2. VOL. VIII. BY HAMILTON C. JONES, REPORTER. SALISBURY, N. C. : PRINTED BY J. J. BRUNER. 1862. JUDGES OF THE SUPREME COURT DURING THE PERIOD COMPRISED IN THIS VOLUME Hon. KICHMOND PEARSON, Chief Justice. " WILLIAM H. BATTLE, « MATTHIAS E. MANLY. JUDGES OF THE SUPERIOR COURTS Hon. JOHN M. DICK, " JOHN L. BAILEY, " E. M. SAUNDERS, " ROBERT R. HEATH, " R. S. FRENCH, " J. G. SHEPHERD, « GEORGE HOWARD, Jr. " JAMES W. OSBORNE, ATTORNEY GENERAL W. A. JENKINS. INDEX TO THE NAMES OF CASES IN VOL. VIII. Adams v. Clark, Adams v. Smallwood, Airey, Stokes v. Albea, Chipley v. Albright v, Tapscott, Andrews, Thompson v. Andrews, Thompson v. Anthony, Hunter v. Arledge, Ledbe^ter v. Arnold, Bnis v. Arnold, Lash v. Ashe V. Streator, Ashe V. DeRossett, Askew, Hays v. Baines, Drake v. Ballard v. Mitchell, Bannermau, Pridgen v. Barnes v. Barnes, Barnes v. Haybarger, Beaty v. Gingles, Bell, Borden v. Bell, Styron v. Bennett v. Taylor, Billups, Bond v. Billups V. Riddick, Bland v. Scott, Bond V. Billups, Bond V. Hall, Bond V. Warren, Borden v. Bell, Bowles, McDowell v. Brooks V. Walters, Brown, Roughton v. Brown v. Smith, Bryan v. Enterprise, Bryan, Odom v. Buchanan v. McKcnzie, " V. " " - V. " 56 258 66 204 473 125 453 385 475 233 206 256 240 226 122 153 53 366 76 302 294 222 281 423 163 100 423 14 191 294 184 428 393 331 260 211 91 93 95 Buchanan, McLean v. 444 Buffkin, Scaff v. 161 Buie, Covington v, 31 Buis V. Arnold, 233 Bumgarner, Childers v. 297 Burfoot, Shaw v. 344 Burgess, Moffitt v. 342 Carter, Cowles v, 381 Castrix, Pearce v. 71 Cates V. Whitfield, 266 Cherry, Cooper v. 323 Cherry, Myers v. 144 Childers v. Bumgarner, 297 Chipley v. Albea, 204 Chisholm, Herrington v. 4 Clark, Adams v. 56 Clark V, Latham, 1 .Clay, Morris v. 216 Collins V. Creecy, 323 Commissioners v. Patterson 182 Cooper V. Cherry, 323 Cooper, White v. 48 Cornish, Wiseman v. 218 Council, Williams v. 229 Covington v. Buie, 31 Cowles v. Carter, 381 Cox V. Cox, 487 Cox, Thompson v. 311 Creecy, Collins v 333 Critcher, Hudson v. 485 Crump V. McKay, 32 Currie, Short v. 42 Davis V. Golston, 28 Davis, Harrell v. 359 Davis, Parker v. 460 Davis, Rodman v. 134 Debrule v. Scott, 73 Debnam, Hughes v. 127 VI INDEX. DeRossett, Ashe v. 240 Dickson v. Warters, 449 Drake v. Baines, 122 Dobson V. Finley, 495 Dowell V. Jacks, 387 Dunbar, ISTorman v. 317 Edney, Reynolds v, 406 Edwards, Jones v. 336 Edwards v. Kelly, 69 Enterprise, Bryan v. 260 Eure, Willey v. 320 Fagan v, Williamson, 433 Finley, Dobson v. 495 Foard, Griffin v. 337 " V. Railroad Co., 235 Foster, Griffin v. 337 Fonst V. Trice, 290 Foust V. Trice, 490 Gardner v. Klntts, 375 Gibbs V. Williams, 391 Gingles, Beaty v. . 302 Golston, Davis v. 28 Graham In I'e, 416 Gregory v. Richards, 410 Griffin v. Foster, 337 Griffin V. Hadley, 82 Griffith. March v. 264 Griffin V. Tripp, 64 Haden v. Rail Road Co. 362 Hadley, Griffin v. * 82 Hall, JBond v. 14 Hanna v. Ingram, 55 Hanna, Jackson v. 188 HarrcU v. Davis, 359 Harrington v. Wilcox, 349 Haybarger, Barnes v. 76 Hays v.^Askew, 226 Hedrick v. Wagoner, 360 Herring v. Utley, 270 Herrington v. Chisholm, 4 Hinson, Kron v. 347 Hobbs, Little v. 179 Hockaday v. Parker, 16 Houston V. Nense River Nav. Co, 476 Howell V. Troutman, 304 Hudson V. Critcher, 485 Hughes V. Debnam, 127 Hunter v. Anthony, 385 Ingram, Hanna v. 55 Inman, Powell v. 436 Ireland, Wilder v. 85 Jackson v. Hanna, 188 Jacks, Dowell v. 387 Johns, McDaniel v. 414 Jones v. Edwards, 336 Jones V. Willis, 430 Justices of Harnett, Mc- Coy v. 272 Kelly, Edwards v. 69 Kinsey v. Magistrates of Jones, *. 186 Klntts, Gardner v. 375 Koonce v. Perry, 58 Kron v. Hinson, 347 Lander v. McMillan, 174 Lane v. Washington, 248 Lash v. Arnold, 206 Latham, Clark v. 1 Latta V. Russ, 111 Ledbetter v. Arledge, 475 Leggett, McCormick v. 425 Little V. Hobbs, 179 Long, Tomlinson v. 469 Luther v. Skeen, 356 McCaskill, McDonald v. 158 McCorraic v. Leggett, 425 McCoy V. Jus. of Harnett, 272 McDaniel v. Johns, 414 McDaniel v. JSTethercut, 97 McDonald v. McCaskill, 158 McDowell V. Bowles, 184 McDugald, McLean v. 383 McElwee, Sharpe v. 115 McKey v. Neill, 214 McLean v. McDugald, 383 McLean v. Murchison, 38 McLean v. Buchanan, 444 McKay, Crump v. 32 INDEX. McKenzie, Buchanan v. ' 91 McKenzie, Biiclianan v. 95 McKenzie, Bnclianan v. 93 McMillan, Lander v. 174 McNeill, Morrison v. 45 Madden v. Porterfidd, 160 March V. Griffith, 264 Marcus, Taylor v. 402 Magistrates of Jones, Kin- sey V. 186^ Mason v. White, 42 ij Mason v. Williams, 478 Maynard, Sparrow v. 195, Meivin, Willis v. 62 Mendenhall v. Mendenhall,287 Mendenhall v. Parish, 105 Mitchell, Ballard v. 153^ Moffitt V. Burgess, 342; Moore, Townsend v. 147 Morrison v, McNeill, 45 Morris v. Clay, 216 Morse V. Nixon, 35; Murchison, McLean v. 38 Myers v. Cherry, 144 Murray, Patterson v. 278 Neal V. Rail Road Co. 482 Neill, McKey v. 214 Nense River Nav. Co., Houston V. 476 Nethercut, McDaniel v. 97 Nixon, Morse v. 35 N. C. RailroadCo. v. Vin- son, 119 Norman v. Dunbar, 317 Odom V, Bryan, 211 Oldham, Prichard v. 439 Pan n ell v. Scoggin, 408 Parish, Mendenhall v. 105 Parker v. Davis, 460 Parker, Hockaday v. 16 Parker v. Richardson, 452 Parker v. Ricks, 447 Patterson, Commission- ers V. 182 Patterson v. Murray, Payne, Tomlinson v. Pearce v. Castrix, Perry, Koonce v. Poindexter, Reeves v. Poole V. Railroad Co. Porterfield, Madden v. Powell V. In man, Prichard v. Oldham, Pridgen v. Bannerinan, Railroad Co., Foard v. Railroad Co., Iladen v. Railioad Co., Neal v. Railroad Co., Poole v. Reeves v. Poindexter, Reid, Winchester v. Reynolds v. Edney, Richardson, Parker v. Richards, Gregory v. Ricks, Parker v. Riddick, Billups v. Rodman v. Davis, Rough ton V. Brown, Russ, Latta v. Scaff V. Buffkin, iSchimmerhorn, Williams [Scoggin, Pannell v. Scott, Bland v. Scott, Debrule v, Sharpe v. McElwee, Shaw v. Burfoot, Short V. Currie, Skeen, Luther v. Sleight V. Watson, Small wood, Adams v. Smith, Whitehead v. Smith, Brown v. Sparrow v. Maynard, State V. Brandon, " V. Brannen, " V. Brown, " V. Clara, " V. England, " V. Graham, " V. Gray, 278 108 71 58 308 340 166 436 439 53 235 362 482 340 308 377 406 452 410 447 163 134 393 111 161 .104 408 100 73 115 344 42 356 10 258 351 331 195 463 20.S 443 25 399 397 170 vin INDEX. State V. " V. " V. " V. " V. " V. " V. " V. " V. '•' V. Stokes V, Streator, Styron v Suttle V. Harriss, Jim, Laughlin, Laugblih, McDaniel, Norman, Peter and Jess, Peter, Sam, Smith, Airey, Ashe V. , Bell, Turner, Tapscott, Albright v. Tatum, Wilson v. Taylor, Bennett v. Taylor v. Marcus, Thompson v. Andrews, Thompson v. Andrews, Thompson v. Cox, Tomlinson v. Long, Tomlinson v, Payne, Townsend v. Moore, Trice, Foust v. Trice, Foust v. Tripp, Griffin v. Trotter, Welch v. Troutman, Howell v. 136 459 354 455 284 220 346 19 150 132 66 256 222 403 473 300 281 402 125 453 311 469 108 147 490 290 64 197 304 Tiii-ner, Suttle v. 403 Utley, Herring v. 270 Vinson, N. C. Kailroad v. 119 Walters, Brooks v. 428 Warren, Bond v. 191 Washington, Lane v. 248 Waters, Dixon v, 449 Wagoner, Lledrick v, 360 Watson, Sleight v. 10 Welch V. Trotter, 197 White V. Cooper, 48 White, Mason v. 421 Whitehead v. Smith, 351 Whitfield, Cates v. _ 266 Wilcox, Harrington V. 349 Wilder v. L-eland, 85 Willey V. Eure, ■ 320 Williams v. Council, 229 Williamson, Fagan v, 433 Williams, Gibbs v. 391 Williams, Mason v. 478 Williams v. Schimmerhorn 104 Willis, Jones v. 430 Willis V. Mel vin, 62 Wilson V. Tatum, 300 Winchester v. Keid, 377 Wiseman v. Cornish, 218 CASES AT LAAV, ARGUED AND DETERMINED SUPREME COURT OF NORTH CAROLINA, AT RALEIGH. DECEMBER TERM, 1860. JOHN N. CLARK v. CHARLES LATHAM. No appeal will lie from the County to the Superior Court, which must neces- sarily be ineffectual for the purpose for which it was prayed. The costs allowed against bail, notwithstanding a surrender, &c,, (Rev. Code, ch. 11, sec. 10,) do not include such as are incurred on account of an im- proper and ineffectual appeal. Whether the provision in chapter 10, sec. 6, of the Revised Statutes, requir- ing a trial of the picas, entered by bail, to be had at the first term, is not altered by the Revised Code, ch. 11, sec. 4. Queref Scire Facias against bail ; tried at the last Term of Hert- ford Superior Court, before Howaed, J. The following case agreed was submitted for the judgment of the Court. At May Term, 1856, of the County Court of Hertford, the plaintiff recovered a judgment in assumpsit IN THE SUPREME COURT. Clark V. Latham. against one S. S. Simmons, for $375 and costs. The original writ, in the case, was i:«sned to Charles Latham, sheriff of Washington county, who returned it '• executed," but with- out taking any bail-bond for the ai)j)earance of the said Sim- mons, whereby he became special bail for him. A iicire fa- cias against the defendant (the saicl Latham) was issued, seek- ing to subject him as such bail, and was returned to May Term, 1860. of Hertford County Court, "executed." At tiiat term, the defendant, by his Attorney, tendered the pleas : " Nul tiel record^'- " sickness of priMcii)al," " surrender of principal." The plaintiff, through his counsel, moved for a trial of the pleas at that term, insisting that the law required a trial at tiie first term, and that unless the pleas were then verified, be was entitled to judgment. That motion was refused by the Court, and the cause was continued. From which ruling the plaintiff appealed to the Superior Court. Upon considera- tion of the case agreed in the Superior Court, his Honor or- dered the appeal to be dismissed at the costs of the plaintiff. From which judgment plaintiff appealed to this Court. Garrett^ for the plaintiff. Whiston^ Jr., and 11. A. GilUavi, for the defendant. BArrLK, J. An order for the continuance of a cause is re- garded as a discretionary one, from which no api)eal can be taken. Such is, undoubtedly, the general rule, and we can- not discover any thing in the j^resent case which makes it an exception. TIiq i)laintilf, indeed, contended in the County Court, that he had a right to have his cause tried at the first, or appearance term, and insisted that he was eiiiitled to a judg;ncnt, unless the pleas of the defendant were then veri- fied and found to be true by a jury. The Court refused hie motion for a judgment, and made an order for the continu- ance of the cause, but whether that was done for the reason that in the opinion of the Court the plaintiff was not entitled to a trial at that term, or because the defendant was not then prepared with his proof, does not appear. It is merely stated that the plaintiff's motion for a judgment was refused and the DECEMBER TERM, 1860. Clark V. Latham. cause was continued. Supposing that the order for a contin- uance ought not to liavc been made, how could it be corrected in the Superior Court upon an appeal ? Tiie term of th€ County Court, at wliich the plaintiff' insisted upon liis right to have a trial, must necessarily have been passed before the cause cn;ild be disposed of in the Superior Court, and it was, therefore, out ol' the power of the Court to correct the error, supposing one to have been coram'itted ; hence, we conclude that no appeal will lie from an order of the County Court, where the appeal must necessarily be ineffectual foi- the pur- poses for which it is pra^'ed. We, theretbrc, approve of the order of the Superior Court by which the appeal was dismiss- ed. And we think it was jiropcrly dismissed at the costs of the plaintiff. The costs which the bail aie required by the 10th section of the 11th chapter of the Revised Code to pay on the scire facias, notwithstanding they may be afterwards discharged by the death or surrender of the principal, or oth- erwise, could never have been intended to include such as are incurred by the plaintiff' on account of an improper and inef- fectual appeal. We have considered the case as if the plaintiff were enti- tled to a trial at the term at which the scire facias is return- ed as having been made known to the bail ; such was his right, undoubtedly, by the express terms of the Revised Stat- utes, chap. 10, sec. 6 ; but in the Revised Code the phraseol- ogy is altered ; the 4th section of the 11th chapter, enacting that " where any scire facias against bail shall be returned ^executed,' they may appear and plead as in other cases," This seems to put cases of this kind upon the same footing with issues in other actions, which, by virtue of the 31st chap, of the Revised Code, section 57, rule 13, shall be tried at the term next succeeding that at which they were made up. The "decision of this question is unnecessary toour judgment in the present case, and we allude to it only for the purpose of pre- venting the conclusion that our opinion upon it favors the view taken of it by the plaintiff. Per Curiam, Judgment affirmed. IJ^ THE SUPKEME COUKT. Herrington v. The Schooner, Hugh Chisholm, JESSE HERRINGTON v. THE SCHOONER, HUGH CHISHOLM. The meaning of the Statute, Revised Code, eh. 7, sees. 27 and 28, concerning liens on vessels for repairs, &c., is that the attachment given for the enforce- ment of the lien, must be issued so as to have the vessel seized before she is allowed to depart from the port or place of repairs. Thi8 was an attachment, tried before Howard, J., at the last Term of Washington Superior Court. The attachment was taken out under the 27 and 28 sections of the 7th chapter of the Revised Code, and levied upon the Schooner Hugh Chisholm, for repairs done on tliat vessel, Tlie repairs were done in the county of Washington, in this State, during tlie 3'ear 1857 ; and the attachment was taken out on the 4tli day of May, 1858. The vessel was owned ])y one G. L. Moore, a citizen of Martin county, in this State? during the time she was undergoing repairs, and in the course of trade he sent her to Norfolk, in the State of Virginia, where slie was seized under an attachment issued by the Circuit Court of Norfolk county, Va. ; upon a personal obligation of the said Moore, and judgment having been rendered thereon for the plaintiif, execution issued, and she was sold at public auction, to one Webb. After this, on the return of the Schoo- ner to North Carolina, this attachment was issued. These facts were agreed, and were submitted for the judg- ment of the Court ; and it was agreed further, that, if his Honor should be of opinion with the plaintiif on the law gov erning the case, judgment should be rendered for $159, with interest ; but otherwise that the proceeding should be dis- missed. The Court, on consideration, gave judgment for the plaintiff, and the owners of the vessel prayed and obtained an appeal. JI. A. GilUcwi, for the plaintiff. W-msto?i, Jr., for the defendant. Pearson, C. J. The case turns on the construction of the Statute, Rev. Code, ch. 7., sees. 27 and 28, title "Attachment ;" DECEMBEK TEEM, 1860. Herrington v. The Schooner, Hugh Chisholm. and the question is within what time must the attachment be issued ? No time is expressed in the Statute, and several construc- tions were contended for on the argument, for the purpose of dxing the time : 1. The time is unlimited and the lieu continues, and the at- tachment may be issued at any time after the work is done, or the provisions furnished — or at least until there be a presump- tion of payment, to wit, ten years ; or the claim is barred by the statute of limitations applicable to the action of assump- sit, to wit, three years. 2. The attacliment may be issued within a reasonable time, to be judged of by court, according to circumstances. 3. The lien is in prc^enii^ and the attachment must be is- sued before the vessel leaves the port, or the place, where the work is done. ■I. The attachment must be issued before the vessel leaves the State and goes out of the jurisdiction of its courts, or at «,11 events if the vessel goes out of the jurisdiction and passes into the hands of a purchaser for valuable consideration, the lien is gone and the attachment cannot rightfully' issue, should the vessel happen to return to the State. The first construction leads so manifestly to an absurdity and to injustice, that it cannot be entertained. Suppose a vessel is repaired in Wihnington and goes to ISTewbern, where pro- visions are furnished; then to Washington, where she is again repaired; and so continuing from time to time, and at differ- ent i>hices to be repaii'ed, furnished, equipped and stored, un- til she is covered over with liens, as nuuicrons as the barna- cles on Iter bottom. The Statute does nut make the pi'iorit}' of lien depend on the priority of suing out the attachment, but provides, "such debts shall have a lien on the shij^, &c., and sliall \iQ, preferred to all other liens thereon^ except mari- oers wages." Can each and every one of these different liens be preferred to all other liens ? the first to all the others? the last to all the others? and the intermediate ones to all the oth- ers 1\\\ Or, suppose the vessel be encumbered with liens, is IN THE SUFEElVrE COUKT. Herrington v. The Schooner, Hugh Chisholm. -iold to a pwrcliaser for valuable consideration, so as to give him, not a mere lien, but the absolute ownership, does he take, ■subject to all of these liens, in regard to the existence of which ao means of information are afforded to him I This would be manifestly unjust, and yet it must be so, if the liens continue, and can be enfoi-ced bj attachment at any indefinite time ; for it is decided that a tliird person cannot interplead, on the ground that in a proceeding under the statute the creditor has a right to liave his debt satisfied oat of the vessel attach- ed, let it belong to whom it may ; £rigt Ida-rcellns, 3 Jones' Rep. 83. To meet this absurdity and injustice, the counsel admitted that the statute was defeetive and oaight to be amended ; the failure to fix a time being, as he supposed, an oversight ; l)ut he iiisisted, that as the law now s-tands, the time is indefinite. "We certainly cannot adopt this construc- tion, if there be any other, by which to escape from such gross absurdity and injustice ; for we are not at Mberty to adopt the suggestion of an oversight, and suppose that the Legislature forgot to insert a provision in respect to time. Our duty is to fake the statute as it is, and to assume that it contains all that the law-makers intended. 2. The reuiedy by attachment must be pursued within a i-easonable time. When the common law imposes an obliga- tion, as for the holder of a bill to give notice, or one contracts to do a thing, as to execute a deed, and no time is fixed, the iaw imjilies th-at it n^ust be done within a reasonable time ; but we know of )u» vida oi' construction, by wliich the words of a statute can be added to-, aud. a tin^ie fixed by an implieation of law. Tlie time must l>o fixed b-y the words on the construc- (ion of the statute, and the iuiplicaticn of a reasonable tiine ih inadmissible. So tliis suggestion is as- untenable as that in respect to the ten yeai's, w the three- years- as a statute of lini- itations; but if we wei-e at liberty to in.terpolate, "such lieii shall continue, provided the attachment be issued v/ithin rea- sonable time;-' it would not aid the attaching creditor in our case, because the facts are not set out so as to enable the coiirS to see that the attachment did issue in reasonable- time. Th^ DECEMBER TERM, 1860. Henington v. The Schooner, Hugh Chisholm. work was done some time in the year 1857, and the attach- ment issued in May, 1858. AVe are inclined to think this was not in reasonable time, considering the circumstance that the vessel had gone out of the State. In this connection it may be well to dispose of the fourth unggostion that the lien ceases, and the attachment cannot be issued after the vessel has gone out of the jurisdiction of our courts, particularl}', if she passes into the hands of a third person as a purcliaser for valuable consideration. To this the game objections are applicable, as above pointed out in res- pect to reasonable time. The Statute contains no provision, and these woi-ds cannot be added by imjilication, however rea- sonable it may seem to be that such a clause should have been inserted. Cc»nsequently, either the time is unlimited, or it re- stricted to the present, i. e., when the work is done, or the ar- ticles are fui-nished ; so that if the vessel is allowed to leave the port or place, the lien and right to attach cannot be after- wards resorted to. 3. We are of opinion that the latter is the proper construc- tion. Several considerations sustain this conclusion : If the lien must be enforced on the spot, that is, before the vessel leaves the port or place of repairs, &c., the absurdity and injus- tice, which form an inseparable objection to the other con- structions are avoided ; for the provision, "such debt shall be preferred to all other liens, except Mariners wages," is then sensible and is consistent with justice ; because persons having a prior lieu by mortgage, or hypothecation, are benefitted by having the vessel repaired or furnished, so as to enable her to proceed on the vo3'age, as well as the ultimate owners ; and die work may very properly be considered as done for the ben- efit of all who are concerned in her; in fact the very nature of a lien, "preferred to all other liens," by necessary implica- tion must be enforced instanter. By comparing tlie statute of New- York, (Revised Statutes of 1829, pt. 3, ch. 8, tit, 8, sec. 1,) with the statute under con- *idcration^ tJje first section is worded so precisely like the 27 m THE SUPKEME COURT. Hemngtoh v. The Schooner, Hugh Chisholm. sec. of ours, as to show that the one was copied from the oth- er. The second section of the statute of l!^ew York, restricts the lien to twelve days, where the vessel departs from the port of repairs to any other port of the State, and it is to cease when the vessel leaves the State. In place of this, the 28th section of our statnte is substituted, giving the right to issue an attachment, and no restriction as to time, is inserted. It is true, that the statute of another State cannot be used in aid of the construction of ours, by adding to, or taking from its words ; but reference may be made to it for the sake of an in- ference ; and it is, obviously, a fair inference that the restric- tion in respect to time, was not omitted by an oversiglit, but because it was considered unnecessary ; the necessity for it being superseded by the provision allowing an attachment ; which follows, as a matter of course, provided the attachment was required to be issued on the spot, and is a non sequitur if the attachment could be issued at any future indefinite •time. This construction is also sustained by a consideration of the object of the statute, and the mischief to be remedied. The words of the statute are, " any ship, &c., within this State ;" making no distinction between foreign and domestic vessels. In regard to the former, the persons making repairs, &c., had a lien on the vessel for a prescribed time according to tlie gen- eral Maritime law, and the object of the statute was to give this lien a preference over all other liens, except Mariners wa- ges, and to give as a cumulative remedy the right to sue out an attachment against the vessel, which was a quick mode of proceeding in the courts of this State. In regard to the lat- ter, or domestic vessels, which is our case, the general Mari- time law had no application, "as to repairs, &c., in a port in the State to whicli the vessel belongs ; the case is governed altogether by the local law of the State, and no lien is implied, unless to be recognized by that law ;" The General Smith, 4 Wheat, 438 ; Peyroux v. Howard, 7 Peters, 341. The com- mon law principle of lien, in favor of bailees, e. g., common carriers, inn-keepers, tailors, millers, &c., did not apply, for DECEMBER TERM, 1860. Herrington v. The Schooner, Hugh Chisholm. that is founded on a bailment, where the party has the thing in possession, and is allowed to retain it until the charges are paid ; wliereas, one who makes repairs on a vessel, or furnish- es her with provisions, coal, &c., has not the thing in posses- sion, and therefore had no lien according to the local law, and was forced to sue the owner or master, as for a personal debt. So, in regard to domestic vessels, the object of the statute took a wider scope than simply to make a lien which was al- ready recognised by law, preferable to all other liens, and to give a summary remedy, the main purpose being in respect to domestic vessels to create a lien by the local law, by extend- ing to such cases tlie principle of common law, in respect to property which is in possession by bailment ; on the ground that one who furnishes provisions, or i-epairs a vessel, although not in possession, comes witliin the like reason, as an inn kee- per, who feeds a horse, or a tailor who makes or mends a coat, and the remedy is to allow the vessel to be taken by attach- ment, so as to compel payment. So the question is narrowed to this : how far did the common doctrine, in respect to bailees, extend ? For there is no ground to assume that the Legisla- ture intended to go beyond it. The extent of the conmion law doctrine is settled : such bailees have a lien which is "pre- ferred to all other liens," but it must be enforced on the spot. Jones V. Thaiiue, 8 Mod. 172. "By the custom of the realm, if a man lie in an inn one night, the inn-keeper may detain his horse until he be paid for the expenses ; but if he give him credit for that time and let him depart without payment, then he has wai -ed the benefit of that custom b}^ his own con- sent to the departure, and shall never afterwards detain the horse for that expense." The law has been considered settled ever since ; see Leigh's Ni. Pri. sec. 1495, and other text books. So that the object of the statute, and the mischief to be remedied, wliich, according to a well established rule of construction is of great weight in fixing its meaning, (Dwarris on Statutes, 695) show the meaning to be to give a lien which is preferred fo all other liens, with an exception in favor of Mariners wages, (which stands on peculiar grounds,) which 10 m THE SUPREME COURT. Sleight V. Watson. kind of lien, from its nature implies that it sliall be enforced mstanter, consequently the attachment must be issued so as to have the vessel seized before she is allowed to depart from the port 01" place of repairs. This construction obviates all difEculty and complication in which the subject must otherwise be involved. Tiie judgment in the Court below is reversed, and upon the case agreed the proceeding is dismissed. Per Cukiam, Judgment reversed. FRANCES SLEIGHT v. JOSHUA WATSON. ^Vhel■e A sent to B a letter, stating that if B and C wished to hire any ne- groes for the next year, Le would assign as their security^ it was Held that the plaintiff having hired certain slaves to B and C on the faith of this let- ter, A was liable on his refusal to sign a note for the hire, and that B and C having failed to pay at the end of the credit, (having become insolvent) the measure of damages was the price agreed to be paid for the hire. Held further, that no demand on B and G was necessary previously to bring- ing suit. Nor was one necessary to be made on A. Held further, that the plaintiff's having received a note for the hire from B and (.' aftM- .\ s refusal to sign, was no discharge of the latter. This was an action of assumpsit, tried before Dick, J , at the Spring Term, 186 cf Washington Superior Court. The |)hiintitf produced in evidence tiie following paper- wriring, viz : "This is to say if Mr. John T. Phelps and Mr. Jol.'u ]]. Golett should wish to hire anv negroes for the next year, that I will assign as their security for such hire. De- cember 26lh, 1855. Joshua Wat on." This instrument was written at Hilliardstown, in the county of Kash, on the day it bears date, and sent by mail to J. B. Golett. The plaintiff then showed that on the 1st day of January, 1856, she hired to Phelps and Golett three slaves for the en- DECEMBEK TEEM, 1860. H Sleight V. Watson. suiiio^ year, at the price of $495 ; tliat at the time of hiring iiaid shives, the above instrnnient was shown to her, and that she hired the slaves on the fairli of it. In tlie niontli of elannary, Phelps and Golett prepared a bond, of which the following is a copy : "$495. On the first day of January, 1857, we promise to pay Frar)ces Sleight or order four hundred and ninety-live dollars, value received in hire of negro men, Jordan, Nelson and Harry, for the year 1856, and we promise to furnish said negroes with the usual clothing. Witness our hands and seals this 1st of January, 1856. Joun B. Golett, [seal.] JouN T. PiiKLi's, [seal.J' Some time in (he same month, (January) the defendant wrote his name on the back uf this bond, but on the next day. hearing that Plielps had made a deed of trust, he obtained the paper from Golett and erased his name. Afterwards, du- ring the same month, the note was tendered to the plaintiff, who objected to receiving it on account of the erasure of the defendant's name, but on hearing from her son that a gentle- man of the bar had said the defendant was liable, she took it. Golett paid on this bond $195. When the note fell due, it appeared that Phelps and Golett had both become insolvent, and have remained so ever since. William C. Sleight, the agent of plaintiff, testitied that ho told defendaiit before this suit was brought, that neither Phelps or Golett had paid plaintiff, and that he would have to do so ; to which he replied, " plaintiff' must get it by law.'* The defendant contended, 1. That in order to entitle plaintiff to recover, she had to prove a demand for the money on Phelps and Golett. 2. That no sufficient demand on the defendant had been made. 3. That the note given by Thelps and Golett should have been tendered the defendant before suit. 4. That plaintiff had not shown that she had callcil on tlie defendant to sign the paper as surety for Phelps and Golett, and that he refused. 12 £K THE SUPREME COURT. Sleight V. Watson. 5. That there was no consideration for the promise sued on. 6. That the taking of the bond with the name of the de- fendant erased, discharged the defendant. These objections were over-ruled b^^ the Court, and the de- fendant excepted. Yerdict and judgment for the plaintiif, and appeal by the defendant. //. A. Gilliam and Ilines, for the jjlaiutiff. Winston, Jr., for the defendant. Manly, J. The letter of the defendant sent to John B. Golett, under date of 26th of December, 1855, was a general let- ter of credit in behalf of Plielps and Golett for any slaves they might think proper to hire for the year 1856. It is similar to a well-understood commercial paper, whereby the person w^io gives it, is bound to each and every one who may trade with the person accredited, upon the faith of it. The specilic i>n- dertaking, thi-ough this paper, is to sign with Phelps and Golett for any slaves they might hire ; which is, in substance, an undertaking, on the part of Watson, to make himself re- sponsible for such hire, by executing with Phelps and Golett a promissory note, or notes, for the same. The case discloses that the slaves, in point of fact, were hired from the plaintiff by Phelps and Golett, and delivered to them upon the faith of this paper, and afterwards, wdien the note was presented for the signature of Watson, he declined executing it. This was a breach of his undertaking, and we think he is responsi- ble in this action for the damages. It is further stated, as c fact in the case, that at tlie time the hire fell due, viz., on the 1st of January, 1857, Phelps and Golett were both insolvent, and have so continued ever since ; and upon this state of the case, it is clear the measure of dam- ages is the amount of the sum agreed to be paid by Phelps and Golett for the hire — less the amount actually paid by the latter. This balance was the amount for which the recovery was effected, and wq see no error in it. DECEMBER TERM, 1860. 13 Sleight V. Watson. The first objection to the recovery, raised by the defendant is, that a demand ought to have been made of Phelps and Goleti before suit was brought. This, we think, untenable. Defendant violated his engagement, and was in default when he refused to sign^ and thus secure the stipulated hire. The measure of the injury, arising from this default, was full and complete, when the hirers became insolvent and unable to pay, within the period of credit. It was not necessary, either as a preliminary to the suit, or as proof of the amount of dam- ages, to show a demand and refusal. The second objection is also untenable. No demand of the defendant, Watson, was requisite. A demand or notice of claim is requisite where the party stands in a fiduciary rela- tion to another, and, in that capacity, has the money or pro- perty of the other, in some cases of public officers, and be- tween co-sureties, when the relation is changed by the pay- ment of the debt by one ; but no one of these relations, nor an}'- similar one, subsists between the parties here. The de- fendant is bound to keep in mind his default, of which he had full cognizance, and has no right to complain that he has not been reminded of it. But if a demand, in such a case, were requisite, it seems to be fully established in tliis case b^^ tlie proofs. The agent of the plaintifip called upon the defendant and informed him that the principals had not paid the debt, and he, Watson, would have it to do. This is all that is necessary to constitute a de- mand. We do not think there is any thing in the position assumed in the third objection. Watson was not a party to the note, and could not entitle himself to its possession as a matter of legal right by a satisfaction of it. A tender, therefore, was not obligatory, and after the answer made by the defendant to the demand, would have been wholly impertinent and useless. The proofs in the cause leave the fourth objection without any ground to rest on. The note was presented for the de- fendant's signature and he refused to give it, for the specific 14 IN THE SUPREME COURT. Bond V. Hall. reason that one of tlie pi'incipals had made a deed of trust. The objection is not that the application did not come from the proper source. He is willing to sign, and does sign, and only takes the paper back and erases it when he heard that Phelps had made a deed. Under the circumstances, the prin- cipal obligors to the contract of hiring, may well be regarded as the agent of the others, to get the note promised and hand it over to the obligee. At any rate, Watson, upon that occa- sion, recognised him as the agent, and it is not proper for him now to dispute it. He dealt with him as such. The principles involved in the other two objections cannot be maintained. The right to the use of the slaves for a year was parted with by the plaintiff, upon the faith of the defend- ant's promise, and this constituted a sufficient consideration for the promise ; no other was necessary. The taking of the note afterwards in the condition in wliich it was, did not waive the legal effect of the promise to sign it — especially as it«was accepted with an express repudiation of any such in- ference. The ])laintiff was informed by her agent that the defendant would be still bound, and thereupon, and with that miderstanding, she took the note. This amounts to no dis- charge of the defendant's liability. There is no error. Pee Curiam, Judgment affirmed. A. H. BOND, Administrahr, v. J. H. HALL. To leave a question to the jury, without some evidence bearing upon the mat- ter, and upon which they might base their verdict, is error. The presentment and collection of an order by one to whom it was not en- dorsed, prima facie, makes the collector a debtor to the payee. This was an action of assumpsit, tried before Howard, J., at the last Fall Term, of Chowan Superior Court. Thei'e were several exceptions to the ruling of his Honor DECEMBER TERM, 1860. 15 Bond V. Hall. in tliis case, but as only one, to wit, the 4th, stated in the bill, is considered by this Conrt, the others are omitted. That excep- tion is as follows : "That there was no evidence to rebnt the pre- sumption that the order collected by plaintifTs intestate, was etill unaccounted for." The plaintift'had made out a J'>?•^ma facie case by the evidence, for a considerable sum of money, all of which, except $59, was met by evidence, that the par- ties had had a settlement, and the plaintiff's intestate had ta- ken a note for the amount referred to b}' the proof. As to the overplus, it was attempted to be met by the evidence of one Skinner. He testilied that in the fall of 1859, the plain- tiff's intestate, Clayton, presented to him, for acceptance, an order drawn on hini by one Rogerson, in favor of the defen- dant. Hall, for $80, that he accepted the order, and about the 1st of January, 18(50. he called at tiie store of said Clayton, when tlic same order was pi-odiiced, and he paid it to him, (Clayton); tliat this order had never been endorsed b}^ the defendant. Ilis Honor, in res})ect to this order, charged that it not having been endorsed, and having been presented and collected by the plaintiff's intestate, the law presumed that he was acting as agent of the defendant, the payee, and, there- fore, they must allow it, and find for the defendant, unless the evidence in the case satisfied them that the plaintiff's intes- tate had already accounted for it. This was excepted to, as above stated. Verdict for the plaintiff, and on judgment being rendered, the defendant appealed. H. A. Gilliam, for the plaintifl:'. Mines and Johnson, for the defendant. Manly, J. In considering this case, we have confined our ■attention to a single exception, the fourth in order, which ob- jects to the instruction of the Conrt below, in respect to the money paid on the order for $80. The order was drawn by one Rogerson, in favor of Hall, upon T. S. Skinner, and t}i« latter lestified that it was presented unindorsed to liira, by the 16 IN THE SUPKEME COURT. Hockaday v. Parker. intestate, A. W. Clayton, and that he paid it to the said Clay- ton. This raised lyrimafacie^ an indebtraent to that amount from Clayton to Ilall. We have examined the statement of proofs in this case, and do not find any evidence of a payment — of a credit in account, or other settlement of the same. When his Honor, therefore, submitted it to the jury to say whether it had, or had not been accounted for, it was error. To leave a question of fact to the jury, without some evidence bearing upon the matter, and upon which they might base their verdict, is to invite them to wander into the field of con- jecture, and to act upon the uncertain suggestions there met with. The case was admitted to turn, in one aspect of it, upon the point whether the money received by Clayton, upon the draft, payable to Hall, was ever accounted for by Clayton with Hall, and this being left to the jury, without evidence, vitiates the finding. Cobb v. Fogleman^ 1 Ired. 444 ; Sutton v. Madre^ 2 Jones, 320. There must be a venire de novo. Per Curiam, Judgment reversed. BENNET HOCKADAY, JidmV. of NORMAN MATTHEWS v. ANSON PARKER. Where the land of one of two sureties of a third person was sold under exe- cution for the debt, and the other surety bid it off, it was Held that an agi-eement for the owner of the land to pay the debt, and take an assign- ment of the bid to him, was not affected by the statute of frauds. This was an action of assumpsit, tried before French, J., at the last Fall Term of Harnett Superior Court. The plaintiff declared for money paid by his intestate as co-surety with defendant for one Strickland. A judgment had been obtained on the debt against Strickland and the DECEMBER TERM, 1860. 17 Hockaday v. Parker. two sureties, Matthews and Parker, (plaintiff's intestate and the defendant) and execution thereon was levied on Mat- thews' land, which was sold and bid off by Parker and one Stewart. They, after this, came to an agreement, that Mat- thews should take the whole debt on himself and should sat- isfy the execution ; in consideration of which understanding, they assigned their bid for his land to him. The counsel for the plaintiff requested the Court to charge the jury : 1. That tiie agreement of the intestate (Matthews) to satis- fy the execution upon the assignment of the bid of Stewart and the defendant, not being reduced to writing, was void under the statute of frauds. The Court declined to give this instruction. 2. The plaintiff then asked his Honor to instruct the jury, that if they believed the evidence for the defendant, there was combination and fraud on the part of Stewart and the defend- ant, and that the plaintiff' could not recover. 3. That if the jury believed that the promise of the plaintiff" was merely to satisfy the execution and not to discharge the defendant from his liabilit}^ as surety, the plaintiff was enti- tled to recovei-. The last two instructions the Court declined giving, for the reason, that there was no evidence to sustain them. Plain- tifl''s counsel excepted. Yerdict for defendant. Judgment and appeal by plaintiff. JVeil McKay ^ for the i)laintiff. No counsel appeared for the defendant in tiiis Court. Manly, J. An analysis and proper understanding of the facts of this case, will show, as we conceive, that the instruc- tion first asked for by the plaintiff, is based upon an erroneous view of their substance and effect. The engagement of the plaintift''s intestate to pay the whole judgment against himself and Parker, as the sureties of Strickland, is not a promise to pay the debt of another, but an undertaking on the part of 2 18 IN THE SUPREME COURT. Hockaday v. Parker. Matthews, for a consideration, to make that debt his own in respect of his co-sureties. It was competent for Matthews to make this arrangement, which was simply a mode of making payment for the assign- ment of the right to call for a title to the land. His pro- mise to pay a specific sura to Parker for the right, would have been obligatory as a promise based npon a sufficient consideration moving from one party to the other. It does not change the nature or binding force of the promise, that it is to extinguish a debt which Parker owes to another. It is still a mode by which Matthews pays his own debt, and the promise, on his part, is simpl_y to that purport and effect. Tlie provision, therefore, of the Revised Code, (chap. 50, sec. 15) opposes no obstacle to the legal eiiicacy of the intestate's agreement. Nor does the eleventh section stand in the way ; for the Court has repeatedly held tluit an assignment of a bid at a sale of lands, under a Ji. fa., is valid, without writing. The view which we have thus taken of the promise of Mat- thews, disposes of the merits of the case in respect of all redress in a court of law. The promise of Matthews being to pay hig own debt, it follows when he paid it, it was not money paid as the co-surety of Parker and to his use, for which the stat- ute gives the remedy, at law. Revised Code, ch. 110, sec. 2. The substance of the Court's instruction, therefore, was cor-^ rect, viz., that upon the evidence, the plaintiff could not re- cover. The dubious aspect of the case has arisen out of the unex- plained and surprising folly of a man, who being able to pay, suffers his land to be sold at a sacrifice and immediately buys it back at a great advance. We are unable to understand this from any thing stated in the case. Whether it may not have been effected by combination and fraud between Parker and Stewart and others, as suggested in the second prayer for iu; struction, we cannot say. Such fraud might account for it, but we find no proof to sustain the suggestion. The instruction asked for, therefore, in the second place, was properly refused by the Court, because it was hypothetical DECEMBER TERM, 1860. 19 State V. Peter. and without evidence to sustain it. If there had been evi- dence, the remedy would probably have been held to be in another forum ; where the parties might be regarded as still standing in the relation of co-sureties, notwithstanding the agreement and promise to the contrary. The instruction asked for in the third place, stands upon the same footing with the last, resting upon no foundation in the ])roofs. It was, also, properly refused by the Court. There is no ei'ror. Per Curiam, Judgment affirmed. STATE V. PETER, a Slave. The inference arising against the truth of a charge of rape, from a long silence on the part of the female, is not a presumption amounting to a rule of law, but is a matter of fact, to be passed on by the jury. The word, "person," in the 5th section of the 34 ch. of the Revised Code, (punishmg rape) includes slaves, free negroes and free persons of color, as well as white men. • Indictment for a rape, tried before French, J., at the last Term of New Hanover Superior Court. The rape was alleged to have been committed by the defen- dant, who is a slave, on tlie body of ISTarcissa Craig. There was also a count, for an assault witli an intent to commit a rape. JVarcissa Craig sw^ore, that about the first of the preceding May, about daylight in the morning, the prisoner came to her room and had carnal knowledge of her person, forcibly, and against her will ; that she had on her night clothes at the time, and they were made bloody by the act of the prisoner ; that her father went to Smithville before day, and she was left alone ; that she told no one of it until about two weeks after- \vard8, and then she told her aunt, Mrs. Spiver; that her fath- 20 IN THE STTPEEME COUET. State V. Peter. er returned home the next day after the offense was committed, and she saw him every day for two or three weeks ; that when the prisoner was committing the act, she cried aloud ; that her cousin, Mrs. Howard, resided one or two hundred yards dis- tant from her father's house, and her aunt, Mrs. Spiver, about half a mile ; that she and Mrs. Howard were not on friendly terms ; that Peter had a wife at Mrs. Howard's ; that she did not like him nor his wife, because they were sancy to her ; that four or five days after the offence was committed, Peter came to the house where she and her father and brother were, and sitting down familiary in the piazza, had a conversation with her father and brother; that she did not tell her father, because she was afraid and ashamed to do so ; that her lather was drinking when he came home ; that she had never had any monthly sickness. Mrs. Spiver testified that !Narcissa came to her house about the middle of May, and told her of the offense committed by the prisoner, as she had narrated it before the court ; that she showed her, her night clothes, and they were bloody ; she stated further, that the witness, !Narcissa, had never had her monthly sickness. Joseph N. Burroughs stated, that he arrested the prisoner on the 6th of June, and tied him in his kitchen ; that he over- heard a conversation between the prisoner and a negro woman, in which the latter said to the former, "what did you do it for ? did you not know it would carry you to the gallows ?" to which the prisoner replied, " I am sorry for it." There was some other testimony, not necessary to be stated. The counsel for the defendant, insisted that the witness, Nar- cissa Craig, was not to be believed ; that the act, if committed at all by the prisoner, was with her consent, and that her mo- tive in charging the prisoner, was to conceal her disgrace. The Court charged the jury, that if Narcissa was to be be- lieved, the prisoner was guilty ; and they might enquire what motive she had to charge such an offence to have been committed on her person by a slave, if it were not true. The Court further charged the jury, that in passing on the credi- DECEMBER TERM, 1860. 21 State V. Peter. bility of the witness, they should take into consideration the length of time between the alleged commission of the oifence and the accusation against the prisoner ; that within four or five days after the time stated by the witness, the prisoner went to the house of the witness' father, and there conversed familiarly with the father and brother in her presence, and that the place where the offense was alleged to have been com- mitted, was within one or two hundred yards of Mrs. Howard's house, where, also, the wife of the prisoner resided ; that in passing upon the motive which the girl had to make the ac- cusation, and as to the allegation that she did so to conceal her shame, they would enquire what evidence there was that she would have been disgraced if she had not made the ac- cusation. To tiiis charge, the prisoner's counsel excepted. He also moved in arrest of judgment on the same grounds relied on in this Court. Verdict, guilty. Judgment and appeal by the prisoner. Attorney General^ for the State. Baker^ for the defendant. Pearson, C. J. The fact that the witness, Narcissa, did not make known or complain of the outrage which had been perpetrated on her, for two weeks, was presented to the jury by his Honor, as a circumstance which affected her credibil- ity. This portion of tiie charge is excepted to, on the ground, that he ought to have gone further, and told the jury, that her not making an earlier disclosure, raised a 'presumption of falsehood, to be acted on by the jury in the absence of any proof to rebut it. It is not a rule of law that silence, under such circumstan- ces, raises a presumption that the witness has sworn falsely. The passages in the books, to which reference was made on the ai'gument, use the word " presumption," not as a rule of law, but an inference of fact, and treat of silence^ as a circum- stance tending strongly to impeach the credibility of the wit- ness ; oa the ground that a forcible violation of her person so 22 m THE SUPEEME COUKT. State V. Peter. outrages the female instinct, that a woman, not onlj will make an ontcry for aid at the time, but will instantly, and involuntarily, after its perpetration, seek some one to whom she can make kiiown the injury and give vent to her feelings. The want of this demonstration of feeling or "involuntary outburst," is treated of as a circumstance tending to show C07isent on her part ; but it is no where held that this female instinct is so strong and unerring as to have been made the foundation of a rule of law, as distinguished from a rule in respect to evidence, and the weight to which it is entitled ; which is a matter for the jury. So that, although we think his Honor would have been sustained by the authorities in presenting this cii'cnmstance to the jury more forcibly than he did, still the omission is not an error in law which thi& Court has the power to review. The motion, in arrest of judgment, cannot be sustained. It is based upon the idea that the word " person" in the statute, in respect to the crime of rape, Rev. Code, chap. 34, sec. 5, does not embrace a slave, and that tlie case of slaves is only provided for in the statute. Rev. Code, chap. 107, section 44^ which enacts, " Any slave or free negro, or free person of color, convicted by due course of law, of an assault with an intent to commit a rape upon the body of a white female> shall suffer death." If tliis position was granted, the conclu- sion would not follow ; for still, it would seem, that a verdict finding a slave guilty of a rape upon the body of a white fe- male, would authoi'ise a judgment; on the ground that a rape must of necessity include an assault with an intent to commit it ; the greater includes the less. But this Court is of opinion that the word "-person" in chapter 34, section 5, does embrace a slave. Tlie word " per- son" and the word " man," in their ordinary signification, include slaves, fj'ee negroes and fi-ee persons of color, as well as white men, and are to be taken in that sense in construing statutes, unless there is something showing that it was not the intention of the law-makers to use these words in their ordina- ry signification^ and that it wasnot intended to apply toslavesw DECEMBER TERM, ISeO. 23 State V. Peter. It is said that the intention not to include slaves, in our statute, is to be inferred from the fact, that by the other, even assault with an intent, subjects the slave to the penalty of death, and it was a matter of supererogation to include him also in the former. This argument proves too much; for it excludes free negroes and free persons of color, as well as slaves, from the operation of the former statute, and it is a 7ion sequitur, that the latter statute makes the former a matter of superero- gation. It is clear the intention was to denounce the pen- alty of death against any person, no matter to which of the classes lie belonged, who was guilty of rape, and in respect to the last tiirce classes, the intention was to go further, and to denonnce tlic penalty of death against all who even commit- ted an assault on a white female with an intent to ravish her. That it was the intention to include a slave by the word, "person," in the 5th section, is manifest from the sections which immediately precede and follow it: section 4: " if any person shall castrate, &c. :" section 7 : "if any person shall burn the state-house, any court-house, &c. : section 8 : "if any person shall enter any dwelling-house with intent, efec," " he shall suffer death." Can it be seriously contended that, as our statute law now stands, a slave may commit any and allof these deeds, without being guilty of a criminal offense? The counsel for the prisoner rested his position, mainly, on the authority of Totn^s case, Busbee's Rep. 214. It is there decided that the word, "person," as used in the act of 1819, Rev. Code, chap. 34, sec. 60, forbidding any person passing counterfeit bank bills, did not embrace a slave. The decision is put on the authority of State v. Small, June Term, 1844. That was an indictment under the statute, Rev. Statutes, ch. 34, sec. 46, which provides that " when any man shall take a woman into his house, or a looman a man," " and bed and cohabit together," and it was held that from the subject mat- ter, and from the punishment, to wit, a fine not exceeding $200, it was to be inferred that the law-makers did not use the words " man" and " woman" in their ordinary sense ; for if so, all of our slaves could be indicted, as none of thera 24 m THE SUPKEME COUKT. State V. Peter. are married according to law, and there is no law by which they can be married, and the idea of intending to fine a slave was absurd ; as slaves have no property. Toii'Cs case was governed by this antliorit}'', and it was con- ceived that the reasoning on which it was decided applied with full force, taken in connection with the sections which immediately precede and follow it, providing against forgery and making counterfeit bank bills, which slaves are not, usu- ally, able to do, and in which sections the same word, "per- son," is used. From the two cases, this legal principle may be deduced : Where a statute uses the word " man" or the word " person" in creating an offense, it embraces slaves as well as white persons, and all others, unless from the nature of the subject matter and the punishment imposed, it appears not to have been the intention to embrace slaves. It is true, the Chief Justice who delivered the opinion, in arguing the question, uses the expression "in carrying out this humane policy the courts, in putting a construction upon penal statutes, have adopted the principle that slaves are not embraced un- less mentioned ; they are not embraced for punishment, but they are for protection. This principle was declared by the Court in the case of Sinall, June Term, 1844." It is obvious the learned Judge had in his mind tlie principle that, by our law, slaves are treated as " property," civiliter, but are treat- ed as persons cy'iminaliter, and it was not his intention to lay down any rule of construction, other than that established by the case oi State v. S7nall^ and although his words may seem to go further, the correct principle is that stated above as de- ducible from the two cases. There is no error. Pek Curiam, Judgment affirmed. DECEMBER TERM, 1860. 25 State V. Clara. STATE V. CLARA, a Slave. A judge cannot be required to give instructions to the jury upon an assump- tion of facts, not supported by evidence. Where there are several possibilities of fact, different from the inference in- tended to be drawn from the evidence offered, a Judge is not required to note one such possibility, and specifically bring it to the attention of the jury. Indictment for murder, tried before French, J., at the last Fall Term of Montgomery Superior Court. The defendant in tliis case was indicted M'ith her son Jim, a slave, as an accessory before the fact, for killing their mas- ter, John E. Chambers ; and they were pnt on trial together. Jim was convicted, and as to the defendant, the evidence of a slave, hy the name of /Sarah was, that on the Snnday morn- ing before the murder, (which was on Wednesday night,) the prisoner who belonged to the deceased and usually cooked for him, looked into a side-board drawer for bullets, but did not find any; she then told the witness, that if she would get some bullets, or if she could not get bullets, if she would get some caps and lead for S07n6 j^o'son., she would be well paid for it; that witness asked the prisoner what she wanted with these things — to which she answered, "never mind ; no harm." That on Saturday night of the same da}'', Jim, the principal in the murder, asked her for the caps, and asked her if his moth- er did not tell her to get the caps and lead for him. The wit- ness replied, that Clara did not call any names. Witness then told Jim there were no caps in the house ; to which Jim said, "hush your lies, for he saw some in Mass. Roberts room, on the mantle-piece." That witness got the caps and gave them to Jerry, another slave of the deceased, to give to Jim. That on Monday night following, she gave Jim a piece of lead. That on Tuesday morning following, (the day before the mur- der,) the prisoner asked witness if she liad given the things to Jim ; to which she returned answer that she had. It was fur- 26 m THE SUPREME COURT. State V. Clara. ther in evidence, that on the Monday morning before the mur- der, the prisoner, Clara, said to a witness, that "she felt sorry for her master — that he was going to die soon, and asked wit- ness if she did not hear the lien crow in the black-jack, every morning when he came out." The witness said she had not heard it. It was further in evidence that after the murder had been committed, the prisoner said to the witness, if Jim did kill his master, or had it done, it was no harm; for it was life for life ; and she had often heard that when it was life for life, it was no harm. That Jim was her child, and she would not speak against liitn. This witness asked her what she wanted with tiie caps and lead ? to which she answered, never tnind^ she hneio. There was evidence that the deceased died of gun shot- wounds ; and a phjsician stated that the wound was made by shot of tlie size of squirrel shot. There vras evidence that the deceased was found with a bag drawn over his head ; that the bag was bloody, and that on Sunday week after the murder, the prisoner was seen washing tlie bag. The Court, after giving instructions applicable to the case of Jim, to which there were no exceptions, charged the jury that if they were satisfied from the testimony, under the rules laid down, that Jim was guilty of the murder of the deceased, and tliat the prisoner not being present when the act was done, procured, counselled, commanded or advised Jim to do it, she would be guilty under this indictment; but, that before they could convict her, they should be satisfied beyond a reasona- ble doubt, that Jim committed the murder ; and that before rlie act was done, Clara procured, counselled, commanded or advised Jim to do the act. The counsel for the prisoner then asked the Court to instruct the jury, that if they believed Clara's design was to furnish the amunition to kill meat, or for any unlawful purpose other than the killing of the deceased, that upon this evidence they could not be warranted in convicting Clara., DECEMBER TERM, 1860. 2T State V. Clara. The Court declined to give the instruction prayed for, and the counsel for the defendant excepted. Verdict, guilty. Judgment and appeal. Attorney General,, for the State. Blackmer,, for the defendant. Manly, J. The instructions asked for were properly refus- ed. There was evidence to satisf}' llie jury that the homicide was inflicted by gun-shot wounds, and by tlie hands of Jim,, tiie son of Clara. Assuming tliat lead and gun-caps were fur- nished by the directions of Clara, there is a ])urpose for fur- nishing them disclosed by the use immediately made of such articles by Jim. There was no evidence tliat he used such ammunition for any other purpose, and the instruction asked for, therefore, had no basis to rest upon in tlie proofs. It in- volved an unsupported assumption of fact. There are possibilities different tVom the inference intended to be drawn, which surround every evidentiary fact in a cause ; but for a Judge to note one such possibility, and specially call it to the attention of tlie jury, would be giving it weight to which it is not entitled, and inviting the }\\vy to draw from the fields of conjecture the material for making up a verdict. The instruction asked for in any sense whicii may be ascrib- ed to it was hypothetical, and tlierefore improper ; but if the language in which the prayer is couclied be considered, anoth- er objection to the specific prayer will be apparent. Interpre- ting the language used, viz: "upon this evidence the jury would not be warranted in convicting Clara;" to mean not only tlie evidence assumed, and noted in the hypothesis, but also all other tacts in the cause, bearing upon her guilt, it is clear the instruction ought not to have been given. There was other evidence besides Chira's agency in pi'ocuring amu- iiition, and if that liad been cliiainated from the pi-oofs alto- gether, tiiere was still evidence upon wliich the jury ought to have been permitted to pass. Had the Judge, therefoi-e, given the instruction asked, he would have superseded the jury in 28 IN THE SUPREME COURT. Davis V. Golston. their proper province — a province made exclusively their own by the legislation of the State. Rev. Code, ch. 31, sec. 130. Upon the whole, the instruction asked for ought not to have been given ; and the entire record being considered by us, we are of opinion there is no error in the same. Pee Curiam, Judgment affirmed. JOHN Z. DAVIS V. G. W. GOLSTON, Administrator. According to the general understanding of the profession, where parties have gone into trial without a formal declaration, the plaintiff is to be taken to have relied on one suited to the case made by the proof. Where an obligation was signed and sealed by one of two partners and sign- ed, only, by the other, it was Held to be the deed of the former, and the simple contract only of the other, and that the latter might be sued in as- sumpsit alone on this contract. This was an action of assumpsit, tried before Feench, J., at the last Fall Term of Harnett Superior Court. The plaintifi' declared on the following promissory note: " $545. On or before 1st of January, 1856, we, or either of us, promise to pay John Z. Davis or order, the sum of five hundred and forly-five dollars, for the hire of the following negroes, viz : Buck, Samp, Bockra and Charles, for the pre- sent year ; and we furtlier promise to clothe them and furnish them with shoes, huts, and four blankets, and pay doctors' bills. This 2d of January, 1855. R. C. Belden, [seal.'] R. W. Palmee." There were also memoranda of counts for the hires of slaves, and on a special promise to pay, but no formal declaration was filed in the Court below. The plaintifi" having proved the execution of the instrument DECEMBER TERM, 1860. 29 Davis V. Golston. declared on, the defendant offered evidence to show that this paper-writing was signed by the defendant, Golston's intes- tate, Robert W. Palmer, in blank, and by him delivered' to Belden, to be used in hiring slaves for the two, and that they were partners. That Belden hired the plaintiff's slaves and filled up the paper-writing, so as to constitute the instrument above set out ; his own name having affixed to it a seal. The defendant's counsel requested the Conrt to charge the jur3% that if they believed from the evidence that Belden and the intestate were partners, and that the paper-writing was signed and sealed by Belden after it was filled up, then, the simple contract of the intestate was merged in the bond made by Belden, and tliat the plaintiff could not recover in tliis ac- tion. Also, that the defendant being sued on the individual liability of the intestate, and the proof being that Belden and tlie intestate were partners and jointly liable, that the plaintifi' could not recover on account of the variance. The Court declined giving the instruction asked, and the defendant's counsel excepted. Verdict for the plaintiff. Judgment and appeal by the defendant. Strange^ for the plaintiff. Neil McKay, for the defendant. Battlk, J. The 84th section of the 31st chapter of the Revised Code, whicli was originally taken from the act of 1797, (ch. 475, sec. 2, of the Revised Code of 1820,) declares that " in all cases of joint obligations or assumptions of co-part- ners in trade or otiicrs, suits may be brought and prosecuted on tlie same against all or any number of the persons making such obligations, assumptions, or agreements." According, then, to tlic express terms of this enactment, one of two or more joint obligors or partners may be sued alone, and, of course, the declaration, in the action, may be so drawn as to be supported b}^ the proof, which must necessarily be offered. In the present case no formal declaration was filed, and, ac- 30 m THE SUPREME COURT. Davis V. Golston. cording to the general understanding of the profession, the plaintiff is to be taken to have relied upon one suited to his case as established bj his testimony. The objection, then, that there was npon the trial a vari- ance between the proof and tlie declaration, is not well found- ed. From the copy of the instrument, upon which the suit was brought, it appears that it was signed and sealed by Bel- den, but only signed by the defendant's intestate, Palmer. There can be no doubt that one partner may bind himself by a seal, if he intended to do so, though he cannot so bind the firm, unless he has authority, under seal, for that purpose ; Fisher v. Pender, 7 Jones' Rep. 483 ; Elliott v. Davis, ^Bos. and Pul. 338. It is equally clear, we think, that if an instrument be sign- ed and sealed by one partnei', and signed only by another, it will be the deed of the first, and the simple contract only of the second. See Green v. Thornton, 4 Jones 230. There is no more inconsistency in such a case, than there is in hold- ing that an executory agreement between two persons if seal- ed by one, and only signed by the other, Avill be the covenant of the first party, and the simple contract of the second. The latter case is well settled, and upon a breach of the agree- ment, one of the parties would have to be sued in an action of covenant and the otlier in assumpsit ; Yarhrough v. Mon- day, 3 Dev. 420 ; Kent v. Rohinson, 4 Jones 629 ; 1 Chit, PI. 119. Pek Curiam, Judgment affirmed-i DECEMBER TERM, 1860. 3J Covington v. Buie. THOMAS J. COVINGTON v. ARCHIBALD BUIE, Executor. A receipt pigned by a shcrifl'for a sum of monoy, "to be applied to the pay- ment of a judgment," obtained against the defendant at a previous term of a court of the county in which the defendant lived, and of which the maker of such receipt was slierifF at the time, is no evidence that an execution Avas in his hands when the money was paid to him. Tins was a scire facias to revive a judgment, tried before Saunders, J., at the last Term of Riclimond Superior Court. The material question arose upon the plea of payment* Tlic defendant's testatrix lived in Riclimond county, and had paid the amount of the judgment in question, to one William Buchanan then the sheriff of Richmond county, to whom an execution would have oixlinaril}' issued, had one been put in force, who gave Jier the following I'cceipt : "Received of Christian J). Calhouno three hundred dollars and thirt_y cents, to be ai>plied to the payment of a judgment in the Superior Court of Richmond, in the suit of Thos. J. Covington against her," dated March 17th, 1857. Tiiis money was not paid to the plaintijff. Tliere was no evidence that an execution had issued to the sheriff returnable to the next term after the re- ceipt, but the defendant's counsel insisted that that fact was inferrible from the receipt itself, and called on the Court so to charge the jury ; but his Honor declined giving such instruc- tion, and instructed them that there was no evidence before them that the sheriff had such an authority. The defendant's counsel excepted. Verdict and judgment for plaintiff, and appeal by the de- fendant, Ashe, for the plaintiff. Leitch, for the defendant. Battle, J. The plea of paj'mcnt being a plea by way of confession and avoidance, the burden of tlie proof, in support of it, was upon the defendant. He, accordingly, for the pur- 32 IN THE SUPREME COURT. Crump V. McKay. pose of showing that the judgment in question had been paid, introduced the receipt of one Buclianan, who was the sheriff to whom a writ of fieri facias would liave been properly di- rected. A payment to him, however, availed nothing, unless at the time when he received the money, he was authorised to do so by virtue of a Jieri facias, commanding him to levy it ; State v. Long, 8 Ired. 415 ; Ellis v. Long, Ibid. 513 ; Mills V. Allen, 7 Jones, 564. The question, then, was nar- rowed down to tlie point, whether the receipt afforded any evidence that tlie sheriff had the writ of execution in his hands when the money was paid to him. We agree wutli his Honor in the Court below, that it did not. It does not pur- port that the amount ])aid was in satisfaction of an execution, but that he, the sheriff, received it " to be applied to the pay- ment of a judgment," &c. These terms exclude the idea that he then had any execution in his hands, and shows that the defendant had failed to offer any testimon}^ which the Court could submit to the jury, as tending to support his plea. The testimony introduced by the plaintiff being only of a rebutting character, it is, of course, unnecessary to notice it in an enquiry, whether any evidence had been offered by the defendant in support of an issue, the affirmative of which, he was bound to sustain. For, if he had offered anj^ such testi- mony, the jury must necessaril}^ have been called upon to' de- cide between it and the opposing testimony of the plaintiff. Per Curiam, Judgment affirmed. SOLOMON CRUMP v. WILLIAM J. McKAY. In an action against a ferryman for negligently carrying plaintiff's Avife across his ferry, whereby she was injured, it is not necessary that the wife should be made a party plaintiff. DECEJSkCBER TERM, Iseo.L 33: Crump iH McKay. AuTioN on the cask, tried before EitExcii, J*,, at the last Fall Term of Richmond Superior Gdurt. The declaration was in case for negligcnsc in the defendant's- ferryman, whereby plaintiff's wife and cliikl were thrown into the Cape Fear river from the defendant's boat, and injured. The Court intimating an opinion that the action could not be sustained without making the wife a party plaintiff", the plaintiff submitted to a nonsuit and appealed. No counsel appeared for the plaintiff" in this Court. , Strmuje, for the defendant. Pearson, C. J. If: one slanders a married won>an or com- mits an assault and battery upon.lver, the action for injuring her must bC' in the name of husband and wife, although in the latter instance if there be any>(iamage besides the pain suf- fered by the wife, as a loss of service, or an inj.iiry to clothes, or medical bills, the husband may sue alone aad allege spe- cial damage. So if one drive iiis carriage so negligently, as to run against a married M'oman^ in an action for tlie po^rsonal injur}' to her she is a necessary party, and the husband cannot sue alone: without alleging special damage. From the argument made in this Court, we suppose his Hon- or intimated the opinion that the wife was a necessarj'- party in tiiis action, upon the idea that it fell within the principle stated above, an4 did. not have his attention : directed to the fact that tlie ground of the action was not a simple tort, or personal injury to the wife and child of the plaintiff, but orig- inated in contract. The plaintiff", either in person or by his- wife, as an agent, made an agreement with the defendant by which he undertook to carry thcwitij and child of the plain- tiff" across the river with ordinary care. It is assumed by tlie case that the defendant was guilty of negligence, by reason of which the wife and child were thrown into the river. This was a breach of the agreement,, whe-reby an action accrued to 34 m THE SUPREME COURT. Crump V. McKay. the plaintiff, and, as a matter of course, be was entitled to re- cover damages to some amount. The writ is " trespass on the case," and it does not appear b}' the record whether the plaintiff declared in contract or in tort. He had bis election to declare in either form of action. If the declaration was on contract, of course the wife was not a necessary party ; and it is equally clear if the dec- laration was in tort, the wife was not a necessary pai'ty. Thei-e was no more reason for making her a party plaintiff, than for making the child a plaintiff in order to enable the husband and father to recover the damages which he had sustained by reason of the wrongful breach of tlie contract on the part of the defendant. If the defendant had undertaken to carr_y a horse of the plaintiff's across the river, and it was drowned thi-ougii negli- gence, all the authorities show that the plaiutiff might have sued either in contract or in tort for breach of the contract of bailment; and the same doctrine applies to a contract to car- ry persons, which is in the nature of a contract of bailment. The distinction between a case of the kind before us, and those which we presume his Honor bad in view, is this: the one is a simjylc tort without any connection whatever with a contract, and the other, although sued for as a tort, arises ex contraot'U^ and being based on contract, the rules in regard to the non-joinder and mis-joinder of parties in actions, ex con- tractu are applied to it ; for instance, if two purchase a horse jointly, and one of them sue alone in deceit, the non-joinder of tlie other may be taken advantage of by demurrei", motion in arrest of judgment, or writ of error if the matter appears in the record ; if it does not so appear, then by non-suit, be- cause of the variance, M'liich is the rule for the non-joinder of parties plaintiff in actions ex contractu ^ whereas, according to the rule in actions ex delicto., the non-joinder could only be taken advantage of by plea in abatement, and in the absence of such plea, the plaintiff recovers his aliquot part of the dam- ages. Tliis is settled ; see Scott v. Brown, 3 Jones, 5-il. On the same principle it is settled, if one hires a horse to an in- DECEMBER TERM, 1860. 35 Morse v. Nixon. fant, and the horse is injured by neglect, or hy being driven too hard, the action may l)e either in contract or in tort, but the party by bringing an action in tort, cannot avoid the plea of infancy, which is a bar to an action on the contract ; for the tort arises out of a contract and the rule in respect to actions, ex contractu, is a])plied. The distinction Ixitwcen actions for slnijiU torts and torts arising ex contreictn, or " quasi ex contractrC as they are styled in the Ixioks, is so clear and the reason for mnlcing a differ- ence is so obvious, when attention is called to it, that it, seems unnecessary to elaborate the subject. Per Curiam, Judgment reversed, and venire de novo. SOLOMON W. MORSE v. JAMES M. NIXON. VVhere a sow, having a bad reputation for devouring young poultry, (whicli was known to her owner) was seen with a duck in her mouth, and on be- ing chased dropped it, but immediately again ran after it, and was shot by the owner of the duck while in such pursuit, it wao Held that he was justi- fied in so doing. Tins was an action of trespass m et armis, tried before French, J., at the last Fall Terra of Xew Hanover Superior Court. Pleas — General issue — Justification. It was in evidence that a sow, belonging to the plaintiff, was seen with a duck in her mouth in the public road near the residence of the defendant. The witness chased the hog and she dropped it. The hog immediately chased the duck again, and while in hot pursuit the defendant shot her. The defendant offered to prove several acts of " chicken eating" by this hog, but the testimony was ruled out by the Court. There was muck evidence, going to show, that the hog was 36 I-N^ THE SUPREME COURT. Morse v. Nixon. well known in the neighborhood, and bore a general reputa- tion as " a chicken eating hog." It was in evidence that the plaintiff, at the time he purchased this animal, was apprised of her bad character. The Court held that the plea of justification was not sus- tained. Defendant's counsel excepted. Verdict and judgment for plaintiff. Appeal by defendant. Bdker^ for the plaintiff. W. A. Wright^ for the defendant. Battle, J. The facts of this case, as now presented to us in the defendant's bill of exceptions, are materially different from those which were reported on a former trial. Then, there was no evidence that when the defendant shot the plain- tift^'s sow, she was in the act of doing any thing to injure him or his property. Now, it appears that she was in hot pursuit of one of the plaintiff's fowls when he killed her. Then, noth- ing was proved as to the plaintiff's knowledge of the chicken eating propensity of his hog. Now, it seems, that when he purchased her, he was fully apprised of her fierce appetite for young fowls. Upon the facts as reported to have been proved on the former trial, we held that the defendant was not justified in killing the sow as a public nuisance, which any person had a right to abate. The case, we think, is alto- gether different when the sow is turned loose by her owner, with a full knowledge of her evil habits, and is killed by tlie owner of a fowl to save his property from destruction. Be- sides the leading case of Wadhurst v. Damme^ Cro. James 45, which was referred to when this case was before the Court at June Term, 1859, (see 6 Jones 293,) there is one reported in 9 Johnson, 232, which is very strong in favor of the de- fendant's plea of justification. It is the case of Leonard v. Wilkins^ in which the plaintiff sued the defendant for shoot- ing his dog. Upon not guilty pleaded, it appeared that the plaintiff's dog was running with a fowl in his mouth, on the land of the defendant, when the latter fired at and killed him. DECEMBER TERM, 1860. 37 Morse v. Nixon. It was testified by several witnesses that the same dog had worried and injured their fowls and geese, and that there was an alarm in the neighborhood respecting mad dogs. The jury found a verdict against the plaintiff, and thereupon he was adjudged to pay the costs. The Court consisting of Kent, C. J., and Thompson, Spencer, Van Ness and Yates, Judges, approved the verdict and judgment saying: "The verdict below was not against law. The dog was on the land of the defendant in the act of destrGying a fowl, and the de- fendant was justified in killing him in like manner as if he was chasing and killing sheep, deer, calves, or other reclaim- •ed and useful animals. This principle has been frequently and solemnly determined, (Cro. Jae. 45, 3 Lev. 25). It was for the jury to determine whether the killing was justified by the necessity of the case and as requisite to preserve the fowl; and the fowl being on the land of the defendant, was enough, without showing property in the fowl." The duck, in the case before us, being in the public road, was not necessarily on the land of the defendant, but it was near his residence, and it may be inferred that it belonged to him, and if so, he had a right to kill the hog, as, under like circumstances, he would have had a right to kill a dog, if such killing were necessary to the pro- tection of his fowl. The knowledge which the plaintiff had of the bad character of his sow ought to have induced him to keep her up, and the damage which he sustained in conse- -quence of not having done so, was caused by his own default, and was, therefore, damtium absqiie iQijuria. It is to be regretted that the verdict was not taken, subject to the question of law, so as to have enabled us to put an end, by our judgment, to a litigation, the expense of which, must '^e greatly disproportioEed to the value of the matter in con- Jtroversy. As it is, we are obliged to reverse the judgment iind award a venire de movo. Pek Cueium:, Judgment] reversed. 38 IN THE SUPEEME COUKT. McLean v. Murchison. D. C. McLEAN, et ux, et al, v. KENNETH MURCHISON, et cd. In tresfiass, q. c. f., the principle that where neither party has possession of a lappage, the superior title draws to it the constructive possession and ex- cltjdes the constructive possession of the inferior title, may be asserted- by one who is a stranger to such superior title, against the suit of one claiming under tlie inferior title. This was an action of trespass, q. c. f., tried before EEENCH^ J., at the last Fall Term of Harnett Superior Court. The plaintiffs claimed title to the land in dispute, under a grant to one Morrison, and by him conveyed to their ances- tor, so much of their claim as is necessary to the understand- ing of this case is represented by the lines A, B, C, D, E, F, X, Y, Z, 1^ 2. They occupied that portion of this area> which DECEMBER TERM, 1860. 39 McLean v. Murchison. was south-west of the line, D 2 ; (see diagram,) but whether their occupation embraced the locus in quo was a question. The defendants, for the purpose of showing title out of the plaintiff, offered in evidence a grant to John Gray Blount, of older date tlian that under which the plaintiffs claimed ; which covered a large space of country including, as they insisted, that portion of plaintiffs' claim lying north east of the line, D 2, including tlie locus in quo. The court charged the jury if the plaintiffs were not in pos- session at the time of the alleged trespass, they must rely upon the constructive possession which arises from the title, and they had shown title ; and if they had also satisfied them of the trespass being committed on the Morrison grant, by tlie defendants, or any of them within three years before the com- mencement of tlie suit, the plaintiffs were entitled to recover, unless the defendants had so located the Blount grant as to cover the land on which the trespass had been committed, and that in this even tit was not necessary that the defendants should connect themselves with the Blount grant; thatitwas sufficient to show title out of theState, olderthan the grantto the plaintiffs, for this takes away their constructive possession. The Court further instructed the jury, that if the plaintiffs were in actual pos- session, at the time of the alleged trespass, above the line D, 2, and they were satisfied from the evidence that the trespass was committed by the defendants, or any one of them, on any portion of the tract within three 3'^ears — it made no difference whether the Blount grant is so located as to cover the Morri- son tract or not ; for the reason that the defendants have not connected themselves with the Blount grant. The defendants counsel excepted. The defendants counsel, asked the Court, to instruct the ju- ry that if they should be satisfied that the Blount grant was located as contended by the defendants, and the plaintiffs had no possession of the lappage, but that their only ])ossession was below the line D, 2, and that the tresj)ass, if any, was upon the land covered by the Blount grant, above the line D, 2, that the plaintiff' could not recover. The Court declined giv- 40 IN THE SUPEEME COURT. ^IcLean' V. Murchi9«>n. ing the instruction' ;' but told the jury that if tlie Blount grant was located as contended bj the defendants, and the trespass, if any, was committed upon the land covered by the Blount grant, above the line D, 2 ; then, if at the time of said trespass, the plaintifls had no possession above the' line D, 2, upon the lappage, but that their only, possession was upon that part of the grant below the line D, 2, which would not be upon the lappage, the plaintiffs would be entitled to their verdict, as the defendants had not connected themselves with the Blount grant. Defendant excepted. Yeridictfor the plaintiff. 'Judg- ement and appeal by the defendant. No counsel appeared for tiie plaintiffs in this Court. ■Strange and JSfeill McKay ^ioY the defendants. Manly, J. We think there was error on the part of the court below in refusing the instructions asked for. The action of trespass, qxtare cUmsum f regit, is a possessory action, and can only be maintained by one who has a possession, either actual or constructive ; and the enquiry therefore, as to who had the possession of the locus in quo is material, and happens in this case to be the turning point. In the case of lapping- grants, when neither proprietor is in actual possession of the part common to both, the constructive possession of that part is with the superior title. Actual possession {the pedis positio of the law) by one who has the inferior title outside of the part that is common, however extended his claim, or long con- tinued as to time, will not diminish the strength of the supe- rior title. The reason is : such a possession does not expose the party to the others action, or afford him an opportunity of asserting at law the superiority of his title. The parties con- sequently remain unaffected as to their respective rights in the part common to both the grants as long as they remain in this condition ; and as to possession, Ae has it by construction, who has the superior title. But if the party with the inferior title, take possession any where in the part that is common, such possession is held co-extensive with the entire part, and in such DECEMBER TERM, 1860. 41 McLean v, Murchison. <;ase the cortstnictive possession which follows the better title is repelled, and the law adjudges hitr. \\\\o\\&s,i\\Q i^edis 2)0sl- ■fh, to be in exclusive possession ; for the reason, that where- -ever he may have planted himself in the disputed part, he >s alike exposed to the action ef the adverse claimant; and there- fore his possession should be held, in accordance with the gen- eral principle, commensurate with liis claim. Williams v. .Jjuchaimn, 1 Ired., 53o; B(d:er v. MGDonald, 2 Jones, Sii; ■McMillan V. Timier,^7 'J one&, 435. These rules of law pre- sent and explain th-e apparent inconsistency, that while in the present condition of the respectivie claimants to these grants, the possession is construed to be in the heirs of Blount, yet it their grant had covered more of the plaintiff's land, i. e., liad extended sonth of the line D, 2, so as to embrace the actual possession of the plaintiff, the possession of the whole lap would have been in the plaintiffs. In the former case the plaintiffs could not maintain this action, in the latter they could. The principles here laid down were fully recognized by his Honor below in the first part of his instructions to the jury, 'but in the latter part, he seems to hold them inapplicable to the trespass of a stranger or mere wrong-doer. We are not aware of such an exception. This action cannot be maintain- ed by one who has neither the actual nor constructive posses- sion of the locus in quo, against an intermeddler. There must be a venire de novo. Per Curiam, Judgment reversed. 4^ m THE SUPREME COURT. Short V. Currie. Stoic on Vie relation of B. H. SUORT el al v. ANGUS CURRIE et al A registered copy of a clerk's bond may be read without other proof, and, of course, the original, when proved and registered as the acts provide, may also be read thus without being proved at the trial. It seems at common law, official bonds were not subjected to the same tests of strict proof and cross-examination as instruments between private per- son?. This was an action of dkbt on a clerk's bond, tried before FiiKNcn, J., at the last Fall Term of Moore Superior Court. Plea : oreneral issue. Tlic bond declared on, was in the usual form and had a subscribing witness to it, who was not present ; it was endorsed with the eertiticate of W. D. Dowd, chairman of Moore coun- ty court, before which court it was taken, that the execution of it had been acknowledged in open court, also with the cer- tilicate of the Register that it had l)ccn registered in his office. To prove the execution of the bond, the plaintiff introduced the clerk of the superior coui-t, wlio stated that the ]iaper- writing in question had been tiled in his office as the official bond of the clerk of the county court; that it had been tiicre ke)>t, and had been taken from the file for the purposes of this trial. ir. J). iJoi/xl was then introducod, who stated that at the time of the date of the instrunuMit, he was chairman of the county court of Moore county ; that the parties thereto acknowledged its execution before him in open court, and that he endorsed on it the certificate above described, signed by him as chaii-tnaii. Upon this evidence, the plaintiffs proposed to read the bond to the jury, but the defendants' counsel objected, on the ground, that there was a subscribing witness to the jxaper, and that, tiierofore, the proof was insufficient. The Court sustained the objection, and the plaintiffs counsel excepted. The plaintiffs' counsel then ofTered a registered copy of the bond declared on, which was also objected to by the defend- DECEMBER TERM, 1860. 4S Short i\ Currie. ants' counsel and rnled out by the Conrt. The plaintiff's again excepted. In deference to the opinion of the Conrt, the plaintiffs snl> niittcd to a nonsuit, and a]H>ealed to this Court. JVeill McKay^ for the plaintiffs. Person and McDonald^ for the defendants. Battle, J. "We are cleai'lj of opinion tliat his Honor, in the Conrt below, erred in rejecting the testimony offered on tlie part of the relators to prove the execution of the bond declared on. Jt being the official bond of Alexander C. Cur- rie, as clerk of the county court of Moore, the rule of evi- dence, which requires the production of the subscribing wil?- ness to prove the execution of a private instrument, did not apply to it. In the case of Kello v. Mufjet^l Dev. and Bat. 414, it was held by the Court, in relation to a guardian bond, that " when a suit is brought, its execution may be denied by a plea, for it does not import ahsolute 'uerity. But it is yet a document partaking of a public nature, taken by public au- thority, having a high character of authenticity, and it re- quires not that it should be verified by the ordinary tests of truth applied to merely private instruments, the obligation of an oath and the power of cross-examining witnesses, on M'hosc veracity the truth of such instruments depends. Confidence is due to it, because of the authority of the Court by whom it was taken, and whom the State, in the discharge of the paren- tal duties which it owes to orphans, has empowered to take it." This rule seems to 1x> founded in reason and good sense, and applies with as much, if not more force, to the ctfficial bonds of clerks, sheriffs and other ])ublic officers, as to those of guardians. See Starkie on Evidence, 195. In coming to the conclusion that tho rule thus laid down in Kdlo v. Magd^ is a sound one, and ought to be followed, we have not overloctk- ed an expression which fell from Tsash, J., in delivering the opinion of the Court in the case of Butler v. J>\(i'h necessary. Judgment against petitioners, and appeal by them. Baker^ for the plaintiffs. M. B. Smith, for the defendants. Battle, J. "We are unable to discover any error in the record of M-hich the plaintiffs can complain. The fact, which they offered to prove by testimonj^, was admitted by the de- fendants to be true, and the remark made by the Judge, that it was immaterial^ meant, in the connection in which he used it, that it was immatei'ial to the decision of the cause in the view which he took of it. A road was in use by the public, and whether it had been originally laid out according to law or not, his Honor thought that another public mad running 60 near the same line, could not be necessary. The plaintiffs, then, had the benefit of his Honor's judgment upon the weight to be allowed to the fact, that the road, already in public lase. DECEMBER TERM, 1860. 55 Hanna v. Ingram. had Dot been laid out according to law. Admitting the fact, he decided that he could not change his opinion, because he thought the road, proposed by the plaiutiifs, was unnecessary any how. It is conceded that the question of the necessity for the new road was one, tlie decision of which, in the Supe- rior Court, is not the subject of re-examination in this Court. Per Curiam, Judgment affirmed. JAMES HANNA v. JOHN N. INGRAM. Where a writ in slander was issued, returnable to a term of the Court, and no alias issued from such return term, but a writ issued from the next term thereafter, it was Held that the latter writ was the commencement of the suit, and the limitation to the action must be determined accordingly. Action for slander, tried befoi'e French, J., at the Fall Term, 18G0, of Anson Superior Court. It appears on the trial that a writ issued on the day of February, 1857, returnable to Marcli Term of that year; which was returned, "not found" ; and that no writ issued to the next ensuing Term thereafter, but that one issued, retur- nable to the second Term, which was March Term, 1858, which was marked as an alias, and pursued the language peculiar to that writ. The Court intimated an opinion that the latter writ was the commencement of the suit ; and as the words were spoken more than six months prior to the date of its issuing, the ac- tion was barred. In deference to this intimation, the plaintiff took a nonsuit and appealed. McCorhle, for the plaintiff. H. II. BatU^^ for the defendant. 56 m THE SUPKEME COURT. Adams v. Clark. Manly, J. The power to bring an action for words is lim- ited by the Revised Code, ch. 65, sec. 3, to six months after the speaking of them ; and the question presented here is : At what time was this action commenced ? When the first writ was issued ? Or when the last ? We concur with his Honor below, that it was at the issuing of the last writ — the one from the Fall Term, 1857, to the fol- lowing spring. This latter, although denominated an alicos, does not connect itself with the other, so as to make one con- tinuous suit, a term having intervened from which no process was issued. In the case of FuWhrirjlit v. Tritt^ 2 Dev. and Bat. 491, it was held that such a failure under precisely simi- lar circumstances, worked a discontinuance of the suit and the issuing of a writ, purporting to be an alias^ at the subsequent term, was the beginning of a new suit. The case of Full- hright v. Tritt is in point, and is satisfactory to us. It decides the cause before us in accordance with the opinion of the Judge below, and his judgment should, therefore, be affirmed. Pee Curiam, Judgment affirmed. JOHN Q. ADAMS et al v. HENRY S. CLAEK. That a holograph script was seen among the valuable papers and effects of the decedent eight months before his death, is no evidence that it was found there at or after his death. Issue of devisavit vel non, tried before his Honor, Judge HowAED, at the Fall Term, 1860, of Beaufort Superior Court. The propounders proved by one Martin Manning, that he was working for the decedent, Charles A. Clark, from about the last of December, 1856, to the last of February, 1857 ; that said Clark was unmarried and without children ; that on an evening in February, 1857, after supper, in the house of DECEMBER TERM, 1860. 57 Adams v. Clark. the said Clark, he was engaged in writing at a desk ; that he got up, and going to a trunk, opened it and took out a small tin trunk, from which he took a red pocket-book, and from out of that he took the paper-writing now propounded as a holo- graph will; that he read it to the witness, and told him to take notice of it as he might see it again ; that he then put it back in the pocket-book, and r^aising the lid of the desk, placed the pocket-book in the desk ; that he never saw the paper afterwards, until shortly before the trial in the County Court; that the decedent usually carried bank bills in that poclcet-book, and he several times took money out of it to pay witness; that no white person lived, during this time, with the decedent, except the witness ; that Clark died in Novem- ber, 1857. There w^is other evidence, but none as to the point on which the case is decided in this Court. The counsel for the caveators contended tliat there was no evidence that the script was found among the valuable papers and effects of the decedent, and asked the Court so to instruct the jury ; and his Honor being of that opinion, so instructed the jury. Plain- tiffs' counsel excepted. Verdict for caveators. Judgment and appeal by the pro- pounders. Hodmmid and Warren, for the propounders. McRae and Shaio, for the caveators. Battle, J. The 119th chapter of the Revised Code, sec- tion 1, requires for the proof of a holograph will, that it " be found among the valuable papers and effects" of the deceas- ed, or that "it shall have been lodged in the hands" of some person for safe keeping, &c. In the present case, it is not pretended that the script was lodged in the hands of any person for safe keeping, but it is sought to be established as the will of the deceased, upon the ground, that it was found among his valuable papers and effects. Found when ? Cer- tainly at or after the death of the alledged testator. The pa- X)er could not become a will until the death of the alleged 58 IN THE SUPKEME COURT. Koonce v. Perry. testator, and to show that he intended it to operate as his will, it must be proved that it was found lying among his valuable papers and effects, for, from that circumstance, it is to be infer- red that he regarded and had kept the script as a valuable paper also. The only testimony oflered by the propounders, upon this all-important point, was that of a witness, who had seen the deceased put the script in a red pocket-book about eight months before his death. What become of it afterwards, does not appear, eitlier from his testimony or that of any other per- son, nor does it appear where it was found, at or after the death of the deceased. It would, to a great extent, defeat the pro- tection thrown around holograph wills, if the fact, that a script was seen among tlie valuable papers and effects of the deceased several months hefore his deaths could be submitted to a jury as any evidence that it was found there, at or after his death. Thinking that there was no evidence in support of that eS' sential point, it was unnecessary for us to enquire, whether the red pocket-book, spoken of by the witnesses, was a place of deposit for the valuable papers and effects of the deceased^ Pek Cueiam, Judgment aflSrmed. SIMON E. KOONCE v. GEORGE W. PERRY. Where a bailrtient is once established, a mere possession under a claim of title with the use of the property as his own, unaccompanied by an act upon the part of the bailee, changing the nature of his holding, will not set the statute of limitations in motion. Action of trover, tried before Bailey, J., at the last Supe- rior Court of Jones County. The declaration was for the conversion of two slaves who had belonged to one Hargett, who for the recited considera- DECEMBER TEEM, 1860. 5» Koonce v. Perry. tjon of $ -in the year 1835, conveyed them to the phiintiff, who was the son of the defendant's intestate. At the time of this conveyance, plaintiff was under the age of twenty one, and for a portion of the time, between 1835 and 1850, lived with his father. It did not appear how much of this time he lived with his father, but he was there in 1850. In that year (1850) the father of the plaintitf, wishing to exchange one of these slaves for one belonging to one Hill, made a proposal to the latter to do so. Hill objected to the exchange, on the ground that the slave, which intestate offered to let him have, was one of the Ilargctt negroes, and that he could not make title to him, because he had been conveyed to his son, the plaintiff. To this, the father replied, that he was aware that the right of these hcgroos was in his son, but ho would get him to make the bill of sale. The exchange was made, and the son execu- ted the bill of sale for the slave, which the father subscribed as a witness, and afterwards proved it in Court. The Hargett negroes, as they were called, continued in the possession of the fiither, from the date of the conveyance to the son, in 1835, till his death, which took place in 1858, during all which time, he, (the father,) exercised the same control over them as he did over his other property, and upon one or two occasions said, that ihey belonged to him. The defendant, as administrator of the father, took posses- sion of these slaves, claiming them as the estate of his intes- tate. The plaintiff made a demand, and on refusal,, this suit was brought. The defendant relied on the lapse of time as making his intestate a good title. The Court charged the jury, that if, when tlie father took possession of the negroes, he took them as his own, the plain- tiff could not recover, because of the length of possession ; but, that if he received them as the property of his son, it constituted a bailment between him and his son ; and the fact that he used them as his own, and claimed them as his own, did not destroy that bailment; and that the plaintiff would, in that case, be entitled to recover. Defendant's counsel except- 60 IN THE SUPREME COURT. Koonce v. Peny. ed. Yerdict and judgment for the plaintiff, and appeal by the defendant. Ilaughton, for the plaintiff. J. W. Bryan and Green^ for the defendant. Manly, J. There was no error on the trial of this case be- low, of which the appellant can justly complain. Of the in- struction given in the alternative, that the father took posses- sion of the negroes as his own, the appellee might have com- plained, for as the case is presented to us, there was no evi- dence upon which such instruction could have been based. The slaves went into the possession of the defendant's intes- tate upon the execution of a deed, to his son, then a minor ; and living with him, and the taking and holding of the same, should be presumed to be in conformity with the right. In its origin, therefore, the possession of the intestate was a clear bailment, without evidence of any kind to the contrary. The Court below was entirely correct in the instruction ; that if possession were accepted, in the beginning, in the right of the son, it was a bailment which could not be terminated or converted into an adverse holding, by the fact proved, that intestate, through a number of years, had used them as his own and called them his own ; something more is necessary to convert a holding of the kind supposed, into an adverse one. It does not appear, indeed, that the calling them his own was in the presence of, or that it came to the knowledge of the son ; and the use of them as his own was not inconsis- tent with a bailment. Therefore, there was nothing to put the plaintiff on his guard, and excite him to demand a recogni- tion of his rights. The only occasion when a question as to their respective rights in this property was made, was upon the exchange of one of the slaves in 1850, when, instead of setting up a claim to them, the right of property in the plain- tiff was distinctly recognized by the intestate. In the case of Martin y- Harden, 2 Dev. and Bat. 504, it was held by this Court that a demand by the bailor and refu- DECEMBER TERM, 1860. 61 Koonce v. Perry. sal by the bailee, wonld operate to change the nature of the possession, and convert it into an adverse one. And in Pow- ell V. Powell, 1 Dev. and Bat. Eq. 379, where there had been a parol gift of slaves, the death of the donee, a division among the next of kin, and taking possession of the slaves in ques- tion, b}' one as his share, it was lield that such possession, so taken, was adverse to the original donor; but in the case of Hill V. Ilmjhes, 1 Dev, and Bat. 336, although the bailee not only claimed and used the slaves as his own, but conveyed them by a deed of trust for the payment of his debts, yet, as the trustee did not take possession, but the bailee kept it as before, it was held tlie bailment was not determined. And so in the case of Collier v. I*oe, 1 Dev. Eq. 55 ; Avhere a slave was loaned in ISO-i, the death of the lender in 1807, an open claim during the life-time of the lender, by the defendant to hold them as his own right, and a continued possession under that claim until 1824; it was held, the statute of limitations did not protect the defendant. The principles to be deduced from these cases arc, that while an abortive attempt to regain possession, as by demand and refusal, or some act by the bailee, changing the nature of liis profession, as in the case of Poioell v. Powell, will put the statute of limitations in action ; yet, no length of possession under claim of title and use of the property as one's own, will. In the case of Gree7i v. Harris, 3 Ired. 210 ; it M'as held by this Court, that where it was manifest there was no purpose or wish, on the part of the bailor, then to resume possession, a mere naked declaration of riglit in liimself by the bailee, al- htough made in the presence of the bailor, unaccompanied by any act ui)on the part of the former, changing the possession, would not set the statute of limitations into immediate action. Tliis latter case is believed, indeed, to be fully sustained by the principle decided in the case of Hill v. Hughes. Some- thing more tlian a mere claim of right, made known to the adverse party, is necessary. His Honor, therefore, in the instruction given in tlie case before us, was entirely within the principles of cases decided 62 m THE SUPREME COURT. Willis i>. Melvin. in this Court. For if the construction be put upon it, that iil- testate declared the slaves belonged to him in the presence ot' plaintiff, which is not the proper construction, yet the direc- tions to the jury would be justified by the cases of Mill Vs Hughes and Gi'een v. Harris. Upon the facts of the case before us novV-^ we hold that a bailment, established as it is by proof of the transaction, be- tween the parties in 1850, the silbseqnent possession of defen- dant's intestate until 1858, claiming the slaves in his own right and using them as his own, was not an adverse holding so as to make title in behalf of the intestate by lapse of time. There must be sometiiing more^ as an effort on the part of the bailor to regain possession, or gome act by the bailee chang- ing the nature of his holdings Per CuRiAMk Judgment affirmed. •John s. willis v. w. a. Mjelvin. 'The statute, Revised Code, chap. 31, sec. 114, authorising a reference in suits upon the bonds of sherilis and other public officers, does not embrace the case of a bond given by a deputy sheriff for the indemnity of his principal. Motion for a reference, heard before French, J., at the last Fall Term of Bladen Superior Court. The action was in debt, brought by the sherifi* of Bladen, on a bond given by the defendant, as his deputy, conditioned faithfully to collect taxes and perform all the duties of his said office of deputy sheriff. The breaches assigned were the non-payment of money collected for taxes and under various processes. The cause having been put to issue at this term, the coun- sel, for the plaintiflf, moved that the same be referred to the clerk to state an account. This was objected to on the other DECEMBER TERM, 1860. 63 Willis V. Melvin. side and refused b}^ the Court, on the ground, that he had no power to do so. From which ruling the plaintiff appealed. 3f. B. Smith, for the plaintiff. J^iker, for the defendant. Manly, J. His Honor, below, was correct in holding there could be no compulsory reference for an account between the parties to this suit, under the provisions of the Revised Code, chap. 31, section 114. That section authorises a reference in suits against executors, administrators and guardians, or upon the bonds of sheriffs or other public officers. The deputy sheriff" is not a public officer within the purview of this section. Ho is not appointed by the public, nor by virtue of any special public authority. lie does not give a bond to which the public can resort ; nor is he amenable to them for his defaults. There is no method of induction or oath of office prescribed. Ilis appointment is made by the sheriff", by virtue of the general legal power in all ministerial officers of deputing tlieir powers, and arises out of the neces-^ sity, in his particular case, of having deputies. They are re- sponsible to him and he to the public. They give bond and are appointed and dismissed by him at pleasure. He would seem, therefore, to be no more than an agent or servant of the sheriff ; Ilamjyton v. Brown, 13 Ire. 18. The term, "deputy," implies this, and no more ; for its definition is, one wlio is " appointed, designated or deputed to act for another." Tom-^ lin defines it "one who exercises an office, &c., in another's right, having no interest therein, but doing all tilings in his principal's name, and for whose misconduct the principal is answerable." Whereas, office, clearly embraces the idea of tenure in one's own right, and jyuUio office is tenure by virtue of an appointment, conferred by public authority. There is no error in the Court below, and this opinion will be certified to the Court, to the end, that it may proceed. We have liad some doubt as to whether this case is right- fully before ns. It is an appeal from the judgment of the Su^ 64 IN THE SUPREME COURT. Griffin v. Tripp. perior Court declining to make an intei'locuty order, no spe- cial leave from tlie Court appearing upon the reeo-rd, wliile the whole record seems to be certified as in case of a judgment disposing of the entire cause. As no objection' to this has been taken here, we assume that the appeal has been brought up by leave and take jurisdiction of the question presented — calling the attention of the clerks below to the Revised Code, chapter 4, sec. 23, 24. Pee Curiam, Judgment affirmed. GRIFFIN AND ACHEN v. W. R. TRIPP: A naked declaration of a debtor in embaj'rassed circumstances, that an assign- ment of a note, theretofore made by him was bojia fide and for valuable consideration, is no evidence, as against creditors, that such was tlie fact, and such assignment was Held to be void'. This was an issue growing out of an attachment sued out against W. R. Tripp, tried before Heath, J., at a Special Term (January, 1860,) of Beaufort Superior Court. Henry A. Ellison was summoned as garnishee, who answer- ed that he had given a note to W. R. Tripp, dated 19th of November, due 1st January, 1858, for the sum of $936,67 ; that he liad been informed by letter from T. K. Archibald that he had bought this note ; that if the note is the property of the defendant, he owes him that sum of money, but if the note is not his property, he owes him nothing, and issues were made as follows : Whether the said Ellison, at the time of the service of the attachment was, and still is, indebted to the said W. R. Tripp, by bond, for $936,37, bearing date, &c." On the trial it was proved on the part of the plaintiffs, b}'' John A. Stanly, Esq., that some time in October, 1857, before the institution of this suit, William R. Tripp handed him a DECEMBER TERM, 1860. 65 Griffin- V. Tripp. note, made by II. A. Ellison, payable to said Tripp, to be col- lected by liitn as attorney at law ; that said note, at the time, bore the endorsement in blank of said Tripp; that at the time of handing him this note, Tripp said it was tiie property of Thomas ]v. Archibald, of Tennessee; that he (Tripp) had sold it to Archibald some months before ; that Archibald request- ed him to bring the note here for collection, and that at Tripp's request he gave a receipt for the note as having either been received from Archibald, or from Tripp as the agent of Archi- bald ; and that he had the note in his possession at the time of this trial. The execution of the note was admitted. The plaintiff then, to prove Tripp's insolvency, produced divers J4idgments of record against him, which were still unsatisfied. He ])roved that Tripp had resided in Beaufort county, until a,bout 1855, when he left the count}^ and was absent when the attachment in the case issued ; that Archibald was his brother-in-law, having married his (Tripp's) sister. It was proved also that Archibald was a man of property. The Judge charged the jury that there was no evidence that the note had ever been delivered to Archibald, and that the endorsement did not convey to him a vested title to the note ; and that if they believed the evidence, they should find for the plaintiff. Defendant's counsel excepted. Yerdict for tlie plaintiff", judgment of condemnation against Ellison, from which he appealed to this Court.. Rodman and ShaiL\ for the plaintiffs. Warren^ for the defendant. Pearson. C. J. A debtor in embarrassed circumstances cannot divest himself, as against his creditors, of the title to any jioi'tion of his estate by a voluntary conveyance. To make the transfer valid against cretlitors, it must bo honajide and for a valuable considei'ation. If a debtor executes a bill of sale for a slave and admits therein the receipt of the purchase-money, such admission is 66 IN THE SUPREME COUKT. Stokes V. Arey. not evidence against a creditor of the paj'inent of the consid- eration ; Claywell v. McGimjysey^ 4 Dev. Rep. 89. This principle is settled. In our case, the assignment of the note does not purport to be for value, and there is not even an admission by the debtor at the time of the supposed transfer, that the price was paid. The onl}' attempt to prove a valuable consideration was by showing the naked declara- tion of the debtor at the time he handed the note to Mr. Stanly, when he said " the note was the property of Archi- bald, and that he had sold it to him some months hefore.''^ If the admission of a debtor at the time he executes a convey- ance, and as a part of it, that he had received a valuable con- sideration, is not evidence of that fact, as against a creditor, of course, a naked declaration made by him some months after- wards, is no evidence of the fact. It follows that the alledged assignment of tlie note was void as to creditors. There is no error. Pee Curiam, Judgment afiBrmed. WILLIAM STOKES v. RICHARD T. AREY. The words, "You as good as stole the canoe of J. H.," are not actionable, per se. Where the Court erroneously submitted a matter of law to the jury, and they, by their verdict, decided the matter correctly, it was Held not to be a ground for a venire de novo. Action on the case for slakdek, tried before Fkench, J., at the last Fall Term of Stanly Superior Court. Plaintiff declared in two counts : 1st. " You stole old John Henly's canoe." 2ndly. " You as good as stole old John Henly's canoe." Plea : General issue. DECEMBER TERM, 1860. 67 Stokes V. Arey. Evidence was submitted to the jury on both counts. The 'counsel for the plaintiff requested the Court to charge the jury, that the second count was actionable per se. His Honor de- clined giving the instruction asked ; but, told them that the 'lirst count was actionable ^cr se ; but, as to the second count, he submitted it to the jury as actionable, or not, as they might find that the defendant did, or did not, intend to charge the plaintiff with stealing tiie canoe. Plaintiff's counsel ex- cepted. Verdict and judgment for defendant. Plaintiff appealed. McCorkle and Strange, for tlie plaintiff. AsJie^ for the defendant. Manly, J. The law has been substantially administered in this case, and the S4:)pellant has no just ground of complaint. We are clearly of opinion, that the words in the second count ought not to have been proHOunced actionable, per se, by the Oourt. And whether they ought to have been submitted to the jury as a doubtful idiom, depending upon local usage, or determined bj^ the Court as matter of judicial construction, is indifferent to the appellant; for quacunque via data, the re- sult to him is the same. Upon a submission of the point in dispute, to the jury, they found correctly; tiiat the words did not impute the offense of larceny ; and, therefore, any error committed by his Honor., in turning the matter over to them, -was, under the circum- stances, innocuous. The words, taken in their most defamatory sense, mean nothing more than, that the plaintiff' had dealt with the canoe in some way that was equivalent to stealing it. By implica- tion, the idea of the precise offense of stealing is excluded. For it was something like it, but not the felony itself, and, as things like, are not the same, it follows it was not stealings with which the plaintiff was accused. It is well settled in North Carolina, that defamatory words, actionable per se^ must impute an offense, for which the accused^ if convicted^ 68 IN THE SUPREME COURT. Stokes V. Arey. would siiifer punishment of an infamous nature ; a matter of moral taint, short of this, would not do. No such offense is imputed by the terms used, and, therefore, the words, of them- selves, are not actionable ; Bi^ady v. Wilson, 4 Hawks, 93 ; Skimier v. While, 1 Dev. and Bat., 471 ; Wall v. HosMns, 5 Ired. 1Y7. We have treated of the Nvords in question, in deciding upon their import intrinsically, as thej are found in the declaration, without the help of explanatory averments of any kind. As the}^ have not been lielped by coUoquiuin and innuendo, whose ofKce it is to give an actionable meaning to words, oth- erwise uncertain or innocent, we suppose they could notl)e so aided. Indeed, we take it, the words constitute a form of ex- pression, frequently resorted to by persons not precise or defi- nite in their use of terms, to indicate a trespass or hreach of trust, involving a moral guilt, equal to theft. No such impu- tation constitutes legal slander in North Carolina, as will be seen by reference to the case last above cited. The cases in the early English Reporters, which have been brought to our attention, are not all reconcilable with each other, but this general principle runs through, and governs most of them, that the words must chai-ge a crime directly, or by necessary implication. Thus in Halley v. Btanton, Croke Charles, 269, these words, " he was arraigned for steal- ing hogs, and if he had not made good friends, it had gone hard with him," were held actionable, because the lat- ter words, " if he had not made good friends, &c." showed that the speaker believed the truth of the accusation ; while in Bayly v. Churrington, Croke Eliz. 279, the words "thou wert arraigned for two bullocks," were held not to be actionable, because the words do not charge stealing, but only an accu- sation of it. So, in a later case of Curtis v. Curtis, 25 Eng, Com. Law Rep. 206, the words, "you have committed an act for which I can transport .you," are held actionable, for it shall be intended he had committed some crime, for which he was liable to transportation. The case is said to be simi- lar in principle to Donnei case, Croke Eliz. 62, where the DECEMBER TERM, 1860. 69 Edwards v. Kelly. following words were held to be actionable : " If you had your deserts, you had been hanged before now." It shall be intended tiiat the speaker meant he had committed a crime for which he deserved to be hanged. Tiie case of Dnimmond v. Leslie, 5 Blackford's Indiana Reports, 453, is in conflict with the current of English cases, and, certainly, with ours. Wliatcver fluctuation of opinion the cases abroad may pre- sent, we think the law is settled in Korth Carolina to be as ^bove stated : That words are not actionable per se, except they impute an oifense, subject to infamous punishment di- rectly, or by intendment, to be made manifest by proper aver- ments. Pee Curiam, Judgment affirmed. GABRIEL EDWARDS ei al, Tt-ustees, v. JAMES KELLY. Where a remainder in slaves, during the particular interest, was offered for sale at auction, when certain written terms were proclaimed by the crier, and the defendant was the last and highest bidder, but the property was •not delivered to him, in a suit for not complying with the terms of sale, it was Held that the contract was within the statute of frauds, so far as the bidder was concerned, and no aclion would lie against him. Tnis was an action of assumf^sit, tried before Saunders, J., at a Special Term (June, 1859,) of Wayne Superior Com-t. The plaintiff declared in three counts. 1st. For the price of the slaves. 2nd. For breach of the contract in not complying with the terms of sale. 3rd. For the difference between the price at the first and second sales. The plaiutifFs, as trustees, under a deed of trust from one m THE SUPREME COURT. Edwards v. Kelly. John D, Pearsall, had title to a remainder ini certain slaves- after the life-estate of Mrs. Pearsall, who was. still living-. A& trustees, they offered the estate vested in them^, (to wit, the said remainder,) for sa4e at public auction ; on whfeh occasion the crier made known as the terms of sale, which y/ere in writing, and publicly read bj him, that tlie property would be sold on a credit of three and six months, and the pnrcliaser vrould be required to give a note with two approved sureties, with in- terest from the- date, befo-re the property changed ;, and that if any one bid off the property and failed to eompl)^ with the conditions, it was to-be resold, and. the first purchaser was to be liable for the deficiency in the- price at the second sale, t£. any^ and the property was not to. be delivered until: after the death of Mrs. Pearsall, the teoant for life.. The defendant^ J;ames Kelly, was the last and- highest bidde-r for the-property, at the price of $600, but he subsequently refused- to. give note, aind security, whereupon, it was again exposed to sale in the presence of the- defendant, and knocked off to one Kornegay, at $275. The Court intimated an opinion, that the plaintiff could not i'ecover,, whereupon., he submitted to. a nons-m.t and appealed^ Dortcfi and Stroyuj,, for the plaintiffs. McBaey for the defendant. Manly, J. Tl'ne contract, which is the subject of this suit,, falls with-in the provisions of the statute of frauds, incorpoi-ated in our Cbde, ch. 50, see. 11, aad ia no part thereof can be enforced without a nJ.eniorandum, ia writing, signed by the party to be charged therewith. It is not divisible and exempt from the operation t>f the law in som^e- of its parts, as for in- stance, in the penalty for non-compKanee with the terms of the sale, as insisted in the argument.. Such a construction would render th;©. provisions of the law, referred to, inoperative. For, except in cases wh^ere a specific performance may be compelled, the relations to each other of the parties to such a contract, would not be changed by the^ DECEMBER TERM, 1860. 71 Pearce v. Castrix. law. Anterior to its passage, the party charged, had the pow- er to refuse compliance and run the hazards of an action for damages, and the construction, now sought to be put upon it, gives him that option — nothing more. It would be a palpa- ble inconsistency to declare the contract void and of no effect^ which is done by the statute, and still to hold the party re- sponsible in damages for its non-fulfilment. In a case recently decided in this Court, Mizcll v, Bur- nett^ 4 Jones, 2'i9, general principles are enunciated, which have a direct bearing upon this case, viz., that no part of a contract, falling under the provisions of the law, is binding upon a party, wJio does not sign the writing, while others who do sign, may be bound. The opinion of his Honor below, tliat the contract was not binding upon the defendant, in submission to which plaintiff suffered a nonsuit, was clearly correct. Pee Curiam, Judgment affirmed. WILLIAM H. PEARCE v. RAYMOND CASTRIX. Debts on a deceased person, assigned to one after the death of such person, do not constitute the assignee such a creditor as to entitle him to adminis- tration under the 2nd section of the 46th chapter of the Revised Code. This was a contest for letters of administration on the estate of John Brissington, lieard before Bailey, J,, at the last Fall Term of Craven Superior Court, The decedent was a native of England, and died in this county intestate and without leaving widow or children. The decedent did not owe the plaintiff, Pearce, any thing at the time of his death, but after that event, he purchased notes and accounts from sundry persons to whom Brissington was indebted, and these exceeded, in amount, the debts due to 72 IN THE SUPREME COURT. Pearce v. Castrix. the opposing applicant, Castrix. Tliis latter resided in the State at the time of the decedent's death, and all his debts were due and owing at that time. These debts he proved by Iiis own oath. Upon this state of facts, his Honor awarded the administration to Castrix, on the ground, that he was the highest creditor, residing in the State, within the meaning of the statute. From this order, Pearce appealed. Iliihbard^ for the plaintiff. J. W. £ry€cn and Washingtmi^ for the defendant. Pearson, C. J. Upon failure of the widow, or next of kin, to make application, the statute requires administi-ation to be granted " to the highest creditor residing within the State, proving his debt ujpon oath before the court granting the same." The requirement, that the debt shall be proved by the oath of the creditor, confines the right to have administration, to creditors, between whom and the intestate, there existed a personal privity of contract, for, in the absence of this privity, the creditor cannot, by his oath^ prove the debt ; for instance, one who claims as assignee, cannot thus prove the debt ; he 'may, by his oath, prove the assignment, but he cannot swear to the debt ; for that originated in a transaction between the assignor and the intestate, in regard to which he had no pri- vity, and must xndX^Q-pvoo^ aliunde. The policy of the statute, obviously, is, to require a credit- ■or, applying for administration, to swear of his own hnoiol- edge, that the debt is just and true. This is nor satisfied by an oath of the alleged creditor, that he helieves the debt to be just and true, and an offer to prove it by witnesses. The onlj'' mode of proof provided by the statute is the oath of tlie par- ty. It was adopted, not merely for the sake of convenience, but because it is reasonable that the right of administration should be thus confined to creditors who are cognizant of the ex- istence of their debts, as, after administration granted, the right of retainer attaches without further proof. In England, DECEMBER TERM, 1860. Debnile v. Scott. the form of the oath is, " the deceased was at the time of his death justly indebted to the applicant ;" 4 Chitty Gen. Prac. 147, (note). The wisdom of this provision of the statute, ac- cording to the construction we put on it, is strikinglj^ illustra- ted by the facts, disclosed in the case now under considera- tion. The applicant, Pearce, after the death of the intestate, purchased sundry notes and accounts, alleged to be due by the intestate, for the puipose of thereby acquiring the right to administer, AVhether these notes and accounts are just debts or not, he does not know. But it is certain he was un- der a strong temptation, for the purpose of accomplishing his object, to admit, without investigation, every claim that was offered to him for sale, and the lai'ger its amount, the better it suited his purpose ; tluis opening wide the door for admit- ting false claims, to which, unfortunately, the estates of dead men are too much exposed, even without any undue collater- al influence. We concur with his Honor, that Castrix, the otlier appli- cant, having proved his debts by his own oath, according to the requirement of the statute, was entitled to the administra- tion. There is no error. Per Cdriam, Judgment affirmed. Doe on the demise of GEORGE S. DEBRULE v. BENJ. SCOTT ei al. Where a cause, pending in court, is, by rule of said court, referred to aibitra- tors, who proceed to act and make an award, as to all the matters m con- troversy, in favor of one of the parties, without saying any thing as to tlio costs, the successful party has no right to have a judgment of the court, lor the recovery of his costs. (The case, Arringion v. Battle, 2 Murp. 246, cited and approved ; and the cases Simj^son v. McBee, 3 Dev. 531, and Cinminfjlmm v. Hoiuel, 1 Ired. 9, commented on.) 74 IN THE SUPEEME COUET. Debrule v. Scott. This was an action of ejectment, tried before Bailey, J., at the last Fall Term of Jones Superior Court. After this cause had been put to issue, it was, by a rule of Court, referred to arbitrators, who returned for their award, that they found "all the issues in favor of the defendant ;" but made no mention as to the costs ; on the coming in of the award, the plaintiff filed various exceptions. These were over- ruled by his Honor, who gave judgment according to the award, in favor of the defendant ; also, that he recover all costs against the plaintiff. The plaintiff appealed to this Court. J. W. Bryan and Washington, for the plaintiff. MoRae and Ilaughton, for the defendant. Pearson, C. J. Tiie only ground insisted on in this Court, was in respect to that part of the judgment, which subjects the plaintiff to the payment of all the costs. In support of the decision of his Honor, the cases of Simp- son v. McBee, 3 Dev. 531 ; and Cunningham v. Ilowel, 1 Ired. 9, were relied on. These cases establish the doctrine, that in this State, where a case, after issne joined, is referred by a rule of court, and the award is filed, the Court, for the pur- pose of enforcing it, enters judgment according to the award, and does not simply order an attachment ; and the argument is, as the Court renders a judgment, the costs follow the judg- ment as an incident, according to the provisions of the sta- tute, Eev. Code, ch. 31, sec. 75. "In all actions, whatsoever, the l>arty in whose favor j;udgment shall be given, shall be entitled to full costs." We confess there is much force in thisreasonin.g, especially as in the case of Cunningham v. Ilowel, it is decided that the action of the Court, upon an award, is a judgment of the Court, for the purpose of cliarging bail, and yet welfeel bound^ upon the authorit}^ of the case of Arrington v. Battle^ 2 Murph., 216, (which is directly in point, and which, we presume, was not called to the attention af his Honor,) to ho-ld that the DECEMBER TERM, 1860. 75> Debrule v. Scott. Court erred in giving judgment against the plaintiff for costs. The award found all issues in favor of the defendant, but did= not dispose of the costs, and the judgment ought to have been, that "the plaintiff take nothing, and the defendant go without da\\" This was all that the award authorized, and according to the case cited, that Avas the judgment which the Court ouglit to have rendered. It was suggested that Arrinr/ton v. Battle, as reported, was- not a reference under a rule of court, but was simply a refer- ence b}' an agreement of parties. But u))on an examination- of the recoid in this Court, we find it M'as a reference "as. a rule of court," and that judgment was entered "according to the award." So it is directh^ in point, and v»o do not feel at liberty to- over-rule it. For, when a rule of practice is fix- ed, the courts should adhere to it, unless some new matter oc- curs, or there be some decisive objection. In this case there is no suggestion of either; on the contrary, the practice of ad- hering strictly to the award, in rendering judgment, so as to give no judgment for costs, unless the award so directs, has. uniformly obtained in all of the courts of this S-tate up to the- present instance, so far as we are informed. The case of Cunningliain v. Ilowel, cannot be considered as conflicting with Arrhu/ton v. Battle ^ for the two may well stand together, the result being that a judgment according to an award, is an anomaly, introduced by the practice of our courts, in order to enforce awards in a milder manner than by attachment, which exposed the party to process of contempt. So, although, it is a judgm-e-ut for the pnrjx>se of charging bail, yet it is not a judgment for the purpose of carrying costs, ^?r(5- prio vigore, within the meaning of the statute. In other words, being a mere creature of the Court, there is no reason why it may not be so fashioned as to obviate the effect of discharg- ing the bail on the one hand, and, on the other, still leave to the arbitrators the right to dispose of the costs ; which is done by treating it as an anomalous, or quasi judgment; which character has been impressed upon it, by the cases referred to, and the uniform practice in this State. Judgment reversed, 76 ■ IN THE SUPREME COURI. Barnes v. Haybarger. and jndgraent for the defendant, but without costs below. Of course, in this Court, the successful party is entitled to costs. Per Cdeiaim, Judgment I'eversed, Doe on dem of DAYID W. BARNES v. ROBERT HAYBARaER, Where the intention of the parties to a, deed is manifest on its face, the Court in giving a construction to doubtful provisions, will, if possible, effectuate such intention. Where a wife, after marriage, snppossing the whole interest in her land was in her, made a conveyance to a trustee for her sole and separate use, to which the husband signed as a partj^, and by various clauses manifested a concurrence ia her act^ but did not profess directly to convey any estate, in which deed, it is recited that ten dollars was paid by the trustee to the wife, it was Held that this raised a use from the husband to the trustee, wliich was executed by the statute, and in tha;t way the husband's interest passed to the trustee. This was an action 'of ejectment, tried before Bailey, J., at the last Fall Term of Wilson Superior Court. The only question, in this case, arises on the following deed: " An indenture tripartite made and entered into this 4th day of August, 1858, between Robert Haybarger of the first part, Nancy Haybarger of the second part, and Da- vid W. Barnes, of the third part, all of the county of Wilson, and State of North Carolina: Whereas, the said !Nancy Playbai-ger is seized and possessed of certain lands ten- ements and hen-odit;unents, situate, lying and being in the county of Wilson and State aforesaid : Whereas, it is agreed upon by and between the said Robert Haybarger and Nancy Haybarger; that the said Nancy Haybarger should, notwith- standing, have, hold, enjoy and possess all her said property above described, with all and every the rights, interest and profits of, to and out of the same, free and separate from all the claims and demands of the said Haybarger arising from DECEMBER TERM, 1860. 77 Barnes v. Haybarger. the consummation of their marriage, and whereas the said Nancy Haybarger might, in the perfecting tlieir marriage, be entitled to by virtue of dower or in any other way whatsoever. Now, this indenture loitnesseth, that in consideration of the said marriage, and in pursuance and perfecting of the said herein- beibre mentioned agreements, and in consideration of tlie sum of ten doHars, good and lawful money of Nortli Carolina, to the said Nancy Haybarger in hand paid b}^ the said David W. Barnes, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged. She, the said Nancy Haybarger, with the consent and approba- tion of the said Haybarger, testified hy his being a party to and sealing and delivering these presents, hath bargained, sold, assigned and transferred and set over, and by these pre- sents, doth bargain, sell, assign, transfer and set over unto the said D. W. Barnes, his executors, administrators and as- signs, all the property belonging to, and in possession of, the said Nancy Haybarger, both personal and i-eal, consisting of one house and lot, situate, lying and being in the country of Wilson and State aforesaid, near the rail-road at Joyner's depot, adjoining the lands of W. G. Sharpe and others, one negro woman, Matilda, and child, Caroline, and increase, household and kitchen furniture, consisting of three feather beds and furniture, fourteen chairs, one chest, one trunk, one buggy and harness, one safe, one cooking stove and fixtures, to have and to hold the said property hereby conveyed unto the said David W. Barnes, his executors, administrators and assigns. But, nevertheless, upon the trust and for the intent and purpose hereinafter expressed and declared of and con- cerning the same, that he, the said D. W. Barnes, his execu- tors, administrators and assigns, shall hold and manage the said i)roperty, and all and every part and parcel thereof to and for the sole and separate use, benefit and disposal of the said Nancy Haybarger, their marriage notwithstanding, and that the same, in no numner whatsoever, shall be subject to the direction, control or disposition of the said Robert Hay- barger, her intended husband, or be liable for his debts ; and 78 IN THE SUPREME COURT. Barnes v. Haybarger. upon this further trust, that he, the said D. W. Barnes, his ■executors and administrators shall and will pay, transfer and deliver unto the said Nanc}'^ Haybarger, or unto snch person or persons, and at such time or times, and in such proportions, manner or form, as she, the said Nancy Haybarger, may di* rect, by her request or order, made in writing, attested by three ■or more credible witnesses, all the rents, issues and profits of the said property so conveyed as aforesaid, and that all the said separate and distinct estate and produce and increase thereof shall be had, taken, held and enjoyed by such person and persons, and for snch use and uses as the said Nancy Haybarger shall at time or times hereinafter, daring her life, limit, devise or dispose of the same, or any thereof, either by her last will and testament, in writing, or by any other wri- ting whatever, signed with her hand^ in the presents of three or more credible witnesses, or certified by an acting justice of the peace of Wilson county. State of North Carolina, and the said R. Haybarger, for himself, his executors, adminintrators covenant, agree and promise to and with the said D. W. Barnes, his executors, administrators or assigns, by these presents, in manner following : he, the said R. Haj'barger, shall and will per- mit and suflPer the said Nancy Playbarger to give, grant, and dispose of her said separate estate as she shall think fit in her life-time, and to make such will, or other writing, as afore- said, and thereby give, order, devise, limit and appoint her said separate estate to any person or persons, for any use, in- tent or purpose whatsoever, and that he, the said Haybarger, shall, and will permit, and suflfer such will or other convey- ance, in writing, to be duly proven, as the law has made and provided in such cases, and the probate of such will, or other conveyance, to be taken and had in such cases as is usual and customary, and also allow the executor, named, to proceetl to discharge his duty, and that the person or persons, to whom the said Nancy Haybarger shall give or dispose of any part of her said estate, by her will, or any other writing, that shall be signed, sealed and executed by her as aforesaid, shall and lawfully, may peaceably and quietly have, hold, use, occupy, DECEMBER TERM, 1860. 79 Barnes v. Haybarger. possess and enjoy the same, according io the true meaning of such gift or conveyance, devise or appointment, without any hindrances or interruption, by the said Robert Haybarger, or his executors, administrators or assigns, or any of them ; and tliat he, the said Haybarger, shall and will, from time to time, and at all times, upon any reasonable request, and at the proper cost and charge of the said D. W. Barnes, or his executors or administrators, make, do, and execute all and every such fur- ther act and acts, and thing and things, for the better set- tling, recovering, and receiving money, goods, and the estate of the said I^ancy Haybarger, allotted and allowed for her support, use, benefit and disposal as aforesaid, as by the said D. W. Barnes, or his executors and administrators, them or any of their counsel, learned in the law, shall be reasonably devised, advised and requested. Witness, whereof the said parties have hereunto set their hands and affixed their seals, the day and year above written. R. H. IIaybakger, [seal.'] ISTangy Haybargek, [seal.'] D. W. Barnes, [sealj' This deed was executed after the marriage, and tlie only point in the case is, whether it passed the legal estate in the land to the trustee, Barnes, and it was agreed, that if his Hon- or should be of opinion with plaintiff, on this point, that judg- ment should be entered for the sum of $ — , but otherwise, the judgment should be for the defendant. On consideration of the case agreed, the Court give judg- ment for the defendant, and the plaintiff appealed. Strong., for the plaintiff. Dortch and Lewls^ for the defendant. BArrLE, J. The indenture, upon the proper construction, of which this controversy depends, was manifestly framed upon the idea of a settlement of the wife's estate before marriage, to her sole and separate use ; the execution of it, by the hus- band, as a party, being intended to show that it was done with 80 IN TPIE SUPREME COURT. Barnes v. Haybai'ger. his approbation, and, therefore no fraud upon his marital rights. Upon that supposition, there were, very properly, no words of conveyance from the husband, because, had the mar- riage not been consummated, he would not have had any in- terest in the estate to be conveyed, But in fact, the parties were married at the time when the instrument was executed, and the husband had a legal interest in the wife's land ; but, that fact did not alter the manifest intention of the husband and wife, to convey her estate to a trustee, for her sole and separate use. The question is, can the deed, by an}' fair rules of interpretation, be construed to transfer the husband's inter- est in the land to the trustee, and thus give effect to that in- tent, or, in failing to do so, must the purpose to provide a seperate estate for the wife be, almost, if not entirely defeat- ed ? The intention of all the parties to the deed, being clear, beyond all doubt, upon its face, we have the highest author- ity for saying, that it ouglit, if possible, to be effectuated. In Smith V. PaTkliurst^ 3 Atk. Rep. 135, Lord Chief Justice WiLLES said, "Another maxim is, that such a construction should be made of the words of a deed, as is most agreeable to the intention of the grantor; tlie words are not the principal thing in a deed, but tlie intent and design of the grantor; we ha\'e no power, indeed, to alter the words or to insert words which are not in the deed, but m'c may and ought to construe the words in a manner the most agreeable to the meaning of the grantor, and may reject anj' Avords that are mei-ely insen- sible. Those maxims my Lords! are founded upon the grea- test authority. Coke, Plowden and Lord Chief Justice Hale, and the law commends the astutia — the cunning of Judges in construing M'ords in such a manner as shall best answer the intent ; the art of construing words in such a manner as shall destroy the intent, may show the ingenuity of, but is very ill becoming a Judge." Li the case before us, the husband and wife are both named in the deed as parties thereto, and both executed it, and it was the intention of both, as expressly de- clared, that the wife's land should be conveyed to the trustee. Under a mistaken supposition that the sole interest was in her, DECEMBER TERM, 1860. 81 Barnes v. Haybarger. the granting words purport to be from her alone, but the law will allow them to operate on his interest, if it be possible to give them that effect ; thus, in one instance out of many which might be cited, there was an instrument, which pur- ported to be a release, grounded on a lease for a year, but there was not any evidence of the lease, and the deed was in consideration of money, and of marriage theretofore had, &c., and Lord IIakdwickk held that the deed might operate as a covenant to stand seized; Broviu v, JoneSyl Atk. 190. In 2 Shop. Touch. 51i, (see 31 Law Lib. 403.) it is said that, "the mere circumstance that the party intended to pass the property in anotiicr manner, is not always decisive of the ef- fect of an instrument. The rule cum quod ago^ non valet ut cujo^ Vidcat qncuitum vaJere j)otesi interferes with the mw7f that Court, the defendant made an afiidavit that he was sick, and unable to get to the court- house on Monday, before he was called. On this affidavit, "the Court ordered the judgment to be set aside, and theplain- tiif appealed to the Superior Court. In the Superior Court, his Honor deeming that the plaintiff had no right to appeal from the order of the County Court, dismissed it^ and ordered a procedendo, from which plaintiff appealed to this Court. Neill McKay and MoDugald^ for the plaintiff. ■McDonald^ for the defendant. Peakson, C. J. There is no error; the proceedings of every court are said to be in fievi^ until the term expires; that is, its actions are not considered, in law, as completed or done, but as being held in suspense, under consideration, until the end of the term, consequentl}^, the County Court liad i^oioer^ in our case, to set aside the judgment. Its exercise was a mere matter of discretion, and the plaintiff had no more ground for an appeal, than he would have had from an order of the Court, allowing a continuance. DECEMBER TEP.M, 1860. 105 Mendenhall ■?>. Parish. It follows, there is no error in tlic order of ti>c Superior Court, dismissing the appeal. After wliicli, that Court could have nothing more to do with the case, and & j^rocedefido \n-0' perlj issued. Per Curiam, Judgment affirmed. C. r. MENDENHALL, d^-al v. THOMAS C. TARISH. An acknowledgement by the bargainor, in a deed, that he has received the consideration nionej'', is a bar in a court of law, to any action for the re- covery thereof. This was an action of assumpsit, tried before Siikptieed, J., at a Special Term (Januarj^, 1860) of Guilford Superior Court. The plaintiffs were the owners of a patent right, for a ma- chine, called Elliott's Corn-Slieller and Separator, and the de- fendant wrote to them, from St. Louis, that if they would send him a deed for the patent in question, for the State of Arkansas, he would give them $600 in three months, offering, in the mean time, to give them a note and security for that sum. The deed was accordingly sent, and received by the defendant in due season, but the note for the money was not sent, nor was the money paid at the end of the credit stipula- ted for. The deed, reciting the ])laintifts' ownership of the patent right in question, proceeds as follows: "Now, know all men by these presents, that we. the said Adams, Iliatt and Men- denhall, for, and in consideration of the sum of six hundred dollars, to us in hand paid, the receipt of which is hereby ac- knowledged, have transferred, sold, etc." The release here set forth, was pleaded and relied on at the trial. By consent, a verdict was entered for the plaintiff for S600, 106 m TKE SUPKEME COURT. Mendenhall v. Parish. and interest, subject to the opinion of the Court, on the ques- tion as to the sufficiency of the release. His Honor after- wards, set aside the verdict and ordered a nonsuit. Plaintiff appealed. Morehead and McLean^ for the plaintiffs. Fowle and Gorrell^ for the defendant. Manly, J. This is an action of assumpsit, in which the plaintiff alleges a liability of the defendant iipon an under- taking, that he would, in consideration of a deed, for a certain patent riglit, to be used in the State of Arkansas, pay there- for $600, at three months credit, and make a good note for it. The declaration is in two counts. 1. For not making the note. 2. For not paying the money. The case turns upon the effect of a release, pleaded as a bar to the recovery, and which is found in the deed^ for the right to use the patent above referred to, and dated 12th of Oct., 1857. We concur with his Honor, that the release in the deed is a bar at law, to the plaintiffs recovery on either count. In either aspect, it is an action for the consideration expressed in the deed. The consideration is there declared to be paid, and the plaintiffs, who are the grantors in the deed, are estopped to deny it in this action. This question was brought directly into judgment in the case of Brotcket v. FosGue, 1 Hawks, 64, and it was there held, that when a deed contains an acknowledgment by the bargainor, of the reception of the consideration money, with an e-xoneration therefrom,, it amounts to a bar to the action for the purchase-money, and that parol evidence shall not be received to contradict the averment of payment in such case.. The same principles are decided in the case of Lowe v.. Weatherby^ 4 Dev. and Bat., 212; andareagaini-ecognisedin the cases of Crawley v. Timherlake, reported in 1 Ired. Eq.,. 346, and 2 do., 460, where equity takes jurisdiction, and re- DECEMBER TERM, 1860. 107 Mendenball v. Parish. lieves from the legal effect of such release upon a case, made, of ignorance and misapprehension. Our attention has been caWed to the case of Hohbins v. Zove, 3 Hawks, 82; andZane v. Wingate^ 3 Ired., 326. There is no conflict, as we think, between these cases and tlie cases of Brocket v. Foscue^ and Loxoe v. Weaiherhy. The first, Eohhins v. Love^ was an action of assumpsit, for a balance of $1000, due for merchandise sold. The defen- dant was permitted to introduce a deed for a house and lot, in which the consideration was stated to be $1000, in hand paid, and to prove b}^ the subscribing witness, that it was paid by an agreement to consider the debt for the goods, extin- guished. This was held, not to be a contradiction of the deed, but proof of a distinct fact onl}', as to how the money came, which the defendant acknowledges the reception of, in his deed to the plaintifi". Thus, without contradicting his deed, the defendant was enabled to show distinct facts, which amounted to an accord and satisfaction, and which furnished, of course, a complete answer to the plaintiffs action of as- sumpsit. The other case. Lane v. Wmgate, was an action of assump- sit, also, upon a parol obligation, not under seal, with condi- tion for the support of an aged woman slave. No considera- tion was stated in the writing, and the plaintiff resorted to evidence dehors the instrument, and showed upon a sale of negroes by plaintiff to defendant, he wished to purchase, be- sides those the plaintiff was willing to sell, a boy by the name of Daniel. Plaintiff's objection to the sale of Daniel was, that he wanted him to wait on the old woman referred to in the condition of the obligation. And thereupon, the defendant agreed, if the plaintiff would sell him, Daniel, he would maintain the wo- man for life, and accordingly entered into the obligation on which the action was brought. Defendant, in answer to the action, introduced the deed of sale for Daniel and other slaves, in which plaintiff acknowledges, that he had received a sum in full for the said negroes, and contended that plaintiff was estopped, by the said deed, from recovering under the said 108 m THE SUPREME COURT. Tomlinson v. Payne. agreement. But the Court held otherwise, npoii the gronnd, that the agreement was a distinct obligation, growing out of the sale of Daniel, and that it was not any part of the money consideration, the reception of which was acknowledged in the deed, and there was, therefore, no estoppel. Both these cases were put upon peculiar grounds, and were not supposed by the learned Judges, who then presided in the Court, to impugn at all, the doctrine of estoppel by deed, and cannot, therefore, be rightfully invoked for that purpose. In the case now before us, the action is for the recovery of the consideration mentioned in the deed, the purcliase-nioney of the patent. For we do not perceive, that it varies the mat- ter or object of the action, wliether tlie recovery be had upon the count for $600, the price of the patent, which was to be paid after three months' time, or for the $600 as damages for not giving a good note, in the mean time, for the price afore- said. It is equally an action for the recovery of the conside- ration money of the deed, and this, the party plaintiff has ac- knowledged by his deed to l»e paid. He is <;oncluded, by his acknowledgement, under seal. Pee Cukiam., Judo^ment affirmed. wrtlilAM TOMLINSON v. JOSEPH PAYNE. At law, the rule is, that n-aud never is presumed, and he who alleges it must prove it. It may be taken a? a general proposition, that every man is presumed to be honest in his dealings, until the contrary is proved. This was an action on the case for a deceit in tlie sale of a saw-mill, tried before Batley, J., at the last Superior Court of Wilson county. Tlie defendant being a ;part owner of the mill in question, DECEMBER TEEM, 1860. 109 Tomlinson v. Payne. sold an interest therein (one third part) to tlie plaintiff for $600. The plaintiff said of the mill, before he bought it, that he did not know whether it was a good one or otherwise. The defendant said the mill was a good one, and that it had no deliciences that he know of. There was evidence also, that the property was as the defendant represented it to be. The Judge, in charging the jury, explained to them the difference l)etween an action for a warranty and an action on the case for a deceit ; that in the former, a recovery could be effected by showing a breach of the warranty only, and that, whether the defendant was an honest man or otherwise, bnt in the latter, he could not recover, unless it was sliown that the defendant was guilty of a moral fraud ; lluit in this case, as ihe phiintiff" had declared that the defendant was guilty of practicing a fraud upon him in tiie sale of the mill, he was bound to prove it; that the burden of proof was upon him to establish his allegation to the satisfaction of the jury, for the law presumed that every one was honest in his deal- ing, until the contrary was proved. Plaintiff' excepted. Yerdict and judgment for the defendant, and appeal by the plaintiff". Strong and A. M. Leiois^ for the plaintiff. Dortch and B. F. Moore, for the defendant. Pearson, C. J. His Honor very properlj^ instructed the jury, that as the plaintiff alleged the defendant had practiced a fraud on him, he (the plaintitY) was bound to prove the alle- gation, and if he had failed in making the proof, as a miitter of course, the issue should be found against him. Here, he might have stopped, but in truth, what he adds, taken in con- nection with the preceding sentence, is simply the expression, in different words, of the same idea, to wit, that the burthen of proof was on the plaintiff. Fraud is presumed, in some in- stances, b}'^ a court of equity, e. g., where one deals with an- other, who is dependant on him from the relation existing ilO IN THE SUPKEME COURT. Toralinson v. Payne. between them ; but at law, the rule is, fraud is never presum- ed, and he who alleges fraud must prove it. This disposes of the case ; but, as an isolated proposition, we take it to be true, that every one is presumed to be honest in his dealings, until the contrary is proved ; in the same sense, that every one is presumed to be covi'pos mentis / that is, we take it for granted, he is so, until the contrary is proven ; for instance, one who alleges the execution of a deed or will, im- pliedly alleges that the maker had mental capacity, and on proof of the formal execution of the instrument, the capacity is taken for granted, in the absence of evidence to the con- trary. It is, however, unnecessary to enter upon this ques- tion, as it is a mere matter of speculation, for in our case, the onus of })roof being on the plaintiff, it was for him to satisfy the jury that a fraud had been practiced by the defendant. There certainly is no presumption of law, that every man is dishonest in his dealings, until the contrary is proved, and, without the aid of such a presumption, the plaintiff could not be subjected to the omis prohandi, which is the principle of law that governs all cases where the evidence does not prepon- derate on the one side or the other. There is no error. Per Curiam, judgment affirmed. DECEMBER TERM, 1860. Ill Latta V. Russ. TJie State on the relation of W. W. LATTA, Admr. de bonis non cum tes., v. CHARLES E. RUSS, Adm'r., et al. Where an administrator with a will annexed died, having in his hands money arising from the sale of land, decreed to be sold for the payment of debts, being a surplus over and above the sums required to pay such debts, which money belonged, by law, to persons, to whom the land was devised, it was Held ftiat the administrator de bonis non cum ies. an. of the original intes- tate, was the proper person to bring suit for such money, and not the de- visees. Where an administrator petitioned for the sale of his intestate's land, setting forth the number and amount of the debts existing against the estate, and a decree passed for such sale, in a suit by an administrator- cZe boni^ non, to recover a surplus over and above the debts, such decree was Held not to be conclusive as to such debts, although the persons, to whom the land was devised, were made parties. Moneys paid by an administrator for the support of his intestate's minor chil- dren, are not proper vouchers for him in the settlement of such estate. This was an action of debt, on an admiuistration bond, tried before Dick, J., at a Special Term, June, 1860, of Orange Superior Court. Richard Crabtree made his will, by which he devised cer- tain lands to Thomas J. Latta and wife, William Hopkins and wife, William Crabtree, Moses Crabtree, Clement Crabtree, John Crabtree, Richard Crabtree, Arthur Crabtree, Kemp Crabtree and Lucy Ann Crabtree, the last six of whom are minors. He devised a certain other tract of land to be sold for the payment of debts, and that the rents, issues and profits of the other land should be applied to the support of his minor children. The executors, named in the will, hav- ing renounced the ofhce, his widow, Parthenia Crabtree, was appointed administratrix, with the will annexed, and gave the bond, on which this suit is brought. The administratrix filed petitions in the County Court of Orange, to which the devisees were made parties, setting forth that she had exhausted all the personal estate, and that there remained a certain amount of debts (stating them) nnpaid, and prayed that the lands devis- ed to said parties shotild be sold for the purpose of satisfying 113 m THE SUPREME COUET. Latta V. Riiss. these debts. Decrees were entered accordingly, and tlie debts nil paid out of the proceeds of the land. Mrs. Crabtree having died, this suit was brought by the plaintiff, who was appointed administrator de honis non, M'itli the will an- nexed, of Richard Crabtree, and her administrator was made a party defendant with the other obligors, her sureties. It ap- pears by the report of Mr. Laws, to whom it was pferred to state an account ^of Mrs. Crabtree's administration of her husband's estate, that taking the amount of debts to be as made out b}'' the vouchers, and rejecting charges made by her for supporting the minor children, there remained in her liands $SS2,22, which the commissioner thinks is the true bal- ance. But he says, in an alternative view of the subject, that if these charges bo allowed against the children, and the debts against tlie estate be taken to be as stated in the decrees for sale of land, that then, thei'e will be in the hands of the ad- ministratrix, unadministered, only $252,45. The defendant's counsel insisted : 1st. That as the act of Assembly gives the surplus arising' from the sale of land, made assets, to the persons wiio would have taken the land itself, had it not been sold, the devisees themselves should have brought the suit as relators, and not the administrator cZe honis no7i of Richard Crabtree. 2nd. That the decrees by whicli__^]ie land was sold, and to which the devisees were parties, concluded them as to the amount of the debts due and owing by Mr. Crabtree's estate. 3rd. Also that the charges for supporting the minor chil- dren wei'e correct, and that, therefore, only the smaller sum, above mentioned, could be recovered. By the consent of the parties, a pro forma verdict M-as en- tered for the smaller sum, subject to be set aside and a ver- dict and judgment entered for the lai'ger sum, according as his Honor should be of opinion on the points of law, above stated, in the 2nd and 3rd positions taken by the defendants. On consideration of the questions reserved, his Honor be- ing of opinion with the defendants, gave judgment for the smaller sum, and the plaintiffs appealed. DECEMBER TERM, 1860. 113 Latta V. Russ. Grahaniy for the plaintifls. Nortoood and PhilUjys^ for the defendants. Pearson, C. J. Tlie objection made in this Court, that the action cannot be maintained by tlie administrator rZt' honi^ non with the will annexed of Richard Crabtree,-and should have been brought on the relation of the devisees, is- not tenable. In respect to the personal estate^ it is settled, that if an ad- ministrator die before he has completed the settlement of the estate, by paying debts and making distribution, an adminis- trator de honis non must be appointed for the purpose of com- pleting the settlement, foi- the reason, that there is no privity between the distributees of the intestate and the ])€rs0nal rep- resentative of tlie deceased administi-ator, and, consequently, both of the deceased^ persons must be represented ; Duhe v. Ferrihct\ 7 Jones, 10 ; Taylor v. Brooks^ 4 Dev. and Bat. 130 ; IS^tate v. JoJuison^ 8 Ire. 381 ; State v.. Brltton, 11 Ire. 110. The statute which auihorises the sale of real estate o-n the petition of an executor or administrator for the payment of debts, makes the proceeds of sale assets for the payment of debts» and directs that the excess shall be paid by the execu- tor or administrator to such persons as would be entitled to the land had it not been sold ; Rev. Code, ch. 46, see-. 50, 51. Thus putting the excess of the sale of real estate on the same footling, in respect to the devisees and heirs^ and imposing on executors and administrators the same duties in regard there- to, as existed in i-elation ta the I'ights of legatees and distri- butees to the excess of the personal estate, and the duties ©■f executors and administrators in regard thereto. When, tiierefore, an admiiustrator dies before he has com- pleted the settlement of the assets, derived from real estate, by paying debts and paying over the excess to the devisees or heirs-at law,- this unfinished duty cannot be performed by his administrator, for there is no privity between him and the devisees and heii-s-at-law, and it is, consequently, necessary that both of the deceased persons should be represented, so 8 114 m THE SUPEEME COUET. Latta V. Russ. that the representative of the administrator should pay over the fund to the representative of the iirst intestate, whose du- ty it is made, to complete the administration by paying off all the debts, and paying over the excess to such persons as would be entitled to the land, had it not been sold. In other words, between the administrator de bonis non of the lii'st intestate ^nd his creditors and devisees, or heirs, there is a privity ; whereas, there is no privity between the latter and the admin- istrator of the first administrator. So, the action is properly brought on the relation of the representative of the testator, Eichard Crabtree, and it is his dutj' to i-eceive the fund and complete the settlement of the estate. We do not concur with his Honor, in the view taken by him of the question reserved, in respect to the effect of the decree, giving tiie administratrix license to sell the land. That decree was an adjudication that it was necessary to sell, and is conclusive in favor of the title acquired by the purchaser, but it is not conclusive of the question of debt or no debt, as against, or in favor of creditors, or as against, or in favor of the heirs. It is certainly not so in respect to creditors, because they are not parties to the proceeding, and is, consequently, not so in respect to the heirs or devisees; for an estoppel must be mutual. To make it so, would be going beyond the necessity of the case, the object being simply' to establish prima facie, that the personal estate is not sutiicient to pay the debts, as a foundation, for the action of the court, in granting a license to sell the real estate, the proceeds of which are made assets, to be accounted for in the settlement of the estate, when the executor or administrator must, as a rnatter of course, dis- chary:e himself, by the production o\' j:? roper vouchers. We think it clear, therefore, that in making tiie settlement in this case, it was the duty of the Court to go behind the de- cree ullowing the administratrix license to sell ; and it is like- wise clear, that her charges, for the support of the minor children, of the testator, were not proper vouchers. They were not dt^bts of the testator, and are directed to be paid out of the ren's, isssues, and profits of the land. The fund raised by such DECEMBER TERM, 1860. 115 Sharpe v. McElwee. rents, issues and profits, up to the time of the sale, are not charges against tlie administratrix, and neither of tliese mat- ters siiould have been brought into the settlement, either as items of cliarge or discharge. "Whether the minor children will not be entitled to the in- terest of the fund, received by the plaintiff as excess of the proceeds of the sale of the land, the profits of which are devoted by the will for their support, is a question that will arise when he is required to make distribution, but is not now presented. The judgment of the Court below will be reversed, and judgment entered for the sum of $882,22, with interest, ac- cording to the case agreed. Pkr Curiam, tTndgment reversed^ THOMAS A. SHARPE v. J. N. McELWEE. Where a petition for a ce7'eal bond according to law, and tiie ease did not ■come up, because the bond was not given. So, theonly ques- .tion is, did the pai-ty fail to give th-e bond, because he had .abandoned his right to appeal, or because he was unable to procure tke security required by the Ifiw, so as to acquit him of laches ? Upon this point, the petition and affidavit are en- tirely satistaetory ; for the^ietition sets forth, that the defendant ^' attended Cowrt and went home, nitending to return during the week and attend to his case, but was taken violently sick and was unable to retumi, or attend to any business during the rest of the week." This accounts for his not giving the bond, and excludes all idea of his having abandoned his right ifeo appeal, and fully acquits him of any imputation of laches. As a matter of course, the party ought to be put in fhe same •condition as if the appeal had been brought up in the regular way. It was object'^d, on the argument, that the petitioner, by his own showing, had no defense at the time the judgment was rendered against him, and took the appeal, because lie expected to be able to discharge hinificlf, as baiJ, b3' surren- der of his principal, by, or before, the term of the Superior Court to which the appeal was prayed, and thk, as was in- eisstcd, proves tiiatithe appeal was .taken merely for delay, and should, therefore, be made an exception to the general rule above stated. In support of this ijositiou, BetU v., Franh tin, 4 Dev. and Bat. 465, was reli€xJ on. It is true, fhe peti- ts4aaer adwiits he had jqo d>efeiiiee at tike time the juxIgiaQent was 118 IN THE SUPREME COURT. Sharpe %j. McElwee. rendered in the County Court, but it does not follow that the api)eul was taken inereh^ fur dela)\ On tlie contrary, the avowed object for appealing was, because the party expected to have a good defease in the Superior Co-nrt, and 1o be then and there able to avail liiniseif of )>is right to be diseliarged by the surrender of his |>i'ineipal, according to the provision of the statute, made in favor of Iwiil. So, the appeal was not for delay, and no reason can be suggested, why one,. who is not in default, should be «leinived f:>f an opportunity lo make available a defense, wliich is given to him by law, ami should not be at liberty to extend the time by appeal or cevtiorarij as a substitute for an a|ij)eal, as far as he is en^titled to do, ac- cording to the court^e of the courts, without being obnoxious to the charge of appealing nieretj tVu- delay. The case of Beits v. FrcmJdiu^ is not in point. No appeal was prayed in that case, and being on a ea. sa. bond, the part}' could not afterwaids discharge himself by a snrrender of his pi'iucipal. So, he did not expect to be able to make a defense in the Superior ('ourt. atK*. the certiorari eould an- swer no other pui-pose but to delay judgment. The general remark made by the Court, in tfeat case, n>ust he referred ta circumstances, then presented,, and have no application to the case tiow under consideration, which is ]>ecuHar, because cf the rigiit given to bail, to make a surre-niler at any time be- fore he is tixed with the del»t. Thei'e is error. The judgment, dismissing the eeriiorari^ is reversed, and the ease sbould he put \\\\ Judgment reversed^ DECEMBER TERM, 1860. 119 Rnil Roiid Company v. Vinson. THE NORTH CAROLINA RAIL ROAD COMPANY v. JAMES A. VINSON. Wliere the presirlont of a rail-road companj' was informed that a suit wa? abont to be brought ajrainst his company, before a justice of the peace, and believing tliat a re<;overy in such suit vvonld be nnjnst, gave instruction to the most convenient station-agent, to attend tlie trial, and in case of a re- covery against tiie company, to appeal to court, ami such agent was a dili- gent and hiitiiful otTicer, but from ignorai^ce of the law, failed to procure se- curity ibr the appeal, it was //eWlhat there was no such laciieson the part of the president, as deprived the company of a right to a recordari. Tins was a j)etifiefore Heath, J., at the last Fall Term of J<»lmstoii Siipciior (-oiirt. The facts, ai)j)C'aiinleaiii[>ati3', having heen informed that suit was ahont to he hroiiirht before a justice of Johnston county, as^aiiist the company, by the defendant, Vinson, for damages to stock, and being of opinion that the said Vinson jiad no just right to recover damages for the alleged injiirv, gave di- recti<»ns to one MilJimku-, who was a station agent, in case the 6nit was brought and decided against the coiripany by the magistrate, t(» take an appeal; that Millinder attended the trial before the jiisiice of the peace, and resisteany, but, that the justice, nevertheless, gave judgment against the company for ninety dolhirs, dama- ges and Costs, wliereii|)on, Millinder prayed an appeal to the next Coiiiuy Court, but, from ignorance of the law in this re- spect, he failed to give secnriry lor the prosecnti(»n of the ap- peal, and aftei" the expiration of ten days, execution issued on the justice's judgment fassed into plaintiff"s |)ossession. One Thorn swore, he heard Drake tell the defendant, on th© day of the sale, that he would take Jack at $900. and hia wife and children at $1,900; to which |)ropositioti, defendant assented. Di'ake said, '*I am in a hurry, 1 cannot settle now,, we can do that at any time." Drake then turned to the slave, in defendant's presence, and said, "get your things, your wife, &c., and go to my house;" he heard nothing said of any warranty. One Harrison swore, that he was called upon on the day oi' the sale, to value the slave, and that he valued him at $900'., One Strickland swore, that he was present on the day of the sale and heard plaintiff tell defendant he would take DECEMBER TERM, 1860. 123 Diake v. Bains. Jjick at tlie valuation, $900, He lieaid iiotliiiig said about wari-antiiii^ his soniuhiess. Dot'endant fiii-tlier proved, tliat at the time of the alleged sale, he acted as the executor of tme Shennd ;; that it was his diUv, and that of a co-exeentoi\ \\•\\^^ (pialiiied to SheiioiPs will, to sell the slave after tlie e.\]>iiaiion of a life-estate^ which had just expired, after aw existence of seven or more jears, and that this co-executor was ))iesent at the time of the alleijjed sale; ti>ere was no evidence that it Mas made known to the plaintitf that defendant was actinsfs, who were present at the time of the sale, say "they heani nothing said about a warranty," and oj)o of the two witnes: es. w ho depose to the conversations which are relied on as furnish- ing an inference that there was a warranty, recites ilii' words in the alternative, and in one aspect, they resent case, aud the Judge ought to have per- mitted the defendant to show, if he could, that he had delivered the article to the ti-ue ownei-, and consequently, had not con- vei'ted it as against his bailor. Per CuKiAM, Judgment i-evcrsed, and a venire denovo. WILLIAM 11. HUGHES v. JOHN B. DEBNAM. Where the charge of a Judge is in favor of a party, such party cannot make it a ground ot objection. Where there is doubt, whether or not a subscribing witness to an instrument signed it before the donor, it was Held that in the absence of proof to the contrary, the presumption is, that the donor signed it first. Slighi anil immaterial mistakes in the registration of a deed of gift, will not avoid it. A square piece of paper affixed witli a wafer to an instrument, opposite to the name of the donor, in the place where the seal is usually placed, will, in the absence of pi'oof that the donor intended otherwise, be valid as a seal. Whei'e, in an action brought to recover the value of certain slaves, the plain- tifi' sought to set aside a conveyance of them to a daughter, and oO'ered evidence to show that the donor had grand-children, who were poor and in need of her bounty, it was field competent for the defendant to intro- duce in evidence, in order to rebut this testimony, a conveyance by the donor of other p.operty to these grand-children. The lOth section of the 37th chapter of the Revised Code, makes a certified copy of a registered deed competent evidence. It is sufficient if a subscribing witness, at the execution of the instrument, had miiid enough to understand the obligation of an oath, and to prove the capacity of the donor and his execution of the deed. 128 m THE SUPREME COURT. Hughes V. Debnam. This was an action of trover for the value of certain slaves, tried before Saunders, J., at Fall Term, 1860, of Granville Sujierior Court. The plaintiff offered evidence, tending to show, that the slaves in controversy, were the property of his intestate, Lucy Coghill, and were in her possession at the time of her death, and that the defendant converted the same after her death, and that they were of a certain value. Defendant claimed the slaves under a gift from the intes- tate, Lucy Coghill, to his wife, who was the daughter of intes- tate, and in support of his claim, offered a writing, dated the 25tli of Fehruar}^ 1850, purporting to convey the slaves for love and affection to plff''s wife, and to have been executed by intestate and attested by one William J. Andrews. To prove the said writing, defendant called one Kittle, who testified that the signature, pui'])orting to be Lucy Coghill'srwas gen- uine, and that William tT. Andrews was dead, and that the signature, ])urporting to be his, was genuine. Thei'e was up- on the paper-writing, just under the mime of the attesting witness, Andrews, an appearance that something had been written and cut off. Tiie witness, Kittle, on his examination by defendant, stated that the remains of what had been cut oft", were, in his opinion, the top of the letters of the name of Lucy Coghill, the donor, and defendant's counsel insisted that such was the fact. Plaintiff insisted that, if that was true, it M'as a spoliation and avoided the instrument, unless the de- fendant could explain it away. Defendant's counsel insisted for explanation, that supposing it to be so, tlie name was put there by mistake and cut off before the execution of the pa- ])ei'. The Judge charged the jury that it was all supposition, and that there was no evidence that any name ever had been there or ever had been cut off, except what had appeared from the face of the paper itself, but, that if the jury should believe, from their inspection of the paper, that there had been a name to the paper, put there as a witness, and that it had been cut DECEMBER TERM, 1860. 129- Hughes V. Debnam. off, tliat would be snch a spoliation as would destroy the in- strument, and that w^as a fact for the jury. Plautiff contended that Andrews' name was the first under the attesting clause, and that some other name was put under his, and that the presumption was that tlie lower name was last in order of time, and that if that name was Lucy Coghill, as insisted on by defendant, then, the presumption was, that Andrews attested before Lucy Coghill executed it, and that that was not a sufficient attestation, and asked 'his Honor so to instruct the jury, Avhich he declined tado. Pl'ff. excepted. When this paper-writing was oifered, plaintiff objected, that it had not been registered. Defendant introdiiced the public register and ^lis book, from which it appeared that the writing had been correctly copied upon the book, except that the word " said," preceding the word " property," was not upon the book and was in the writings and except that at the end of Lucy Coghill's name on the book, there was written the word " seal" with a scrawl around it. The writing, when offered, had not the word " seal" and the sei'awl, but in its place had a piece of paper about three quarters of an inch square pasted on with a wafer. His Honor admitted the writing in evidence. Plaintiff further contended, that the square piece of paper and wafer was not itself a seal, and asked his Honor so to chai-ge, which he refused to do. But charged the jury, tliat the square piece of paper and wafer was itself a seal, if they believed it had been so intended by the donor. Plaintiff excepted. Defendant asked the M-itness, Kittle, if Lucy Coghill was not much attached to defendant's wife. He answered, yes. Plaintifi' then asked, if she had not otlier children and grand- children, to whom she M-as equally attached, some of whom, especially her McCraw grand-cliildren, w^erepoor, and wheth- er the defendant was in easy circumstances. To both of these questions he answered, yes. Defendant then offered in evi- dence a copy from the register's book of a deed of gift of other property by Lucy Coghill, to certain of her McCraw grand-children, dated 5th of March, 1850. Plaintiff object- 9 130 m fHE SUPEEME COUET. Hughes V. Debnam. ed to this evidence upon two grounds : 1st. That the origin- al would not be evidence^ and 2nd, even if the original would be, a copy was not. His Honor admitted the evidence. Plain- excepted. The plaintiff offered evidence, tending to show, that the at- testing witness, Andrews, was before, and at the time of the attestation, of insane mind. And asked his Honor to instruct the jury, that if he was insane at the time of attestation, then he had not attesting capacity and was not a competent attest- ing witness ; and further, that if the jury believed, from the evidence, that the mind of Andrews, at the time he subscrib- ed the paper-writing, was diseased and unsound, then he was incompetent as a subscribing witness, anc? the paper-writing was void, even though he might have understood the obliga- tion of an oath, and been able, if then examined as a wit- ness, to tell that Lucy Coghill signed the paper-writing and he subscribed it as a witness ; and still further, that if he was insane, he had not legal capacity to attest the paper-writing, no matter what else he could or could not do. His Honor refused the instructions, and charged the jury as follows : "The act of Assembly requires a gift of slaves to be in writing, signed by the donor, and subscribed by a credible witness. — That if the witness had capacity to understand the obligation of an oath, so as to be capable of proving the execution of the instrument and the capacity of the donor, he would be a competent witness. But if the jury should believe the mind of the witness to have been so far affected at the time, as to have rendered him incapable of understanding the obligation of an oath, then he was not a competent witness, and they should find against the deed. Plaintiff excepted. Yerdict and judgment for defendant. Plaintiff appealed. Gillimn, Zanier and Jieade, for the plaintiff. Miller, Graham and Eaton^ for the defendant. Battle, J. It is a matter of regret with us, that we have not been favored with an argument for the plaintiff, for by the aid of such an argument we might have been ena- ^ DECEMBER TERM, 1860. Ml Hughes V. Debnatn. bled to perceive more force in his exceptions, than we have ourselves as yet discovered. The errors assigned in the bill of exceptions, have all been considered by us, and in not one of them do we find anything of -which tlie plaintiff has any just cause of complaint. The exception, founded upon the supposition that there were two subscribina; witnesses to the alleged deed of gift, and that the name of one of them had been cut off by the defendant, cannot be made a ground of objection, because, upon it, the charge of his Honor was in favor of the plaintiff. The other objection, urged in connection with the first, that from the inspection of the instrument, it is to be presumed that the name of the subscribing witness, Andrews, was put there before the execution by the donor, is equall}^ unavailing to the plaintiff; because, the presumption was just the re- verse, to wit, that in the absence of proof to the contrary, all things connected with the execution and attestation were rightl}^ done. Oimiia jyi'^suniuntur 'rite este acta. The exception that the deed was not registered because there were some mistakes in the registration, is completely met and answered by the case of Van Pelt v. Pugh^ 1 Dev. and Bat. 210, where it was held that slight and immaterial mistakes in the recording of a grant, will not avoid it. Here, the mistakes were both slight and immaterial, and we know of no difference of principle in this respect between the re- cording of a grant, and the registering of a deed of gift. The objection to the piece of square paper, and wafer be- ing taken as seal, has no foundation whatever. It is certainly as much a seal, when intended by the party as such, as a scrawl, with the word "seal" written in it, can be ; and there was no evidence that it was not put there as the seal of the donor, when she signed the instrument. In the registi'ation of the instrument, the register could do no more than make a symbolical seal to stand as a copy of tlie actual seal annexed to the original deed. The original deed of gift, from the donor to some of her grand-children, would have been competent as evidence in 132 IN THE SUPREME COURT. State V. Smith. reply to the proof offered by the plaintiff, that they were poor and needed the aid of their grand-mother's bounty. In War- ren V. Wade, 7 Jones' Rep. 494, similar evidence was held to be admissible to repel an inference songht to be raised, that the deceased, whose will was offered for probate, had been in- duced to execute the script, by the exercise of undue influ- ence over him, because he had given his property away from the person for whom he was under a primary duty to pro- vide. As the original deed would have been competent, the 37th ch. and 16th sec. of the Rev. Code, makes a duly certi- fied copy from the register's books, also competent as evi- dence. As to the exception, in relation to the insanity of the sub- scribing witness at the time of the execution of the instru- ment, we hold that the charge of his Honor, was substantially correct. If the witness had, at that time, mind enough to un- derstand the obligation of an oath, and to be able to prove the capacity of the donor, and her execution of the deed, it was all that the law required ; see 1 Green, on Ev., sec. 365 ; Archbolds Crim. PI., 135. There is no error. Per Curiam, Judgment affirmed. STATE V. MOSES SMITH. The maxim of law "-falsum in uno, falsum in omnibus" does not prevail ia courts of law, the fact of the witness' having sworn falsely as to one mat- ter, going to the credibility and not to the competency of his testimony as to other matters. This was an indictment for MmtDER, tried before Sauitoeks, J., at the last Fall Term of Forsyth Superior Court. It appeared upon the trial, that the prisoner and deceased ^.--^iw.-:** DECEMBER TERM, 1860. 133 State V. Smith. ihad been quarrelling during the morning of the day on which the fatal blow was given. A witness, one Martin, was intro- duced as a witness for the State, who testified as to facts oc- curring between the prisoner and deceased in the morning, when he, witness, left ; he further swore, that he returned in the eve- ning, just before the commission of the homicide, and that he witnessed it. Evidence was oflered by prisoner, tending to show, that the witness swore falsely as to feis witnessing the ^homicide. The «©uns&L, for the prisoner, asked tJie Court to instruct the jury, that iif they should believe that the witness 3iad sworn corruptly falsely as to his presence, the\' should 'reject his testimony altogether. The Court charged tlic jury, that having heard the wliole of the witness' testimoRv, it was for them to decide as to the credit they wouM give him. Should they be satisfied that he (had not been pi>e6ent, and had sworn corruptly falsely in that ^particular, the}^ would have to decide whether they could confide in any thing he had sworn te. Defendant excepted. Verdict, guilty. Judgment. Appeal by defendant. A.ttorney General and IF. L. Scott^ for the State. McLean and StarljueTc, for the defendant. Peaksost, C. J, Tlie charge of his Hon©r ki the Court be- low, is in strict accordai^ee with the principles announced m State V. WiUiaDis^ 2 Jone«, 257. Upon the re-exauiinatioB -of tlie subject, which was elicited by the discussion of tlie case, kww under consideration, we are entirely satisfied that the conclusions there arrived at, areful- fly sustained by authority, analogy and prin^iple. The maxim '■'■falsum m ?m^,''" &c., which obtains in the •civil law, and which is acted upon hj the ecelesiastieal courts and the courts -of adnsiralty and the courts of equitj', which are fixed tribunals for the decision of questions of fact, as well as questions of law, has not been adopted in the common law courts, where all issues of fact are tried by a jury, and where a plain lioe of deiimareatioii is kept up between matter which 134 m THE SUPREME COURT. Rodman v. Davis. affects the competency, and that which affects the credibili- ty of witnesses. It is the exclusive province of the jury to pass on the credit of a witness. So, if he has made a differ- ent statement when not on oath, and when on oath, or if be is contradicted by other witnesses on the same trial, or if he admits that he has committed murder or burglary or larceny. as when an accomplice is examined, the principle is the same; such matter goes to his credit and not to his competency; his testimony is, therefore, to be weighed hj the jury, and they may convict upon it, provided it carries to their minds full and entire conviction of its truth. The subject is so fully discussed in the ease referred to, as to make it unnecessary to enter upon it again ; we are con- vinced that such is the rule of law. There is no error. This opinion will be certified, to the end, that the Superior Court may proceed to judgment ac- cordingly. Pkr Curiam, Judgment affirmed. JOHN F. EODMAN v. D. A. DAYIS. A suit at law, cannot be le-naofetl into this Court by consent This was a petition for a certioraei, hes^ird before Dick, J., at Fall Term, 1860, of Rowan Superior Court. Upon the hearing of the petition, answer and aiiidavits> his Honor dismissed the petition. It was agreed that the plain- tiff should have until January 1st, 1861, to file affidavits. — Both the counsel fur plaintiff and defendant, agreed to trans- fer the case to the Supreme Court, upon the facts as contained in the petition and answer. In, the view of this case, taken by the Court, it is deemed DECEMBER TERM, 1860. 135 Rodman v. Davis. unnecessary to set out the contents of the petition and an- swer. Miller and Kittrell^ for the plaintiff. Blachner\ for the defendant. • Manly, J. This case seems to have been brought into this Court, under a double misapprehension : first, as to the analo- gy between it and a case in equity, and secondly, as to the rule in equity, for removing cases to this Court. The case, after judgment below, has been sent here hy con- se7it. This cannot be done. If it wore a case in equity, a re- moval by consent, after a decree below, for the purpose of re- vising that decree, would be inadmissible. An appeal is the remedy. Our jurisdiction in law eases, is entirely appellate, and with; respect to a case like the one before us, the propriety of the judgment in the Superior Court, would be tested by a consid- eration of the evidence before that Court alone. We have no means of knowing what that evidence was. No case is sent up by the Court, and inasmuch as it w^as consented that pe- titioner might file affidavits, until the first of January, 1861, we are unable to say which afiidavits were filed before, and which after the judgment below. But independently of this difl[iculty, we consider the mode itself, by which the case has been brought into the Court irregular, and this forbids our taking jurisdiction of it. A ease at law, cannot be sent here by consent, before judgment, nor after judgment. In the latter case (after judgment) it is brought up by ap- peal, or by procedings in the nature of an appeal. The stat- ute, giving law jurisdiction to this Court, Rev. Code, ch. 33, 6ec. 6, uses the language, "all questions of law brought before it by appeal or otherwise from the superior court." The word, otherwise, in this connection, has been practically held to mean nothing more than proceedings in the nature of an appeal, such as a " certiorari.'''' 136 IK THE SUPEEME COURT. State V. Harris. JSTo instance is known, as I am informed, of as, ways and methods, as shall be best known to you, the indictment wherewith she stands charged ; and also, all such matters and things as the Court shall require to be made known to her ; and also, well and truly to interpret to the Court, the plea of the. said prisoner, to the indictment, and all answers of the said prisoner to the said matters and things so required to be made known to her, according to the best of your skill and under- standing. So help you God." The witness then explained to her, by signs, what she was charged with, and she made signs, which obviously imported a denial, and which he explained to be so. This being done, the Judge directed a plea of " not guilty" to be recorded. — • The witness was then called upon to explain to her, that she was to be tried by a jury, and that she might object to such as she pleased ; but, he and another witness stated, that it was impossible to make her understand a matter of that nature ; though, upon common subjects of daily occurrence, which she had been in the habit of seeing, she was sufficiently in- telligent. One of the witnesses had instructed her in the dumb alphabet, but she was not so far advanced as to put words together, and the witness swore, that, though she was 142 IN THE SUPREME COURT. State V. Harris. then incapable of understanding the nature of the proceed- ings against her, and making her defense, yet he had no doubt that with time and pains, she might be taught to do so by the means used for the instruction of the deaf and dumb. The Judge (Mr. Justice J. Paeke) then directed the jurj'- to be erapannelled and sworn, to try whether she was sane or not ; whereupon, the same witnesses were sworn and examin- ed, and proved her incapacity, at that time, to understand the mode of her trial, or to conduct her defense. The Judge, in charging the jury so empannelled, referred to Lord Hale, who, in his Pleas of the Crown, Vol. 1st, page 34, says, "If a man, in his sound memory, commits a capital offense, and, before his arraignment, he becomes absolutely mad, he ought not, by law, to be arraigned during such his phrensy, but be remitted to prison until tliat incapacit}' be re- moved. The reason is, because he cannot, advisedly, plead to the indictment. And if such person, after his plea and be- fore his ti'ial, become of nonsane memor}-, he shall not be tried ; or if, after his trial, he become of nonsane memory, he shall not receive judgment; or, if after judgment, he be- come of nonsane memory, his execution shall be spared ; for, were he of sound memorj^, he might allege, somewhat, in stay of judgment or execution. But, because there may be great fraud in this matter, yet, if the crime be notorious, as treason or murder, the judge, before such respite of trial or judgment, may do well to empannel a jury to enquire ex officio, touching such insanity, and whether it be real or counterfeit." The Judge then told the jury, that if they were satisfied that the prisoner had not then, from the defect of her faculties, intel- ligence enough to understand the nature of the proceedings against her, they ought to find her " not sane," which they ac- cordingly did. His Lordship, thereupon, ordered her to be kept in strict custody, under the 39 and 40 Geo. 3, chap. 94, sec. 2j till his magesty's pleasure should be known. A siliiilar caufee occured afterwards, before Baron Aldeeson^ (See Bex v. Pritchard, 7, Car. and Payne, 303, 32 Eng. C. L; 'Rep. 51Y) when he refered to Bex v. Dyson^ and said the DECEMBER TERM, 1860. 143 State V. Harris. course which Mr. Justice Parke had pursued, had been ap- proved of by several of the Judges, and that he should follow it. He accordingly had a jury empannelled, and told them that there were three points to be enquired into. " First, whether tlie prisoner is mute of malice or not ; secondly, whether he can plead to the indictment or not ; thirdly, wheth- er he is of sufficient intellect to comprehend the course of the proceedings on the trial, so as to make a proper defense ; to know that he may challenge any one of you to whom he may object, and to comprehend the details of the evidence, which, in a case of this nature, must constitute a minute investiga- tion. Upon this issue, therefore, if you think there is no certain mode of communicating the details of the trial to the prisoner so that he can clearly understand them, and be able, properly, to make his defense to the charge, you ought to find that he is not of sane mind. It is not enough that he may have a general capacity of communicating on ordinary mat- ters." The jury returned a verdict that the prisoner was not capable of taking his trial. We have stated these cases with more than usual particu- larity, because they set forth clearly, the true grounds upon wliich a deaf and dumb prisoner, whose faculties have not been improved by the arts of education, and who, in conse- sequence thereof, cannot be made to understand the nature and incidents of a trial, ought not to be compelled to go through, what must be to hira, the senseless forms of such a trial. Whether arising from physical defect or mental disor- der, he must, under such circumstances, be deemed " not sane," and of course, according to the great authority of Lord Hale, he ought not to be tried. The allowance to prisoners in this State the full benefit of counsel in every thing con- nected with their trial, has not been deemed suflicient to change the law as to one mentally insane, and we think it cannot have that eftect in a case, like the present, of a defect of the physi- cal faculties. The proceedings in the present case, including the instructions given to the jury by the presiding Judge, are substantially the same as those in the English cases to which 144 m THE SUPREME COURT. Myers v.. Cherry. we have referred, and we now declare our approbation of. them. It wnll be borne in mind, however, that when a jury i& em- pannelled in this State, in the case of a deaf and dumb priso- ner, there is no need of an issue to enquire, whether he stands mute of malice, because, even if he could speak, and yet stood mute designedly, the Court mu&t order the plea of "not guilty" to be entered for him, as required by the Rev. Code-, oh. 35,, sec. 29. It must be certified to the Court below, that there is no cr- ]for in the record. Pee. Curiam, Judgment affirmed.. JOHN R. MYERS v. S. B. CHERRY. Where the question between the parties was, whether the plaintiff had agreed with a third party to take him for the performance of the contract sued' on, instead of the defendant, and the tender of a sum of money by such third party, and its refusal and the concomitant expressions of the plaintiff, were relied on against him, it was Held that a receipt prepared by him and offered as the condition on which: he would receive the money, was competent evidence. This- was an action of assumpsit, tried before Howard, J., at th© last Spring Term of Beaufort Superior Court. The action is brought against the defendant assurviving partner of the firm of Braswell & Cherry, and the plaintiffs declared, 1st, upon a special contract to pay plaintiff's for carrying the mail, as set forth in the evidence, from July 1st, 1856, to Oc- tober 1st, 1856, and also in the common counits for work and labor done. Braswell & Cherry obtained a contract from, the . general government to carry the mails from Washington to Wilson via Greenville, for the four years, commencing July 1st, 1855, and ending July 1st, 1859, and they were, by terms DECEMBER TERM, 1860. 145 Mjers V. Cherry. of the contract, to cmry tliem from Washington to Greenville b_y steamboat. Phiintiffs owned 8/ steamboat running between these points, and they contracted with Braswell & Cheriy tO' cai-ry the mails, each wa^', six times a week forfoar years, commencing July 1st, 1855, for the sum of $1250, to be paid quarterly. Plaintiffs complied with the contract up to October 1st, 1856, and Braswell & Cherry paid up regularly each quarter for the first four quarters, but refused, to pay for the fifth. Bras- well died in May, 1856. The defendant then introduced J. J. B. Pender, who testi- fied that on the 1st of July, 1856', he bought of Cherry, sur- viving partner of Braswell & Cherry, all the liorses, coaches, iSzc, belonging to the mail line, from Washington to Wilson, and gave Cherry a bond to faithfully execute the contract with the general government ; tiiat he wrote to the plaintiffs stating the purchase, and proposing to continue the contract; that plaintiffs sent him word that they M'ould be up and see liim ; that ho wrote to the plaintiffs several letters and receiv- ed answers, one of which letters, was as follows : " Gekenville, July 1st, 1856. "^[r. John Myers— Dear Sir: Yours of the 2nd instant, is received ; in reply, I wish you to continue carrying tlve mails as heretofore, until I see you, which will be soon as I can o-et my business arranged here, and in the mean time, please inform me whether or not you will do so. Direct yours to this place. Yours respectfully, Jos. Jno. Pender." The witness further swore,, that between the 8th and 15th of July, one of the plaintiffs, R. L. Myers, came to Tarboro'. the residence of the witness, and submitted to him a contract, in writing, to carry the mail for the balance of the four years; that he refused to bind himself for any particular time, but told Myers to go on as they had been doing ; that lie seemed to get angry, and told him that he should go to Washington City and oppose the transfer of the contract to him, Pender, and immediately kft ; that at the tim^ of the payment for 10 146 IN THE SUPKEME COURT. Myers v. Cherry. the quarter, he went to plaintiffs and offered to pay, but did not, because they would not give him a receipt in his own name, and insisted on his receiving a paper which he did not like. The plaintiffs' counsel then showed the witness a re- ceipt, in words and figures following, viz : " Received, Washington, N. C, 8th October, 1856, of Mr. T. R. Cherry, surviving partner of Braswell and Cherry, by the hands of J. J. B. Pender, three hundred and twelve dol- lars and 59 cents, in full for mail service by steamboat " Gov- ernor Morehead," for one quarter, ending 30th September, 1856, $312,59. John Myers & Son." And asked him if the plaintiffs did not offer to accept the money and give him that receipt. Witness answered, that they offered to receive the money and to give him a paper, perhaps that, but that he could not identify it. Thomas My- ers testified, that the receipt produced, was the paper offer- ed ; that he was present at the time it was offered, made a memorandum on it and preserved it. The defendant's counsel objected to the production of the receipt, to the questions about it, and to its being read to the jury, but the Court over-ruled the objection. Defendant's counsel excepted. Yerdict and judgment for plaintiff. Appeal by defendant. Rodman for plaintiffs. Warren and Donnelly for defendant. Manly, J. Upon the trial before the jury in the Superior Court, the case was made by the parties to turn upon the en- quiry, whether J. J. B. Pender had been substituted for de- fendant in his contract with plaintiffs, and, conseqently, whether Pender was the debtor instead of defendant. To es- tablish the affirmative of this enquiry, the defendant intro- duced Pender, who, in the course of his testimony, stated that he had offered to pay the quarter's dues for which this ac- tion is brought, but he had not paid it, because plaintiffs were unwilling to give him such a receipt as he wished. DECEMBER TEEM, 1860. 147 Townsend v. Moore. Upon the cross-examination, the receipt was produced and identified as the one in question. The defendant objected to its introduction, and the over-ruling of this objection is the ground for the single exception, which appears upon the record. The evidence is clearly admissible. The defendant attempt- ed to show that Pender was accepted as the debtor, by show- ing that plaintiffs negotiated with him. It was surely com- petent for plaintiff's to show in reply, in what capacity they treated with him. The receipt was competent for that pur- pose, as a declaration made at the time, and constituting a part of the res geska j and is also competent as the best evi- dence of a matter which the defendant had attempted to prove, viz., the purport of the receipt. In either point of view, the evidence was admissible, and there is no ground for the exception. Per Curiam, Judgment affirmed. ALEXANDER TOWNSEND, Admr., v. ROBERT S. MOORE, et al. Before a will can be received by our courts, as having been established by a tribunal in another State, it must appear by the record that such will was duly passed on by it, and that such tribunal was the court of probate of the domicil. Tins was a motion in the County Court of Robeson, to have recorded a paper-writing, purporting to be a copy of the last will and testament of Robert Pittman. The order was made ac- cordingly, and the defendants appealed to the Superior Court, where Saunders, J., refused the motion with costs, and the plaintiffs appealed to this Court. The decedent, according to the language of the paper- writing offered, had lived in Robeson County, North Carolina, but then was of St. Clair County, Alabama. The basis of this application was this certificate .' 148 IN THE SUPEEME COUET. Townsend v. Moore. " State of Alabama, St. Claik County. " Personally appeared before me, James Eogan, Judge of the County Court of said county, John F. Dill and C. C. Far- rar, two of the subscribing witnesses to the M'ithin will, who, being duly sworn, deposeth and saith that they were present at the time said will was signed, and that they saw the same sign- ed and acknowledged by Eobert Pittman, for the purposes therein contained, and that the said Eobert Pittman was, at the time of signing the same, of sound mind, John F. Dill, C. C. Faerab, Sworn to, and subscribed before me, this 30th day of June, 1838. James Eogan, Judge of County Court." Also, this further certificate. "^^""^^clrJ^irSunty } ^^'^^^^^ ^^"'*' ^^^^^'^' T^''^^' ^^^^' Then was this will admitted to probate, and ordered to be recorded. Thomas Ehodes, Cl'k." "State of Mississippi, ) Carroll County. ) I, A. M. ISTelson, Clerk of the probate Court, of said coun- ty, hereby certifiy that the foregoing is a true and correct copy of the last will and testament of Eobert Pittman, deceas- ed, as the same appears of record in my office with book A, page 13. Given under my hand and the seal of office, at Car- rollton. February 21st, 1857." Then comes the certificate of the Judge of the probate Court, 11 July, 1857, to the effect that Mr. Nelson, was the clerk, "duly commissioned, and that full faith and credit should be given to his official acts." Signed by JoseJ)h Drake, Judge of the Carroll probate Court. Upon this evidence the Court refused to have the paper- writing admitted to record. Whereupon the plaintifis ap- pealed. No counsel appeared for the plaintiff in this Court. Fowle, for the defendant. DECEMBER TERM, 1860. 149 Townsend v. Moore. Manly, J. Under the provisions of the Revised Code, ch, 119, sec. 17, the will of one, domiciled in another State, ad- mitted to probate there according to the requirement of the law, will be admitted in the courts of this State, as proved in respect to personalty, and put upon the records- To entitle a case to this comity, it ie necessary, however, that the will should ho, proved at the place of the domicil, and that an ex- ■emplilkation of tlic will and probate should be duly certi- fied to lis hy the proper officers of the court, with the infor- mation tliat it is in due form. It will then become the duty of an}' court m this Stato, where there are goods of value belonging to the deceased, to spread it upon its records and issue lettei's thereon. The law, in rospect to such matters, in vjew, especially, of our statute iaw uix>n the subject, was fully discussed in Jbpnan v. GasMns^ 5 Ired. 267, and in Dral'e v. Merrill^ 2 Jones, 368. We deem it unnecessary, therefore, to say moi-e at present. Referring to the documents now before us, it will be seen that the testator was of St. Clair county, Alabama, where a ,probate i« first had of his will, it then seems to have been 4)ropounded in some f®rm, in 'Carroll county, Mississippi, nv'hei^ it was Jidmitted to probate also. The copy, which we ^lave, is from Mississip)^>i, awd is certified by the clerk of the jirobate Court for Carroll count}^ to be a true copy. We are futiable to discover from its contents, whether the original, or :a copy was sent to Mississippi, but in either case the exemplifi- cation sent us is not a compliance witli the law. In the absence «®t the origiiial, (whieli we suppose might have been 'brought onto North Carolina and proved) it is proper that we should iliave a eepy and an e-xemplification of the proceedings, pro- perly certified from the 'Court of probate, at the domicil. At best, we have onl}^ a certificate from the Court of Carroll ceunty that certain matter was certified to that Court. A co- py of a copy, in record evidence, is inadmissible. Whether it bedwly proved according to the law of the domicil, we are not informed. It is indispensable that the probate Court in Alabama jsiiouJd adjudge the paper, upon the proofs, to belhe 18^ IN THE SUPKEME COUKT. State V. Sam. last will and testament of the deceased, and that this should be certified directly to us. There is no error. Pee Curiam, Judgment affirmed. STATE ^^. SAM (a slave.) In order to show that a witness in a eawse was excited at the horrible crime- alleged against a slave, aad was, therefore, not fully to foe relied on, it was Held competent to ask him, on cross-examination^ whether he had not ta- ken up and whipped other negroes. In order to weaken the force of a witness'' evidene© o® cross-examination,, it was Held competent to show bis teniper and feeKng towards the cause, independently of any prejudice or ill-will towards the accused, personally. Tins was an indictment for mfkdek, tried before Howardv J., at the last Superior Court of Bertie county. The prisoner was indicted and put on trial with two others, Noah and Perry, for tfoe murder of one Geoi'ge Askew, by burm- ing the house in which he was asleep. There was a couM charging the death to have been prodnced) by a blow from a stick. On the trial, one Joseph B. Kuffin gave tesHmoay as tO' tb© confessions of Sam. Upon his ei'oss-examination, Ruffin was asked by the prisoner's counsel, "■if be had not taken up and whipped other negroes in the neighborhood." This questio'is was objected to by the counsel for the State. The Court asked, " what is the purpose of the question." Defendant's counsel answered, " to show that he has beee very active about the matter." The Court rejoined, " if he has, it is nothing to his discredit."". The testimony was ruled out, and the prisoner's counsel excepted;. DECEMBER TERM, 1860. 151 State V. Sam. There were raauy other exceptions on the trial, but as this is the only one treated of by this Court, it is not deemed proper to set them out. A iiolle prosequi was entered as to Noah, Perry was acquitted, and a verdict of guilty as to Sam, who, upon judgment being given against him, appealed. Attorney General^ for the State. Wmsto7i, f/r., for the defendant. Peakson:, C. J. Any evidence is competent, which tends to show the feeling or bias of a witness in respect to the party or the cause; for the jury ought to be put in possession of every fact which will enable them to form a proper estimate of the witness ; not merely in reference to his honesty, but to the degree of reliance that can be placed on his accuracy, and to what extent allowance should be made for the probability of misapprehension, or the danger that the witness had receiv- ed wrong impressions, owing to an excited state of feeling. Every one, no matter how honest he may be, is more apt to fall into error after he has " taken sides" in feeling or in ac- tion, than wliile he remained neutral. On this account, every witness was required by tlie common law to give his testimo- ny in the presence of the jury, and to be subject to cross-ex- iimiiiation ; so that they could look at him ; note his demean- or, and have every opportunity of testing whether he was un- der the influence of feeling, and thus be able to form an opin- ion how far he was to be relied on. Indeed, the chief excel- lence of a trial by jury, consists in the fact, that being- judges of human nature, when put in possession of all the circumstances that ma}', or are calculated to influence the feelings of a witness, or to show a bias either for or against a party, or in reference to the one side or the other of tlie case, which is on trial, the jury can better "weigh his testimony,'' and pass on the degree of credit, to wiiich a witness is enti- tled, than any one man, no matter how learned he may be in the law. It is on this principle that the rule, above stated, is based. It is to be met with in all the text books, and in State, 152 m THE SUPEEME COURT. State V. Sam. V, Pattevson^ 2 Ire. -346, it -is held, that although a witness cannot be contradicted as to matters merely collateral, drawn out on cross-examination, 3'et, when the cross-examination is as t© -matters which, although collatera.1, temd to show the tem- per^ disposition or eonduct of the witness in/felaiion to the cause or the ixtrties^ the witness may be contradicted. Both kinds of evidence are admissible on cross-examination, but the lat- ter is put on higher ground than the former, for it enters into and forms a part of the issue ; liadford v. Rlce^ 2 Dev. and Bat. 39. On the cross-examination of the witness, Rufiin, the prisoner's counsel, for the purpose of showing tliat he liad been very active in regard to the prosecution, proposed to ask him, " if he had taken up and whipped other negi'oes in the neighborhood." The solicitor for the State objected. The 'Court said, " if he has, it is nothing to his discredit," and re- jected the evidence. Jn this, there is error. By the word, " discredit," we do not understand his Honor to have expressed an opinion as to the degree of credit, to which the w^itness was entitled, but tohave used the word in the sense of not beina; cen- surable, or to be blamed, if he had talvcn up and whipped other negroes in the neighborhood, touching the crime tlien under investigation. Whether such conduct was censurable or .praiseworthy, is not a question of law, and is a matter about which there may be a difference of opinion. So, we lay no ■ stress upon it, further than to say, such remarks should not 'Come from the bench, because tliey are apt to betray feelings His Honor fell into error, either because he had misconceived the extent of tlie rule, -or in making an application of it. If lie supposed the rule required that the question, in order to be relevant, sliould tend to show the disposition or feeling of the witness towards the prisoner, individually, he was mista- ken as to its extent, for it embraces the feeling of the witness in respect to the cause as well as the party. When a witness has become so much excited, by reason of a horrible crime that has been committed, as to be induced " to take up and whip negroes," for the purpose of ferreting out the offenders, his excited state of feeling cen'tainly would have a tendency DECEMBER TERM, 1860. WSX Biiliard v. Mitchell, to-iBakehis testimony less reliable, because Most of the ebjections to the award, made in tlie Court b^low, were addressed to the discretion of the J«di;-e presiding in that Court, and are admitted by the coun- sel, not to be tlie subject of review in this Court. The only oxceptions to which our attention has been called in the argu- ment here, are said to be apparent upon the award itself, con- sidered in connection with the manner and terms of the re- ference. It is contended, for the e .pleadings. The argument tails, as we think, upon both the jfjoints to which the ex-ception re- lates. Theoounse'I insists that .as the reference embraced "all matters in controversy" in this and two other suits, in which the present plaintiff was defendant, and the present defen- dants were plaintiffs, the arbitrators were bound to determine by their award, the boundaries of the lands of the parties, and to fix the di-viding line between them. Tlie action in the ■case, befoi-e us, is the only one necessary for us to consider, as the otlier two have been disposed of in the Court below. It Avas an action of trespass, quare'clausum fregit, to which the defendants 'pleaded the general issue of not guilty, license, ac- cord and satisfaction, and the statute of limitations. The submission to arbitration being by a rule of Court, "embrae- >ed the matter, and that onl^^ which the pleadings of the par- !ties brought into contestation before the CoHrt," as w\as ex- t.pressly said in Ilardhi v. Beatij^ -i Dev. and Bat. Rep. 381. The laud, upon wiiicli the ti-espass was alleged to have been committed, was nocQ,ovci^% functus officio in respect to the case decided. For instance, a single justice of the peace cannot grant a new trial, except under the circumstances DECEMBER TEEM, 1860. 163 Billups V. Riddick. where the power is specially conferred by statute. But the county court is not an inferior court, within the meaning of this rule. It is a court of record, and has general original jurisdiction "to hear, try and determine all causes of a civil nature at the common law within their respective counties, where the original jurisdiction is not, by statute, confined to one or more magistrates out of court, or to the Supreme or superior courts ;" Rev. Code, ch. 31, sec. 5. As the Court has the power, it follows that its discretion, in the exercise of it, cannot be reviewed. Whether the discre- tion be exercised ex mero viotu^ or, at the instance of a stran- ger to the proceedings, is a matter which does not at all affect the validity of its action, and cannot be enquired into. In this particular instance, however, we will say, from what ap- pears on the record, the discretion was very properly exer- cised in setting aside a judgment, which had been confessed (for it amounted to that in fact) at the first term, by one who had no personal interest to contest the claim, as a want of as- sets was admitted. There is no error. Per Curiam, Judgment affirmed^ d JOSEPH R. BILLUPS and loife v. WILLIS D. RIDDICK and wife. Where a petition was filed for partition of slaves and money, and there was no answer, no judgment pro confesso, no issue made up, and no order made for setting the case for hearing, it was held erroneous for the Court to pass a decree. The jurisdiction of the county court to order a partition among tenants in common, does not extend to money. A petilion against an executor for a filial portion, &c., will not lie for money or other property delivered by him to a legatee for life. This was a petition for the partition of slaves, and for an account of money, &c., tried before Howard, J., at Fall Term, 1860, uf Perquimons Superior Court. 164 IN THE SUPKEME COUET. Billups V. Riddick. The petition was filed in the County Court of Perquimons against Willis D. Riddick and wife, and sets forth, "That one Jesse Stallings, the father of your petitioner, Sophia, died in the county of Perquimons, having made a last will and testament, by the provisions of which, a large amount of property, consist- ing of negroes and money, was left to Priscilla Stallings du- ring her life, and after her death, the same to be equally di- vided between your petitioner, Sophia, and her sister, Mary Riddick, wife of Willis D. Pviddick." * * * "That Wil- lis D. Riddick, one of the executors, named in the said wil), took upon himself the duties of his office, and that he assent- ed to the legacies of the said will, and placed the property, given to the said Priscilla during her life, in her possession." * * * a 'pjjj^i- Pi-iscilla Stallings has lately died in the said county, leaving a large estate, the gift to her for life, consist- ing of a large number of slaves, (naming them) and also a large amount of money (about four thousand dollars) and other property, which, by the terms of the said will, now be- longs equally to .your petitioners, and to the said Willis D. Riddick and wife, Mary." The prayer is for the appointment of commissioners to divide the slaves, and for an account of the money. The petition was served upon Riddick, and at August Term, 1860, of the said County Court, is this record : " De- cree of the Court in favor of the plain tiifs for partition and an account." From which the defendant, Riddick, appealed to the Superior Court. In the Superior Court, is this record : " It is ordered and decreed by the Court, that the plaintiffs are entitled to a division and partition of the negroes in con- troversy, and that five commissioners be appointed according to law, to divide the slaves. It is also ordered and decreed, that the plaintiffs are entitled to an account of the remaining personal property of Jesse Stallings, on hand at the death of ^ his widow, comprising the capital of the said fund and not the interest accrued on the same, during the life of his widow." There is no other record in either Court. The will of Jesse Stallings is filed, and it is deemed that the provisions of that DECEMBER TERM, 1860. 165 Billups V. Riddick. paper are sufficiently set out, in the opinion of the Court, for all the purposes of this case. Tlie defendants appealed from the deci-ee i-n the Snpemr Oourt. Alhritton and Jordan^ for the plaintiffs. Hines, for the defendants. Pearson., C- J- The decree in the Court beiosv, is -errone- ous, and must be reversed, and the petition dismissed. There are so many fatal objections, that we are at a loss on which to put our decision. 1, It does not appear by the transcript that an answer was liled ; there is no judgment 2^f'0 eonfc^fio / no issue is made, •either of law -or fact, and there is n© order setting the case for hearing. 2. There is no allegation that the slaves, which are to be divided, or the money, of wliick an account is prayed, are in the possession of either the plaintiffs or the defendants. "3. The juTisdiction of the county court to order partition among tenants in common, on petition, is confined to a divi- sion of slaves or other ehattel property. This does not em- brace monej'', and the Court had no jurisdiction to order an account to be taken. That branch of equity jurisdiction is not conferred ou the county courts, and has ivever been as- sumed before this case, except ok petitions for legacies, filial portions and distributive shares. 15ut our case does not fall wnder either of these beads, the •executor having long since assented, and passed the property, money, tt'c, to thelegateee. 4. The petitivTin alleges tliat Friscilla Stallings was, by the will of Jesse Stallings, entitled to att estate for l^fe, in the ■slaves and other property and effects, and after her death, the «ame was to be equall}'' divided lietween the petitioner, So- phia, and the defendant, her sister, Mary, Whether this be the legal effect of the will, is a question which cannot now be decided. The slaves, property, money, &e., are given to Frificiila Stailioags, Sophia Wliite and Mary Riddick, to be 166 m THE SUPKEME COUKT. Madden v. Porterfield. equally divided between the three. This vesta in Mrs. Stall- ings an absolute estate, just as it does in Mrs. White and Mrs. Riddick, and we suppose, from the argument before us, that the purpose of the petition was to have a cmistruction of the will, as to whether the subsequent clause^ in which the testator desires all that part of the property, given to his wife, " that shall he reraaininfj at her death^'' to be equally divided between his two daughters, has the effect of cutting down the estate, given to the wife, so as to make room for the limitation over ; o.r is inoperative, because inee»sistent with the estate before given to her. Thi's depends upon the appli- cation of tlie doctrine discussed in McDxm.iel v. McDaniely 5 Jones' Eq. 352 ; Hall v. RoUnson, 3 Jones' Eq. 349 ; New- land V. Ne'iola7id^ 1 Jones, 403, and other cases. As a matter of course, tliis question cannot be decided ex- cept in some proceeding, to which the personal representa- tive of Mrs. Stallings is a party, and as the decree, in this- case, is based upon a decision of that Cjuestion, it is erroneous. Pek Curiam, Judgment reversed,, and petitioB dismissed. QUINCY MADDEN v. JAMES PORTERFIELR Where plaintiff bad contpaeted to serve defendant for ten months, for a cer- tain sum, and, before the expiration of that time,.defendant wrongfully dis- missed him, and plaintiff sues on Con- tracts 520, note j, and the cases there cited. The second point, viz : that upon the admissibility of evi- dence, was also ruled correctly by his Honor below. It did not tend at all to aid the jury, in their enquiry, as to the value of a man's labor for seven months, to know what the half hour of his time, when witness was with him on a certain occasion, was worth. The question was immaterial. The instruction asked for and refused, which constitutes the 170 m THE SUPREME COURT. State V. Gray. third point of exception to the trial, is based npon the idea that all evidence, as to the nature and extent of the services of plaintiff, was to be excluded from the view of the jury, unless the witnesses themselves made estimates of their value in money. This is not correct. It is the appropriate pro- vince of the jury to affix a value to services, according to their nature and extent as proved; and with the data afforded by the proofs in this case, we see no difficulty in the perform- ance of that duty. Pee Cukiam, Judgment affirmed. STATE V. WESLEY GRAY. In an indictment under our statute, Rev. Code, chap. 34, sec. 5, for carnally knowing and abusing an infant female under the age of ten years, it was held error in the Judge to charge the jury, that proof of emission of seed was not necessary in order to convict the prisoner. This was an indictment, under the statute, against the de- fendant, for carnally knowing and abusing a female infant under the age of ten years, tried before Saunders, J., at the last Fall Term of Guilford Superior Court. The indictment charged, that the defendant did carnally know and abuse one Louisa E. Wheeler, alias Louisa E. Stack, a female under the age of ten years. It appeared, in evi- dence, that she was between the ages of eight and nine years, at the time of the commission of the offense; that she was of ordinary size, and of more than ordinary intelligence. She testified that she was sent to Jamestown to carry dinner to her father, who was at work there, it being about a mile from where she lived, and that she walked on the track of the rail- road ; that her father was engaged in digging a well there ; she saw the prisoner at the well ; that he was not at work ; / DECEMBER TERM, I860-. 171 State V. Gray. that after Iier father finished his dinner, he ordered her home ; that when she started, the prisoner followed her and over- took her in less than a quarter of a mile ; that he was fif- teen years old, and as she did not like to travel with him, she stopped at one Jackson's, who lived near the road, to get some water ; that prisoner proposed to wait for her, and call- ed her two or three times ; that she supposed he was gone, but on getting into the road, he again joined her: that going a short distance they met his sister and her husband, who pro- posed that he should go back with them, which he declined ; she went on and he soon overtook her again, and began to- talk " nasty words ;"' that she picked up a roek or stone and told him, if he touched her, she would throw it at him ; tliat he thereupon seized her by her shoulders, pushed her a few steps out of the road, pulled up her clothes, threw her down and got on her, and tried to stop her mouth ; that she hollow- ed as loud as she could ; that he remained on her some five minutes ; that he hurt her very much when he entered her person, and made her private parts bleed; that he then got oflf of her, got some switches and threatened to whip her if she did not promise not to tell her mother; that lie whipped her until she promised, and then left her; that she went on home, and on going into the house, told her mother that pri- soner had nearly killed her. Hev mother was then examined, and testified to what the child had stated. Doctor Pugh testified, that he was called the next day, ex- amined the child, and found her private parts very much swool- en, torn and lacerated ; tha,t there had been a penetration, certainly, as much as three-fourths of an inch, or perhaps an inch and a half ; that he was decidedly of opinion that the entry had been as far as it was possible in a child of her age. The father also testified to having seen the prisoner at the well when the gii'l left, but did not see him afterwards. The Court charged the jury, that if the testimony of the girl was to be believed, and the Doctor was correct in his opinion, and the jury believed it, the ofiense was mad a out, and that it was the duty of the jury to convict. That peno- V 172 IN THE SUPREME COtrRT. State V. Gray. tration was sufficient, and emission not necessary to be prov- en. Defendant's counsel excepted. Verdict for the State. Judgment. Appeal by defendant. Attorney General^ for the State. GovTell^ for the defendant. Battle, J. The main question in this case, and the only one which we deem it necessary to notice particularly, is, whether upon an indictment, under our statute, for carnally knowing and abusing a female child under the age of ten years, it is necessary to prove the emission of seed, in addition to the proof of penetration. This question has not hitherto been before the Supreme Court of this State for ad- judication, either with regard to this crime or that of bug- gery. We are nnder the impression, however, that on the circuits, proof of both penetration and emission have been, genei'ally, deemed necessary, and have been required for the '■conviction of prisoners charged with either of these offenses. In England, the contrariety of opinion, as to the law on this subject, among lier greatest writers and Judges, is re- anarkable. Lord Coke, in his 3 Inst. 59-'60, says that penetra- tion only is necessarj'- to consummate the offense, while in his 12 Rep. 37, proof of both penetration and emission was held to be indispensible for the conviction of the offender. Lord Hale seems likewise to have entertained different opinions at different times ; see 1 Hawk. Pie. chap. 4, sec. 2; chap. 41, sec. 1, and 1 Hale P. C. 628. In 1721. a case was brought before eleven Judges upon a special verdict, when six of them thought botli ])eneti'ati0n and emission were necessary, while the other five deemed penetration, only, to be sufficient. The Judges being divided, it was proposed to discharge the spe- cial verdict and indict the prisoner for a misdemeanor; see l|East P. Cr. 437. After that time, for about sixty years, the weight of judicial authority seemed to be in favor of requir- ing prosf of penetration only. But in 1781, a case occurred befone Buller, Judge, in whicli the jury found there was DECEMBER TERM, 1860. 173 State V. Gray, penetration, but no emission, whereupon the learned Judo^ respited the prisoner until he could obtain the opinion of the other Judges. Two of them, to wit, Lord Loughbokough and Heath, J., held with him, that the offense was coinplete ; but eight others, including Lord Ch. B. Skynnkr and Lord Mansfield, were of a contrary' opinion, upon the ground, that carnal knowledge must include both penetration and emis- sion. They held, however, that the latter might be inferred from the former, unless the contrary appeared probable from the circumstances ; as, for instance, where the offender was frightened away by the approach of other persons before he had hud his will of his victim. The opinion of the majority of the Judges in this case, prevailed, without nuicli question, until the year 1829, Mdien, by the statute of 9th Geo. i, chap. 31, it was declared (after the recital that many offenders had escaped on account of the difficulty of the proof in such crimes) that " it shall not be necessary, in any of those cases, to prove the actual emission of seed, in order to constitute a carnal knowledge, but that the carnal knowledge shall be deem- ed complete upon the proof of penetration only." We have already stated our belief of what has been the prevailing opinion in this State, and in that opinion, we entire- ly concur. Our statute law, with regard to these offenses, is now, and has been heretofore, the same as that which existed in England, prior to the statute of 9th George 4, above refer- red to, and their adjudications upon their statutes, have, no doubt, influenced our Judges to adopt the same construction upon ours. It is an argument, of no little weight, in lavor of that construction, that a boy, under the age of fourteen years, cannot be guilty of the offense of rape, because, until he ar- rives at about that period of life, he is incapable of emitting seed. Such has always been considered to be the law of England, and it has very lately been decided to be the law of this State ; see Hex V. Elderslaw, 14 Eng. C. L. Rep. 367 ; StaU v. Pugh, 7 Jones, 61. In the case now before us, the presiding Judge might have submitted the facts to the jury and left it to them to make the 174 IN THE SUPKEME COUET. Lander v. McMillan. inference that there was emission, if tliey believed that there was penetration. If the facts were found to be as testified by the witnesses, then the jury would have been justified in ren- dering their verdict, that the complete offense had been com- mitted ; but as our Legislature has not yet passed an act sim- ilar to that of 9th George 4, his Honor erred in telling the ^ury, that proof of emission was not necessary. For this error, the prisoner is entitled to have the judgment reversed, and a y a warrant to recover the same. The only question intended to be submitted to tliis Court was, whether the defendants were liable to this tax of twenty- five dollars. On the foregoing facts, his Honor being of opinion with DECEMBER TERM, 1860. 183 Commissioners v. Patterson. the plaintiffs, gave judgment pro forma accordingly. De- fendants appealed to this Court. Fo^ole, for the plaintiffs. V. C. jBarringer, for the defendants. Manly, J. We are not informed upon what ground the recovery is resisted in this ease, and are unable to discover any. The general law, empowering our incorporated towns to raise a revenue b\" taxing certain specified objects, pro- vides that a tax, not exceeding twent3^-five dollars, may be levied on all persons (apothecaries and druggists excepted,) retailing and selling liquors and wines of the measure of a quart or less. The tax in question seems to be in strict con- foi'mity with this power. The power of the Legislature to tax dealers in spirituous liquors at will, restrained only b}^ their sense of justice and the interests of the country, we take to be unquestionable. The legislative autiiority to delegate this power has been exercised from the foundation of the gov- ernment, and is equally well fixed. We are not aware of any thing in the laws, by which these powers have been parted with or abridged. The indictable character of a retailing in quantities less than a quart without license, does not at all touch the taxing power. By the general revenue law, a tax in behalf of the State of five per .cent, is levied on capital invested by dealers in li- quors, etc., Bev. Code, chap. 99, sec. 2-1. This exercise by the Legislature of the power to tax, and the delegation of it at the same time within certain limits, in respect to the same objects, is of fiequent occurrence in the code of tiie State. The two taxes arc imposed for different purposes. It would be perfectlj' competent for the Assembly to do both ; to tax an object to a certain extent for one purpose, and again to tax it in a similar way for another purpose. And we see no good 184 m THE SUPKEME COURT. McDowell V. Bowles. reason wh}' it may not divide and delegate a poi'tion of this power when it is necessary or expedient to do so. The government of jN^orth Carolina, in respect to the power of taxation, has been conducted in this way from the begin- ning. The Legislature exercises directly a portion of the taxing power for State purposes, the county court, under authority from the Legislature, exercises anotlier portion for county pur- poses, and incorporated towns still another portion for corpor- ation purposes, all upon the same objects of taxation. We are of opinion that the 2>''0 /on/ia }\\(\gment below, for the plaintiff, is correct. Per Curiam, Judgment affirmed. ABNER C. McDowell v. WILLIAM BOWLES. It is not actionable, per se, to charge a white man with being a free negro j and it does not alter the case, that such man was a minister of the gospel. This was an action on the case for slajStder, tried before Dick, J., at the last Fall Term of Surry Superior Court. The plaintiff declared that he was a clear blooded white man, and a regular licensed minister of the Baptist Chui'ch ; that the defendant said of him at a constable's election, where plaintiff' came forward to vote, that he (plaintiff) had no right to vote ; that he (plaintiff) M-as a free negro, and said, " if yon let free negroes vote, here, let Zach. Warden (who is a free negro) vote also." There was no special damage laid or proved. The defendant moved to nonsuit plaintiff', upon the ground, that the words alleged to have been spoken, were not action- able. His Honor being of that opinion, ordered a nonsuit, from which plaintiff appealed. DECEMBER TERM, 18G0. 185 McDowell V. Bowles. Crumplei\ for tlie plaintiff. Boyden^ for the defendant. Manly, tT. We are not aware of any class of defamatory words, wliicli are hold to be actionable, that would end)race the language complained of in this case. The three classes most usually found in elementaiy books, are : 1. AVoi'ds that impute a crime or a misdemeanor, punisha- ble b}' an infamous penalt_y. 2. Words that impute an contagious disease, by wliicli the part}' impugned would be excluded from society. 3. Words derogatory to one in resj)ect to his office, ]>rofes- sion or calling. The case before us, is not embraced in any of these classes. It is obviously not in the first. It is not in the second, for the reason that this class has been strictly confined to tiie im- putation of certain diseases of a loathsome or pestilential na- ture. It is not in the third, because the offensive language is not spoken of the plaintiff in respect to his calling, wlucli is indispensable to the actionable character of" words in tiiat class. It is stated in the declaration, that the plaintiff was a minister of the gospel. Conceding tiiis to be one of the cal- lings which falls within the rule of law in respect to slander, (which is by no means certain) yet, its sacred character will not make language actionable, which would' not be sd, if used of a ]n-ivate ])erson, unless such language be of and concern- ing him in his caj)acity of minister. Thus stands the law, as we conceive, in respect to words al- leged to be actionable of themselves; with respect to all other disparaging woixls, outside of tiie limitation prescribed, spe- cial damage must be alleged and proved. • Concurring with the Court below, that the words are not subject to an aciion without an allegation and proof of special damage, the judgment of nonsuit, in the Court below, is af- firmed. Per Curiam, Judgment affirmed. ISC m THE SUPREME COURT. Kinsey v. Magistrates of Jones. WILLIAM C. KINSEY v. THE MAGISTRATES OF JONES. The justices of a county arc not lesponsible to the owner of j^roperty for in- juries to it, occasioned by defects in puhhc bridges under their control. This was an action of tlie cask, submitted to Bailky, J., at Fall Term, 1S60, of Jones Superior Court, upon the following case agreed. The plaintiff's negro, with a mule and cart, while crossing ov^er a bridge in the county of Jones, were precipitated into the river Trent, by the breaking in of the bridge, and in con- sequence thereof, tlie mule and cart were lost. It was admit- ted that the bridge was dangerous, and that the magistrates knew it, but it was also admitted that they had entered into a contract with a person fully competent to repair said bridge, as soon as they were aware of its dangerous condition, but that he had neglected to do so. It Avas agreed, tliat if the Court should l)e of opinion^ that the defendants are liable in this action, judgment should be rendered for the plaintiff, for the sum of one hundred and seventy dollars; if the contrary, that judgment of nonsuit should be entered. The Court be- ing of opinion that the action could not be sustained, judg- ment of nonsuit was accordingly entered. Plaintift appealed to this Court. J. ir. Uryan, for the plaintiff. Washington, for the defendant. Manly, J. We concur with the Court below, in the opin- ion that this action cannot be sustained. The justices cannot be held responsible, either in criminal prosecutions or civil actions for deficiencies in tlie public highways and bridges. — They are charged with certain duties in respect to them, but wlien these are performed, their otiice ceases, and the over- seers and contractors are responsible to the country and to citi- zens. That they are not criminally responsible, except for the non-performance of the specific duties assigned them by law, is decided by the case of The /State v. The justices of Lenoir, DECEMBER TERM, 1860. 18T Kinsey v. Magistrates of Jones. 4PLiwks, 194; and that they are not responsible at all, in civil actions to the citizens of the countiy, is also settled by authorit}^, and the uniform practice of the State. We content oui'selves with referi'ing to the work of Angel and Durfee on highways, sec. 2S(), and the cases there cited, wliich was called to our attention l)y the defendant's counsel, in the argument. In some of the States it seems provision has been made, subjecting parishes, townships, counties and the like, quasi corporations to a limited responsibility by civil action, but it is well settled that there is no sucii redress at common law. — The reasons given are, that it is a public matter, and ought to be reformed by presentment ; and that corporations of that class have no treasury at their disposal, out of which they could pay damages and no power to provide any. The justices, as a municipal body in our system, act only through the medium of a majority of its members, and their actions, when done, bind the body as such, and not the indi- viduals of whom it is composed. So their refusal or neglect to act would be the refusal or neglect of the body, and render it alone responsible. How is satisfaction of a judgment, against such a body, to be obtained. Heretofore, in North Carolina, redress against the justices for misconduct or omission of duty, has been sought through the wi-it of mandamus. Resort to this process is based ui)on the assumption that there is no other legal remedy, for it is onh^ proper in that case, as is shown in the State v. Jones, 1 Ired., 129 ; and the State v. The justices of Moore, 2 Ired., 430. The many cases of mandamus, found in our reports, to compel justices to perform their duties are, therefore, so many judgments of our courts, by a necessar}' implication tliat the remedy, by private action, M'as not open to tlie citizen. The novelty of this action is evidence against it. Although, as alleged, it belongs to the common law rights of action, it is without precedent so tar as we know. Per Curiam, ' Judgment affirmed. 18S IN THE SUPREME COURT. Jackson v. Hanna. EMANUEL JACKSON v. TETER HANNA, Adminisimior. AVhoro a grantor of land in another State, entered into a covenant of quiet eujoynient, and after his death, his widow recovered of the grantor a sum certain in heu of h-er dower, (the law of that State slibjecting all lands to dower, of which the husband was seized during coverture) it was Held that such recover}' was an eviction,, and the covenantee was entitled to recover the amount paid. Where a covenantee sued on his covenant for quiet enjoyment, on account of a recovery of a sum certain oii'of hmi by the widow of the covenantor for her dower, and it appeared that only a part of the recovery was paid when the suit v.'as brought, and the remainder afterwards and before the trial, it was Held that the covenantee was entitled to recover tlie whole sum. The action on a covenant of quiet enjoyment is transitory, and though enter- ed into in another State, may be sued on in this State. Tins was an action of covenant, tried before Saunders, J., at the Special Term (June. I860,) of Richmond Superior Court. The plaintiff declared on a covenant contained in a deed to hini from the defendant's intestate, one Eli Meekins. The covenant is in these words : " and I do hereby bind myself, my heirs, executors and administrators, to warrant and for- ever defend all and singular the said premises, unto the said Emanuel Jackson, his heirs and assigns, against myself and my heirs, and against all persons wliomsoever, lawfully claim- ing, or to claim the same, or any part thereof." Tiie ])hiintiff entered into possession of the land, wliich is in South Carolina, during the life-time of the covenantor, and lias continued in possession ever since. After the death of the covenantor, liis widow filed a petition for dower in the courts of South Carolina. It was proved that by the laws of that State, tlie M-idow of one dj'ing intestate, is entitled to her dower in all the land of which her husband was seized during the coverture, and that the jurj^ may lay off her dow- er in the land, or may, in their discretion, if, in their opinion, such assignment cannot be made without injury to the inter- ests of the parties concerned, ascertain Mie value of her dower, DECEMBER TEEM, 1860. 189^ Jackson v. Hanna. and direct the value of tlie same to be paid in money. In this case, the jury ascertained the value of the dower inter- est, and there was a verdict and judgment against the plain- tiff in this case, for $590,08, with interest on $516,06, until paid, and costs $52,33, and an execution issued for the same. Before the bringing of this suit, the plaintiff paid the costs of the proceeding for dower, to wit, $52,33, and during tlie pen- dency of the suit, and before the trial, he paid the whole judg- ment, amounting to $712,17. There was a verdict for the ])laintitf for the wliole amount, subject to the opinion of tlie Court upon the lav/ of the case, with leave to set aside the verdict and enter a nonsuit, in case it should lie against the phiintiff, or otherwise should give judg- ment for whatever the plaintiff was entitled to. His Honor, on consideration, gave judgment for tlie amount of the costs paid, ($52,33) and tlie plaintiff appealed. JR. IL Battle, for tlie plaintiff'. Strange, for the defendant. Mania-, J. We interpret the warranty in the deed of Eli Meekins, of 7th October, 1851, a covenant for quiet enjoy- ment, and after some reflection, conclude that the recovery by the widow of Meekins of the judgment of $590,08, the the suing out of execution and enforcing the collection of the same is, under the circumstances, an eviction, which entitles the plaintilf to his action of covenant on the warranty. It seems, by the law of South Carolina, the widow is enti- tled to dower in all lands of which her husband was seized during the coverture, and that the jury may either assign dower by an allotment of a portion of the land, or where tlie interests of all concerned require it, by an assessment of the value of the same, to be paid her in money. Dower was as- signed in the latter mode, a judgment was rendered against Jackson for the same, a jieri facias sued out and the moneys made thereon. If dower had been assigned by an allotment of land, followed on the part of the widow by an action of 190 IN THE SUPREME COURT. Jackson v. Hanna. ejectment, and "writ of possession execntcd, tiie case would have been free from all doubt. The case before ns, does not differ substantially from this. Dower is assigned in the land in a different mode, b}' force of the law, and the plaintiff' makes satisfaction for the same, under the compelling process of the law. Tiiis is the same, in all essential particulars, as a dispossession under a superior title ^r/'c tanto — both being, in substance, a disturbance of the possession by process of law. It has been held in our State, in the case of CoJjle v. Well- hom^ 2 Dev. 388, that the purchase of an outstanding title established b}'' an action of ejectment, was not an eviction. The case differs from the one before us, in the important par- ticular, that the purchase was voluntary and for the sake of peace — there being no actual coercion or enforcement of the superior title. The plaintiff' has lost a part of the thing bought, occasioned by the right or claim of a third person enforced at law. This is eviction, and the judgment of the Court be- low, in that particular, was correct. We think there was error, however, in respect to the dam- ages held by the Court to be recoverable in the action. The part of the judgment paid after the suit, and before the ti'ial, was also recoverable. With respect to damage, we appre- hend the law to be that proof of such may extend to all facts, which occur or grow out of the injury, even up to the day of the verdict — excepting those facts, which not only happened since the commencement of tlie pending suit, but do, of them- selves, furnish sufficient cause for a new action. Indeed, it is upon this general principle, that interest is computed up to the time of the verdict in an action for the non-pajnnent of a sum of money. Mr.' Sedgwick, in his work on damages, says (page 104, 6j " It is agreeable to the principles of the com- mon law, that whenever a duty has been incurred pending the suit, for which no satisfaction can be had, bj a new suit, such duty shall be included in the judgment to be given in the action already depending." The enforcing of the judg- ment, which constituted the eviction, having been partly ac- complished before the suit, it follows upon the principles laid DECEMBER TERM, 1860. 191 ' Bond V. Warren. down, that all the damage, resulting from the eviction, should be given in the present suit. There are two cases in the Massachusetts I'eports, which appear to be somewhat analogous to this, upon the present point ; Lejfingwell v, Elliott., 10 Pick, ; Brooks v. Moodij, 20 do., 474, where it is held, in actions upon covenants of wfirranty against incumbi'anccs, the i)laintilfs may recov- er the amounts fairly and justly advanced to remove the in- cumbrances, although paid after the suit begins. A (juestion has been raised whether this be a local or tran- sitory action, and therefore whct])or it bo well brought in this State. T'he action being upon conti'act, is ti-ansitor}', and is well brouglit. This point is fully discussed and settled in tiie case of T/mrsley v. Plant., 1 Saun., 241, b. note 0. Thcie should have been a judgment below according to agreement, with respect to the points reserved, for the entire amount of damage incurred to the trial, and this judgment will be accordingly rendered here. Per Cukiam, Judgment reversed. SAMUEL T. BOND v. THOS. D. WARflEN. Juries are at liberty to infer the motives of parties from their contUiot, there- fore where, in an aetion for an assault and battery, it was proved that the defendant came to the house of the pliiintill" with whom he had been be- fore on friendly terms, and said to him. " How dare you send a letter to my house," and immediately assaulted liim, it was hdd error m the judge to charge the jury that there was no evidence that the letter was offensive or insulting, and that they could not infer that it was so. Tuis was an action of trespass vi et annis, tried before Howard, J., at Fall Term, 1860, of Chowan Superior Court. The phvintiff introduced h witness, his daughter, who testi- 192 m THE SUPREME COURT. Bond V. Warren. iiecl tha.t in November, 1S50, the detbndant came to the store of the phiiutifl", walked up to him, and said, " IIow dare yon send a letter to my lionse ;"' that the plaintitt" replied, "What do yon mean sir!" and that the defendant then committed the trespass complained of. The witness further testitied, that the store of plaintifl', and dwelling of defendant, were both in Edenton ; that the defendant was a widower, with a daughter, just returned from school, a young lad}^ living with him ; that she had never seen the defendant in jilantitt" 's store before this time, and that she had never heard of any difference or ditti- culty between them ; tliat, so far as she knew, and as she be- lieved, they were on friendly tei'ms before this. The defen- dant's counsel ai'gued that a letter had been sent to defen- dant's house, that it was offensive or insulting, and mightiiave been directed to defendant's daughter. The Court charged the jury, that although thej' might infer from the evidence that the plaintiff' had sent a letter to defen- dant's lionse, there was no evidence that the letter was sent as directed to defendant's daughter, or that the letter was of- fensive or insulting ; that if the fact was so, the defendant should have siiown it, and that as he had not done so, they must not so consider -it in making up their verdict. Defen- dant's counsel excepted. A^erdict and judgment for plaintiff. Appeal b}^ defendant. Johnson and Jli/tes, for plaintiff". Badger, Collins and II. A. Gllliavi, for defendant. Battle, J. This was an action for an assault and battery, committed by the defendant upon the plaintiff", in which the plaintiff" sought to recover, and did recover what is called vindictive or punitor}^ damages or smart money. In such an action, it is generally, if not always important to ascertain, as far as possible, by what motives the wrong-doer was actuated; for, n])on the character of those motives, the amount of tiie damages must materially depend. If the attack upon the per- son of the plaintiff" be cool and deliberate, wanton and unpro- DECEMBER TEKM, 1860. 193 Bond V. Warren. voked, tlie jury ^Yill be justified in assessing very high dam- ages; wiiile on the contrary, if the defendant commit the bat- tery under the influence of passion, excited by an actual or supposed injury done, or insult offered to liim by the plain- tift\ the damages ought to be comparatively low. Motive then, being an essential ingredient in tlie offense, is certain- 1}' a proper subject of proof. It frequently happens, however, that this proof cannot be made by any direct testimony, and each party is necessarily driven to rely upon tlie indirect or presumptive evidence, arising from the conduct of tlie oppo- site party. That such presumptions are allowable, and why they arc so, is very well explained b}^ Mr. Starkie in his ex- cellent " Practical treatise on the law of evidence," (see 1 Stark. Ev. m. p. 50 and. 51.) He says, "Presumptions, and strong ones, are continually raised upon knowledge of tlie hu- man character, and of the motives, passions and feelings, by which the mind is usually influenced. Experience and obser- vation show that the conduct of mankind is governed by gen- eral laws, which operate, under similar circumstances, with al- most as much regularity and uniformity as the mechanical laws of nature themselves do. The eftect of particular motives up- on human conduct, is the subject of every man's observation and experience, to a greater or less extent, and in proportion to his attention, means of observation and acuteness, every one becomes a judge of the human character, and can con- jecture on the one hand, what would be the effect and influ- ence of motives upon any individual under particular circum- stances ; and on the other hand, is able to presume and infer the motives by which an agent was actuated, from the partic- ular course of conduct which he adopted. Upon this ground it is, that evidence is daily adduced in courts of justice of the particular motives by which a party was influenced, in order that the jury may infer what his conduct -vras, under those cir- cumstances ; and, on the other, juries are as frequently called upon to infer what a man's motives and intentions have been, from his conduct and his acts. All this is done because every man is presumed to possess a knowledge of the connection 13 194 m THE SUPKEME COURT. Bond V. Warren. between motives and conduct, intention and acts, which he has acquired from experience, and be able to presume and in- fer the one from the other." The direct bearing of these remarks upon the case now be- fore us, is obvious. The defendant being upon friendly terms heretofore with the plaintiff, went to his store and beat him in his own house, in the presence of his daughter. What mo- tive prompted him to commit so lawless and violent an act ? The jury, who were called upon to decide upon the questions connected with that act, had a right to infer the motive from his conduct, which being j^^«ra rei gestae^ was evidence for him. What then was his conduct ? The witness stated that he came to the store of the defendant, and walking up to him said, " How dare you send a letter to mj^ house." What mo- tive can fairly and reasonably be inferred fiom such conduct? but that a letter was sent by the plaintiff to the defendant's house, which was, or which the defendant supposed to be, of- fensive in its terms. It is impossible to suppose that a sane man would have acted towards one with whom he was on friendly terms, as the defendant did towards the plaintiff, un- less he, in some way, felt himself agrieved by the act of the other. If such an inference, then, M^as a fair and reasonable one, the jury had a right to draw it, and his Honor erred in instructing them otlierwise. jN^or was that error cured by the failure of the defendant to produce the letter, and offer it in evidence, so that the jury might see the contents and judge for themselves, v/hether they were offensive or not. It did not appear that the defendant had the letter in his possession. He may have refused to receive it, or may have sent it back. But even if he had the possession of it, his non-production of it was only evidence for the consideration of the jury, as to the character of its contents, but did not justify the court in withdrawing from the jury the right to make their own inferences, from the conduct of the defendant. His Honor very properly said, that there was no evidence that the letter was sent or directed to the defendant's daughter, but he went too far in instructing the jury that they could not infer that DECEMBER TEEM, 1860. 195 Sparrow v. Maynard. it was offensive or insulting to tlie defendant himself. His conduct showed cleail}', that it was so, or that he thought it was so, and though his non-production of the letter, (supposing that he had it) may have weakened the testimou}", it did not entirely destroy it. Per Curiam, Judgment reversed, and a venire de novo. THOMAS G. SPARROW v. ROBERT C. MAYNARD. In a declaration for slander^ in charging the plaintiff with perjury in another State, it must be averred that, by the laws of such other State, perjury is an offense to which is annexed an infamous punishment Tins was an action for slanderous words, spoken, tried be- fore Bailey, J., at the Fall Term, 1860, of Craven Superior Court. The words complained of, are elaborately set out in a dec- laration, and the substance of them is, that on an indictment in a criminal court, in Baltimore in the State of Maryland, against one Thomas B. James, for obtaining goods under false pretences, the plaintiff, who appeared as a witness for the said James, committed willful and corrupt perjury. The declara- tion, however, no where averred that, by the laws of Mary- land, perjury was, or now is, punishable with an infamous punishment. Exception was taken, on the trial, to this defect in the dec- laration, and was sustained by his Ilontr, who nonsuited the plaintiff, from which he appealed to this Court. McBae, for the plaintiff. HatoghUm and MiUer^ for the defendant. ^m I-N" THE SUPKEME COURT. Sparrow v. Maynard. Manly, J. The question presented for our consideration is, whether the declaration sets out matter that, in law, con- stitutes slander. For if it do not, according to the case of Broioji V. Dula, 3 Murph. 574, the plaintiff was properly nonsuited in the Court below. Words actionable ^ro and con as to the state of Long's in- tellect, and the only question, in the case, is, as to his Hon- or's instruction as applicable to this evidence. The case states that the " Court charged that the law did not consider drunk- enness alone, a sufficient reason to invalidate, except when carried to such an excess as to deprive the party of all con- sciousness as to what he was then doing, and whatever may have been the law, the party was " never" (now ?) allowed to stultify himself by showing he was not capable, from drunk- enness, of understanding the act which he had done. In the present case, if the jury .believed the bond had been written at the request of the deceased for the $500, with the view of making his sister a present, no matter what may have been DECEMBER TERM, 1860. 217 • Morris v. Clay. his motive, and that he understood what he was doing, and did what he intended to do when he execnted the bond, the jniy should find for the phaintifts. But on the other hand, if he did not have capacit}'^ of understanding what he was do- ing from the effects of hard drink or paroxysm of delirium tremens or any other cause, they should find for the defendant." Defendant's counsel excepted to the charge. Verdict for the plaintiffs. Judgment and appeal by the defendant. Jieade, for the plaintiffs. Fowle and llill^ for the defendant. Pearson, C. J. The charge of iiis Honor, when he comes to make the application of the law to the case, then being tried, is supported by all the modern authorities, and he gives the defendant the full benefit of the law, as it is noio under- stood to be, in opposition to the exploded dogma of the old law, " that a man could not be heard to stultify himself." Indeed, the only matter which has at all embarrassed this Court, arises out of the general remarks at the commencement of the charge, in which his Honor is made to say, " whatever may have been the law, the party was never allowed to stul- tify himself." This is inconsistent with the particular charge in reference to the case before him, but may be reconciled by the suggestion that the word " never," was inserted by mis- prison in place of the word "now," which, on examination, was the word first written by the clerk, and is crossed out. So, we are satisfied it ought to read whatever may have been tlie law^ the party was now allowed to stultify himself; which is in exact accordance with what is said by Pakk B. in Gore V. Gihson^ 13 Mees. and Wells. 623 : "The modern decisions have qualified the old doctrine, that a man shall not be allowed to allege his own lunacy or intoxication ; and total drunken- ness is now held to be a defense." See 1 Parson's on Con- tracts, 310, note m. 218 m THE SUPREME COURT. Wiseman v. Cornish. We feel warranted in understanding from the whole record, that such was the charge of his Honor. There is no error. Per Curiam, Judgment affirmed. JAMES WISEMAN, Chairman of County Court, ex rel. of William Kesler V. JAMES CORNISH. Wiiere, in a suit upon an apprentice bond, the question was, whether the re- lator was of age at the bringing of the suit, and his mother was introduced to testify as to his age, it was held that a record of births, made in the family Bible, under the dictation of the mother, by one since deceased, sev- eral years after the birth of the relator, but before he was bound out, was admissible as evidence to corroborate the mother's statement. There is no rule of law, that the fact of a witness' standing in the relation of mother to one of the parties, naturally gives a bias to her statement, by affecting her recollection, but such relation is a matter for the consideration of the jury alone. This was an action of covenant on an apprentice bond, tried l)efore Osborne, J., at a Special Term, July, 1860, of Davidson Superior Court. The only question in the case was, whetlier the relator was twenty-one years of age at the time the action was brought. The mother of tlie rehitor, swore that tlie relator was born on the lOtli of March, 1837. The writ, in this case, M^as issued on the 20th day of April, 1858. In lier examination in chief, the motlier gave the day of tlie birth of each of her children in order. To confirm t]\e accuracy of lier recollec- tion, the plaintiff offered in evidence a record of births of her children, made in the family Bible, in the year 1842, some years before the date of the apprentice bond, on which this suit is brought. This record, it was proved, was made by a man, now deceased, by the name of Tow, at the dictation of the DECEMBER TERM, 1860. 21^ Wiseman v. Cornish. M'itness. Two witnesses proved that it was in the hand-wri- tinir of Tow, and that the^^ had seen it in 1842. The testimo- ny was objected to on tlie part of tlie defendant, but w^as ad- mitted by the Court, in confirmation of the statement of the mother. There was other testimony, tending to show, that the rela- tor was born on the loth of March, 1838. In the course of tlie argnmcnr, defendant's counsel insisted that the i-elation of the mother to the relator, would naturally give a bias to her statements, and moved the Court so to charge, but also admitted that he did not impeach lier vera- city or iicr integrity, but only the accui-acy of her recollec- tion. The Court submitted to the jury, the question of fact, as one for their consideration, whether tlie relator was twenty- one years of age at the time the suit was brought, which it was admitted, depended on tlie question, whether he was born on the 10th of March, 1837, or tlie lOtli of March, 1838, that in the investigation, tlie family record was not evidence of itself, of the fact in controversy, and only evidence, so far as they might suppose it tended to confirm the accuracy of the recollection of the mother, it having been made before the relator was bound out, was to be regarded as in the na- ture of a statement, made by lier, before the controversy arose. The Court made no remarks to the jury, on the relation of the mother to the relator. For this reason, and because of the admission of the testimony, the defendant moved for a new trial, the verdict being for the -relator, and upon this being refused, defendant appealed to this Court. Scott^ for the [daintiff. McLean and Kittrell^ for the defendant. Pkarsox, C. J. The record of births in the family Bible, was admissible for the purpose of corroborating the testimony of the mother, and the necessary explanation was made by his Honor. Tliere is no rule of law, that the relation of mother to the 320 IN THE SUPREME COURT. State V. N0. The writ, in the case, claimed damages to the amount of $1500, but his Honor permitted the writ to be 244 IN THE SUPREME COUET. Ashe V. DeRosset. amended without costs, so as to correspond with the verdict, and the Court gave judgment accordingly. Defendant appealed. Person^ Strcmge and W. A. Wright, for the plaintiff. Foide, for the defendant. Peakson, C. J. The case is complicated by the fact that, in respect to the count against the defendant as owner of the mill, Wade, who was a partner, has a direct interest, being liable to the defendant for contribution ; whereas, in the other count against the defendant, on his collateral individual promise, "to give plaintiff his turn," Wade had no interest. The verdict being general, an error, as to either count, is ground for a new trial, and according to the view taken of the case, by this Court, there are many fatal errors in regard to each of the counts. FIRST COUNT. 1. His Honor was of opinion, that there was no evidence that " a receipt" for the rice had ever come to the hands of the plaintiff. There was proof of a general custom, at the mill, to give a receipt, " stating the quantity of rice, and that it was at the risk and under the control of the owner," when- ever rice was deliverd. In the absence of any evidence showing that, for some cause or other, the custom was depart- ed from in the instance of the plaintiff, there -is a violent pre- sumption that he did take " a receipt." 2. The purpose of these receipts was to fix the quantity of rice, delivered at the mill, by the respective customers. It was what is called in the books, "pre-ordained evidence," that is, evidence agreed on b}^ the parties, as the mode of proof, in respect to the quantity of rice, and the terms on which it was delivered — like a subscribing witness to a bond. In such cases, this pre-ordained evidence is not merely the j>rimary, but it is the only evidence to which either party can resort, without proof of his inability to produce it. In the case of a subscribing witness, the principle is of every day's occurrence; DECEMBER TERM, 1860. 245 Ashe V. DeRosset. to prove a bond, or other instrument, the subscribing witness must be produced ; if that be impossible, then his hand-wri- ting must be proved, and the party is not at liberty to disre- gard this pre-ordained evidence and prove that the obh'gor, or maker of the instrument, had admitted that he executed it, un- less such admission be, what is called, " an admission in the cause," made expressly for the purpose of dispensing with the production of the subscribing witness. According to this principle of evidence, the plaintiff ought not to have been allowed to jiroceed with his ease by attempt- ing to show, aliunde^ the quantity of rice, until proof was made, on his part, of his inability to produce the receipt. In this case, out of abundant caution, tlie defendant had given him notice to produce it, and still, he was allowed to proceed and, in effect, attempt to prove the contents of the receipt, to wit, the number of bushels of rice that he had delivered at tlie mill. 3. His Honor was of opinion that the demand for 2300 bush- els of rice, and the defendant's reply, " it was nothing more than he expected," was evidence of the quantity. Apart from the considerations, above stated, we do not agree with his Honor in this view of the evidence. It is very difficult to draw a line between slight evidence and no evidence at all ; but taken in connection with tlie fact, deposed to by the witness, Pettkoay^ who made the demand, and proves the reply, that Wade was the active partner and superintended the mill, (so that the defendant could not be supposed to know the quan- tity of rice delivered by the customers) it seems to us to be a strained construction, to give these words of the defendant any reference to the quantity of rice, and they are fully satisfied when taken in their ordinary sense, to mean, that the defend- ant was not surprised, by the fact of a demand being made, as preliminary to an action against him ; for that the ijiten- tion of the plaintijj- to sue him^ "was nothing more than he expected." In this connection, it is proper to remark, that, although the power of the court to allow an amendment, after verdict, 246 IN THE SUPEEME COUKT. Ashe V. DeRosset. SO as to increase the amount of damages, claimed by the writ, is conceded, still, in most cases, it should be sparingly ex- ercised. Where, by the long pendency of the snit, an amend- ment becomes necessary, as in ejectment, where tlie terro, laid in the demise, expires, or in debt, or in assumpsit, where the interest exceeds the damages laid in the writ, the amend- ment is matter of couise. In actions where there is no par- ticular measure of damages, as slander, assault and battery, and new matter occui's to aggravate the offense, e. g., a repe- tition of the slander after suit brought, or relying on the plea of justification where there is no ground for it, or where the wound, inflicted, takes a dangerous turn, and the plaintiff is likely to lose a limb, or the like, the discretion of the court may be properly appealed to ; but in actions where there is- a feted measuTG of damnges^ as in our case — the- value of the rice, a ease rai-ely occurs where the purposes of justice re- quire the exercise of tiiis i)ower ; for every man is presumed to know best his own business, and to claim al) that he thinks he is entitled Xo. In such cases, this presumption ought to be rebutted, and something offered for the court to amend by ; as by the production of the receipt, and showing thereby, beyond all question, a mistake in rega)^! to the quantity af ric«. The usual course, however, is to allow the plaintiff to remit so n^uch of the damages found as exceed the amount claimed, so as to make the verdict lit the writ ; Qrist v, Hodges, 3 Dev. 203. SECC/!NI> COUNT. 1. In addition to the above, which applies to both counts, Wade, the partner of the defendant in the U'hII, had no inter- est in this count, as it was for the breach of a collateral pro- mise. So, he was a competent witness for either pai'ty, in respect to it, and, of course, his admissions, or declarations, were not admissible, as evidence, against the defendant. — There was no test of h'uth, as, in this respect, they were not against his interest, and did not tend to subject liim to liabil- ity ; and this produces the incongruity of joining the two counts. DECEMBER TERM, 1860. 247 Ashe V. DeRosset. 2. The alleged promise of the defendant, was to let the plaintiff have " his turn." The witnesses state that a turn was 1500 bushels of rough rice. So, under this count, the plaintiff could not recover for an}'^ larger amount. There is no evidence of a consideration to support the pro- mise. It was suggested, on the argument, that the promise was made by the defendant, in order to induce the plaintiff to send his rice to the mill, or in order to keep him from tak- ing it away, after it had been delivered, as he had a right to do by the terms of tiic receipt, and thus the defendant, be- ing a part owner of the mill, had a direct interest. It is true, if the defendant made the promise for either of these purpo- poses, there would be a consideration ; but we ai'e unable to see any evidence of the fact, either that the plaintiff did not intend to send his rice to the mill, or intended to take it away, and that the promise was made to induce iiini to change his purpose. On the contrary, if permitted " to guess" about the matter, we should suppose that the promise was a voluntary offer of kindness, on the part of the defendant, to let the plain- tiff have his turn, in order to accommodate him, b}^ enabling him to get a portion of his crop that much sooner into market. •4. His Honor leaves it to the jury to say, whether the pro- mise was made " in contemplation of the imminent risk from iire." There was no evidence of this as a matter of fact, and this Court had decided, when this case was before it at June Term, 1858, (5 Jones' Rep. 301) that it could not be inferred,, from the nature of the transaction, " that the contingency that tlie rice might be burnt, if left in tlie mill, was in contempla- tion of the parties." On what ground could the jury, or any one else, infer that the defendant made the promise, because he knew thei-e was great risk from fire, and if any rice was to be burnt, lie preferred that it should be his own, rather than the plaintiff''s? !! Or that the plaintiff' intended, and was willing, in accepting the offer of the defendant's turn, to take advantage of such unheard-of generosity ? ! So, notwithstand- ing the opinion of the jury, as it is a mere matter of opinion, 848 m THE SUPEEME COURT. Lane v. Washington. and there is do evidence in regard to it, we are disposed to adhere to the opinion previously expressed by us. The usual practice of this Court is, to put its decision on some one point, presented by the case, and to refrain from the expression of an opinion, in regard to others, that may appear in the record. This was the course taken when the case was here before, and the result is, that it comes back now with more points than ever. On which accounts we have seen proper to make an exception to our usual practice, and to pass on several of the exceptions, presented by the record, with the hope of " lopping off some of the points," thereby relieving the next Judge, who tries the case, from the embarrassment incident to the joinder of the two counts. Per Curiam, Judgment reversed. WILLIAM K. LAiTE v. JOHN C. WASHINGTON & J. D. BURDICK. Where a plaiutifif declared upon a special contract to provide slaves, hired to work upon a railroad, with good accomodations, also on the implied coo- tract of bailment to provide them with ordinary accommodations, it was held that the lodging of the slaves, in the dead of winter, in huts built of poles and railroad sills, without door shutters, and without chinking in the cracks, which were large, and which huts were proved to be inferior to others ordinarily used for such purposes on railroads, was a breach of the contract as alleged in both counts, and entitled plaintiff to recover. Tms was an action on the case, tried before Saundees, J., at Fall Terra, 1860, of Wilson Superior Court. The plaintiff declared in live counts, as follows : 1st. For a breach of contract in taking the slaves Jack, George, Wright, and Abram, below Bear Creek. 2d. For a breach of contract in not taking good care of said slaves, and furnishing them with good accommodations. DECEMBER TERM, 1860. 2-i9 Lane v. Washino'ton. 3d, For breach of the implied contract, arising on the bail- ment, to take ordinary care of the said slaves. 4th. For the hire of said slaves, Wright, Jack, and George, nine days each, at eighty cents per day, and for the hire of Abram, six days, at eighty cents per day. 6th. For the hires of said slaves, for the times mentioned in the 4th count, for what they were worth. The title of the plaintiff, to the slaves in question, was ad- mitted. The plaintiff introduced one Raifovd^ who testified, that prior to the heavy snow storm of January, 1857, as the agent of the plaintiff", he hired said slaves to the defendants, who were partners in a contract for making the Atlantic Rail Road, at the rate of eighty cents per day ; that they were not to be carried below Bear creek, a point on the line of said railroad ; that the above contract was made with the defen- dant Burdick ; that on the next day, Burdick told him that he wished to take the said slaves below Bear Creek, into the edge of Dover swamp, below Kinstou ; that he (witness) told him that if they were well taken care of, he would as soon they should work there as any where ; that Burdick replied that they should be well taken care of, as defendants had good accommodations there for a hundred hands ; that he (witness) replied that on those terms they might go ; that the slaves were carried oft' by Burdick, on that or the next day ; tliat they were gone some eiglit or ten days, when Wriglit, George and Jack came home frost bitten ; that Wright died of phneumonia, al)Out ten days thereafter, and tlie other two were laid up about two months ; that he never saw Abram after the hiring, but learned that he died in Kinston ; that this was about tlie 29th of January, 1857, a short time after the heavy snow storm which occured in that month. The witness further testified that during the week succeeding tiie return of the slaves, he went down to the place where the slaves had beeti at work, in the edge of Dover swamp ; that he examin- ed the slianties erected by the defendants for the accommoda- tion of the hands ; that there was one at the Heritage place, where the overseer stayed, near where the country road cross- 250 IN THE SUPREME COUET. Lane v. Washington. ed the railroad, and on the right hand side of the country road going to New Berne ; that this was a square pen, made of pine poles, with large cracks, throngli which one might thrust his double fists, and scarcely seven feet high ; that there was no shutter to the door ; that the top was flat and covered with plank, and that it would not shed water ; that there was no chimne}^ and no floor, no bed clothing and no cooking utensils, and that the fire was made in the middle of the house. The witness further swore that there was another shanty, above the Heritage place, at Trace}'' swamp ; that this one was some thirt^^ or forty feet long, and from sixteen to eighteen feet wide, built of pine poles; that there were large cracks between the poles not half stopped, and loose planks laid down for flooring ; that along the centre of this cabin, and at the distance of a few feet from each other, logs were placed on the ground, and earth placed between them as a place for building fires; that it had no chimney, but instead there- of, there was an aperture, three feet wide, at the top of the roof, for the escape of smoke, but that this shanty had a door to which there was a shutter. Witness further stated that there were other shanties for the accommodation of the hands, just below the Heritage place, at the distance of a mile or a mile and a half; that these latter were made of cross ties or sills of pine timber, eight feet long, and from eight to ten inches square, used in the construction of the railroad track; that these ties wei-e placed on top of one another, to the height of some six feet, on three sides, thus leaving one end or side entirely open, that the covering was also composed of these ties, placed near together, and he saw no other shanties for the accommodation of hands ; that those above describ- ed were nothing like as good as are ordinarily used on works of the kind, and were nothing like as good as an ordinary horse stable. Witness further stated, that he saw, during this visit, at the Heritage place, one Parrott^ an overseer of the defendants on this work ; that Parrott told him that if he had been well, the slaves in question would have been better at- tended to, "that it was a bad chance there any how;" that DECEMBEK TEEM, 1860. 251 Lane v. Washington. PaiTott also told him that the slaves sta^'ed "just below there," pointing in the direction of the shanties last described. The witness t'nrther stated that he had seen other shanties on the Wilmington & AVeldon railroad. Dr. C. t . Dewey testified that he Avas called to see the bo3's George, Wi-ight and Jack, on the 21st of Jiinuarv, 1857 ; tliat they were frost bitten — George badly — Wright not so bad- ly, and Jack slightly ; that Wright died in about two weeks, of typlioid ])nonmoMia, and that he C()m[)lainod of having suffered from excessive cold for two weeks. He further sta- ted that the other two would be more liable to be tVost bitten after this. Wright had no cold that he could see, at his first visit. One Tiohertson testified that he had been travelling through there some time previous to tlie snow aforesaid ; that lie had seen the cross tie shanties, and one, which he supposed to be the Tracey swamp shanty, which was at the Heritage place, on the right hand side of the stage road, leading to New Berne; that none of the chinks were shut; that it had no chimne}', and had a flat roof; and that it lacked a great deal of being as good as ordinary, and would be a very poorliorse stable ; that these shanties were about ten steps from the road, and that he had never been nearer than this to them ; that the only other shanties he had ever seen, for such purposes, were on the N. C. Rail Road. John 0. Slocumh stated the conversation between Raiford and Burdick to have been as follows : ])urdick said he would like to take the slaves below Kinston, into the q(\^q of Dover swamp. Raiford asked if they had good accommodations. Burdick replied, yes, for a hundred hands. Raiford replied if the accommodations were good, and the hands would be well taken care of, he M'onld let them go. Another witness testified to the same conversation, giving as Raiford's last reply, that he did not wish the hands so far from home, but would not object to their going down for two or three weeks, provided the accomodations were good. William 0. Loftin testified that he lived in Dover, about 252 IN THE SUPREME COURT. Lane v. Washington. four miles below the Heritage place, and liad seen these shan- ties ; that he had never seen any as poor, (sorry) any where else, and that they were not as good as an ordinary stable ; that the Tracey swamp shanty, on the west side of tlie swamp, had a roof with an opening along the top, some three feet wide, that it had large cracks, was made of pine logs, and was twenty five or thirty feet long, and fifteen or eighteen feet wide ; that the cross tie shanties were about a mile and half below the one just described ; that he had four negroes in the defendants employment, who stayed at these shanties, and that two of them were frost bitten, though he had heard that one of them had fallen into a ditch, and remained there some time ; that at the time of the snow storm, the hands of defendants were at work on the road, a quarter of a mile be- low the Heritage place, in the edge of Dover swamp. On •cross examination he stated that these shanties did not de- serve the name. He further stated, that the only other build- ings of a like nature he had ever seen was as he passed along the line of railroads after their completion, and, also, that he •did not examine these shanties till after this suit began. He further stated, that the defendants had no other accommoda- tions for hands, at, or near the edge of the swamp. He also stated that the Tracey swamp shanty could not be seen from the stage road, so as to be examined, and that he did not go near enough to it, to see how the logs were laid for building the fire, or how the planks were laid for sleeping. None of the witnesses knew whether the slaves in question had remained at the shanties during the snow, nor when they had left the employment of the defendants, nor which of the shanties they occupied, except from the conversation between Raiford and Parrott. The defendants' counsel was proceeding to state the defence, when his Honor announced that he should instruct the jury, tliat, upon the plaintiff's own evidence, there was no breach of the contract declared on in the 1st, 2d and 3rd counts, and no want of ordinary care. That on the 4th count, there was a special contract of hiring, and the plaintiflT was entitled to DECEMBER TERM, 1860. 253 Lane v. Washington. recover, at the rate of eight}^ cents per day, for each slave while in the defendants employment, if the witnesses were to be believed. The case was then pnt to the jnry, wlien his Honor charged them as above set forth. Plaintiff excepted to this charge. The jury found for the defendants on the Ist, 2d and 3d counts, as also on the 5tli, and for the plaintiff on the 4th, ($25). There was a judgment for the plaintiff for $25.00, from which he appealed to this Court. Strong and Dorfch, for the plaintiff. licliac, for the defendants. Battle, J. The second count of the plaintiff's declaration was for a breach of the contract, alledged to have been made by the defendants, to take good care of certain slaves, whom tJiey had Jiired, and to furnish them with good accommoda- tions. And the tliird was for a breach of the implied con- tract, arising from tlie bailment, to take ordinary care of the slaves. Upon the testimony given on the part of the plaintiff, in support of these counts, tlie presiding Judge held t])at, tak- ing it to be all true, it did not prove a breach of either of them, and that, therefore, the plaintiff could not recover upon either of them. The opinion of his Honor, expressed thus generally, in relation to the testimony given by all the wit- nesses who were examined for the plaintiff, cannot be sus- tained, if any one or more of them testified to a statement of facts, which in law, made out a case of a neglect of the de- fendants to take good care of, and furnish good accommoda- tions to the slaves in question, as applicable to the second count ; or of a want of ordinary care, as applicable to the third count. A critical examination of the statements of each of the witnesses who testified as to the kind and condition of the huts or shanties in which the slaves were lodged at the time when they were injured, has brought us to the conclusion that at least two, if not more of them, prove a breach of both the counts. The only case relied on by the counsel, for the de- fendants, in support of his Honor's opinion, is that of Slocumb 254 IN THE SUPKEME COURT. Lane v. Washington. V. Washington^ 6 Jones' Rep. 357. A reference to the ques- tions discnssed and decided in that case will show that, if it does not actually oppose, it at least yields no support to the proposition for which it is cited. In the course of the trial in that case, the second count of the declaration, which was for want of proper care in keeping and providing for certain slaves hired to work on a railroad, the defendants oflfered to prove " that the nature of the railroad work kept the hands but a short time at any one place ; that the shanty assigned to the hands at the place in question, was as good as those usually erected for the business," which testimony was reject- ed by the presiding Judge. This Court held that the testimo- ny ought to have been admitted, giving therefor the following reasons. " The defendants were bound to ordinary care, that is, such care as prudent men, generally, under the same cir- cumstances, and engaged in the same business, take of their own slaves. Hence, it became material in this case, to show what was the degree of care generally practiced by tlie per- sons engaged in making railroad embankments and excava- tions, in respect to the lodging of their own slaves, employed in the work. For, certainly, one who hires himself or his slave to serve in a particular employment, must be supposed to understand the usages and ordinary risks in that employment, and to contract in reference to them." In the case now be- fore us, the witnesses were permitted to describe the kind and condition of the huts or shanties, in which the plaintiff's slaves were lodged, and each one who speaks on that subject saj^s they were inferior to those ordinarily provided for slave la- borers on railroads. Mr. Raiford says that the accomodation for the railroad hands, "were notliing like as good as are ordi- narily^ used on works of the kind, and were nothing like as good as an ordinary horse stable." Mr. Robinson says that those he saw at the Heritage place, " lacked a great deal of being as good as ordinary — ^they would be very poor hoi'se stables." He said further, that they did not look to be as good as those he had seen on the North Carolina railroad. Mr, Loftin states that " he never saw any shanties any where else, as DECEMBER TERM, 1860. 255 Lane v. Washington. poor (soiT}') as those at the Heritage place — that tlie latter were not as good as an ordinarj horse stable." On cross ex- amination he said that the shanties did not deserve the name. It is stated in the bill of exceptions, that none of the witnes- ses knew whether the slaves in question had remained at the shanties during the snow, or the time when they had left the employment of the defendant, nor which of the shanties they occupied, except from the conversation between Raiford and Parrott. In these respects, this case difters materially from that of Slocuriib v. Washington^ above referred to, in which it appeared, affirmativelj^ that the plaintiff's slaves were frost bitten and injured, not by remaining in their hut, where oth- er slaves were proved to have remained during the snow storm, and thereby kept themselves unharmed, " but on their journey to their master's in another county, undertaken and performed without the direction of the defendants and against the orders of the manager." In this case W. C. Lot- tin stated that he had four hands in the defendants employ- ment who stayed at these shanties during the snow, antl that two of them were frost bitten, though he had heard that one of these two had fallen into a ditch, and remained there some time. The result of our examination of the testimony is, that the lodging of the plaintiff's slaves in any of the shanties, describ ed by the witnesses, was not the taking such care of them as a man of ordinary prudence would take of his own slaves em- ploj'ed in similar business, much less, was it the taking good care of them and furnishing them with good accommodations. For the error committed by his Honor, in his instructions, in relation to the second and third counts, there must be a rever- sal of the judgment, and the grant of a venire de novo, and tliis renders it unnecessar}' for us to notice, particularly, the other points made in the case. The reversal of the judgment in the plaintiff's favor, on the fourth count, follows, necessa- rily, from the grant of a new trial to him on the second and third. Per Curiam, Judgment reversed, and a venire de novo. 356 IN THE SUPKEME COUET. Ashe V. Streator. THOMAS a ASHE AND JOHNSON R. HARGRAVE v. EDWARD H. STREATOR et al All Courts have the inherent power to revise and amend their records, and naake them conform to the truth. The power of the county courts to amend their records, is a discretionary power, subject to the revisal of the superior court on an appeal, but the Supreme Court has no power to examine into the correctness of the exer- cise of such discretion in the courts below. Where, however, the superior court erroneously decided that a county court had no power to make an amendment, it was Jield that this Court, on an appeal, would correct such error. Appeal from a motion to amend, heard before Fkench, J., at the last Fall Term of Anson Superior Court. This was a motion in the County Court of Anson, for leave to amend the record of that court, made at April Term, 1859, in the case of Thomas S. Ashe and Johnson R. Ilargrave v. Edward H. Streator, Benjamin C. Hutcliinson, Thomas W. Kendall, Charles E. Smith and George A. Smith. It appear- ed by the records of the said county court, that the plaintiffs, at that term obtained a judgment against all these defend- ants, from which they all appealed. In the Superior Court, at Fall Term, 1S59, the judgment was affirmed, andanexecu- lion issued to March Term, 1860. The execution was stayed in the Superior Court, and has not yet been satisfied. At April Term, 1860, of Anson County Court, Thomas W. Ken- dall, Charles E. Smith and Geo. A. Smith, through their coun- sel, moved to amend the record of the April Term, 1859, of that Court, so as to show that only Edward II. Streator and Ben- jamin C. Hutchinson, appealed to the Superior Court. The County Court after hearing testimony and the argument of counsel on both sides, allowed the motion, and Samuel Smith, jun., and John Stacj^, the sureties to the appeal from the County to the Superior Court, prayed and appeal to the Su- perior Court. His Honor, in the Superiw Court, disallowed the motion, on the ground, that the County Court had no power to make DECEMBER TERM, 1860. 25T Ashe V. Streator. the amendment, from which ruling, the defendants, Kendall, George A. Smith and Chares E. Smith, appealed to this Court., McCorklc and Strange, for the plaintiffs.. li. II. Battle, for the defendants. Manly, J. The question made in the case is, as to the power of the county court to amend its records of a previous term. Upon an appeal to the Superior Court from the Court be- low, the former, without revising the discretion of the Coun- ty Court, held that that Court did not have the power, and consequently, reversed its judgment, and from this decision of the Supei'ior Court, there was an appeal to this Court. There is eiTor in the decision of the Superior Court. No facts are stated in tlie case, that would deprive the County Court of the discretionary power, inherent in all courts, to I'cvise its records, and make them conform to the truth. In the cate of l^]iUlij)se v. lligdon., Busb. Rep. 380, the ])ower of amendment, residing in the courts of North Caro- lina, is fully and distinctly stated, and the case now before us falls clearly within tlie limitg of the power there defined. It is a mistake ft) suppose that interests have vested under the record as it stands, that prevent an amendment. The persons, whose interests are affected, are parties to the record. They are bound to know tlie truth of the transactions as to which the record speaks— to act upon, the truth, as it happen- ed, and upon the expectation that the record will be made to speak truly. No party has a riglit to complain, and no other person has an interest that will be prejudiced. So much for the power in tlie County Court. Whether they have exercised the power Avitli discretion, it is not our province to say, nor have we the means of knowing. Instead, therefore, of disn)issing the application for the want of ]io\ver, the Superior Court ought to liavo entertained jurisdiction of it, and considered it as a matter addressed to its sound legal discretion. The exercise of discretionary pow- 17 258 m THE SUPKEME COUET. Adams v. Smallwood. ers in the county courts, is subject to be revised in the supe- rior. In this Court, we liave no such revising power, and have taken cognizance of this case, only in consequence of the error in law, of the Court, in holding it had 7io poioer. This opinion should be certified to the Superior Court, that it may proceed to adjudge the matter before it by the ap- peal, according to its discretion, and the course of the Court. Per Curiam, Judgment reversed. PETER ADAMS v. PYLADES SMALLWOOD. Where two fi fas had been issued to different counties, on the same judgment, and one had been satisfied before the return term, it was held, in order to vacate a sale made of the defendant's land on the retu/n day, under the se- cond execution, to be competent for the court to quash and set aside such second executiou. This was a motion to set aside an execution, before Saun- ders, J., at last Fall Term of Guilford Superior Court. The facts are these : Peter Adams obtained a judgment against Pylades Smallwood and Joab Hiatt, at February Term, 1860, of Guilford County Court, for $285. Two fieri f aclases issued upon said judgment, i-eturnable to May Term, 1860, one directed to the sheriff of Halifax county, where the defendant, Smallwood, lived, which was returned on Wednes- day of the return term "satisfied," and the money paid into office ; the other issued to tlie sheriff of Guilford, who levied the same on a house and lot, and having advertised the same according to law, exposed it to sale, as the property of Small- wood on Monday of May term, 1860, when M. D. Smith be- came the last and highest bidder, at the price of $560. On Saturday of the said term, Adams, having received his debt on the execution to Halifax, moved the Court to set aside and vacate X\\Qfi.fa. directed to the sheriff of Guilford. DECEMBl^R TEEM, 1860. 259 Adams v. Smallwood. This motion was opposed by Smith, who had purchased the property under it, but was allowed by the Court. Smith was permitted to appeal to the Superior Court, and in that court the same motion was made and allowed by the Oourtj from which ruling, Smith appealed to this Court. Morehead and Gorrdl^ for the plaintiff SooU^ for the defendant. Manly, J. It is believed to be within the power of a plain- tiff, who has judgment, to sue out a writ oi fieri facias, and before return da}', Jiothing being done, to return it into the of- iBce and sue out another, but it is not within his power to take two writs at the san?e time, without special leave from the court. It was, therefore, irregular and without any warrant DECEMBER TERM, 1860. 263 Bryan v. The Enterprise Marsh V. JBrooks, 11 Ire. 409 ; Latham v. JRespass, Bnsb. Rep. 138 ; Gregory v. Dozier^ 6 Jones' Rep. 1. Now, in a case like the present, the bond, when it is given, cannot be made to "the defendant''' as a certain obligee, because there is no defendant, who can be described by his christian and sur- name, or simply by tlic description of "defendant." But there is always some person who is the owner of the vessel or steam-boat, and to him, by the description of "owner," the bond may be made payable, and for him the magistrate may accept the deliver}^ of it from the plaintiff. Should the ab- eolute owner intervene, he may, of course, have a remedy on the bond, in case of its breach, and we think that any person, who can show a suthcient interest in the vessel or steam-boat, to be permitted by the court to intervene for that interest, will be taken to be " the owner," for the purpose of a reme- dy on the bond. Our opinion then is, that the plea, in abate- ment, cannot be sustained. But the defendant, through his counsel, has raised an ob- jection in the argument here, that the plaintiff's action was discontinued by the sale of the boat, upon the ground, that the tldiKj attached being gone, there was nothing to keep the case in Court. AVe are satisiied, that the 6th section of the attachment law, which provides for the sale of perishable ar- ticles, applies onl}' to cases of original attachment, and not to those against vessels and steam-boats, authorised by the 2Tth jind 28th sections of the act. The sheriff, therefore, had no authority to sell, and his sale was, consequently, null and void, and left the boat in the same condition in which it was before. It does not appear that the sale was made at the in- stance of the plaintiff', but if it had been, it could not, being void, have tiie effect to discontinue the proceeding. The judgment must be reversed, and ?^ procedendo issued. Per Curiam, Judgment reversed. 264 IK THE SUPREME COURT. March v. Griffith. WILLIAM B. MARCH v. DANIEL GRIFFITH, ei al Where, upon au appeal from the County to the Superior Court, tlie suit pen- ded for three terms in the latter court, when a motion was made to dismiss the appeal, for defects in the appeal bond, it was ?ield that the appellant might, as a matter of right, file a sufficient bond, and prosecute his appeal, and that an order of the Court below, dismissing the appeal, Avas a proper subject for the revision of this Court. This was a petition for pavtition of land among several ten- ants in common, brought up by appeal from the County Court, and heard before Dick, J., at Fall Term, 1860, of Davie Su- perior Court. The petition was filed at June Term, 1858, of Davie coun- ty court, M'here it pended till December terra, 1858, of that court, wlien, upon a hearing of tlie cause, the Court ordered the petition to be dismissed, and from this ruling plaintiff ap- pealed to the Superior Court, and filed an appeal bond, with D. M. Furchase as his security, but whicli M-as not signed by the appellant. The cause pended in the Superior Court until Fall Term, 1860, when defendant moved to dismiss the ap- peal for the above recited defect in the appeal bond, together with other defects. The appellant then offered to put in any bond tlie Court might require, but his Honor adjudged the bond void, and dismissed the petition, from which order, pe- titioner appealed to this Court. Thos. J. Wilson, for the petitioner. Glemefit, for the defendant. Manly, J. The question in this case is, whether the dis- missal of the case in the Superior Court was matter of discre- tion in that Court, for if so, we cannot revise it in this. The appeal was taken at the December term of Davie County Court, 1858. The appeal, therefore, was to the Spring term of the Superior Court, 1859. The motion to dismiss, for defects in the appeal bond, was made at the Fall term, 1860. The plaintiff met the rao- DECEMBER TEPwM, 1860. 265 March v. Griffith. tion by an offer to put in snch a bond as the Court might re- quire. But the Court held the bond that had been given, void, and refused to accept another. With regard to bdftids, for appeals, the appellate court has an unquestioned right to require that they shall be in form, of sufficient amounts to cover the accumulating costs, and that there sliall be responsible sureties to the same. And if, at an}^ stage of a cause, a deficiency in any of these respects be discovered, it is in the power of the court to liave them amend- ed or renewed ; and questions, as to the sufficiency of the bond, in respect to the amount, tlie solvenc}'^ of the sureties, or, as to tlic occasion and time or manner of putting in anoth- er security, are purely matters of discretion. But there are boundaries to this discretion, and we take it, when a suit is permitted to go up to the superior court, with an insufficient bond, and to pass three terms of tlie court in that condition, the ap])cllant has a right, upon a decision of the court against tlie bond, then and tlicre to put in another, such as the Court may approve. To liold otherwise, would lead to absurdity. — For, if we suppose tlic objection to the bond to be on account of some technicality about wliich counsellors differ, or because the sureties have become insolvent, the first knowledge which appellant could have of tlie soundness of the objections, would be the judgment of the court declaring the same, and dismissing his suit. He would, therefore, be put out of court without laches or default on Iiis part. The most sti-ingent re- quirement in such case, would be to declare the insufficiency, and re(juire a ])roper bond instanter. The i)laintiff had a riglit to have such an opportunity ten- dered him. We think there was error, therefore, in refusing to accept the plaintiff's bond when it M'as offered. The range of the Court's discretion, in that particular, was transcended. Tlie case may be presented in another point of view. In Wallace v. Corhit^ 4 Ired. Rep. 45, we find the principle es- tablished, that an appeal bond is not necessary to give juris- diction to the appellate court; that such bond may be waived see m the supreme court. Gates V. Whitfield. expressly or impliedh', and the court in such case, will pro- ceed without it. The plaintiff, by putting- in an instrument which he considered, and which was taken as, a bond, showed his purpose to prosecute the suit, Deten(Jant acquiesces, and puts in pleas in the Superior Court, and it is afterwards con- tinned at two terms. A peremptory dismission of the suit, it seems to us, is a violation of the rights of the parties under this waiver of the bond. It is a surprise which it would be highly unjust to permit — which cannot be done, as we think, except upon notice and opportunity offered the parties to put themselves, in respect to each other, upon their strict legal rights. With respect to the merits of this petition, we express no opinion. AYhat may be the respective interests of the parties in the land, and wliat the effect of an actual partition upon these interests, we leave to the consideration of the Court be- low, upon the proofs. Tliere is erroi- in the order of the Superior Court, and it should, therefore, be reversed, and the Court should take a proper bond for securing the defendants' costs, and proceed in the cause according to the course of the Court. To this end the opinion will be certified. Per Curiam, Judgment reversed. JAMES H. GATES v. JEFFERSON WHITFIELD. Where an action of detinue was brought for a female slave, and the case coming to the Supreme Gourt, by appeal, a judgment was rendered here for the recovery of such slave, it was Jielcl that the plaintiff was entitled to a scire facias from this Gourt, for the defendant to show cause why execu- tion should not issue for a child of such female slave, born after the com- mencement of the suit and before the final judgment. DECEMBER TERM, 1860. 2G7 Gates V. Whitfield. This was a soire facias issuing from this Court, for the de- fendant to show cause \s\\^ the plaintift' should not have exe- cution for the recovery and deliver}^ of a shive, named Hen- ry. An action of detinue had been begun in behalf of the plaintiff, against the defendant in tlie Superior Court of the county of Person, for the detention of certain slaves, and amongst others, a female, named Eliza, which, after pending- several terms below, was brought to this Court, by appeal, and the plaintiff, at June Term, ISGO, had a judgment, that lie luxve and recover the said slaves, including the said female slave, Eliza. The mrc /«(?ia-^ sets out, that during the pen- dency of this suit in the said Superior Court of Person, and before the judgment, in this Court, the female slave, Eliza, was delivered of the said Henry, and the process is for the purpose of having execution for the delivery to the plaintift" of this slave. On the return of the scl. fa. to this Court, the defenchmt appeared and contested the ])hiintiff's right to this remedy, contending that if lie was entitled to the slave, at all, it could only be recovered in another action commenced in the courts below. Grahaw, for tlie plaintiff. lieade and Fowle, for the defendant. P>ATTLE, J. "We are clearly of opinion that the plaintiff is entitled to recover the infant slave, who was born after the commencement of the action of detinue, in Avhich he had judgment in tliis Court, against the defendant, for the mother; and that a scire facias issued against the defendant, is the pro- per remedy. It is not denied that in a ]»roper case, the Su- preme Court may issue a scire facias, as the power to do so is expressly conferred by the 6th section of the oord chapter of the Revised Code. The enforcement of one of its own judg- ments, must be admitted to be a proper case for the issuing of the writ by the Court, and we shall show presently that the object of the scire facias, in the present case, is only to make effectual and complete the enforcement of a judgment, 268 IN THE SUPREME COURT. Gates V. Whitfield. which it has heretofore rendered. The case of Jones v. Mc- Lcmrine^ 7 Jones' Rep. 392, has no bearing npou the present, because that was a scire facias against bail, which was an original proceeding against persons who had not been, there- tofore, before the Court, and which, therefore, as an original proceeding, could not be commenced in a court, which, in relation to that matter, had onh^ appellate jurisdiction. That the issue of a female slave, which is born after the commencement of an action of detinue for the mother, is em- braced in the judgment which ma}^ be obtained for the mo- ther, appears from what was held by the Court in Vines v. Brownrigg^ 1 Dev. and Bat. Rep. 239. It was there decided that if, upon a judgment in detinue for slaves, the execution is satisfied bj the pa^yment of the assessed value by the de- fendant, and its receipt by the ])laintiff, the title to the pro- perty will be transferred to the defendant by relation, to the time of the verdict and judgment; and the issue born of said slaves, between the rendition of the judgment and the satis- faction of tlie execution, will, of consequence, belong to him. And why would the issue belong to the defendant, who had paid the assessed value of the slaves to the plaintiff, who had received it instead of the slaves themselves, unless they were embraced in the judgment? This being so, if the plaintiff, instead of receiving the value of the slaves, had insisted upon his right to have the slaves, themselves, delivered under his execution, and the mother, onl}^, had been taken by the sher- iff and delivered to him, he certainly could have issued a ^cire facias with a view to the enforcement, by another exe- cution, of the residue of his judgment. In the case now be- fore us J the issue was born before the judgment, though af- 4er the commencement of the suit, but we cannot see how that can differ it, in principle, from the case wdiere they are born after the judgment. In either case, the issue must be regarded as incidents to the subject-matter of the litigation, and as such, must follow their principal. In Vines v. Bvownrigg^ it was said by the Court, that the plaintiff, if he had not received satisfaction in the payment to DECEMBER TERM, 1860. ^69- Cates V. Whitfield. him, by the defendant, of the assessed value of the slaves,, mentioned in the writ and judgment, jnight have sustained an action of detinue for the issue. No doubt that is true,, but it is not said by the Court, nor docs it follow tliat the plaintifi' might not also have proceeded by a scire facias to recover the issue ; and if there be any force in reasoning by analogy, he had his choice to adopt eitlier remedy. In jBri- lerj V. Cherry^ 2 Dev. Rep. 2, the plaintifi' brought detinue- against a person, who had purchased a slave during the pen.-- dency of a t\)rmer action of detinue, and the defendant's coun- sel contended that he was not bound by tlie former judgment against his vendor, because tlie jilaintiffhad not issued ascire facias, whereby to gain tlio fi-uit of his former judgment, by which mode he admitted he Avould have been bound. See 3 Black. Com. 413. The Court did not sustain the objection, but said " that a verdict and judgment in an action of deti- nue, are conclusive, between the parties and their privies. It appeared, however, tliat the defendant, in that suit, was a purchaser under an execution against the defendant in the first suit, which prevented his being a privy. Had he pur- chased from the defendant, in the first suit, during the pen- dency of the litigation, otherwise tlian under execution, it was clearly the opinion of the Court, that there was no dis- tinction as to the binding effect of the first judgment, whetli- er the plaintiff proceeded against the purchaser by another action of detinue, or by a sci,re facias. So, we think in tlic present case, the plaintiff had liis election to bring an action of detinue in the Court below, or to issue a scire facias from this Court. In coming to tliis conclusion, we have not overlooked the case of Houston v. Bibb, 5 Jones' Rep. 83, which was cited and relied on by the counsel for the defendant. That was an action of 'rcjdcmn, instead of detinue, and the Court founded its opinion upon the express words of the Revised Statutes, cli. 101, sec 5, wliicli was then in force, tliat tlic chil- dren of the female slave born during the pendenc}' of the ac- tion, were not embraced in the recovery. Our opinion then 270 m THE SUPREME "court. Herring v. Utley. is, that the plaintiff is entitled to a judgment and execution, according to his scire facias. Per Curiam, Judgment according to the scire facias^ JOHN F. HERRING v. WILLIAM R. UTLEY. Where, in an action, against the owner of a dray in the town of Wihningtou, brought to recover the value of a trunlc lost from the defendant's dray, it was sought to charge the defendant as a common carrier, it was held com- petent for the plaintiff to prove that it was the duty of draymen in Wil- mington to carry baggage. Whether the owner of a lost trunk can be admitted to prove, by his own oath, the contents of a trunk lost. Quere? This was an action on the case, against the defendant as a common carrier, to recover damages for the loss of the plain- tiff's trunk, tried before Ekencii, J., at Fall Term, 1860, of New Hanover Superior Court. It was in evidence that the defendant had two licensed drajs in the town of Wilmington, and one unlicensed dray. It was further in evidence that plaintiff asked defendant what he was going to do about his trunk which was lost out of his dray ; that defendant said he was willing to pay him $40.00, and that the offer was rejected by the plaintiff. Plaintiff" offered to prove that it was the duty^ of draymen in Wilmington, to carry baggage. Defendant objected to this testimony, and the Court sustained the objection. Plaintiff' excepted. The counsel for the defendant then offered to introduce the plaintiff' to prove the contents of the trunk. Defendant object- ed. The objection was sustained by the Court. Plaintiff" ex- cepted. The Court having intirnaied the opinion that there was no DECEMBER TERM, 1860. 271 Herring v. Utley. evidence to charge tlie defendant as a common carrier, plain- tiff submitted to a nonsuit and aj^pealed. Baker for the pUiintiff. Strange, for the defendant. Manly, J. Without deciding, at present, the other ques- tion of evidence appearing upon the record, there is one which was erroneously ruled below, and upon which plaintiff is entitled to a venire de novo. It was proposed on the part of the plaintiff to prove that ti ■was the duty of druymen^ in Wih/iinyton, to carry haggaye. It is not stated how it was to be proved, but supposing it to be by competent testimony, it was certainly pertinent and proper. The case states as a fact, that defendant had three drays in the town, two licensed and one unlicensed, and there was evi- dence tending to show that plaintiff's baggage had been lost from some dray of defendant. It was tlie point, therefore, in the cause, wlietlier drays, licensed or unlicensed, in Wilming- ting, are accustomed to carry baggage, or hold tliemselvesout as common carrieis of the same, i^ accustomed to carry, it was their duty, and if their duty, they are common carriers, and subject to the responsibility of that class of public ser- vants. By thQ term baggage, used in the case, we understand tlie ordinary outfit of a trunk or bag or botli, of a traveller, as distinguished from sacks, bales, casks and boxes of produce and merchandize, appertaining to tlie trade of the town. It is possible that diayinen may be used as common carriers in one of these departments of service only, or in both. These are proper subjects for proof. Our attention has been directed to the statement that two of the defendant's di-ays \vere licensed. We are not informed what is the pur]iort of the license spoken of, and ai'e unable, therefore, to see the full signiiicance of tlie statement. If tlie Hcense be to carry for the public, on the streets of Wilming- 272 m THE SUPREME COURT. McCoy V. Justices of Harnett ton, it would seem to present^ then, a question whether their range of duties was restricted or nnrosti-icted, as already sug- gested. With respect to the other question of evidence, as to the competency of plaintifi" to prove tlie contents of his trunlc, we prefer not to decide it, except it come necessarily into judgment. It is a new and important application of a princi- ple, viz, of evidence from a party, made proper, ex necessita- te, and ought to be engrafted upon the jurisprudence of the State, if at all, by the courts after full consideration. Per Curiam, Judgment reversed, and a venire de novo^ PASCHAL McCOy v. THE JUSTICES OF HARNETT. A contract for erecting a public building, mad© with a committee appointed by the justices of a county, when performed by the contractor, must be ful- filled by the justices, although early in the progress of the worTc they had dismissed the committee, and endeavored tO' rescind the ordei* appointing it, and had given notice to the contractor not to pi'oceed. Where, a contractor to erect a public building, after the dismission of the committee through whom the contract was made, and a rescission of the- order appointing it, and a notice by the justices not to go on with the build- ing, still continued to act under such committee and by its directions, made- material departures from the specifications in the contract, it was held tliat though he completed the building within the time specified, yet he was not entitled to recover the price agreed to be paid. Petition for a mandamus, heard befo-re French, J., at the last Fall Term of Cumberland Superior Court. The application was to compel the justices of Harnett county to pay the plaintiff for building a jail. The cause was before this Court at June term, 1S58, (see 5 Jones' Rep. 265,) and again at June Terra, 1859, (see (> Jones' Rep. 488,) on which occasions several points referring to the pleadings, were DECEMBER TEftM, 1860. 273 McCoy V. Justices of Harnett. decided, and by reference to which reports, a full history of the case may be gathered. Tlie contiact made by the plaintiff with the defendants, the several orders made by the justices, and many other facts not material to the view finally taken of the case, are there set out. The facts upon which the case is determined, are fully recite*! and commented on in the opinion delivered b}^ the Chief Justice, and, therefore, need not be repeated here. In the Court below, certain issues, whicii had been previously made up, were submitted to a jury : these M'ere — 1. Was there a valid and legal contract made on the part of the county of Harnett, by the committee of public build- ings, with tiie petitioner, for the building of a jail for the said county ? 2. Was the jail built according to contract? 3. If not built according to tlie specifications and terms of contract, was the departure in the ])]an or arrangement of tlie work allowed and directed by persons authorised to make a change ? 4. Was the jail received by the committee of public build- ings ? The jury responded to the first, third, and fourth interroga- tories, in the affirmative, and to the second in the negative. Exceptions were taken to the testimony offered, and to the charge of the Judge^ but the matters involved in these issuea being looked upon by this Court as questions of law, and im- properly submitted to a jury, it is not deemed necessary to report the exceptions. The Court ordered a peremptory mandamus to issue, and the defendants appealed. Person and JVetl JIcKay, for the plaintiff. Stra7ige, for the defendant. Pearson, C. J. No material fact is disputed, and the con- troversy depends entirely on questions of law. 1. At June Term, 1855, the justices appointed a building 18 274 m THE SUPREME COURT. McCoy V. Justices of Harnett. committee with authority to let out the building of a court house and jail. 2. In August, 1856, the building committee made a contract with the petitioner for building a jail according to certain specifications, for an agreed price, to be paid by instalments as the work progressed. 3. The petitioner immediately commenced the work by col- lecting materials, employing workmen and hands, and laying the foundation of the jail. 4. At September term, 1855, the building committee made a report setting forth the contract ; wliereupon, the justices disapproved of the contract, discharged the committee, and rescinded the order of June term, by which the committee was appointed, and notice was given of these orders to the petitioner, and he was informed that the justices did not wish the jail to be built. 5. Notwitlistanding these orders, the building committee continued to act, and the petitioner under their directions, went on with the work, and had the house done by the time specified in the contract, first of [November, 1856. 6. At December term, 1855, the following order passed : " Ordered that the treasurer of public buildings be authorised to borrow $10,000." Also, " Ordered that the treasurer of pub- lic buildings pay over to Mr. Paschal McCoy $2000," which he accordingly did. 7. During the progress of the work, the building commit- tee, after the orders of September and December terms, made several material alterations in the plan of the building (which they reserved a right to do by a clause in the contract,) and the house varies in tliese particulars from the specifications set out in the original contract. 8. The building committee received the house, and gave a certificate that it was built according to contract as modified. 9. Tlie justices refused to receive tiie house or to pay for it. After "a return" was made by the justices, the petitioner made three "pleas" as they are termed ; neither of these pleas traverse any matter of fact, but thereby set out positions DECEMBEJR TEEM, 1860. 275 MqCoy V. Justices of Harnett. of law, from which, as was contended, it followed that the petitioner was entitled to an order for a peremptory mandam- us — that is : 1. The contract made by the building committee was valid. 2. The committee had the power to make the changes in the plan of the jail. 3. The committee had power to receive the jail. On the face of the record, no matter of fact being pnt in issue, the intervention of a jury was uncalled for, and it was the duty of the Court to give judgment on the facts stated. So the issues whicli were afterwards made up, and the action of the jury may be treated as surplusage, and the question is, did his Honor err in the conclusion that the petitioner was en- entitled to a peremptory mandamus? This Court is of opin- ion there is error. 1. The contract was certainly valid, for the committee had full power and authority to make it under the orders of June term, and notwithstanding the subsequent action of the justi- ces, if the petitioner had done the work, and built the jail ac- cording to the contract^ the justices would have been bound to pay for it. For, according to an old adage, which expresses the law very forcibly, " it takes two to make a bargain, and two to unmake it." It was not in the power of the justices to repudiate the contract, and the consent of the petitioner was necessary to rescind it. 2. The jail was not built according to contract, and the pe- titioner is forced to rely on the action of the committee, after the oi-der of September term discharing it and rescinding the order for its appointmont, in order to show tiiat he was au- thorised to depart from the specifications in the original con- tract, and thus establish the allegation that he has performed the contract on his part. This raises the question on which the case turns: Had the justices power to discharge the committee and revoke its au- thority ? For, if it had, the subsequent action of the commit- tee in spite of the justices, was wrongful, and the alterations of the original plan were without authority and void. As the 276 IN THE SUPKEME COURT. McCoy V. Justices of Hi.rnett petitioner was unwilling to rescind the contract, and was de- termined to insist on his legal right to hold the justices bound, although he was notified of their unwillingness to proceed with the bnilding, it behooved him to see to it, that the con- tract was strictly performed on his part, and it is his misfor- tune to have failed to do so, under a mistaken idea that the committee still had power to authorise him to depart from the specifications. That a principal has power to discharge an agent and re- voke his authority, is a proposition too plain to admit of dis- cussion. On the argument, several distinctions were suggested in or- der to take this case out of the general rule : Where a contract is entered into by two individuals, if one attempts to repudiate or does an act by which he is disabled from performing his part, the other may pursue one of three modes : he may concur in the repudiation and treat the con- tract as rescinded, or he may go on and perform his part and bring an action for the stipulated price, or he may fortliwitli hring an action and recover unliquidated damages for hreach of the contract. In the case of a quasi corporation like the justices, the party may agree to rescind, or he may go on and do the work, and by mandamus compel the payment of the price, but he cannot recover unliquidated damages, as the writ of mandamus does not apply. Under the terms of this contract a building committee was necessary in order to inspect the work as it progressed, and give certificates for the monthly instalments ; therefore, the justices had no power to discharge the committee, unless they appointed another, within a rea- sonable time, for they would thus disable themselves from perfoi-ming their part of the contract, and yet no remedy could be had against them to recover unliquidated damages. Admitting the premises, it shows that the remedy against an individual by action, is more ample than the remedy against a quasi corporation by mandamus ; but we are unable to see how it proves that a principal cannot discharge an agent. If, by the terms of the contract, a building committee was DECEMBER TERM, 1860. 277 McCoy V. Justices of Harnett. necessary, the petitioner could, by a writ of mandamus, have compelled the justices to appoint another set, within reasona- ble time after the first was discharged ; or he might have pro- ceeded to do his work according to the contract, and compell- ed pajnnent of the price, as the justices would not have been at liberty to take advantage of their own wrong in failing to appoint another committee. Another suggestion on the argument was, that by the terms of the contract, it is to be implied that the petitioner placed reliance on the discretion of the individuals who composed the committee and, therefore, the justices had no right to discharge them. Suppose tliis to be so, or suppose it had been expressed in the contract that the individuals composing the committee should not be discharged hj the justices, and others put in their pla- ces, it would not have had the efl'ect of preventing the justi- ces from discharging their agent, although probably, their doing so would have given the petitioner good ground for re- fusing to proceed with the contract. It was also contended, on the argument, that the orders at the December Terra, recognized the existence of the commit- tee, and ratified and confirmed their action. We are unable to see how either order is connected with the building committee which had been discharged at the pre- ceding term, or how it could have the effect to resusitate theni or recognize the existence of such a committee. The treasur- er <£ ])id)liG huildiuifs was ordered to borrow $10,000, and he was ordered to pay the petitioner $2,000. How could this re- suscitate the defunct building committee? And, so far from having the effect of ratifying and confirming the alterations which were afterwards made in the plan of the jail, it only fur- nishes an inference that the $2,000 was considered by the jus- tices as an amount proper to be paid in satisfaction of the un- liquidated damages, which the petitioner had incurred by what work he had done on the foundations, and his outlay in materials and hire of hands up to the time when he was noti- fied that the justices did not wish to proceed with the work, 278 EST THE SUPEEME COURT. Pattereon v. Murray. and had discharged the Iniikling committee. He then had his election, either to accept it in satisfaction and rescind the con- tract, or accept it under protest, as a part payment, and pro- ceed to do the work and claim the balance of the price. He elected the latter, bnt failed to comply with the contract, by departing, without anthorit}', from the original specifications. The third plea is merely a corrollary or deduction from the se- cond and falls with it. Per Cukiam, Judgment reversed, and judgment for the justices, dismissing the petition. WILLIAM PATTERSON v. WILLIAM J. MURRAY. A contested sheriff's election before the justices of a county court, is not an action witliin the meaning of the Revised Code, chapter 31, section 75, which entitles the successful party to recover costs. Motion for the taxation of costs, before Howard, J., at the last Fall Term of Alamance Superior Court. The defendant, Murra}', received, apparently, a majority of the legal voters for the office of sheriff, in the county of Ala- mance, and at the next terra of the County Court made ap- plication to qualify, but was opposed in this by the plaintiff, Patterson, who had given notice, previously, and specified the grounds of his opposition. Witnesses were examined, and the matter heard at length, and in the conclusion, the contest was decided in favor of Murray, who gave bonds and was qualiiied. Tiiei'eupon, the County Court awarded costs against the plaintiff, Patterson, who appealed to the Superior Court, and the same judgment was given in that Court, where- upon, Patterson appealed to this Court. DECEMBER TERM, 1860. 279 Patterson v. Murray. No counsel uppeared for the plaintiff in this Court. Graham and Jlill^ for the defendant. Manly, J. The case turns upon the point, whether a con- tested election to the sheriff's othce, (which accordinij: to the Revised Code, chap. 105, section 18, is to be decided b}^ the county court, a majority of the justices being present,) is an action before that ti'ibunal, within the purview of the Code, chapter 31, section 75. We think not. Tiie Court has had occasion often to remark, that costs are given in all cases, by virtue of express legislative provisions. The costs, in a con- troversy of the kind, now before us, is not specially given in the chapter and section of the Code, which establishes the tribunal for deciding it, and they must, therefore, be award- ed, if at all, by virtue of the general provisions, on the sub- ject, in the 75 section of the 31 chapter, above referred to. That section declares, " that in all actions whatsoever, the party, in M'hose favor judgment shall be given, sliall be enti- tled to full costs." Is our case, then, an action within the provisions of this section ? Practically, the term " action," is now exclusively appropriated to those forms of judicial reme- dy, which are ranked under the three-fold division of real, j)ersonal and mixed actions. But it is not necessary, as we conceive, to restrict the meaning of the term to this technical sense, in order to exclude a contested election from being in- tended by its use. Burrill in his Law Dictionary, title, "Ac- tion," defines that term to mean " The formal means, or meth- od of i>ursuing and recovering one's right in a court of jus- tice." It is synonymous with "suit." If there be any dis- tinction, it is that tiie former is applied, exclusively, to pro- ceedings in a court of Law, while the latter is applied, indis- criminately, to proceedings in Law and Kquit3\ In the use of cither, the plain import would seem to be some one of the ordinary proceedings, conducted by the usual formula for establishing and enforcing rights in a court of justice; which this, clearly, is not. In the case of Dauglitrey ex parte^ 6 Ire. 155, it is decided 280 IN THE SUPREME COURT. Patterson v. Murray that the case of a contested election of clerk in the county court, is not subject to an appeal to the superior court, lliis must be upon the idea, either that it is not like an ordinary suit and subject to its rules, or that it is not before the justices, in their judicial capacity. For, if it be a suit, and before them as a court, a right of appeal would follow under the general provisions of law regulating appeals. If our Code of laws be consulted as to the duties prescrib- ed for the county court, it will be seen that these duties are not confined to those which are strictly judicial, but are of the nature, occasionally, of executive or legislative duties. The passing upon the election of sheriff, seems to pertain to one of these latter departments, in governmental afl'airs, and belongs to the functions of the county court, which are not judicial. The cases of Jones v. Pkysioo, 1 Dev. and Bat. 173, and the State ex. rel. Dickens v. Justices of Person^ 1 Dev. and JBat. 406, are not opposed to our conclusions in this case. The first involved, simpl}'^, an enquiry, whether one, as to whom costs are asked, was a lyarty. The statute gave costs expressly against any one who should make himself a party. The second w^as a case of maiidamus dismissed and costs taxed against the petitioners as u]}on a rule nisi. We are of opinion, the contested election, before the Coun- ty Court, in this case, was not an action, which entitled the successful party, by virtue of the statute, to costs. The judg- ment, thei-efore, of the County Court, directing costs to be taxed, was erroneous, and such judgment, under the general law^, was the subject of appeal, which lies from any sentence, judgment or decree of that court. The judgment of the Superior Court, which, likewise, gave costs upon the election controversy, should, therefore, be reversed with costs, both in this Court, and in the Superior Court, against the appellee. Per Curiam, Judgment reversed. DECEMBER TERM, 1860. 281 Bennett v. Taylor. MARTHA BENNETT v. JOHN R. TAYLOR d ux. Where a/, fa. on a justice's judgment was levied on land, and the regular proceedings had in the county court for the subjecting the land, and a sale made by virtue thereof, it was held that the county court, at a subsequent term, has no authority, on motion to set aside ihe Ji. fa. on the justice's judgment. This M-as an appkal from the Superior Court of Granville, from an order of that Court, (Judge Bailey presiding) to set aside a Jieri facias. An action of ejectment was brought by Jolin R. Taylor and wife, of Wake county, to recover an undivided part of a tract of land, in Granville county, in the possession of Josepii II. Gooch, who, by an order of Court, was made defendant, which action is still pending in Wan-en Superior Court. Mrs. Ben- nett, the nominal plaintitfin this case, was a witness for Tay- lor and wife in that suit, and assigned her witness tickets to Gooch, who took out a warrant on them to his use, and ob- tained a judgment before a justice of the peace of Wake coun- ty. Tiiis judgment was removed to the county of Granville, in the way directed by the act of Assembly, (Rev. Code, ch. 62, sec. 20) and a fieri facias was issued thereon, which was levied on the defendants' interest in the land, for which the action of ejectment had been brought. Notice of this levy was given to tlie defendants, and an order of sale made by the County Court of Granville, at May Term, 1859. Pursu- ant to this order, a wi'it oi venditioni exjyonas issued, directed to the coroner, (Gooch being the sheriff of Granville,) and the land was exposed to sale and bought in by the said Gooch at a nominal sum. While the vcn. ex. was in the hands of the coroner the defendants sent to the clerk of the county court of Granville, the full amount of the judgment as it had been furnished to them by the clerk, with interest on the same up to June, 1859, and the costs, and this amount was paid to the coroner on 21st of May, 1859, when he made known that ho claimed $2.74 for commissions. This amount was sent to the 282 m THE SUPREME COURT. Bennett v. Taylor. clerk on the day of July, and tendered to the coroner, who refused it, saying that he had sold the land on the 1st Monday of that month. The counsel for the defendants, on these facts, moved in the County Court to set aside the Jieri facias levied on the land, which that Court refused. The defendants appealed to the Superior Court, and in that Court the counsel moved to set aside the justice's execution, levied on the land, and re- turned to May Term, 1859, of the County Court, and to set aside the judgment given at that term for the plaintiff, and to set aside the order for the issuing of the venditioni exjyonas, and to set aside that writ itself, and to vacate the sale, made under it, on the ground of surprise, and because the judg- ment was satisfied hj the payment of the money to the coro- ner. The Court set aside the fieri facias^ but denied the other motions. Fi'ora this judgment the plaintiff appealed. Foiole, for the plaintiff'. Winston, Sr., for the defendants. Manly, J. We think the Court had no power upon mo- tion to set aside the fieri facias,, as invoked to do, in the County Court, and, of course, the appellate Court has none. It was issued, it seems, on a justice's judgment, Bennett v, Taylor and wife, which liad been transferred from the county of Wake to the county of Granville, nnder the provisions of the Rev. Code, chap. 62, sec. 20, It was levied upon the inter- est of the defendants in a parcel of land, returned to the County Court, with notice of the fact to the defendants. The judgment of the justice was then affirmed, a venditioni or- dered — issued — executed and returned. The County Court was then moved to set aside the fi. fa. on the justice's judg- ment. The motion was over-ruled and an appeal taken to the Superior Court — the motion there renewed and sustained and an appeal to this Court. We are not aware of any principle upon which such a mo- DECEMBER TEEM, 1860. 283 Bennett v. Taylor. tion can be sustained. The fieri facias complained of, is part of tlie case that belonged to the jurisdiction of the jus- tice. It was not returned to the Court for review, as upon a writ of error, but placed there in consequence of the levy on land, and in obedience to a statute, whicli, in such case, re- quired pi'oceedings to subject land to the payment of debts, to be of recoid. The proceedings, therefore, up to the levy, are the complete and unreversed proceedings of a separate tribunal. The}' are placed in tlie Court, not for the pui'pose of being reviewed, but to put on record ulterior proceedings. The motion, therefore, in substance, is to amend, in one court, the process of another. This is obviously improper. If upon return of the levy to Court, tlie justices' proceedings couhl be considered in fieri and unfinished, yet, before the motion M'as made, there \vas, again, a complete record — a judgment — writ oi venditioni exj)07ias — sale — and return ; and there was no power in the Court to amend the process, upon motion, and thus to affect interests that had sprung up under it. This was held in the case of tlie Oa^pe Fear Banh v. AYH- liamson^ 2 Ire. Kep. 147, and laid down as an established principle in PhilUpse v. lUejdon^ Busb, Rep. 380. The case manilestly differs from one in which the amend- ment is to make the record conform to the truth, which a court has, at all times, power*to do in respect to its own re- cords. It also differs from the power exercised to quash a writ, that has been issued improperly, leaving a person whose in- terest is supposed to be affected, to look for ]-edress to the pai'ty who wrongfully sued it out. The case of Ashe v. Streator decided at this term, (ante 25(),) is a case falling un- der the former class, and that oi Adains v. Shudlioood^ (ante 258.) under the latter. Wo have considered the case only as a motion to set aside or vacate Xlmfi. fa. on the justice's judgment, which was the motion made in the County Court, and from the decision of wdiich, the appeal was taken. In the Superior Court, it seems other motions were made, viz., to set aside. 1. Tlie judg- 284 IN THE SUPREME COURT. State V. McDaniel. ment then of record. 2. The order for a venditioni exponas^ and 3. The venditioni exponas itself. Assuming that the motions were over-ruled, which does not expressly appear, there was no appeal by Taylor and wife, and the decision of them, therefore, has not been brought here for re-examination. They are no part of the case now in this Court. It may not be improper to sa}', however, that the}' are manifestly subject to the objections already noticed in respect to the other motion. It will be perceived also, that we have considered this case simply in relation to the power of amendment, and not as to the force and effect of the proceedings, and the sale in pur- suance of them, or as to the effects of the payments, which are alleged to have been made in satisfaction of the judgment, before the venditioni exponas was executed. These are ques- tions not properly before us upon this record, and we do not consider them. The judgment of the Superior Court should be reversed, and that of the County Court affirmed. Pee Curiam, Judgment reversed. STATE V. A. P. McDANIEL. A road only one mile long, and from ten to fifteen feet wide, leading from a public highway to a church, and used by the people of the neighboi'hood for sixty years in going to and from the church, and which connected with a country road leading to a mill m the neighborhood, and to a railroad sta- tion, but which had never been under the charge of an overseer, nor work- ed as a public highway, is not a public highway so as to subject one to indictment for obstructing it. Tiiis was an indictment against the defendant for obstruct- ing a public highway, tried before Saundp:rs, J., at Fall Term,, 1860, of Guilford Superior Court. DECEMBER TEEM, 1860. 285 State V. McDaniel. The following is a special verdict found by the jury in the case. " We find that the road described in the bill of indictment, hath been used for sixty years by the people of the neiglibor- hood of Bethel Church, in passing from an established and admitted highway to and from Bethel Church ; that the dis- tance from tiie admitted highway to the Church is one mile ; that this road is connected with other roads leading to difter- ent places in the neighborhood, and with another country road used by the neighbors in getting to a mill in the neighbor- hood, and to the McLean station on the North Carolina rail- road, for the last four or five years ; that the road was from ten to fifteen feet wide, not wide enough at some places for wagons to pass each other on the path, and was never, to the recollection of any one, under the charge of an overseer, or worked on as a public road, as charged in the bill. If the Court should be of opinion, that from the foregoing facts, the defendant is guilty in law, we find the defendant guilty, oth- erwise we find him not guilty." The Court being of opinion with the defendant, gave judg- ment accordingly. Solicitor for the State appealed to this Court. Attorneij General, for the State. No counsel appeared for the defendant in this Court. Manly, J. The special verdict in this case presents the en- quiry, whether mere use of a way or road by the people of a neighborhood for a long lapse of time, to go to church and other neighboring places, is a public road. The road does not appear to have been laid off agreeably to the provisions of our statute law ; it is not of the width prescribed for our highways, and it has not been treated as a highway by the appointment of an overseer with laborers to keep it in repair. Upon no principle, therefore, of whicii we are aware, can it be classed among the public roads of the country which it becomes indictable to obstruct. 2S6 m THE SUPREME COURT. State V. McDaniel. The Code declares that all roads laid out or appointed by the General Assembly, or by order of court, are public roads, and roads which have been used b}^ the public through a suf- licient length of time to justify the presumption of a lawful origin, have been held by this Court to be public roads upon the principles of the common law ; Woolard v. McCidlough, 1 Ired. Rep. -±32 ; State v. Hunter, 5 Ired. 369 ; Davis v. Ramsay^ 5 Jones' Rep. 236. But, we take it, in respect to this latter mode of testing the character of a road, that the use by the pnblic must be of such a nature as to apprise the proprietor of the land that it is claimed by the public as a matter of right ; as, by an assump- tion of jurisdiction over it b}'^ the court which is charged with the repair of the pnblic ways, or, at least, by some other une- quivocal act or acts which shall guard the owner against the supposition that the use is from him "of special favor." The verdict excludes the inference that this way was used by the public at large in any sense, and declares it was used by \\xQ^ i^eople of a neighhor/wod to get to church, ifec. It is not, therefore, a public road, and we concur w-ith the Superi- or Court in the judgment that the obstruction of it is not in- dictable. From the finding of the jury, we suppose the road termina- ted at the church, and was, therefore, what is called in French phrase, a ''^ cul de sac.^^ It is difficult to conceive of a high- way a mile long, and closed up at one end, for the public at large cannot be in use of it; and if a road be for the accom- modation of particular persons only, it cannot be a public road. An indictment which should chai'ge the stopping '" coriiiiiimem mam ad ecolesiam pro parocliianis^'' would clearly be bad, "for then the enquiry would extend no fur- ther tlian to the parishoners, which is a private grievance ac- cording to what is said by Lord Hale in Throiccr'^s case 1 Ventris Rep. 208. This opinion is irrespective of the rights of the Church, or of the people worshiping at that place, to this way as a pri- vate easement, or to the rights of others to the road upon a DECEMBER TEEM, 1860. 287 Mendenhall v. Mendenhall. similar principle. Of this, we Scay nothing, becanse a viola- tion of such rights is redressed by private actions, and not by public prosecutions. Per Cukiam, Judgment affirmed. DELPHINA E. MENDENHALL v. JAMES E. MENDENHALL. Where a Avidow qualified as executor of her liusband's ■\vill, it was Jtchl that she could not al'terwards dissent froui the will and claim dower. This was a pkhtion forBowiiK, heard before Saunders, J., at Fall Term, 1800, of Guilford Superior Court. Geoi'ge C. Mendenhall died in the month of March, 1860, leaving a last M'ill and testament in which the petitioner, Del- phina, is named as executrix. She qualified at the term of the county court next after the death of her husband, which was May term, 1860. At August term, 1800, she filed her disseut from the will. The testator died possessed of a large real estate, and this petition is tiled against the defendant as heir-at-law, and prays that she be allowed dower in said lands. Upon the hearing of the petition and answer, his Honor being of opinion M'ith petitioner, gave judgment that the writ issue. From this judgment defendant appealed. Graham and Foiole, for the plaintiff. Movi'head and McLean^ for defendaiit. Pkarson, C. J. A husband dies leaving a last will and tes- tament, in which he appoints his wife sole executrix. She offers the will for probate, and qualities as executrix. The question is, does she by doing so, waive her right to dissent from the will ? or can she afterwards enter her dissent and 288 IN THE SUPREME COURT. Mendenhall v. Mondenliall. claim dower, a A'ear's provision and distributive share as if her husband had died intestate? This Court is of opinion that by qualifying as executrix and taking on herself the burthen of executing the will, she waiv- ed her right to dissent. Our conclusions are based on several considerations, all or any one of which, it seems to us, are sufficient to sustain it. The act of qualifying as executrix, and undertaking ujjon oath, to carr}' into effect the provisions of the will, is irrevo- cable. She cannot now renounce and discharge herself from the duties thereby assumed. This is settled law. It follows that she thereby waived any right, whicli she before had, which is inconsistent with the act done and the duties assumed. The right to dissent is inconsistent with her act of qualify- ing as executrix, and tlie duties thereby assumed in this: 1. The appointment and qualification of one as executrix, operates as an assignment in law, and vests the whole person- al estate in such executor. If one executes a writing b}^ which he appoints A B his executor, that is a will. A B thereby becomes the owner of the estate, and after paying off the debts, is, by the common law, entitled to the surplus. If one executes a writing by wliich he disposes of Jiis pro- perty after his death, without appointing an executor, that is a testament. If he does both, that is appoints an executor, and also disposes of his estate, or a part thereof, that is "a last will and testament." The executor becomes the owner of the estate, and after paying off the debts and legacies, is en- titled by the common law, to the surplus. Thus, it is seen that the office of executor is deemed in law of great impor- tance ; it draws to it the ownersliip, control and management of tiie entire personal estate, and gives a right (at common- law) to the surplus. It is, therefore, manifestly inconsistent for a widow to claim the office and its rights and incidents un- der the will, and at the same time to enter lier dissent and claim dower, year's provision and a distributive share, as if her hus- band had died intestate ; in other words, there is an inconsis- DECEMBER TEKM, 1860. 289 Mendenhall v. Mendenhall. tency in claiming the office imder the will^ and at the same time claiming rights as if there was no will. 2. Upon qualifying, she assumes the duty and undertakes on oath to carry into effect the several provisions of the will, and it is inconsistent, afterwards, to do an act which defeats, or in a great degree deranges the provisions of the will and disappoints the intention of the testator therein expressed. 3. A husband having entire confidence in his wife, ap- points her the executrix of his will, and thereby assigns to her the title to, and the right to control and manage his whole estate; can she, in good taith, accept the trust, and after- wards set up a claim cvdverse^ and which, of necessity, pre- vents the execution of the trust confided to, and assumed by her. 4. We will not say that a wife is called on in the life- time of lier husband, to make known to him that she is not satisfied with the provisions of his will, for the law confers on her tlie right to dissent after his death ; but m'c do say, that if she intends to dissent, and wishes to avoid all imputation of a design to take advantage of the confidence reposed in lier, she should renounce the right to qualify under the will ; for, by doing so, she enables the court to appoint an admin- istrator, with the will annexed, who will represent and take care of the interest of the estate when she sets up claim to a year's provision, and when she claims to have her distribu- tive share allotted ; whereas, by accepting the appointment and qualifying as executrix, she gets the whole matter in her own hands, and while undertaking to represent and take care of the interests of the estate under the will, she will be " led into temptation" to take care of her own interest a^^ms^ it. Pee Curiam, Judgment reversed and the petition dis- missed. 19 290 IN THE SUPREME COURT. Foust V. Trice. Doe on the demise of DANIEL FOUST v. GEORGE W. TRICE ei at Where the question was, whether B, who occupied the land in controversy, did so as the tenant of A, the plaintiff, and B testified that he was carried upon the premises, and left there fraudulently and treacherously, in order' to get him off of another tract of laud, and that he never held as the ten- ant of A, it was held competent for him to state, also, in order to strength- en his testimony, that his occupation was as the tenant of the defendants. This was an action of ejectment, tried before Dick, J., at a Special Term (June, I860,) of Oransje Superior Court. The plaintiff's lessor exhibited no title, but alleged that one James Pender, the actual occupant of the land, was his tenant, and insisted that the defendants, who came in as the landlords of Pender, were estopped to deny his (plaintiff's) title. He called a witness, one Hugh Kirhpatrick^ M'ho tes- tified that he rented the land, described in the declaration as containing 366 acres, from plaintiff's lessor, from year to year, from 1853 to 1856, inclusive ; that there were about twelve acres of it cleared, and within this space were the walls of a log cabin without a roof; that he was to pay, as rent, one third of the crops produced thereon, and had the privilege of clearing more land, and in the event of his doing so, was to have tlie use of the place cleared for two years, with the sur- plus of the wood therefrom ; that at the end of the year 1856, he gave up his lease and then rented six acres, only, of the cleared land for the year 1857 ; that in January, 1854, he (witness) carried Pender, in his wagon, from a house, in which he had previously resided, (of which witness had a lease) to and upon the land in dispute, and placed him in the woods thereof, about 500 yards from the cleared part ; that he then told Pender that he might erect a house and remain there, and if lie would clear any of the land for him, he would pa}'' him for it ; that Pender assented to this, and built a cabin at this spot, witness sending his negroes to assist him, and that he had remained there ever since. On his cross examination, he stated that he did not know L>ECEMBEK TEEM, 1860. 291 Foust V. Trice. that Pender was aware where he was to be carried when his household goods were put into the wagon ; that he (witness) had proposed to him a week or two before that time, that he should remove to the roofless cabin aforesaid, to which Pen- der said nothing. He further stated, that Pender had paid ho rent to himself or to plaintiff's lesssor to his knowledge ; tliat he had done a little clearing, but witness had never paid him any thing for it. The defendants then called Pender, who testified that prior to 1854, he had resided in a house leased from said Kirkpa- trick which belonged to one Woods ; that Kirkpatrick informed him, he wanted this house for another tenant, and if he would give it up, he would let him have another house on his, (K's.,) own land, the situation of which, was known to him ; that he assented to this, and Kirk]->atrick's wagon moved the other tenant, witli his goods, to tiic house where he was living, and took in those of him, (Pender,) Kirkpatrick being along ; but instead of carrying him to the house promised, in spite of his remonstrances, he carried him to the tract of land in dispute; that witness then requested to be taken to the roofless cabin above described, but this was refused, and his family and goods were put out in the woods, at the place described by Kirkpatrick, and left there on 17th of January, 1854 ; that witness and his sons made boards and built the cabin in which he has since lived, without any aid from Kii-kpatrick ; that about a month or more afterwards, Kirkpatrick proposed to him to clear land for him, and that he would pay him for it; that he had done some clearing, but had never received an}'- pay for it ; that when Kirkpatrick jnit him upon the land, he said to him, " here is a place to which there is no good right; if you will build a house, you may be able to stay here, per- liaps, five, six, or ten years, or your life-time ;" that he never had any communication with Foust nor Kirkpatrick, except as above stated, in relation to tiie occupation of the land. The defendants offered to prove title to the land in them- selves, but this was objected to and ruled out. Defendants counsel excepted. They then offered to show that Pender, 292 I^ THE SUPKEME COUKT. Foust V. Trice. subsequently to being placed on the land, became their ten- ant, which was also objected to and ruled out.. Defendants again excepted. The writ issued in I^ovember, 1857. His Honor instructed the jury that if the witness, Pender, was carried by Kirkpatrick, upon the land in question, and left there with his consent, or, if after he was there, he agreed to be the tenant of Kirkpatrick, either would estop him and the defendants from denying tlie plaintiff's right to recover, and that in passing on the question of his consent, they might consider, as evidence for the plaintiff, the fact of his having remained on the land. His Honor declined giving any other instructions. De- fendants counsel excepted to the charge. Verdict and judgment for the plaintiff, and appeal by the defendants. PhillipSy for the plaintiff. Graham^ for the defendant. Battle, J . It is stated in the bill of exceptions, that on the trial of the case, the lessor of the plaintiff' did not show any title in himself, but put his right to recover the land sued for, upon the ground that James Pender, the tenant in possession, was his tenant, and that the defendants had been admitted to defend the suit as landlords, and of course were bound by the estoppel. The defendants denied that James Pender ever had been the tenant of the plaintiff's lessor, and the question whether he had ever been so, was the first and main point in the cause. To prove that he had, the plaintiff's lessor exam- ined one Hugh Kirkpatrick who, if believed, clearly proved the tenancy of Pender; but to rebut his testimony the defend- ants examined Pender himself, and contended that if his tes- timony were taken to be true, then he never was the tenant of the lessor of the plaintiff. For tlie purpose of strengthen- ing their position, the defendants offered to prove that after Kirkpatrick had carried Pender on the land in dispute, the latter had consented to become their tenant, and had thencefor- DECEMBER TERM, 1860. 293 Foust V. Trice. ward continued to occupy the land as such ; this testimony- was objected to, and ruled out by the Court, and upon the propriety of that ruling, depend, in our opinion, the merits of the defendant' sapplication for a reversal of the judgment, and the grant of a 'venire de novo. The counsel for the plaintiff's iessor contends with much ingenuity, that it being stated by both the witnesses that Kirkpatrick had carried Pender upon the premises, and that he remained there continuously until the declaration in ejectmont was served on him, he was ne- cessarily either a tenant or licensee of the plaintiff's lessor, and that therefore, he could not, until he surrendered or re- stored the possession to the lessor, become the tenant of an- other, and that consequently, the testimony offered to show that fact, was immaterial, and as such, was properly rejected. In order to ascertain the force of tliis argument, it is necessa- ry to examine the testimony in relation to the manner in which Pender was carried upon the land by Kirkpatrick, and as the defendants had the right to have the credibility of Pen- der's account of the transaction submitted to the jury, it is sufficient for us to examine his testimony alone. He states expressly, that he was carried on the land and left there against his will. Can that be called an entry by him as a tenant or licensee of Kirkpatrick, who is admitted to have been the ten- ant of the plaintiff's lessor? We think not. It is a perver- sion of terms to say that one entered upon the land, or into the house of another by the license of that other, when, in tact, he was carried there by fraud or violence. To become the tenant or licensee of the person who had perpetrated the fraud or violence upon him, he must afterwards liave willingl}' con- sented to do so. If it could be proved tliat he consented to remain on the land, not with the consent or permission of the persoa who had so improperly carried him there, but with the jxirmission, and as the tenant, of some olher person who claim- ed to be the owner of the land, we think the idea of his hav- ing become the tenant or licensee of tlie first, would be com- pletely repudiated. Why not allow such proof. It certainly could not be rejected upon the ground upon which a lessee is 294 IN THE SUPREME COURT. Borden v. Bell. barred from disputing his lessor's title. That is founded upon the principle of good faith and privity between the parties. Certainly no such principle can apply between persons whose apparent connection has been brought about by violence and treachery. And it would be particularly inapplicable to a case where the person who committed the wrong told his vic- tim that the land upon which he had placed him, had no own- er, and he might probably ren:iain upon it five, six or ten years, or perhaps his life time. The testimony offered and re- jected, was alledged to have a tendency to show that Pender had agreed to become the tenant of the defendants, and if ad- mitted, might have shown that he never did voluntarily be- come the tenant or licensee of any body else. If it had shown that, then the Judge could not have instructed the Jury that Pender's continuance on the land was evidence from which the jury might infer that he had agreed to become the tenant of the plaintiff's lessoi*. There was error in the rejection of the testimony, for which a venire de nova must be awarded. Per Cdkiam, Judgment reversed. Boe on the demise of LUCRETIA BORDEN v. WILLIAM P. BELL. Where one rented a plantation for a year, and having joined the fences of another planiation, owned by him, to the fences of the rented place, and then at the end of the year, quit v/ithout removing the fence, placed there, and after five years entered again, it was held that he was not entitled to notice to quit, before bringing suit against him. Action of e.tectment, tried before Bailey, J., at Fall Term, 1860, of Carteret Superior Court. The land, in dispute, is comprised within the lines E, C, D, DECEMBER TERM, 1860. 205 Borden v. Bell. F, on the west side of Rocky Run ; (see diagram.) The de- fendant had j)urchased from Barclay Borden a tract of land, called the Deer Neck Plantation, A, B, E, G, which he, for a while, contended ran across Rocky run and embraced the disputed land, but afterwards, he, in 1852, rented the land a,oxi**" E, C, D, F, from the guardian of the plaintiff's lessor, Lucre- tia, the heir-at-law of the said. Barcia}'- Borden. AVhile in this occupation, he extended the fences of the Deer neck tract across Rocky run, and joined them to the fences of the disputed land. He quitted the possession of the land in ques- tion, at the end of 1852, but left the fences, as above stated, extending across the run, in which situation they remained until 1858, when he took possession again, and held it until he was sued by the plaintiff in that year. The plaintiff"'s title to the land, in question, was established, and the question was, whether there was such a tenancy of the disputed land, as entitled the defendant to a notice to quit, before a suit could 296 m THE SUPREME COURT. Borden v. Belt. be brought. The Court charged the jury, that there was not, and defendant excepted. Verdict and judgment for the plaintiff. Appeal by the de- fendant. Hubbard and Green^ for the plaintiff. Haughton, J. W. Bryan and Henry C. Jones, for deft. Manly, J. The only question which seems to be present- ed by this record is, whether there was a tenancy of the dis- puted land, on the part of the defendant, which entitled him to notice before suit. We concur with the Court below, that there was not. It seems the land was rented to defendant in 1852. After that, it does not appear whether it was occupied until 1858, when it was taken possession of by the defendant. The de- fendant's fence, in 1852, extended across Rocky run upon the land, in dispute, and joined the fence on that side, and so continued from that time to 1858. From the facts stated, we assume that the land, in dispute, was not occupied from 1852 to 1858 by any tenant, but the defendant's fence was left extended across the run as in the former year, and the question is, what eflfect had this fence up- on the relations and rights of the parties. We do not perceive that it had any. The superior title being in the plaintiff's, lessor, she was in constructive possession of the land and fence until 1858, when defendant again entered and exposed him- self to an action. There was no tenancy of the land, by de- fendant, after 1852, and the Court properly declined giving any instructions upon that supposition. Pek Cueiam, Judgment affirmed. DECEMBER TEEM, 1860. 297 Childers v. Bumo-arner. Doe 071 the demise o/ JAMES R. CHILDERS, et vx. et al. v. SIMON BUMGARNER. Where the ancestor of a married woman died seized and possessed of a tract of land, it was held that the descent cast, and the title derived from her an- cestor, according to the law of this State, gave her an actual seizin, and having had children during her coverture, her husband became tenant by the curtesy initiate, and was subject to the bar of the statute of limita- tions. A fortiori is such the case where one of the wife's co-heirs made an actual entry ; for his possession was that of all the heirs. The children of one entitled to an estate as tenant by the curtesy, are allowed seven years from the death of their father before they are barred by the statute of limitations. Where there were two counts in an action of ejectment on the demises of sev- eral heirs-at-law, and a general verdict was rendered, giving nominal dam- ages, but on a point of law reserved it was determined that the lessor in one of the counts was barred by the statute of limitations, it was held that the other lessor was, nevertheless, entitled to his judgment. Action of ejectment, tried before Dick, J., at Fall Term, 1860, of Alexander Superior Court. The first count in the declaration was npon the demise of James Childers and his wife, Margaret, the latter of whom is the daughter of William Munday, and the second count is on the demise of Margaret Jolly, Allen Jolly, Jane Jolly and John Jolly, the children of Jane Jolly, another daughter of AVilliam Munday. The ancestor of the plaintiff's lessors had title to the land in question, and died seized thereof in 1833, and one or another of his children cultivated the premises un- til the year 1835, when the defendant entered, and has had adverse possession ever since, with a color of title reaching back to March, 1836. Both Mrs. Childers and Mrs. Jolly were married, and had children in the life-time of their father, and the latter has had none since his death. Mrs. Childers is still living, but Mrs. Jolly died in 1841, and her husband, John Jolly, died in May, 1853. Tills suit was brought 16th of March, 1860. It was insisted by the defendant that the lessor, Childers, could not recover because he had forborne to sue the defendant who was in, un- 298 IN THE SUPKEME COURT. Childers v. Bumgarner. der a color of title, for more than seven years after bis estate by the curtes}' began, and as to the second count, that as the defendant was in the adverse possession of the premises in ISil, when Mrs. Jolly died, John Jolly, the husband, acquir- ed no estate b}^ the curtesy, and that there was nothing to prevent the statute of limitations from running against the heirs of Mrs. Jolly also. A general verdict was rendered for the plaintiff on the facts of the case, for sixpence damages, his Honor reserving the question of law as to the right of the lessors of the plaintiff under the rules of law, with leave to set aside the verdict and enter a nonsuit in case he should be against the plaintiff on the points reserved. Afterwards, on consideration of the case, his Honor gave judgment for the plaintiff, and the defendant appealed. Boyden and Mitchell., for the plaintiff. W. P. Caldwell., for the defendant. Peaeson, C. J. William Munday died in 1833 ; one of his sons entered and continued in possession until 1835 ; since that time, the defendant, and those under whom lie claims, have been in the adverse possession under color of title. James Childers, and his wife, Margaret, who is the daugh- ter of William Munday, were married and had children at the time of his death. It is clear that Childers became enti- tled to an estate as tenant by the curtesy initiate., at tlie death of William Munday, the ancestor of his wife. The descent cast, and the title derived from her ancestor, gave his wife the actual seizin, and not a mere constructive possession, accord- ing to the established doctrine of our courts ; but, in addition to this, one of tlie heirs-at-law entered and held possession for two 3^ears after the death of their ancestor, and it is settled that the possession of one tenant in common is the possession of all, in respect to third persons. So, James Childers acquir- ed an estate as tenant by the curtesy initiate, in 1833, and be- inff afterwards evicted in 1835, a right of action then accrued DECEMBER TERM, 1860. 299 Childers v. Bumgarner. to him, which was barred by the subsequent adverse posses- sion of the defendant, according- to the distinction between an eviction lefore coverture^ where the right of action is that of the wife, and an eviction after coverture^ where the right of action is tliat of the husband, and he is not allowed, by join- ing his wife, to protect himself from the operation of the stat- ute of limitations ; Williams v. Lanier^ Basb. Rep. 30. It follows that the plaintiff was not entitled to recover on the count, laying the demise in the names of Childers and wife. The same reasoning and authority shows that upon the death of William Munday, Jolly, who had married one of his daughters, and had children by her, Avho are the lessors of the plaintiff in the other count, became tenant by the curtesy initiate, and upon her death, in 1841, became tenant by the curtesy, and his estate did not determine until his death, in May, 1853, at which time the right of entry of her children, the lessors of the plaintiff, j'^r6'(^ aconied, and the statute of limitations did not begin to run, as against them, until that date, and the action, liaving been commenced in March, 1860, is within time. It follows, that the plaintiff is entitled to recov- er on the count laying the demise in their names. An objection was made in this Court, that as the verdict is general, finding the defendant guilty on both counts, and the plaintiff was not entitled to recover on one of the counts, the judgment ought to be arrested. It is true, where a declara- tion contains several counts, one of which is defective, and there is a general verdict for the plaintiff, the judgment must be arrested, although all the other counts be good ; whereas, if one count in an indictment be good and there is a general verdict, judgment \v\\\ not bo arrested, altliougli all of the oth- er counts are bad. The reason of this difference is, that in an indictment the jury merely finds the issue, and the punishment is fixed by the court, and in so doing, the court is presumed to reject the bad counts and regulate the sentence in reference to tlie good count alone ; but, in a civil suit, the jury not only finds the issue, but assesses the damages, and, in doing so, the defective counts are considered, and influence the verdict as 300 IN THE SUPREME COURT. Wilson V. Tatum. much as the good. This principle has no bearing on the pre- sent case, for both counts are good, and the damages are nom- inal, so that the judgment and the amount recovered are ex- actly the same as the plaintiff would have been entitled to had there been but one count, and the verdict in respect to the other, may be treated as surplusage. The conclusion of the Court in State v. Williams. 9 Ired. Rep. 151, is strictly applicable: "It was manifestly of no consetjuence, whether the conviction was upon any one or all of the counts, since tlie offences were of the same grade and the punishment the same." Here, the damages are the same, and tlie judgment is the same, and it is manifestly of no conse- quence whether the verdict was upon one or both counts. — There is no error. Per Curiam, Judgment affirmed. JOHN WILSON V. ELIJAH TATUM. Words charging one with an attempt to commit a felony, however odious, are not actionable per se. Where a declaration contains two counts, and testimony is given as to both, and the Judge charges as to both, and a general verdict is given for the plaintiff, if one of the counts be defective, or an error has been committed as to one of them, the defendant is entitled to a new trial. Action on the case for slander and for malicious prosecu- tion, tried before Bailey, J., at the Fall Term, 1859, of Wa- tauga Superior Court. The declaration contained two counts, one for words spo- ken, charging tiie plaintiff with an attempt to commit besti- ality, and the other for taking out a warrant against the plain- tiff for an attempt to commit bestiality. The plaintiff produced a warrant, charging as stated in the DECEMBER TERM, 1860. 301 Wilson V. Tatum. declaration, which was issued on the affidavit of the defend- ant. The said warrant liad been returned " executed," and tlie phiintitf brought before a magistrate and tried. It was shown that, on examination, he was discharged, and the de- fendant ordered to pay the costs. There was evidence that, on divers occasions, he spoke the same cliarge against the plaintifJ', and attempted by tlie production of evidence, to es- tablish tlie truth of the charge. The defendant's counsel took the ground, tliat the warrant did not charge any offense, but was a nullitj', and what was done under it did not amount to a prosecution. Also that the words spoken were not slanderous, and called on the Court so to instruct the jurj'. The Court declined so to charge tlie jury, but went on to lay down the rules applicable to slander and malicious pros- ecution generally, and particularly, as to a question of fact, whether, in a vague use, on one occasion, of the words set forth, the defendant meant the plaintiff. Which question he left tothe jurj'. Defendant's counsel excepted. Under these instructions, the jury found a verdict against the defendant for $500. Judgment and appeal by the defendant. I^olk, for the plaintiff*. Isolde and Crumj^ler^ for the defendant. Bati'le, J. The plaintiff's declaration contains two coynts; one for words spoken, and the other for a malicious prosecu- tion. Testimony was given, on the trial, tending to support both tliese counts, and the instructions given by his Honor to the jury may be referred, in part, at least, to both the counts, and the verdict of the jury is general. Such being the case, if either of them cannot be supported, or if an error has been committed with respect to either, the defendant is entitled to a new trial ; Mooreliead v, Broion^ G Jones' 267. Now, a mere attempt to commit a felony, no matter how heinous the felony may be, is only a misdemeanor, the punishment of which, is not deemed infamous, therefore an accusation 302 IN THE SUPKEME COURT. Beaty v. Gingles. against a man, of such an oflense, is not deemed actionable 2)67' se, and cannot be made so, except by alleging and prov- ing special damage. The count for words spoken cannot, then, be supported, because the record does not show any allegation, or proof, of such special damage. It follows that the verdict, which is general, must be taken to have been rendered on both the counts, and the judgment thereon render- ed, is, therefore, erreneous, and must be reversed. Had there been no evidence, nor instructions given, a^^plicable to the first count, then the verdict and judgment, though general, would be regarded, by ns, as having been rendered on the second count, onl}^ and we should have affirmed the judg- ment ; Jofies V. Cook, 3 Dev. 112; /State v. Long,1 Jones, 24. But as the case stands, the judgment must be reversed, and a •venire de novo awarded. Per Curiam, Judgment reversed. RUFUS J. BEATY v. CHARLOTTE GINGLES et al, Mc'rs. An action against a person as " executor" for an act done, or a contract made by him after the death of his testator, cannot be sustained, and the words "' as executor" rejected as surplusage ; as may be done where the action is for the party on his own possession, and these words arc improperly in- serted. The cases Ilailey v. Wheeler, 4 Jones' Rep. 159, and McKay v. Royal, 7 Jones' Rep. 24G, cited and approved. This was an action on the case, tried before Dick, J., at Fall Term, 1860, of Gaston Superior Court. The plaintiffs declared for a deceit and false warranty in the sale of a slave against the defendants as executors of Ed- ley Gingles. The proof was, that after the defendants quali- fied as executors of said Gingles, that they offered the slave in DECEMBER TERM, 1860. 303 Beaty v. Gingles. question at public sale, and that plaintiff became the purcha- ser. He also gave evidence of the unsoundness of said negro, and that the defendants were aware of it at the time of the sale. Defendants counsel asked his Honor to charge the jur}^ that plaintiff could not recover against them in their representa- tive capacity, but that if they had practiced a fraud or deceit on the plaintiff, in the sale of the said negro, tliey were per- sonally responsible for it, and tliat the estate of their intestate could not be charged therewith. His Honor refused so to charge, but told the jury that if they believed, from the testi- mony, that the negro Avas unsound at the time of the sale, and that defendants were aware of it, and did not disclose it to tlio purchaser at that time, the action was well brought, and the plaintiff was entitled to recover. Verdict and judgment for the plaintiff. Appeal by the de- fendants. No counsel for plaintiff' in tliis Court, Z. K T/tonipson, for the defendants. Battle, J. Where an executor sues upon the possession of bis testator, he must sue as executor, because he must make profert, in his declaration, of his letters testamentary, but if he sue upon his own possession, he must sue in his own name, because his possession has fixed him with assets. If, howev- er, he sue "as executor" when the action is brought upon his own possession, the words "as executor" are considered as mere sui-plusage ; Ilornsey v. Dimocke^ Ventris 119 ; Com. Dig. Pleader, (I. D. 1) ; Cottcn. v. Davis, 8 Jones' Rep. 355. But an action against 2l ^q\'%ow "as executor" for an act done or a contract made by him after the death of his testator, can- not be sustained; for, in such an action, he must be sued in his individual, and not in his representative capacity, and the words " as executor," cannot be rejected as surplusage. This is well settled by the case of Ilailexj v. Wheeler^ 4 Jones' Rep. 159, wlierc the subject is fully discussed ; and that case ha© 304: IN THE SUPREME COURT. Howell V. Troutman. since been referred to, and conlirnied by the very recent one of McKay cfc Devane v. Royal, 7 Jones' Rep. 426. Pee Cckiam, Judgment reversed and a ve7iire de novo. JULIUS A. HOWELL et al v. HENRY TEOUTMAK Where an alleged testator, in a paper writing, propounded as his will, devised and bequeathed certain property to the child of his housekeeper, a white woman, which child was proven to be a mulatto, but which the mother had induced him to believe was his, it was held that this furnished no evidence to support the allegation that the will was obtained by fraud and undue influ- ence. Tins was an issue of devisayit vel non, tried before Os- borne, J., at Spring Term, 1860, of Rowan Superior Court. The paper writing purporting to be the last will and testa- ment of Jacob Troutman, deceased, contained the following bequests and devises : " Item 3d. I M'ill and bequeath to Ann Allmond two hun- dred and fifty dollars, provided the said Ann shall live with my wife, Polly, and assist her in health and in sickness; and if the said Ann shall faithfully perform her duty to my said wife during the life of my wife or widowhood, then at the death of my said wife, I will and bequeath to the said Ann, five dollars more." " Item 4. All the ballance of my estate and property of ev- ery kind and description, including my gold mine and every thing else, I will and bequeath to Lucy, the infant child of the said Ann Allmond, and if the said Lucy should die without lawful children or child, tlien it is my will, that all I have will- ed to the said Lucy, shall be divided between the children of my brothers, David Troutman, John Troutman, and my sister, Sarah Earnhart's children." ■;i DECEMBER TEJRM, 1860. 305 Howell V. Troutman. The proponnders of the alledged M'ill are Ann Alhnond and the children of David Troutman, John Troutman and Sa- rah Earnhart, mentioned in the will. The caveator is a brother, and one of the heirs-at-law, and next of kin, of Jacob Trout- man, the decedent. Tiie formal execution of the pa])er writing by the said Ja- cob Troutman was duly proven by the three subscribing wit- nesses, who also testified that in their o[)inion, he was of sound mind, in which opinion all of the witnesses concurred on the trial. It M'as in proof that Jacob Troutman and his wife were childless, and that the legatee, Ann Allmond, had lived in his house from 1849 to 1858, in the fall of which year he died. One of the subscribing witnesses testified that Lucy, the child of Ann, died during the life of Jacob Troutman ; that, in his opinion, she was a mulatto; that Allmond, the motli- cr, is a white woman ; that Jacob Troutman told him that the child was his, both before and since her death, and accounted for the color from a fright which Ann Allmond had received while enciente ; that she was about three years old when she died ; that he had done much business for Jacob Troutman, and drafted this paper writing; that when it was done, Jacob Troutman sent her, Ann, out of the room ; that he urged upon him to leave Henry, the present caveator something, which he declined doing, for the reason that Henry would spend it in litigation. The witness stated that Jacob had become dis- pleased with Henry because of some lawsuit they had had. James Montgomery^ also one of the subscribing witnesses, swore that he had no doubt the child was a half-blood mulat- to; that he judged from its color; that he was a neighbor, and had frequent opportunities of seeing the child ; that Ja- cob Troutman believed the child w^as his, said he knew it was, and that he intended to make a lady of it Dr. J. P. Cunningham testified that he was a practising physician in the vicinity of Jacob Troutman's residence ; that on one occasion he was called upon by Troutman to visit the child spoken of; that when he arrived, he found her in his 20 goe IN THE SUPKEME COURT. Howell V. Troutman. arms ; thnt he called her " daddy's baby," and that the child was unquestionably a negro. J)7\ John H. Wilson^ a practising physcian of the same vi- cinity, testified that the child was in his opinion, a mulatto, and that Jacob Troutman had once remarked to him that he loved the child as much as if it was his own, that Anne had gone out and picked it up somewhere. J. C. Barnhart swore that when Anne AUraond was preg- nant with the child, he was a justice of the peace in the coun- ty, and issued a warrant for her to make her swear to the fa- ther, or give bond as prescribed by law; that she gave the bond, and Jacob Troutman either became her surety or pro- cured some one to do so, he did not remember which ; lie also said that Jacob Troutman was a man of sound mind, though very illiterate. J. M. Long, Esq., the draftsman of the will, proved that af- ter the death of the child, the testator applied to him to know whether another will was necessary to dispose of the part he had left for the child ; that he advised him that it was not, but that the property would go over to his relations under the provisions of the existing will. The counsel for the caveator insisted that there was testi- mony to be submitted to the jury that the will was procured by the false representations and undue influence of Anne All- mond. The Court charged the jury, that there was no evidence of such influence as would invalidate the will, and if they believ- ed the testimony, the decedent was of sound mind ; also, that the paper writing was properly attested and executed. Cav- eator's counsel excepted. Verdict for the propounders. Appeal by the caveator. hoyden, for the propounders. LovCj for the caveator. Battle, J. "We concur in the opinion of his Honor who tried this cause, that there was no evidence of the wilFs hav- DECEMBER TERM, 1860. 307 Howell V. Troutman. iDg been procured by the fraud and undue influence of Ann Allraond or any other person. It was abundantly proved, and is conceded, that the alleged testator was of sound and disposing mind and memory, \vhen he executed the script which is propounded for probate as his will. The only cir- cumstance from which it is sought to be inferred that he execu- ted it under the effect of fraud, or under the exercise of un- due influence, is that Ann Allmond, his housekeeper, a w^hite woman, induced him to believe that he was the father of her mulatto child. Supposing that he did believe the child was his, and that the mother of it told him so, there is not the slightest testimony to show that she ever even asked him to make a will in favor of her and the child, or that she knew, before the will was made, that he intended to make one, or, afterwards, that he had made it. An eminent Judge in the Ecclesiastical Courts in England, (Sir Joun Nichol,) said in the case of Williams v. Gaicde, 1 Ilagg. Rep. 581, " that the influence to vitiate an act, must amount to force or coercion, destroying free agency ; it must not be the influence of aflTec- tion or attachment ; it must not be the mere desire of gratify- ing the wishes of another ; for that would be a vevj strong ground of support of a testamentary act." In the present case, what influence is it shown that Anne Allmond had over the alleged tcstatoi', amounting to force or coercion, and de- stroying his free agency ? None whatever. At most, it is said that she made him believe that he had begotten a child by her, which evei'y bod}^, but himself, could see was a mulatto. Surely that alone cannot destroy a will wliich the mother is not shown to have had the slightest agency in pi-ocui'ing. It has been said b}' a satirical writer, that many a married man fondles children as his own, which his wiser wife knows to be- long to another. Would a will in favor of such children be set aside upon the ground that the trusting husband had been imposed upon, and had, on that account, acted under undue influence? Certainly not ; and yet, to set aside the present will, for the cause assigned, would be almost as bad. The truth is, that the old man, being childless by his wife, took a 508 IN THE SUPEEME COUKT. Reeves v. Poindexter. strange fancy to the child of his housekeeper, and whether it were his or not, he had a father's love for it, and our law im- poses no prohibition upon a man to prevent him from bestow- ing his property upon the object of his affection. Affection or attachment, as Sir John Nichol said, " would be a very strong ground of support of a testamentary act." Per Cukiam, Judgment affirmed. R. E. REEVES et al v. D. A. POINDEXTER. Where A swear^ that B, C and D had an important conversation together, and D swears that no such conversation toolv place, it was held tliat the rule giving preference to affirmative, over negative, testimony, does not apply, for there being a direct contradiction, the jury must be guided by other tests in ascertaining the truth. Tins was an action on the case for a deceit in the sale of a horse, tried before Dick, J., at the last Fall Term of Surry Superior Court. The plaintiff proved by a witness, who was present at the trade, that the defendant told plaintiff the horse's eyes were good ; that he would not M'arrant the horse, but that his eyes were good ; that at one particular time, which he mentioned, there was sornething the matter with his eyes, or they were hurt, but they had got well and were good, and that he would' not take a cent less for the animal on account of his eyes. It was proved that, at the time of t]ie trade, the horse's eyes were unsound, and that the defendant knew it; thougli the eyes, at that time, looked well. It was also proved that a short time after the trade, the liorse became totally blind. The defendant introduced two witnesses, who swore tliat they were present at the trade, and that they heard the defendant, in the course of the conversation between the parties, about DECEMBER TERM, 1860. 309 Reeves v. Poindexter. the horse, tell the plaintiff that the horse's eyes were unsound, that they were subject to bad spells, and he would not war- rant them ; that if the plaintiff took the horse, he must do so at his own risk. These witnesses, for the defendant, swore that the witness for the plaintiff, mentioned above, participa- ted in this conversation about the horse's eyes. The witness for the plaintiff' was then recalled, and swore that he was pre- sent all the time ; that he did not hear any such conversation as to the unsoundness of the horse's eyes, as deposed to by defendant's two witnesses ; that he did not believe it occur- red ; that if it had occurred, he thought he would have heard and recollected it, and that he did not participate in any con- versation of the character stated by these witnesses. His Honor, in response to a request for special instructions from the defendant's counsel as to this testimony, said, " it was a rule of law, that where two witnesses, of equal respec- tability, testified as to a fact — one that he heard or saw a thing, and the other, who M^as present, that he did not see or hear such thing, that the testimony of the witness who tes- tified affirmatively was to be preferred." To this part of his Honor's charge the plaintiffs' counsel excepted. Verdict and judgment for defendant. Appeal by plaintiff. Crumple7\ for the plaintiffs. Boydeii, for the defendant. Manly, J, Waiving any discussion as to the terms, in which the rule is laid down by the Judge below, we think that the rule, itself, was not properly applicable to the facts before the Court. According to the interpretation, which we put upon them, they do not raise the question between affir- mative and negative, but between contradictory witnesses. And the true question was, which class of witnesses, judging of the testimony of eacli by the ordinary tests, the jur}'^ would believe. With respect to the rule, it is clear that its appli- cability to any state of facts, must depend upon whether the negative testimony can be attributed to inattention, error, or 310 m THE SUPREME COURT. Reeves v. Poindexter. defect of memory ; 1 Stark. 517. If two persons admit they were in a room together, and one swears that while there, he heard a clock in the room strike, and the other swears he did not hear it, it is a case for the application of the rule, accord- ing to all elementary writers. But in the case supposed, if two persons were placed in a room where a clock was, for the express purpose of ascertaining by their senses, whether it would strike or not, a variance between their testimony could not be well attributed to mistake or inattention, and the real question would be as to the credit of the witnesses. In the case before us, the defendant proves by a witness, that the parties held a certain conversation, in which a witness, pre- viously introduced by the plaintiff, participated, and plain- tiffs' witness, being recalled, denies that any such conversa- tion was held ; this is not a question between affirmative and negative testimon}^, wherein the latter may be ascribed to in- attention, but it is a question between witnesses who contra- dict each other, and the question is, to which side, under all the circumstances, is credit due. It is the duty of a jury to re- concile testimony, if possible ; especially if it come from cred- ible sources. Hence, when one declares, under oath, that he heard a thing, and another, who was present, that he did not hear it, if the matter, in question, occurred under such cir- cumstances as to account for the negative testimony upon the theory of inattention, the jury will be able to reconcile the two, and both being ciedited, it will be taken that the matter occurred, and was heard by one and not by the other. This is the basis of the maxim, that affirmative testimony is entitled to more weight than negative. At the last term of this Court, the maxim was recognised and approved in its application to a state of facts, somewhat like the case last sup- posed : A class of witnesses swore that a slave had been seen by them on crutches and limping ; another class, with only the same opportunities of observation, for ought that appear- ed, swore that they had not seen him on crutches or limping; instructions that the positive wore entitled to more weight than the negative, were approved. Both being equally cred- DECEMBER TERM, 1860. 311 Thompson v. Cox. ible, they were thus reconciled ; Henderson v. Grouse^ 7 Jones, 623. But in our case, the witnesses are not reconcilable, A swears that B, C and D, held a conversation together. D swears that no such conversation was held. The negative cannot be accounted for, on the score of a want of observa- tion, any more than the positive. The witnesses are in con- tradiction, and their credibility must decide it. There should be a reversal of the judgment, and a venire de novo. Per Curiam, Judgment reversed. WILLIAM THOMPSON et al v. WILLIAM T. COX et at Notice is not required to be given to the creditors of a deceased person on an application by the administrator or executor to sell the real estate for the payment of debts, Revised Code, chapter 46, section 45, &c. Nor is the fund raised by such sale under the control and direction of the court making the order of sale. After passing the order for the confirmation of a sale, made by virtue of the statute. Rev. Code, chapter 46, section 45, &c., the jurisdiction of the court is at an end, and a petition to open the biddings under such sale, will not be sustained. The county courts have no jurisdiction, by bill, at the suit of creditors, to con- vert a purchaser of land into a trustee, on the allegation of fraud and collu- sion. The powers of a court of limited jurisdiction cunnot be enlarged by implica- tion. One who is not a party to a bill in equity, cannot appeal or petition to rehear, or file a bill for a review. This was a petition filed in the County Court of Johnston, in the names, and at the instance of the creditors of one Mi- 312 IN THE SUPEEME COURT, Thompson v. Cox. cajali Cox, against his administrator, "William T. Cox, and against Nathan B. Cox, to set aside an order confirming a sale of land as assets, to pay debts. The petition sets forth that the petitioners are creditors of the defendant's intestate, Micajah Cox; that he was indebted to them largely beyond the value of his personal estate ; that the sale made by the defendant, "William T. Cox, under the order obtained for that purpose, was made by collusion with his brother, the other defendant, Nathan, at much less than its real value ; that sufhcient notice was not given of the day of sale, and very few persons attended, and no one bid except the said Nathan, and that two tracts of land, worth at least ten thousand dollars, were bid oif by him, Nathan, at $2,500, and that there was an understanding between the brothers that the administrator was to have one of them at the price at which it was bid off; that it was falsely I'epresented by the said administrator, to the County Court of Johnston, that the said land had been sold for its full value, and he had, hy such false assurance, induced the said Court to confirm the sale ; that if the said sale shall stand, the plaintiffs will lose most, if not all their debts, as it is understood that most, if not all the means of the said estate, including the amount received on the sale complained of, are exhausted. The petition concludes as follows : " Your petitioners, therefore pray, for the reasons above stated, and others which they will present at the hearing of this petition, that the order confirming the said sale may be set aside, and a resale directed, with full and fair opportunity giv- en to the creditors and sureties of the said intestate to attend such sale and make the said lands bring a fair and reasonable price. To this end, they pray that a copy of this petition to rehear and set aside the said order or decree, may be served on the defendants, and that your petitioners may have such other and further relief as their case requires, &c." The defendants answered the petition, and both parties took testimony, but as the consideration of the case in this Court is confined entirely to the merits, as set forth in the petition, DECEMBER TEEM, 1860. Thompson v. Cox. the matters therein disclosed arc deemed immaterial. The QoxxnXj Cowvt pro forma dismissed the petition, and tlie plain- tifts' appealed. The Superior Court also ordered the petition to be dismissed, and the plaintiff's appealed to this Court. Miller^ for the plaintiffs. Stromj and F'owle, for the defendants. Peaeson, C. J. The statute ch. 46, sec. 47, Rev. Code re- quires that "the heirs and devisees or otJier 2)crsons interested in said estate,^'' shall be made parties to the petition of an ex- ecutor or administrator to sell real estate. We think it obvi- ous that the words " or other persons interested in said es- tate," were intended to embrace the assignees of an heir or devisee, that is, their heirs or devisees or persons taking by purchase or alienation within two years after the qualiffcation of an executor or letters of administration granted ; which conveyances arc made void against creditors or executors and administrators by sec. 61, and do not embrace the creditors of a deceased debtor ; for : 1. They are represented by the executor or administrator who made the application for the license to sell the real estate for their benefft, and the only adversary interest is that of the heir or devisee or their assignees. 2. The creditors may not be known, or their debts ascer- tained. 3. Creditors have no direct interest in the estate, and can only reach it by charging the executor or administrator with the proceeds of the sale as assets. There is no express provision in the statute requiring the sale made by an executor or administrator to be reported to the court and be confirmed. It ma}'^ be that the 49th section which omits the word "license" and substitutes that of "decree," and requires " that the title shall be made to the purchaser hy such person, and at suck timen^ the court shall prescribe," furnislies sufficient ground for the inference that the sale ought to be re})orted to, and confirmed by, tiie court ; yet, in the 314 IN THE SUPREME COURT. Thompson v. Cox. absence of some express provision, we are not at liberty to cany the construction further, and infer that the fund, in re- spect to its collection and mode of application, is to be under the control and direction of the court ; for, by section 51, it is provided " the proceeds of sale shall be assets in the hands of the executor or administrator for payment of debts, &c., and applied as though the same were the proceeds of person- al estate." It follows that after granting a license or decree of sale, and the order confirming the sale, and to make title to the purchaser is passed, the court has nothing more to do in the matter, and its jurisdiction is at an end. Having arrived at these conclusions in regard to the con- struction of the statute, the application to the case under con- sideration, shows that the proceeding cannot be sustained. Viewed in the light of a petition to open the biddings, there are two fatal objections: No responsible specific offer is made in respect to the amount and no assurance given that the price will be increased. After the term at which a sale is confirmed, a court of equity in the case of a decree of sale or for partition, of an infant's land and the like, where the fund, in respect to its collection, distribution and application, is still under its control, will not open the biddings; Ashbeev. Cow- ell^ Busb. Eq. 158; a fortiori the court cannot do so, in a case where, after passing the order of confirmation, &c., its juris- diction is at an end. Viewed in the liglit of a petition to rehear it cannot be en- tertained, because the petitioners were not and ought not to have been parties to the original proceeding. One who is not a part}^, cannot appeal, or petition to rehear, or file a bill of re- view. This is settled, according to the practice of the courts, and no precedent to the contrary, can be found. Viewed in the light of a bill in equity to convert the pur- chaser into a trustee, on the allegation of a fraudulent collu- sion between him and the administrator to suppress competi- tion — buy the land at a sacrifice and divide the spoils, and on the footing of fraud, to hold them liable for the actual value of the land, instead of the price at which it was sold, DECEMBER TERM, 1860. 315 Thompson v. Cox. the proceeding cannot be entertained ; because the County Court, in which it originated, had no such equity jurisdiction. It has general original jurisdiction in causes of a civil nature at the common Imo j its equity jurisdiction is limited; and depends on specific statutor}^ provisions, {Leary v. Fldchei\ 1 Ire. 357,) e. g., " petitions for filial portions, legacies and distributive shares, matters relating to orphans, idiots and lu- natics and the management of their estates ;" Revised Code, chap. 81, sec. 5. Wliether by force of the 53rd section of the statute under consideration, which subjects to sale, on the application of an executor or administrator, " all rights and interests in land, which may be devised or would descend to the heirs, and all such other interests in real estate as would be liable in a court of equity, to ^ye applied in discharge of dehts,''^ has the eft'ect of giving jurisdiction to the county court in such cases, is a question not now presented ; but it is certain that these matters are peculiarly fit to be dealt with by a court of full equity powers, and the interests of all parties will be best protected by having the rights declared by a decree in a court of equity, before tlie land is exposed to sale. This section, however, has no application to the case before us ; the pow- ers of a court of limited jurisdiction, cannot be enlarged by implication. Per Curiam, Order below affirmed. XoTE. — Since the last Term, Hon. M. E. Manly, who had received the appointment of Judge of the Supreme Conrt from tlie Governor, ad intermix was permanently elected to that office by the Legislature. Hon. Gi:oRGE Howard, Junior, and Hon. R. S. French, who had been appointed ad inte?'ii)i to the Superior Court ])ench, by the Governor, were permanently elected to that office by the Legislature. CASES AT LAW, ARGUED AND DETERMINED SUPREME COURT OF NORTH CAROLINA, AT RALEIGH. JUjSTE teem, 1861. HENRY B. NORMAN v. JOHN DUNBAR. An action against a guardian for the penalty of $200, for hiring the property of his ward privately, is not required to be brought in the name of the State, but is properl}' brought in the name of an individual undertaking to sue for the same. Action of ])ebt for a penalty, tried before Heath, J,, at the last Spring Term of Tyrrell Superior Court. The action was brought to recover from the defendant $200 lor having, as guardian, hired the property of his ward at private hiring, instead of hiring it publicly, as required by the Revised Code, chai)tcr 51, section 26, and chapter 46, sec- tion 20, and the only question made, was, whether the action 1 318 IN THE SUPREME COURT. Norman v. Dunbar. was riglitl}'^ brought in the name of the present plaintiff, or should have been in the name of the State of North Carolina. A verdict was permitted to pass for the plaintiff, subject to the opinion of the Court on the question above stated, with leave to set aside the verdict and enter a nonsuit if his Honor should be of opinion against the plaintiff on the ques- tion reserved. And on consideration of the question of law, the Court was of opinion that, according to the provisions of the Revised Code, chapter 35, sections 47 and 48, the action should have been in the name of the State. The verdict was therefore set aside and a nonsuit ordered, from which judg- ment, the plaintiff appealed. Winston^ Jun.^ for the plain tift^ No counsel appeared for the defendant in this Court. Battle, J. We do not agree in the opinion expressed by his Honor in the Court below, that the suit ought to have been brought in the name of the State. The 26th section of the 54th chapter of the Revised Code, prescribes that " all sales, hirings or rentings by guardians, shall be made and conducted in the same manner and under the same rules and regulations, and the same penalties for disobedience as pre- scribed for sales made by administrators." It is admitted that a penalty was incurred by the defendant, as guardian, for a violation of the provisions of this section, and the only question is, in whose name is it to be recovered. We think the reference to the act, in relation to administrators, makes that the rule, not only as to the amount of penalty, but also as to the person who is to sue for the same, and the use to which he is to apply the recovery. By turning to that act, then, we find that the penalty given for its violation is ivio hundred dollars, which is to be forfeited and paid " to any per- son suing for the same." The forfeiture thus prescribed, clearly creates an action popular, which has always been brought in the name of the person who thought proper to sue for the pen- al ty» If the recovery were for his sole use, his name, alone, JUNE TERM, 1861. 319 Norman v. Dunbar. appeared as plaintiff in the suit ; bnt if part of the recovery were given to the State, then the action, although in his name, was called a qui tarn action, because it %vas stated in the writ and declaration, that he sued as well for the State as for him- self. Qui tarn actions for usury have always been so brought, because the statute gives the penalty, " tlie one moiety to the State and the other to him, who will sue for the same." The rule thus established, for the manner in which suits for penalties are to be brought, is not varied by the new 23rovisions contained in the -ivth and 48th sections of the 35th chapterof the Revised Code. These sections prescribe that " where a penalty may be imposed by any law passed, or hereafter to be passed, and it shall not be provided by thejaw to what person the penalty is given, it may be recovered by any one who will sue for the same and for his own use," and " when- ever any penalty shall be given by statute, and it is not pre- scribed in whose name suit therefor may be commenced, the same shall be brought in the name of the State." "We can- not believe that these provisions were intended to apply to actions popular, that is, to actions expressly " given to any one who Mill sue for the same." The rule, applicable to cases of this kind, was, as we have already seen, well established and uniformly adopted in practice. There was another class of cases where a penalty was annexed to a specified violation of the law, without sajang to whom it should be forfeited and paid ; or who might recover it. Instances of both classes are to be found in the act contained in the Revised Code con- cerning " marriage." The 6th section of the act (see ch. 68) gives a penalty of two hundred dollars for the ofiences there- in mentioned, "one half to the use of him who will sue for the same, and the other half to the use of the county wherein the offence is committed." While the 13th section says, that for the otfence therein referred to, " the person so offending shall forfeit and pay one thousand dollars." Under the latter sec- tion the suit must, undoubtedly, be brought in the name of the State, but the person who brings it will, by virtue of 47th and 48th sections of the 35tk chapter of the Revised Code, recov^ 320 IN THE SUPEEME COUET. Willey V. Eure. er the penalty for his own use, (see Ca7Von v. Rogers^ 6 Jones 240). It is equally clear, in our opinion, that the penalty given by the 6th section of the 68th chapter, must be brought in the name of the person who sues for it, inserting, though, the qui tarn clause, because a part of the recovery is given to the county wherein the offence was committed. The result of our opinion is, that the judgment of nonsuit must be reversed, and a judgment be entered in favor of the plaintiff for the penalty of two hundred dollars, according to the verdict of the jury. Pee Curiam, Judgment reversed. STATE ON THE KELATION OF JOHN WILLEY vs. MILLS H. EURE, et. al. In an action of debt on a sheriff's bond for the escape of a debtor imprison- ed under a ca. sa., the jury are not bound to give the whole sum due from such debtor, but should give the damages really sustained by the escape. (Case of Governor v. Matlock, 1 Hawks' Rep. 425, cited and approved.) This was an action of debt on the oiScial bond of a sheriff, tried before Heath, J., at the last Spring Term of Gates Su- perior Court. The suit was brought against the sheriff and his sureties, for the escape of one Eure, who had been arrested by the de- fendant, Eure, on a ca. sa. The plaintiff proved the bond de- clared on, and showed in evidence a judgment at his instance against said Eure — a ca. sa. corresponding with the judgment — an arrest by the sheriff' under the ca. sa., and a subsequent escape. There was evidence on the part of the defendants that Eure, the defendant in the ca. sa., was, at the time of such escape, and has been ever since, wholly insolvent. A verdict was permitted to pass for the amount of principal, in- JUN^E TERM, 1861. 321 Willey V. Eure. terest and costs of the judgment, subject to the opinion of the Court, whether more than nominal damages could be recov- ered, with leave to the Court to set aside the verdict if he should be of opinion with the defendant ; or, to direct a ver- dict for nominal damages ; and that the plaintiff be permit- ted to submit to a nonsuit. On consideration of the question reserved, the Court order- ed the verdict to be reduced to sixpence, upon which the plaintiff submitted to a nonsuit and appealed. W. N. 11. Smith, for the plaintiff. W. A. Moore, for the defendants. Battli:, J. The remedy at common law against a sheriff for the escape of a person taken by him under a capias ad satisfaciendum, is by an action on the case, in which the jury may give such damages, as, upon the proofs, they may think the plaintiff entitled to. This rule prevails, whether the es- cape be voluntary or negligent; the onlj^ difference between the two kinds of escape being, so far as the liability of the sheriff is concerned, that when sued for a negligent escape, he may, if lie can, allege and prove a recaption upon fresh pursuit. The statute of 13 Ed. 1, ch. 11, which was in sub- stance re-enacted by our act of 1777, (ch. 118, sec. 10 and 11 of the Rev. Code of 1820,) gives an action of debt against the sheriff who shall take the body of any debtor in execution, and shall wilfully or negligently suffer such debtor to es- cape, and the plaintiff in such action shall recover all such euras of money as are mentioned in the execution, and dam- ages for detaining the same. See Rev. Code, ch. 105, sec. 20. It is clearl}'- settled that in the action of debt, thus given, the recovery shall be the same, whether the escape be voluntary or negligent. See the case of Adams v, Turrentine, 8 Ired. Rep. 147, where the subject is fully discussed. The action of debt given by the statute, does not take away the common law right of suing in case, but is a cumulative remedy, which, however, from its greater efficiency, has almost, if not entire- 322 IN THE SUPREME COUET. Willey V. Eure. ly, superceded the other in practice. Such being the respon- sibility of the sheriif, when sued in debt for the escape of a debtor taken in execution, it is contended for the plaintiff, in the present case, that it onght to be the same when the action is brought upon the bond of the sherifi' against him and hi& sureties, because the bond is given as a security to the public, against iiis official delinquencies and the remed}'- on it should be commensurate with the utmost extent of his responsibility. In aid of this argument, it is insisted that if the action of debt be sued against a sheriff and a recover}- had which he fails to pay, a suit may then be brought ujDon his bond, in which such default of payment may be assigned as a breach, and that his sureties may be thereby made liable for tlie debt of the escaping debtor ; and it is inferred that to avoid such circuity of action, a full recovery ought to be allowed at first, in an immediate suit upon the bond. "Whether the plaintiff can have full redress upon the sheriff's bond by this circuity of action, we shall not at present undertake to decide, but we are precluded by authority from holding him entitled to it by a suit in the first instance upon the bond. In the case of the Governor v. Matlock., 1 Hawks' Rep, -125, it was decided that in a suit upon a sheriff's bond the plaintiff must assign breaches thereof under the statute of 8 and 9 Will. 3, ch. 11, sec. 8. (See Rev. Code, ch. 31, sec. 58,) and that the jury should " consider the damages reall}'' sustained by the escape; and were not bound to give the whole sum due from the ori- ginal debtor, as in debt upon the statute of West. 2." The judgment in the Court below was in accordance with this decision, and must be affirmed. Pee Curiam, Judgment affirmed. JUNE TERM, 1861. 323 Cooper V. Cherry. JOSEPH COOPER, Chairman, v. J. B. CHERRY, et al Where a chairman of the board of superintendents of common schools, on going out of oIBce, gave his own note instead of money to his successor, and after a lapse of two years, being reappointed, received the same note back as part of the school fund, and gave a release in full to his predeces- sor, it was held that on his subsequent failure and inability to pay such note, he and his sureties were liable on the bond last given. .The statute of 1789, barring claims not sued for in two years, does not protect an administrator unless he has paid over the assets to the distributees, and taken refunding bonds as well as advertised in conformity with the act. (The case of Goodman v. Smith, 4 Dev. Rep. 450, overruled and that of Reeves v. Bell, 2 Jones' Rep. cited and approved.) Tins was a proceeding under the GGtli chapter, section 50^ of the Ilevised Code, tried at Spring Term, 1861, of Bertie Superior Court, before Heath, J. It was a motion on the bonds of Josepli B. Clierry as chair- man of tlie board of superintendents of common schools of Bertie, against him and his sureties. The motion was based on three bonds, one given on lOtli of February, 1852, another on 18th of May, 1856, and the other on 17th of April, 1858. Cherry continued in the ofhce until April, 1861, when he re- signed, and Joseph Cooper, the plaintiff, was appointed and gave bond. One of the principal questions arising in the case, was asta the sum of fifteen hundred dollars, which Cherry had used of tlie school fund. He had been chairman several years previ- ous to 1853. In that year, Jonathan S. Tayloe, was appoint- ed to the office, and, in lieu of cash, he took Mr. Cherry's in- dividual note for $1500 without security, but it was admitted that at that time, Mr. Cherry was abundantly good for that sum, and remained so until 1860 : Mr. Tayloe retained this note until 1856, when Cherry was again appointed chairman of the board of common schools, and, on a settlement with Mr. Tayloe, he received his own note as so much cash, and gave Tayloe a release in full. It was in proof that Tayloe bad been empowered by the superintendents to loan out this 324 IN THE SUPEEME COURT. Cooper V. Cherry. sum. The defendants counsel contended that neither Cherry nor his sureties M^ere liable for the sum of $1500 on either of the bonds above described. Alfred Eason, one of the sureties of Mr. Cherry died in August, 1858, and the defendant, Mary Eason, qualified as his administratrix at l^ovember term of Bertie county court ; she advertised at the court house door and two other public places in the county, for all persons to present their claims against the estate of her intestate. This vras done within two months from the date of her qualification. It was admitted that no settlement had been made by Mrs. Eason with the distributees of her intestate — that no refund- ing bond had been taken, but that the estate was still in her hands. It was insisted, that as to Alfred Eason's estate, the demand was barred by the act of 1789. His Honor being of opinion that the $1500 was covered by the bond of 1856, gave judg- ment accordingly against all the defendants. Defendants counsel excepted and appealed. Winsto7i, Jr., for the plaintiff. Barnes, for the defendants. Pearson, C. J. The position assumed by the defendants, that in respect to the sum of $1500, there was no breach of the bond of 1856, because the default occurred in 1852, and was covered by the bond of that year, is not tenable. It is true that the default in respect to this $1500 was a breach of the bond of 1852. It is also true that Tayloe, who was appoint- ed chairman in 1853, committed a breach of his bond by re- ceiving as cash the note of Cherry, without security, in pay- ment of the $1500, for which Cherry was in default ; but it is nevertheless true that the breaches were cumulative and con- tinuing, so that when Cheny was again appointed chairman in 1856, and then received the same note as cash, and execu- ted to Tayloe " a release in full," it was a breach of the bond then executed. I^o argument is necessary to prove that a JUNE TERM, 1861. 325 Cooper V. Cherry. trustee violates his duty by receiving his oion note as cash, (which note is still unpaid) and executing a release in dis- charge of tlie amount due to him, as trustee, and the question is not at all affected by the circumstance that the note had been given because of a previous default ; for, viewed in any light, it comes within the express words of his bond, and he thereby " abused the trust which had been conlided to him by his appointment as chairman," and for the consequences of this breach of trust, those who vouched for him as sure- ties on his bond, are clearly liable. l]y their act he was placed in a position which enabled him to subtract from tlie school fund the amount in question, and they have no ground to complain because they are required to indemnify tlie fund and bear the loss. The position assumed on the part of the defendant Eason, that as the action was not commenced until more than two years after she qualified as administratrix, she is protected by the 4th section of the act of 1789, (according to the construc- tion adopted in Goodman v. Smithy 4 Dev. Rep. 450,) al- though she lias not paid over the assets to the distributees and taken refunding bonds as required by the 2nd section, is like- wise untenable. If the authority of that case were admitted, and the 4th section treated as wholly unconnected with the 2nd and 3rd, and as strictl}' a statute of limitations, it would not apply to this case, because Cherry, by his several appoint- ments, was chairman continually from 1856 up to 1861, and there was no cause of action, or rather, the cause of action was suspended until shortly before the ]jreseut proceeding was commenced. For the statute, in relation to the school fund, makes it tlie duty of the chairman to receive and sue for the fund, and during that time, no proceeding could be had, as Cherrj^ could not sue himself, and it is settled doctrine that no statute of limitations can begin to run and become a bar until the cause of action accrues; for the plain reason, that the legislature cannot be supposed to intend to require a creditor to do an impossible act under pain of having his right of action barred ; Jones v. Brodie, 3 Murph. 594 ; God- 126 IN THE SUPEEME COURT. Cooper V. Cherry. ley V. Taylor, 3 Dev. Rep. ITS, where the doctrine is discuss- ed and applied to the act of 1715, barring the claim of all creditors Avho do not sue withhi aeven years after the death of the debtor ', which words are as direct and positive as those used in the section under consideration, i. e. " who fail to bring suit within two years from the qualification of the ex- ecutor or administrator." We will not, however, put the decision on that ground ; because a distinction may be suggested, inasmuch as the bond is payable to the State, and the circumstance that Cherry con- tinued in ofHce, may have only had the effect to suspend the summary proceeding provided by the statute, and, for the ad- ditional reason that the case of Goodman v. Smith is opposed by Reeves v. Bell. 2 Jones' Rep. 254, and it is a matter of great practical importance that the construction of the statute should be settled ; as cases under it occur on the circuits al- most every day. The fact of there being these opposing cases in respect to the construction of the act of 1789, shows that the question is of some difficulty, and by a perusal of the opinion delivered in Reeves v. Bell, it is obvious that the attention of the Court had not been called to Goodman v. Smith. We have, therefore, felt it to be our duty to give the subject a serious reconside- ration, and, after doing so, are satisfied that the construction established by Reeves v. Bell is the true one, and is supported by principle and also by authority. In Reeves v. Bell, it is decided that by a proper construc- tion of the act of 1789, an administrator cannot protect him- self against a recovery by a creditor who has failed to sue within two years from his qualification, unless he has deliver- ed the assets to the distributees and taken refunding bonds, so as to give the creditor a remedy over, by which he may reach the assets in their hands. The opinion takes a comprehensive view of the subject, as- suming that the several enactments of the same statute are all to be taken together, and to be so construed as to effect the general purpose for which the statute was made : that this JUNE TEEM, 1861. 327 Cooper V. Cherry. general purpose was to remedy an evil growing out of tlie de- lay of executors and administrators in settling up estates and paj'ing over the assets remaining in their hands under the pretext of debts still outstanding, on account of which they were, in order to protect themselves, justified in retaining the assets, and that this pi'ominent purpose of the statute requir- ed the administrator, in order to claim the protection of the statute given to him by tlie 4t]i section, to aver, and be able to prove, tliat he had complied with the duty imposed on him by the 2nd section, and not only paid over the assets, but ta- ken a refunding bond, so as to enable tlie creditor, under the provision of the third section, to fix the amount of his debt and recover the same by scire facias, according to tlie pro- ceeding thereby provided. This general view may be extended and made more par- ticular by the suggestion of several positions, all of which support and confirm the construction established by that case, and are, by implication, made a part of the argument : 1. One who claims the benefit of any instrument must aver and prove that he has performed all the acts required to be done by him for the benefit of the other party. This is a gen- eral principle of justice, applicable not onl}' to contracts be- tween individuals, but to the construction of statutes, and to treaties between independent nations. The second section of the act of 1789 requires executors and administrators, after the expiration of two years from their qualification, to pay over the undisposed of assets to the legatees or distributees, and to take a refunding bond with condition to pay any debt of tlie deceased, " which shall be afterwards sued for and re- covered, or otherwise duly made to appear." The third sec- tion enacts that when an administrator pleads " fully admin- istered," and the fact is found in his favor, the plaintiff may fix the amount of his demand, and sign judgment, and there- upon issue a scire facias in order to charge tlie i)arties to the refunding bond. The fourth section enacts that any creditor who fails to sue within two years from the qualification of the executor or administrator, " shall be forever barred from the 328 IN THE SUPREME COUET. Cooper V. Cherry. recovery of his debt." When, therefore, an adrainistrator seeks to protect himself from a recover}'- on the ground that the creditor liad failed to sue within two 3'ears after his qual- ification, it would seem, as a matter of course, to be necessa- ry for him to aver that he had paid over the assets and taken refunding bonds, so as to give the creditor a remedy over by scire facias^ according to the provisions of the statute. An administrator is required to take refunding bonds for the ben- efit of the creditor, and surely, it is with an ill grace that he asks to be protected from a recovery by them, when he has neglected to do what the law expressly requires him to do for their benefit. 2. The evil intended to be remedied by the act of 1T89, as is manifest from its enactments, as well as the preamble, was the delay on the part of executors and administrators in settling up estates. The construction adopted in Reeves v. Bell^ tends to induce a discharge of this duty, and thus to efi'ect the main purpose of the statute, whereas the construction adopted in Goodman v. Smith, actually holds out an inducement to ex- ecutors and administrators not to perform their duty by giv- ing them assurance that they will be protected whether they settle and take refunding bonds or not. 3. When the act of 1789 was passed, there were two stat- utes of limitation — the general statute and the act of 1715, barring claims against the* estates of deceased persons after seven years. So, it would seem there was no particular oc- casion or necessity for another statute of limitations. Yet, the construction adopted in Ooodman v. Smithy has the effect of making the act of 1789 a mere statute of limitations, and the 4th, which is clearly a subsidiary section, is allowed to override all the others, and allowed to become the only ope- rative provision of the statute, 4. The Court, in Goodman v. Smithy seems to be oppressed with the general words of the 4th section, but nevertheless refuses to allow them to be qualified by considering them in connection with the other sections, when, in truth, that was the only way of solving the difficulty, and was not only au- JUJ^TE TEEM, 1861. 329 Cooper V. Cherry. I thorised by tlie rules of construction, hut, in this instance, was aetnally demanded, becanse the third section fixes the mode in which the execntor and administi-ator shonkl plead, in or- der to protect himself against the recovery of a creditor, that is, he should plead "fully administered,-' and his plea is es- < tablislied by proof that he had settled at the expiration of two years, and taken refunding- bonds as required by the act. Whereupon, the creditor is barred of his recovery against the executor or administrator, and must proceed b}^ scire facias on the bond. By a careful analysis of [he elaborate opinion delivered in Goodman v. Smithy it will be seen that the conclusion is put on two grounds, neither of which, as it seems to us, is tenable. The creditors are classed into the diligent and tlie dilatory, and it is assumed that the refunding bonds are not required for the benefit of the latter, consequently, in regard to them, whether a refunding bond had been taken or not, is immate- rial, and so no averuient, in regard to it, was necessary. For whose benefit are refunding bonds to be taken ? Not for the benefit of the diligent creditors, one who sues within tile time alloAved by the statute, for he does not require it. He recovers against the executor or administrator, and can- not be barred and turned over to seek relief on the refunding bond. As to him, the fact that the assets have been paid over and refunding bonds taken, cloes not establish the plea of " fully administered." The same remarks apply to the limited description of creditors, mentioned in the proviso to the 4th section. They belong to the class of diligent cred- itors, and as they sue within the time allowed by law, are enti- tled to recover against the executor or administrator. So the refunding bonds were not intended for their benefit. But the matter is not left to conjecture or construction, for the words of the statute and of the bonds required to be taken by the 2nd sec. are express, " giving bond with two or more able sur- eties, conditioned, that if any debt, truly owed by the deceas- ed, shall be afteriixmls sited for and recovered or otherwise duly made to appear." The other ground is, that the protec- 330 IN THE SUPKEME COUET. Cooper V. Cherry. tion given to administrators and executors by the 4th section, would be nugatory, because " an administrator or executor, who has faithfully administered the assets, and who, by force of such administration, is adequately protected, stands in no need of this additional shield." The position here assumed is, that an executor or administrator, in respect to creditors, who bring suit within the two years, does "faithfully admin- ister," and can protect himself b}'" showing the fact that pend- ing the suit, at the expiration of two years he paid over the assets to the legatees or distributees. Is this position tenable? Can the executor or administrator protect himself against a recovery, by bringing forward this matter under a plea ^j>im darien contimiance ? Assuredly he cannot, and the question seems to have been misapprehended. For the protection given by the 4th section was in respect to creditors, who fail to sue within two years, and so far from being nugatory, it required this express provision to enable executors and ad- ministrators to protect themselves against creditors who had 'not sued within the two years, and their liability to creditors, who had sued within the time allowed, was not interfered witli or altered in any respect, but was left as at common law. The research, which this conflict of cases lias given rise to, brino:s to the notice of the Court two authorities, which seem not to have occurred to the Court in the case of Goodman v. Smithy but which settle tlie construction of the act of 1715, and furnish a direct analogy and authority for the construc- tion of the act of 1789. The cases are Godley v. Taylor^ 3 D<3v. Rep. 178, and Bailey v. Shannonhouse^ 1 Dev, Eq. 416 ; and it is settled that, notwithstanding the broad terms of the act of 1715, an executor or administrator cannot pro- tect himself from a recovery by a creditor, who had failed to sue until after the expiration of seven years, unless he avers and proves that he had paid over the surplus assets to the treasury as required to do by the act of 1784, or to the trus- tees of the University by the act of 1809, and the Court adopt the principle that in the construction of the act of 1715, the 0th section of that act, and the act of 1784 and 1809) are to JUNE TEEM, 1861. 331 Brown v. Smith. be taken into consideration, and that one who fails to do an act, which the law requires of him for the benefit of another, cannot bar the recovery of the latter, because he has not pro- vided hiin with the remedy over, which the law contem- plated, and made it his duty to do as an implied condition, precedent to the protection which he claims. We now consider the question settled, both on principle and authority, and concur with his Honor in the opinion that the plaintijff's right to recover against the defendant, Mrs. Eason was not barred, as she still retains the assets. There is no error. Per Curiam, Judgment affirmed. Doe on the ikmise of WILSON BROWN v. CALVIN E. SMITH. Where land has been sold as the property of A, under execution, and he has received a portion of the sum raised, which was over and above the call of the execution, he cannot be a witness for the purchaser in an action for the recovery of the land. Where both parties in an action of ejectment claim title under the same per- son, the defendant cannot defeat the action by showing title in a third per- son, unless he has acquired such outstanding title, or connects himself with it. This was an action of ejectment, tried before Howard, J., at the last Term of Orange Superior Court. The lessor claimed title under a deed from the sheriff, exe- cuted on 2Sth of October, 1858, by virtue of a sale under ex- ecution and judgment against one Turner, for a debt con- tracted by him in January, 1854. He then showed a deed for the same land, executed by Turner to the defendant, Smith, dated September, 1854, and then showed, by Turner, that the money, recited in such deed, as having been receiv- ed by him, had, in fact, not been paid ; that no money or 332 m THE SUPREME COURT. Brown v. Smith. other thing of value had been given to liim, by Smith, for the land in question ; that the deed liad really been executed in August, 1855, during the session of Orange County Court, and was antedated in order to defeat a judgment (in a bas- tardy case) that was rendered in that Court on the day before. The defendant excepted to the competency of Turner, but the exception was over-ruled. To prove title out of Turner at the date of the judgment and execution, under which the plaintiff claimed, the defendant showed that at a sale, under the judgment in the bastardy case, the land, in question, had been bought by one Miller, and a deed executed to him on the 26th of July, 1S5G ; that at such sale the land brought more money than was necessary to satisfy the execution, and the overplus was paid by Miller to Turner, who gave a receipt for the money. , In reply to this, the plaintiff proved that Miller, at the sale above mentioned, had acted as the sheriff's deputy, and had employed one McCauley to buy the land for him ; that Mc- Cauley bid off the land accordingly, and assigned the bid to Miller. His Honor charged the jury, that the sale and purchase by Miller was, for the purpose of this action, a nullity, and that the admitted good character of Smith was not to be consider- ed by them. Defendant excepted. Yerdict and judgment for plaintiff". Appeal by defendant. PhilUiJS, for the plaintiff. Norivood, for the defendant. Pearson, C. J. The exception to the competency of Tur- ner as a witness on the side of the plaintiff", is well taken. The witness had a direct interest to support the title of Brown, because of his liability to him, in the event of his losing the land by the provision of the statute, Revised Code, chap. 45, section 27. It does not appear from the case, as made out, that the deed of Turner to Smith, contained a warranty, and in the transfer of land, a warranty is not implied ; consequent- JUNE TERM, 1861. 333 Collins V. Creecy. I}', there was no corresponding liability of the witness to Smith, so as to bring the question within the rule of a witness having an interest on hoth sides. For this error, there will be a venire de novo, and we arc not at liberty to enter upon the question, discussed at the bar, and on which the case seems to have turned, on the trial, in the Court below. We will suggest, however, that there seems to be nothing to prevent tiie application of the principle, that when both par- ties claim title under the same person, the defendant cannot defend an action by showing title in a third person, unless he has acquired such outstanding title, or connects himself with it. This suggestion seems called for to prevent a repetition of what has occurred at this term — a point is fully argued, and upon examination, the Court finds that is excluded by a preliminary matter. Per Cukiam, Juderaent reversed. E. A. COLLINS V. AUGUSTUS CREECY. The statute, Rev. Code, chap. 101, sec. 14, gives the overseer of a road (act- ing in good faith) power to cut poles, &c., on any land adjoining his sec- tion, and he is not confined to the land immediately adjoining the spot where the work is to be done. This was an action of trespass quake clausum fregit, tried before IIeatii, J., at the last Spring Term of Chowan Superi- or Court. The plaintiff' declared for an entry, by the defendant, on her enclosed lands and cutting and carrying away some oak trees therefrom. She proved that she was in the possession of an enclosed field, in one end of which tiiere was an oak grove, whicli field and grove abutted on the public road ; that no one was permitted to cut trees there save her own hands, and 2 . 334 m THE SUPREME COURT. Collins V. Creecy. they none but dead trees, that the defendant entered thereon and cut down five oak trees of small size ; that witness told the defendant lie better not cut any more of these trees, else he might get into trouble about them ; that he then cut no more. The defendant then proved that he was the duly appointed overseer of the road on which the enclosure and grove abut- ted, and to some considerable distance beyond the premises described ; that as such overseer, he was making and repair- ing some bridges on the road where they were necessary ; that these bridges were at a considerable distance beyond the plaintiff's land and opposite to that of other persons, and that the said timber Avas used for the purpose of repairing a bridge on the road. The plaintiff then proved that there was other timber on un- inclosed ground opposite to this grove, but it M-as described as being large pine, and not so good as oak for the purpose intended, and that further off — opposite to points M-here the bridges were, on the lands of other persons, there was tim- ber fitting for such purposes, but it was in a swamp and diffi- cult to be got ; that between this last described place and the site of the bridges, one McCoy had a small oak grove. It was further in proof, that these bridges had been formerly constructed of pine timber. The Judge charged the jury : First, if the overseer enter- ed — cut down and carried away the timber for the purpose of making and repairing the bridges in the road under his charge, and he acted in good faith, the defendant was entitled to their verdict. But, secondly, if they believed the occasion was used as a pretext, and he entered, cut and carried away the timber maliciously, with an intent to injure, harrass and vex the plaintiff, the plaintiff was entitled to their verdict for the actual damage done her ; to which, punitory damages might be added. Plaintiff excepted. Yerdict for the defendant. Judgment and appeal. Winston, Jr.^ for the plaintiff. Barnes^ for the defendant. JUNE TERM, 1861. 335 Collins V. Creecy. Pearson, C. J. The statute requires overseers of roads to make and repair bridges and causeways, and to enable them to do so, they are authorised to cut poles and other necessary timber, and provision is made for compensation to tlie owner of the land b}?^ an application to the count37^ court; Revised Code, chap. 101, sec. 14, 15, 16. This is an instance of the exercise, on the part of the sov- ereign, of the right to take private property for the use of the public, making compensation. No question is made in regard to the right, but as the pro- perty is taken \vithout tlie consent of the owner, it is proper tliat the statute should be construed strictly, so as not to car- ry its operation farther tlian is sufficient to meet the jiublic necessit}'' wliich called for the enactment, (living the plain- ti^' the benefit of this principle, we are of opinion that the statute gives the overseer power to cut poles, &c., on any land adjoining his section of the road, and that he is not confined to the land immediatel}'^ adjoining the spot where the work is to be done. Tlie words of the statute are general, and do not point out the place where poles may be cut. So, while, on the one hand, we do not adopt the construction that the ov peace for an oflcnce cognizable in the Superior Court is liable for jail-fee? although the grand jury, upon an enquiry, may have refused to make ; presentment against such slave. Motion for the taxation of costs, licard before Heath, J., a. a Special Term of the Superior Court of Currituck. The slaves, Peter, Jess and Miles, the property of George T. AVallace, were comniited to the jail of Currituck county b} justices of the peace, under a criminal chari^e, which was not bailable. They remained in jail until 14th of January, 1861, when a court of Oyer and Terminer was held for the said coun- ty, and then the case of tlicse slaves was submitted to the irrand jniy, Mho, after a careful examination, reported " that tliey found notliing against them, and, therefore, declined to make any i)resentment against them." Thereupon the said slaves were discharged at the expense of their owner, excluding the jail fees, the Court declining to render judgment for these. From which judgment, the soli- cit»r for tiie State appealed. Attorney/ General, for the State. Ilinton, for the defendants. Manly, J. The Revised Code, chapter, 107, sec. OU, sub- jects the owner of a slave to costs, in all cases, of Superior Court jurisdiction, wliere the slave, if a free man, would be liable. Chapter 87, sec. 6, provides that every person committed to a public jail, by lawful authority, for any criminal otfense or misdemeanor against the State, shall bear all reasonable charges for carrying and guarding him to jail, and also for his support therein, until released. These two sections of the Code make the owner of the slaves, in tlie case before us, liable, it seems to us, for the jail* JUNE TERM, 1861. 347 Kron V. Hinson. fees, and we tliink they ought to be included in the taxed costs. The case of the jState v. Isaac, 2 Dev. 47, is a direct autliorit}^ for this view. There is error, therefore, in the jiidi;- ment below. It should have been for the costs including the jail-fees. Per Curiam, Judgment reversed. Doe on the demise of ADELAIDE AND ELIZABETH KRON v. MARTIN HINSON. A grant fiom the State, purporting to be made in obedience to acts of the General Asseniblj^, providing for the relief of persons whose title deeds had been destroyed by the burning of the courthouses, &c., of Hertford and Montgomery counties, was held. to be color of title. This was an action of kjectmkxt, ti'ied before French, J., at the Fall Term, 18G0, of Montgomery Superior Court. The lessors of the plaintiff offered in evidence a grant from the State, dated on the 14th of December, 1849, which pur- ported to have been issued "in obedience to an act of the General Assembly of this State, passed at the session of 1844-5, chapter 53, ratified on the 1st of January, 1845, entitled " An act to extend the provisions of an act passed at tlie General Assembly of 1830-1, entitled an act for the relief of such persons as may suffer from the destruction of the records of Hertford county, occasioned by the burning of the courthouse and clerks office, to the counties of Montgomery and Stanly." To entitle themselves to the benefit of said acts of Astembly, the lessors of the plaintiff" produced evidence to show that tiic title deeds under which they claimed the land in (question, were consumed by the fire which burned the courthouse of Montgomery county in the year 1843; that they had made advertisement of a survey in 1849, setting fourth their boun- daries, and the grounds on which they claimed a right to an 3i8 IN THE SUPREME COURT. Kron v. Hinson. entry and grant for the said land. They also proposed to show the entry made in 1849, and which is recited in the said grant. They further proved that they had had seven years possession of the land in question, and insisted that at least the grant oflFered by them was color of title. The Court re- jected the evidence, and the plaintiff took a nonsuit, and ap- pealed. Ashe, for the plaintiff. 1^0 counsel appeared for the defendant in this Court. Manly, J. We do not think it necessary to discuss other questions presented npon this record. There is one ruled er- roneously, without doubt, to the prejudice of the appellant, and for that he is entitled to a venire de novo : the grant of the 14th of December, 1849, to Adelaide and Elizabeth Kron, is color of title. We perceive no reason why it is not so. — The public authorities decided upon the evidence before them that the grantees were entitled, under the provisions of the acts of xVssembly, and, accordingly, they made the gi-ant. It in form purports to convey title — emanates from proper and the highest officers of the State, and is, therefore, of a charac- ter to induce a man of ordinary capacity to confide in it as sufficient to secure the enjoyment of the land. This is all that is necessary to constitute color; Dohson y. Murp}nj,\ Dev. and Bat. 586 ; Tate's heirs v. SoutJiard, 3 Hawks 119. Many forms of conveyance, much less imposing than this, have been held to be color ; as, for instance, an unregistered deed — an imconstitntional act of the Legislature — -a deed without consideration, and intended, merely, as color; Den on the demise of Cainpljell v. McArthur, 2 Hawks 33 ; I^pis- Gopal Church of Nexohern v. The Academy, 2 Hawks 233 ; Rogers v. Male, 4 Dev. 180. The nonsuit should be set aside and a venire de novo award- ed. Per Curiam, Judgment reversed. JUNE TEEM, 1861. 349 Harrinfrton v. Wilcox. W. D. HARRINGTON, assigyiee, v. GEORGE WILCOX AND W. NASH, Execuiors. Money paid by B, the surety of A, is a good sct-ofl' against a note payable to A, which was endorsed after it fell due. Tins was a case agreed, submniittcd to Fkencii, J., at the Fall Term, ISGO, of I\Ioove county. The bond on wliich tliis action was brought, was made by George Wilcox, testator of the defendants, dated 2Gthj^ovem- ber, 1S5G, for i^286, due one day after date, and made paya- I)le to William P. AVilcox, his son. Prior to the making of this bond, W. P. Wixcox borrowed of Jolin Murchison about S400, and gave two notes, with his father, the said George, as iiis surety for the amount. W. P. Wilcox removed to Mis- sissi[)i)i, in the Fall of 1856, and on the day he started, deliv- ered tiio bond, now sued on, to the plaintifi", with a request tiiat lie siiould carry it to John Murchison and get him to ac- cept it, and ci'cdit the amount on the notes, which helield on him and his father. This request was made in the presence of George, the father, but Murchison refused to come into the arrangement, saying, that " the one he had was good enough.' Subsequently^ after the death of the said George, the whole amount of the two notes and interest (8183) was collected, by suit, from the defendants, his executors. The plaintiff after- wards sent the note, in question, to W. P. W^ilcox, who en- dorsed it to the plaintiff, who knew that the executors of George had paid the two notes as stated. The defendants in- sisted on this payment, as sni'cty, as a set-off. To meet this plea of set-off, the plaintiff' set out the follow- ing clauses in the will of (ifeorge Wilcox, which was made 18th of December, 1856 : " Item. I will and bequeath to AY. P. Wilcox, for tlie use and benefit of iiis child, William, the sum of five hundred dollars; this sum to his son and one dol- lar to himself, with the amount of money I shall have to pay him, I consider a fair and equitable portion of my estate." By a codicil, made on the 8th of Janury, 1857, the testator 3 850 IN THE SUPREME COURT. Harrington v. Wilcox, bequeathed to William, the infant son of W. P. AVilcox, a negro boy. These legacies have been assented to by the ex- ecutors. Not including the legacies to the son of AY. P. Wil- cox, a distributive share of the estate of George Wilcox would have exceeded the sum paid to Murchison. On the consideration of the case agreed, his Honor being of opinion with the plaintiff on the question of set-off, gave judgment for the full amount of the note with interest and costs, from which the defendants appealed. No Counsel appeared for the plaintiff in this Court. PhilUjJS, for the defendants. Manly. J. We do not perceive why the money paid by the executors of George Wilcox on their testator's liability as surety of William P. Wilcox, is not a good set-off' in this ac- tion. The case states that the note sued on was transferred by endorsement, after it became due, and, moreover, at the time of the transfer, that the endorsee knew of the existence of the counter demand, and so, the debts being mutual, it will follow that, in all points of view, it was a proper case for set-off. The doctrine upon the subject of set-off", under circumstances, like the present, was discussed and explained in JIaywood v. McNaii\ 2 Dev. and Bat. 283, and has been considered, we think, settled, since that day. AVe suppose, indeed, it was not intended to renew, here, the questions settled by that case, but to bring forward, through the clauses of the will quoted, a question as to the effect of that instrument upon the set-off proposed. AVe have examined the clauses and do not find any thing in them to affect the rights of the parties in this suit. There is no recognition of the testator's liability as surety for AVil- liam P. AVilcox upon the notes to Murchison, and, of course, no release to him of his responsibilities to testator, which might arise from that liability. The testator's opinion as to the fairness of the division of his estate, however erroneous and unjust to the son, William, JUNE TEEM, 1861. 351 Whitehead v. Smith. iloes not aifcct the question as to what is given in the will, or what exemptions are secured thereby. There is no ambiguity in the instrument. The testator admits his liability to pay a sum of money to AVilliam, wliich we take to be the note in suit, (as none other appears) but nowhere expresses an expec- tation of becoming a creditor of William, either by reason of suretj'ship or otherwise, and, consequently, no where adds such contingent amount to the legacy left him. The money then paid by the executors of George, by rea- son of testator's surety-ship for his son AVilliam, was a subsist- ing claim against William P. at the time of thetransfcr of the bond, and is, therefore, a proper set-off in the action. We are of opinion, upon the case agreed, that the judg- ment below is erroneous and should be reversed, and judg- ment entered for the defendant. Pkk Curiam, Judgment reversed* WHITEHEAD AND SUTHERLAND v. GEORGE SMITH ei cd. Appeal bonds sent from the County to the Superior Courts, arc made by 1st and 10th sections of ch. 4, Rev. Code, a part of the record sent up, and cannot be questioned by plea and prool', at the instance of the sureties. Motion for judgment on an appeal bond, before Osbokne, J., at the last Spring Term of Duplin Superior Court. The action was begun in the County Court, where a judg- ment was taken against Smith, and he prayed an appeal to Superior Court. The record of the case was accompanied by the ap))eal bond on which this motion is predicated, which is in proper form, and purports to have been executed by the defendants Ibnvard and Monk, as the sureties of Smith. On judgment being rendered against the appellant in the Superi- or Court, Howard and Monk filed an affidavit stating that the 352 . IN THE STJPKEME COUET. Whitehead v. Smith. the paper-writing, filed in this ease, as an appeal bond, was signed in blank b}- them ; that no amount was inserted, nor was any name mentioned as a payee, and that all the written matter inserted in the said bond has been inserted since the blank form was signed by them. The counsel for the affiants then asked for an issue to be made up and tried, ofi'ering to prove the facts set out in the affidavits. His Honor was of opinion that the Court did not have pow- er to grant the motion of the defendants, and that the record certified from the County Court was conclusive as to the exe- cution of the bond, and therefore refused the motion. From which judgment, the defendants, Howard and Monk, appealed. W. A. 'Wright, for the plaintiffs. Strong, for the defendants. Battle, J. The decision of the question presented in this case, depends upon the construction of the first and tenth sec- tions of the 4th chapter of the Kevised Code. The first sec- tion gives an appeal to the superior court to every free per- son, whether plaintiff or defendant, wlio shall be dissatisfied with the sentence, judgment or decree of the count}^ court, but requires the appellant, before obtaining the same, to give bond witli sufficient security for prosecuting the appeal with effect, and for performing the judgment, sentence or decree which the superior court may render against him. The tenth section enacts that " bonds taken for the prosecution of ap- peals, shall make a part of the record sent up to the superior court, on which judgment may be entered against the appel- lant and liis sureties in all cases where judgment shall be ren- dered against the appellant." The question is, whether upon a motit>n in the superior court for a judgment upon the ap- peal bond, it has the effect of a record, the verity of which cannot l)e disputed, or is it to be taken as a bond, the execu- tion of which, though official, may be denied by plea and proof ? We are clearly of opinion, that by force of the words "shall 'Make a part of the record sent up to the superior court," JUNE TERM, 1861. 363 Whitehead v. Smith. appeal bonds can no more be disputed, or have their verity inquired into, than any other part of the record sent up from the count}'- court. By being made " part of the record," they acquire all the sanctit}'- of the record, and the parties to them are conclusively bound by them. Being given in the county court, it must be presumed, as a matter of law, that the court took them properly, and when they are certi- fied as part of the record, the law no more intended that the truth of that part of the record should be a subject of ques- tion, than any thing else which the court had placed upon its records should be questioned. It is a strong argument in favor of this construction, that, with regard to bail bonds, which are taken by the sheriff out of coui't, but whicli are, nevertheless, when returned to court, 60 far made a record, that a scire facias must issue upon them, the obligors are permitted to deny the execution of them by the plea of non est factum^ supported by an affida- vit. If tlie defendants, never, in fact executed the appeal bond, their remedy was by an application to the County Court to have the records as to the bond, corrected and then to have the transcript of the perfected record sent to the Superior Oourt. Whether the count}^ court would act at the instance of parties attempting to set up such a defence as that stated by the surety defendants in their affidavit, may well be doubt- ed. The bond jiiay have been, and probably was made per- fect before it was delivered, and if so, the obligors have no cause of complaint. At all events, the Court might proper- ly, in the exercise, of a sound discretion, refuse to listen to an application to^amend by stating a fact to raise a mere techni- cal objection at the expense of the substantial merits and jus- tice of the case. Our conclusion is, that upon the transcript of the record be- fore him, liis Honor, in the Court below, decided right in re- fusing the plea of the defendants in denial of their bond, and the judgment must, therefore, be affirmed. Pek Cukiam, Judgment affirmed. S54 m THE SUPKEME COUET. State V. Lausrlin. STATE V. LAUGLTN, a slave. The willful and malicious setting fire to the house of another, the burning of ■which is only a misdemeanor, will become a capital felony, if a dwelling- house or barn, with grain in it, is thereby burnt, where such burning is the probable consequence of the first illegal act. Upon indictment for the felonions burning of a barn with grain or corn in it, a prisoner cannot be convicted upon proof that he burnt a crib with coru in it. Indictment for felonions burning', tried before Saunders, J., at the Spring Term, 1861, of Robeson Superior Court. The indictment chai-ged that the defendant "feloniously, wilfnll}^ and maliciously did set fire to, and burn a certain ham then having corn in the same." The proof was that the prisoner maliciously and wilfully did set fire to a stable -with fodder in it, and that a crib with corn and peas in it, which stood witliin twenty-six feet of the stabte, was partially consumed, but by great exertion was saved from total de- struction. The Court charged as to the crih, (which lie sometimes in the alternative calls a ham) "that if satisfied of the burning of the stable by tlie prisoner, as it was an unlawful act, the prisoner was responsible for the consequences ; and if they (the jury) were satisfied, beyond a reasonable doubt, that the stable was likely to and did communicate to the crib, and it was thereby burnt, the}^ should convict; but they were to be satisfied tliat by the bnrning of tlie stable, tlie burning of the crib was a reasonable probability to follow ; in which case the prisoner would be answerable." Defendant's counsel except- ed. A^erdict, "guilty." Sentence was pronounced, and defend- ant appealed. Attorney General, for the State. FovjU, for the defendant. JUNE TERM, 1861. 355 State V. Laup;lin, Battlk, J. The bill of exceptions presents foi* considera- tion two questions, botii of which are of great importance to the community, as well as to the prisoner. The iirst is, whe- ther the wilful and malicious setting fire to the house of an- other, the burning of which is onlj^ a misdemeanor, will be- come a capital felony, if a dwelling-house or barn with grain in it, be thereby burnt, where such burning is the i)robable consequence of the first illegal act. Upon this question we concur in the opinion given in the Court below : that in such a case, the prisoner is guilty of the felonious burning of the dwelling-house or barn, upon the principle that he is to be held responsible for the natural and probable consequence of his first criminal act. In su])port of this proposition, the burn- ing of one's own dwelling-house with a malicious and unlaw- ful intent, furnishes a strong argument from analogy. Such burning is, of itself, onl}^ a high misdemeanor ; but if the dwellings of other persons be situated so near to the one burnt, that they take fire and are consumed, as an immediate and necessary consequence of the first illegal act, it will amount to a felony. See 2 East. PL Cr. 1030 and 1031, and the cases of J^e,i' V. Probcrt and Bex v. Isaac^ there cited. The second question is, whether upon an indictment for the felonious burning of a barn with grain, or corn in it, the pri- soner can be convicted, upon proof, that he burnt a crib with corn in it. He certainly cannot, unless a barn and crib mean, in law, the same thing, or the testimony shows that they are in fact the same. The bill of exceptions does not set forth any proof that the}' are the same, and we are unable to find any authorit}', in the law, which pronounces them to be the same. In Webster's Dictionary, a " barn" is said to be " a covered building for securing grain, hay, flax, and other productions of the earth." It is a word known to the English law, and is mentioned in the statute 23rd lien, 8, chap. 1, section 3, as a house, the wilful burning of M'hich, while it has grain or corn in it, shall be a felony without the benefit of clergy. A crib, according to Webster, means, in the United States, " a small building, raised on posts for storing Indian corn." We aro 356 IN THE SUPREME COURT. Luther v. Skeen, not aware tliat it is now, or ever has been, used in tliat sense in England, and we have not, as yet, seen it used in any of the acts of our Assembly. From this, it seems tliat a barn and a crib are houses of a different kind, and used, ordinarily, for different purposes, and we learn, unofficially, that they are so known throughout the greater part, if not the whole, of this State. The burning of a crib with corn in it, is, then, a different offence from the burning of a barn with corn in it, and a prisoner chaiged with the latter cannot be convicted, upon proof of his having committed the former. Indeed, the burning of a crib, though it may have grain or corn in it at the time, is not made a felony at all, and it will be for the Legislature to consider whether such a building should not, under similar circumstances, have the protection which is now extended by the 2ud section of the Sttth chapter of the Revis- ed Code, to barns. This case may, possibly, also suggest to that honorable body, that the wilful and malicious burning of stables with the intent to consume and destroy the horses that may be in them, is an offense quite as flagrant, as, and much more cruel, than, the burning of either cribs or barns, no matter how much corn or grain they may contain. The judgment must be reversed, and a certificate to that effect must be sent to the Court below in order that the pri- soner may have a venire de novo. Per Cukiam, ' Jud<::ment reversed. ISHAM LUTHER v. NOAH R. SKEEN. Reports that the plaintifT swore to a lie or Hes in a distant count}', cannot jiroperly be submitted to a jury in an action of slander as elements, from which a jury are to make up an estimate of their own of the character of the plaintiff. A jury in estimating character, are to take the testimony of witnesses who JUNE TEJiM, 1861. 357 Lutber v. Skeen. arc supposed to be able or capable of reflecting in general terms, the judg- ment of the public. Matters elicited on a cross-examination, which arc only admissible to weaken the force cf the testimony in chief, ought not to go to the jury for a difler- ent purpose. This was an action of slander, ti'ied before Howard, J., at the last Spring Term of Davidson Superior Court. K'The action was brought for charging the ])laintiff witli hav- ing trnni])cd up and sworn to an account. The following is the case sent to this Court: "The plain- tiff introduced several witnesses to prove his general charac- ter, who said his character was good. The defendant's coun- sel then asked them if the}' had not heard that plaintiff had sworn to a lie in Handolph ; to this plaintiff's counsel except- ed. The Court then said to defendant's counsel 'you must not ask the witness questions as to any particular offence, or what any ])articular jicrson had said, but you may ask if there was a current report in the neighborhood that plaintiff had sworn to lies while living in Kandol|)ii.' To this question, plaintiff's connsel excepted. All of the M-itnesses answered that tJiere vjas. Upon being further questioned by ])laintiff's counsel, some of them said the report was confined to a par- ticular suit with one Xance. Others, that the report cover- ed two instances of false swearing, at least. Each of the wit- nesses said he did not remember to have heard the report from more that tliree or four persons, but that he heard tiioso persons speak of it before the dispute between plaintiff and defendant arose. The plaintiff moved from llandolph to Da- vidson four or five years ago. The Court charged the jury that the testimony was permit- ted to go to thcjii, not as a justificatiou, but for tlieir conside- ration in awarding damages; that it was for them, alone, to say what damages ought to be given to the plaintiff, either for the injury to his cliaracter, or as an example to deter otliers from slandering their neighbor, and that it was right and i)ro- per that they should know the e.xact standing of plaintiff; as it was supposed that they would give greater damage for an 358 IN THE SUPREME COURT. Lather V. Skeen. iinputatictii niton the character of' a man al)ove sus])icion or reproach, than for an inipntation njion one whose character M'as not 60 fair ; bnt that was a matter about which they were allowed to exercise their own discretion.'' Plaintill's counsel excepted to the chartje. A'erdict t'oi- jtlaintiiF for s-2. Judii-nicnt and ai»i)cal by plaintiff. JI('Li'(7n, for the plaintiff. K'tlireU. for the defendant. Batti.];, J. I'pon the case iiresented to this Court, we tliink there is error in tiiis : His Honor allowed matters eli- cited on a cross-examination, and which were oidy admissible to weaken the the foix-e of the testimony in chief, to go to the jury for a different ]")urpose. The evidence in reg-ard to the reports in Randolph C(Minty, ■were impi-opei-ly submitted to the jury as elements from which they mii^ht make nj) an estimate of their own of the charac- ter of plaintiff. That is not the M'ay in which juries are in- formed as to character. They take the testimony of a wit- ness who is supposed to be capable of reflecting in general terms the judgment of the public, and rel}' upon that. Any other mode would but multijd}' occasions for scandalous strife, and jirove impracticable in its i-esults. A current report and (jeneral character are not equivalent and convertable terms. The one may be evidence of the other, but is not conclusive- h' so. While, therefore, the evidence of the report in Randolph might be properly brought out on a cross-examination with a view to analyse and test the foundation of the witness' testi- mony, and might bo used by the jury in estimating the weight of such testimony, it was notpro])er it should be used in any other connexion. It was not proper it should be used as direct evidence of general chai'actcr. There should be a venire de novo. Pkii CnuAM, Judgment reversed. JUNE TEEM, 1861. 359 Hanoll V. Davis. NATHAN HARRELL d al v. SMITHY DAYI.^. A deed of gift of slaves, made in 1823, to a married woman, for her natural life, and after her death, to the heirs lawfully herjotten of Iter body, passes the absolute property in such slaves to her husband. Action of TRovKK, tried before Oshoknk, J., at tlie Spring Term, 1801, of Greene Superior Court. The action was brought for the conversion of certain slaves, and the title of tiie plaintiffs do)>ends upon the construction of the following deed of gift, viz : "State of Xorth Carolina, Greene County.'' " Know all men by these presents, that I, Lewis llarrell, of tlie State aforesaid and county of Lenoir, doth for and in con- sideration of the love and good will and natural affection I liave and bear to my daughter-in-law, Laney Ayton Jlarrell, wife of Joseph ILirrell, doth lend unto the said Laney Ayton llarrell, one negro giil, bj" the name of Xance, about sixteen years of age, and her daughter, Phillis, about four months old, them and their increase to the said Laney llarrell, during her natural life-time, and after lier death, 1 give the said negro girl, Xancc, and her daughter, Phillis, and their increase, to the heirs of my daughter-in-law, lawfully begotten of her body, to them and their assigns for ever. In witness whereof I have hereunto set my hand and seal, this 12th day of Ma}', 1823. Lewis IIaukkll, [sea!.]'' Witness present, /.sr/v/c Ward. The i)laintiffs arc the children of ^Iva. llarrell, wife of Jo- i-ci)h llarrell, who was living at the time of the making of the deed. Tliey contended under the limitation contained in tho deed to the heirs of Mis. llarrell, lawfully begr)tten, that they are entitled to the slaves and their increase, bhe being now dead. The defendants claimed title under a conveyance from Jo- seph ILarrell, the husband of Lfiney Ayton Harrell, made in her life-time. 360 IN THE SUPREME COUET. Hedrick v. Wagoner. B}'- consent, the jury rendered a verdict for the plaintifis, subject to the opinion of the Court, as to the legal etfect of the deed of gift, and the Court, on consideration of the point reserved, being of opinion with the defendant, set aside the verdict, and ordered a nonsuit, from which plaintiff appealed. Strong^ for the plaintiffs. J. TF. Bryan, for the defendant. Pearson, C. J. The legal effect of the deed of gift is too plain to admit of argument. The absolute estate vested in Mrs. Ilarrell, by the application of two well-settled principles of law, both of which exclude the plaintiffs from any benefit under the deed. At the date of the deed, 1823, the common law was appli- cable as well to the transfer of slaves as of other personal pro- perty, and according to an established principle, a life-estate consumed the entire estate, and a limitation over was inope- rative, except in a will or deed of trust. In the second place, it is clear, that the " rule in Shelly's case" applies. So that the whole estate vested in Mrs. Ilar- rell byj;he deed and passed to her, and then to her husband jure onariti. Per Curiam, Judgment affirmed. ■ CASPER HEDRICK v. HENRY WAGONER, Executor. Where a itarent put a slave into the possession of his child, with an intention to make it an advancement, but afterwards changed his mind and took it back, it was held that the law implied no obligation on the part of the pa- rent to pay for keeping, feeding and clothing the slave. Action of assumpsit, tried before Howard, J., at the last Spring Term of Davidson Superior Court. JUNE TEEM, 1861. 361 Hedrick v. Wagoner. Joseph Wagoner, the defendant's testator, in the year 1839, placed in the possession of his daughter, then a widow, a cer- tain negro woman slave. The daughter was afterwards mar- ried to the plaintiff, who took charge of the woman and kept her and her children, of which she had several, until the year 1858, in the mean time feeding and clothing them. In that year, testator went to plaintiff's house, and complaining that plaintiff" was about to run the slaves from the countr}', de- manded, as the condition upon M'hich he would let them re- main, that plaintiff' should give bond and security not to re- move them ; v.'hich tiie latter declined doing, and so the bail- ment terminated. Hedrick said, he ought to have pay for his trouble ; to which Wagoner rejilied, he would give him $50 if that would satisfy him. This, the plaintiff" refused. Wagoner then said, "pick out two men, and whatever they say, I will pay you," but tliis was never done, and shortly af- terwards, tliis suit was brought. By the consent of the counsel on both sides, the qucstionpf damages was submitted to the jury, the Court reserving the question of plaintiff 's right to recover, with leave to set aside the verdict and enter a nonsuit, should the opinion of the Court be adverse to plaintiff''s cause of action. The jury found damages to the amount of §300. Afterwards, the Court set aside the verdict and ordered a nonsuit, from which plaintiff" appealed. Kittrell., for the plaintiff". Gorrell and MoLean^ for the defendant. Manly, J. The view taken of this case in the Court be- low, was clearly correct. It is the ordinary case of a slave put into the possession of a child, and intended by the parent as an advancement, but with respect to which he changes his mind and takes the slave away. The law implies no obligation in such a case on the part of the parent to pay for keeping, clothing, feeding, and the like. 362 m THE SUPKEME COURT. Haden v. Rail Road Company. Tlie negroes were not kept upon any sncli expectation, mucli less upon any mutual understanding to that effect. There was no legal or equitable obligation to allow them to remain under any circumstances, and the law will not raise an assumpsit to pay damages for doing what the party had a right to do, nor will it interpolate upon the transaction a lia- bility, not contemplated by either party during its continu- ance. ' The principle of the case falls within that of tlie University against JlcJVcm'^s Executors, 2 Ire. Eq. 605. The proposition on the part of defendant's testator to pay '$50, (which was rejected by the plaintiff) was in furtherance of a negotiation for peace, and does not, in any way, affect the rights of the parties, and of the same character is the proposition (not carried into execution) to submit it to men. The judgment of the Court below should be atfirmed. Per Cukiam, Judgment alKrmed* JAMES H. HADEN v. NORTH CAROLINA RILROAD COMPANY. Where a hired slave was talt Brevard's sale, and that a negro had brought it out with the bridle in question on it; to which the defendant replied, " you^ or the negro stole the bridle, and I don't know which is tlie worse, you or the negro." This conversation was in 1855i^ sometime after the bridle was found at Dallas. The defendant's counsel asked the Court to charge the jury, that the bridle being found in the possession of the plaintiff" at Dallas, four months after it was lost, the- law raised a pre- sumption that he was the thief. The Court charged the jury, that when an article of person- al property had been stolen, and was proved in the possession of a person soon after the theft, the law raised a presumption that the possessor was the thief, but where several months had elapsed before the propert}'' was found-, as in the present case, no such presumption was raised., Defendan.t's counsel excepted. The defendant's counsel excepted further, because the Court had admitted evidence of the speaking, of words more than six months before the bringing of the suit. Also,,because the Court had omitted to bring to the attention of the jury a point made by him, which was : that " if the plaintiff Jiad got the bri- dle from the negro unlawfully, and Icnew that it was not his own, and took it away to appropriate it to his own use, it would be larceny." His Honor said he did not remember that the instruction was asked in the argument, and on being assured by the counsel that it was, he asked why he was not AUGUST TEEM, 1861. 413 Gregory v. Richards. reminded of it at the close of his charge ; to which the coun- sel replied, that he did not think proper to do so. The jury, under the instructions of the Court, found a ver- dict for the plaintiflf for $900. Judgment for the plaintiff. Appeal by the defendant. Gaither, for the plaintiff. Thompson, for the defendant. Manly, J . The principal point of the case is under the plea of justification, and upon the instructions given as to the presumption arising from the possession of a stolen article. The instructions arc in clear accordance with the law. Pos- session of a stolen article raises a presumption of theft by the possessor, only in case such possession is so recent after the theft, as to show that the possessor could not well have come by it otherwise than by stealing it himself. In all other cases, the question is an open one, to be decided upon the whole tes- timony, and the fact of possession, in the latter class of cases, is of greater or less cogency according to the length of time intervening — the nature of the property and other circum- stances. The difference is, that the recent possession, of which we speak, throws upon the accused the burden of explaining it, else he will be taken to be the thief. In other cases, there is no such conclusion, but the fact of possession is, with the oth- er facts, left to the jury as evidence upon the question of guilt. Thus, we distinguish between evidence raising a presumption of guilt, and evidence tending to establish guilt. By adverting to the definition, which we have given of a recent 2^ossessioti, from which the presumption will be made, it will be at once, and clearly, seen, that the case before us does not admit of an application of the rule, and the Court very properly declined applying it. Other points' made below, upon a rule for a new trial, are not sustained by the record, or by the Judge's case. There was no evidence offered, or received, of the speaking of the words more than six months before the bringing of the action, 7 414 m THE SUPREME COURT. McDauiel v. Johns. and it was not necessary, therefore, for the Court to clistin- guisli between the purposes, for which such evidence would be admissible, and the purposes for which it would not. So, in the second place, supposing the bridle to have been obtained from a negro, in the manner stated by the prosecu- tor, there was no evidence tending to show a felonious intent on the part of plaintiff at the time of obtaining it, and it would not have been proper, therefore, for the Court to base any in- structions upon the hypothesis of such felonious intent. Whether such instruction were or were not asked for, then, is not material. There is no error, and the judgment should be affirmed. Pee Cueiam, Judgment affirmed. DEURY McDANIEL v. JOHN JOHNS. Where an executor gave a part of a standing crop, for hauling the remainder to the crib, it was held not to subject him to the penalty imposed for sell- ing a deceased person's estate otherwise than at public auction. Action of debt for a penalty, tried before Osbokne, J., at the Fall Term, 18C0, of Rutherford Superior Court. The action was brought for the penalty of $200, which, it was alleged, the defendant had incurred by selling the goods of his testator at private sale. It was proved, that on enter- ing upon the duties of his office, the defendant found a crop of corn standing in the field, and hired one John Covington to haul it to the crib, and, as a compensation, gave him for his wagon and team two dollars and fifty cents per day, to bo paid in corn at 50 cents per bushel, and that the corn thus paid, was a part of that stated as standing in the field, and belonging to the estate of the testator. £A. AUGUST TERM, 1801. 415 McDaniel v. Johns. The Court being of opinion, on this state of facts, that the plaintiff was not entitled to recover, so instructed the jury, who found for the defendant. Plaintiff appealed. ]^o counsel appeared for the plaintiff' in this Court. Logan, for the defendant. Peakson, C. J. We concur with his Honor in the opinion that this case does not come within the operation of the stat- ute, which forbids the sale of the property of deceased per- sons, except by " public vendue or auction." The transaction was not a sale of any portion of the corn, but only a convenient mode of getting the crop of corn haul- ed to the crib, by allowing a part to be taken as commissions in payment for the price of liauling. It may l,)e that tiiis was the only mode in which the executor could have procured the work to be done. It docs not ap])ear that he had any cash of the estate in hand, and certainly he was not required to ad- vance funds of his own, or to pledge his individual credit. In short, the case does not fall within the meaning of the statute, or the evil which it was intended to guard against. Per Curiam, Judgment affirmed. ^PPEIS^DIX. IN THE MATTER OF HAMILTON C. GRAHAM. HABEAS CORPUS. A soldier who is under arrest, and in confinement for a violation of orders, cannot procure his discharge by means of a writ o? habeas corpus on the al- legation that he was an infant at the time of enlistment Nor can he or bis guardian raise that question before the civil authorities, while he is in custody, and amenable for trial before a military tribunal. Whether a minor of the age of twenty years, who enlisted under the provi- sions of the act entitled an "an act to raise 10,000 State troops," and has taken and subscribed the oath prescribed for enlistment, is entitled to his discharge on the ground of his nonage, and that he enlisted without the consent of his guardian, g^iere ? A HABEAS coEPUs was returned before his Honor the Chief Justice, who called to his assistance the other two Judges of the Supreme Court, The application was on the petition of Hamilton C. Graham and his guardian, E. G. Haywood. The petitioners alleged that the said H. C. Graham, in May, 1861, was enlisted as a private soldier by Major Stephen D, Ramseur into the company called the Ellis Light Infantry ; that he was then an orphan, without father or mother, and but twenty years old, and that such enlistment was made without the consent of his said guardian, and that the said orphan had an estate in the hands of his guardian, which was sufficient to support him without resorting to such service, and that the said H. C. Graham was detained by the said S. D. Ram- seur against his will at the encampment of the said military company near the city of Raleigh. The prayer is, that the said H. C. Graham should be brought APPENDIX. 417 before his Honor, the Chief Justice, by the said 6. D. Kam- seur, with the cause of his detention. Major Eamseur brought forward the body of the said HL C. Graham, and made return as the cause of his detention, that the said Graham had enlisted for the war into the com- pany of artillery under his command, and had taken and sub- scribed an oath, (set forth as part of the return,) and on the 15th of the then current month, was placed by him, as the commanding officer, in the guard house for a violation of or- ders, and was then in such custody, and awaiting a trial by a court martial, for said oflfence. The matter was argued by E. G. Haywood for the petition- ers, and the Attorney Oenei'dl for Major Ramseur. Peaeson, C. J. Upon the return of the writ, I requested Judges Battle and Manly, to assist me, and aftdr hearing arguments on both sides, and giving to the subject full con- sideration, they concur with me in the opinion that the peti- tioner, Graham, is not entitled to his discharge. It is admitted that Graham voluntarily enlisted as a private soldier on the 24th of May last, aud the oath was taken and subscribed by him according to the forms required by law. — The application is put on the ground that he was, at the time, under the age of twenty-one years, to wit, of the age of twen- ty, and enlisted without the consent of his guardian. The return meets the application, m limine, by the fact that on the I5th instant, " Graham, by the order of the command- ing officer was put in the guard house for positive violation of orders, to await his trial before a court martial, where he has remained until brought here in obedience to the writ." To meet this preliminary objection, two positions were re- lied on : let. The statute gives authority to raise by enlistment, ten thousand ^'-menf Graham was not a man, being under the age of twenty-one years ; consequently, the recruiting officer had no power to make a contract of enlistment with him, and the contract is void and of no effect. If the agent, acting for one of the parties, exceeds his pow- er, the consequence contended for would follow ; for instance. 418 APPENDIX. if a woman was enlisted ; but I do no adopt this very restricted construction of tlie statute. The word " w^e?^" must be under- stood in reference to the purpose for which it is used, and obviously, the purpose was, not to indicate thesort of persons, but to fix the number, in the sense of " ten thousand soldiers or troops." So, I think there was no defect of power on the part of the recruiting officer, and the contract cannot be treat- ed as a nullit3\ 2d. By a general rule of law, contracts made with one, un- der the age of twenty-one years, may be avoided hj him ;.th6 exceptions are contracts for necessaries — of marriage and ap- prenticeship, on the ground of benefit to the infant, and there is no special benefit to an infant, arising out of a contract to enlist as a soldier to authorize the Court to take it out of the general rnle and make it an exception in the. absence of some legislative provisibns, such as are to be met with in the act% of Congress of the United States. This position may be admitted for the sake of the argument, and it (foes not meet the objection ; for the contract, not be- ing void,' but merely voidable, had the legal effect of estab- lishing the relation of officer and soldier, which existed at the time Graham was guilty of disobedience of orders, iconse- ej[uently, his act was unlawful, and his arrest and iinprison- men t lawful, and he cannot avoid tlie consequences by going behind his act and be allowed to impeach the validity of his enlistment until he has been discharged by the court-martial. This is clear ; otherwise there would be no difterence between a Toid and a voidable contract ; whereas, the latter has legal effect, and continues until it is avoided, and in this instance, the contract had the legal effect of putting Graham in the colidition of a private soldier, and making him^ amenable as such, to militar}'- law, and that having attached to him, he must be discharged by it, before he can be allowed to raise the question before the civil authorities, as to his further de- tention being unlawful. If such were not the law, all order and discipline in the army would be subverted. Would it be tolerated that one should insinuate himself into the condition of a soldier, and when by the disobedience of orders or other violation of duty, the safety of the whole army has been en- APPENDIX. 419 dangered, evade the military jurisdiction by being beard to impeach the validity of his enlistment ? For these reasons, neither the petitioner Graham, nor the other petitioner, his guardian, can be allowed to raibe the question, whether the contract of enlistment can be avoided by him. I do not, therefore, feel at liberty to enter into the subject, or intimate any opinion in respect to it. It is considered by me, that the petitioner, Hamilton C. Graham, be remanded and put in possession of Maj. Stephen D. Eamseur, and that the latter recover his costs of the peti- tioners, to be taxed by the clerk of the Supreme Court at Paleigh. \* Addendum : The Keporter is requested to state that the case of BiUups v. Biddick, decided at the last term, ante 163, which purports to have been decided by Judge Howard, was never seen by him, but was made up by the counsel and a ^>ro/(?/v/ia judgment entered as they had agreed. CASES AT LAW, ARGUED AND DETERMINED IN THE SUPREME COURT OF NORTH CAROLINA, AT RALEIGH. JUNE TEEM, 1862. EDWARD MASON v THOMAS WHITE AND WIFE ei al V legacy given immediately to a class, vests absolutely in the persons com- posing that class at the death of the testator; and a legacy given to a class subject to a life-estate, vests in the persons composing that class at the death of the testator, but not absolutely, for it is subject to open so as to make room for all persons composing the class, not only at the death of the testator, but also at the falling in of the intervening estate. Vhere one thus included in a class with an intervening estate, died before the falling in of such estate, there is no ground for holding that his estate was divested by this event. Tnis was a PExmoN for the division of slaves, which came up from the County Court, and was tried before Heath, J., at the Spring Term, 1861, of Perquimons Superior Court. The case is this : 422 IN THE SUPREME COURT. Mason v. White. In the year 1838, Henry Hollowell died, leaving a last will, which was duly proved and recorded. In the said will, after a trifling legacy to his brothers and sisters, occurs* the follow- ing clause : " I give and bequeath to my beloved wife, Eliz- abeth Hollowell, the remainder of my estate, both real and personal, during her natural life, and at iier death to be equal- ly divided among her children." At the time of the death of Henry Hollowell, his wife, the said Elizabeth, had three children by a former husband, to wit : Sarah, who intermarried with the plaintifi", Edward Ma- son, Edward B. Sutton, and Anne, intermarried with Thomas H. White. Mrs. Mason was alive at the death of the testa- tor, Hollowell, but died before the death of her mother, the said Elizabeth, and her husband took letters of administratj^on on her estate, and filed this petition for her share of certain slaves which passed under the said will. The surviving brother and sister contested the right of the plaintiff to have a share of these slaves. His Honor, in the Court below, decided in favor of the plaintiff, and the defendants appealed to this Court. Winsto7i, t/r., for the plaintiff. 1^0 counsel appeared for the defendants in this Court. Peaeson, C. J. The question presented is too plain to ad- mit of discussion ; a legacy given to a class immediately, vests absolutely in the persons composing that class at the death of the testator ; for instance, a legacy to the children of A : the children in esse at the death of the testator take estates vest- ed absolutely, and there is no ground upon which children who may be born afterwards can be let in. A legacy given to a class subject to a life-estate, vests in the persons composing that class at the death of the testator ; but not absolutely ; for it is subject to open, so as to make room for all persons composing the class, not only at the death of the testator, but also at the falling in of the intervening estate. This is put on the ground that the testator's bounty JUNE TERM, 1862. 423 Bond V. Billups. should be made to include as many persons who fall under the general description or class as is consistent with public polic}'' ; and the existence of the intervening estate makes it unnecessary to settle absolutely the ownership of the proper- ty imtil that estate ftills in. For instance, a legacy to A for life, and then to her children, or, " then to be divided among her children," vests in the children 'who are m esse at the death of the testator, but it vests subject to open, and make room for any children who may afterwards be born before the ; falling in of the life-estate, so as to include as many as possi- siblc until it becomes necessar}^, on the ground of public pol- icy, to fix the ownersliip absolutely. In our case, the plaintiff's intestate was one of the class at the death of the testator, and although the legacy vested, sub- ject to open and let in any persons who might come into ex- istence afterwards and answer the description, yet, there is no ground on which it can be contended that the death of one of the legatees divested her legacy in lavor of the surviving legatees. To have this effect, there must be words of exclu- sion ; e. g. to the children of A, living at the time of her death. Per CuRiAai, There is no error. Judgment affirmed. State on the relation of R. H. L. BOND v. JOS. R. BILLUPS, Adm'r. In an action against an administrator, on his administration bond, for the non-payment of a judgment previously rendered against him, such judg- ment is conclusive evi^dence against him, both as to the debt and the ex- istence of assets. This was an action of debt on an administration bond, tried before Heath, J., at the Spring Term, 18G1, of Perquimons Superior Court. The action was originally brought in the County Court, and 424 IN THE SUPREME COURT. Bond V. Billups. the writ was taken ont against the defendant, Billnps, and the sureties to the administration hond, but tlie record states thatr only the defendant caijie and pleaded^ and he only appealed to tlie Superior Court. The plaintiff offered in evidence a judgment, which had been recovered against the defendant, as administrator of one T. Billups, at May Term, 1S60, of Perquimons County Court ; the non-payment of which judgnrKent^ was the breach of the bond declared on. The defendant pleaded fuliy adsoinistered and no assets at the time of the original judgment and fwlly administered and' no assets in this suit. And on the trial, lic offered to show that at the time of the judgment in the cou-aty court, at May Term, 1860, he had paid all the assets of his testator upon debts of equal dignity with that of plaintiff, and further, he offered to show that he had nc^ assets of his testator at ths' time of the commencement of this suit. His Honor excluded, the evidence, and the defendant's counsel excepted. Verdict and judgment for plaintiff, and- appeal by the de- fendant. Winston^ tPr., for plaintiff. No counsel for defendant in this Court. Battle, J. The case of Armstead v. llarromond., 4 Hawks'" Rep. 339, is a direct authority in support of the opinion ex- pressed by his Honor in the Court below. That Avas a suit upon an administration bond against the administrator and his sureties, and although it was held that a previous judgment against the adminisirator, in which he was fixed M'ith assets, was iiot evidence again-st his sureties, as to tlie assets, yet it was evidence against him, both as to the debt and assets. That the judgment against the administrator is conclusive, appears as well from that case, as from the recent one of of SincTdand v. Murphy^ 7 Jones, 242. Whether it was so as agninst the sureties, we need not enquire, for in the case now 1m fore us, they were not parties to the record in the Su- JUNE TERM, 1862. 425 McCormic v. Leggett. perior Court. It is true, that in the county court tlie writ had been issued against and served upon them, but they did not appear and plead, and the judgment in that Court was rendered against the administrator alone, from which he ap- appcaled, and was, of course, the only party defendant to the record in the Smperior Court. Tlie evidence which he oflfered for the purjx)se -of showing that at the time of the previous judgment against him, he had fully administered all the as- sets which had come into his hands, was, therefore, properly rejected, and the judgment must be affiitned. Per Curiam, Judgment affirmed. ■Doe on the demise of LEANDER McCORMIC v. ROBESON LEGGETT. An infant who has executed a deed for land, cannot make the deed void or valid by any act of his done while under age. To make the deed of an infant valid, he must, after coming of age, do some deliberate act by which he takes benefit under the deed, or expressly re- cognizes its validity. Matter which does not affect the title, bnt only affords an objection to the further prosecution of the suit, as it is then constituted, as marriage or death, or the plaintiff's taking possession, must be pleaded or otherwise specially brouglit to the notice of the Court; but matter that goes to affect the title as the confirmation of an infant's deed, may be given in evidence under the general issue. Action of rtectmext, tried before Saunders, J., at the Spring Term, 1861, of Robeson Superior Court. The following case agreed was made out by the counsel for the rcsj»ective parties and signed by them. The lessor for tlie i>laintifF showed first a deed from Gilbert "VV". McKay to himself for the land in controversy ; next a deed from King, sherilfof Robeson, to Sherrod F. Leggett, npon a judgment and execution against John A. Rowland and Gilbert W. Mc- Kay for tiie same land, the said McKay being the same whe 426 IlSr THE SUPREME COURT. McCormic v. Leggett. first sold to the lessor of the plaintiff. Plainti£F then poved that Robeson Leggett went into possession as the tenant of Sherrod F. Leggett, and was in possession when the declara- tion was served on him. The sheriff's deed is dated Feb. 7, 1854, reciting a judgment and execution from the court of pleas and quarter sessions of JSTew Hanover county, against John A. Rowland and the said Gilbert W. McKay. The deed from the said McKay to the plaintiff's lessor for the same land is dated, August 31, 1850. The defendant then put in evidence a deed from McCormic, the lessor of the plaintiff, to Gilbert "W". McKay, for the same land, bearing date 15th April, A. D. 1852. The lessor of the plaintiff replied to this by showing that he was under age at the time this deed to McKay was made, also at the time of bringing his suit, and the defendant offered evidence further, that in December, af- ter the suit had been brought, McKay, the bargainee, made a payment on account of the land which the lessor accepted, (admitted then to be of full age.) Upon these facts, the Court directed the jury to find the de- fendant guilty, which was done, and from a judgment, ac- cording to the verdict, the defendant appealed to this Court. Shepherd, for the plaintiff. W. L. McKay, for the defendant. Peaeson, C. J. The statement of the case made up and signed by the counsel for the parties, is not i as clear as it should be, but from it, and the admissions on the argument, these points are presented. 1. Can an infant, who has executed a deed for land, make void the deed by any act while he is under age ? for instance, by bringing an action of ejectment before he arrives at age, against the bargainee? This Court considers that the law is settled. While under age, he cannot affirm or disaffirm, confirm or repudiate any act or deed ; for the obvious reason, that he is supposed to JUNE TEEM, 1862. 427 McCormic v. Leggett. have the same want of discretion, on account of which his first act or deed is voidable, 2. If an infant sells and makes a deed for a tract of land, and before coming of age, commences an action of ejectment against the vendee, and after he arrives at age, pending the action of ejectment receives the purchase-money from the vendee, does the fact of receiving the purchase-money con- firm the deed, and if so, can such confirmation be taken ad- vantage of by the defendant, without a plea since the last con tinuance ? We consider it settled that the deed of an infant isnotvoidj but is voidable by him after he arrives at age — that in order to avoid the deed, mere words are not sufdcient, but there must be some deliberate act done, by which he takes benefit under the deed, or expressly recognizes its validity ; e. g. if he takes a deed from the vendee for a part of the land which he had before conveyed, or if he receives the whole or a part of the purchase-money due to him by force and in pursuance of the contract under which the deed was executed. See the cases, Iloyle v, Stoioe, 2 Dev. and Bat. 320 ; Armfield v. Tatef 7 Ired. 268 ; Murray v. ShankUn, 4 Dev. and Bat. 276 ; Be7i- ton V. Sanders, Busb. 3 GO. In regard to the question, whether this act of confirmation can be given in evidence under the general issue, or must be pleaded as a plea since the last continuance : The distinction is this: when matter occurs pending the suit, which does not afiect the title, but merely aftbrds ground for an objection to the further prosecution of the suit as it is then constituted, such matter must be pleaded, or be in some other mode spe- cially bi ought to the notice of the Court, as when a party dies or marries, or the plain tifi" takes possession of the thing sued for. But where the matter affects the title, it may be given in evidence under the general issue ; indeed, in the ac- tion of ejectment, the pleadings are so much at large, that an estoppel may be taken advantage of under the general issue, notwithstanding the general rule that estoppels must be plead- ed specially. In our case, the act of receiving the purchase- 428 m THE SUPREME COURT. Brooks V. Walters. money affected the title; for, by it the deed was confirmed, and the confirmation related back so as to give effect to the deed from the time of its execution. See the cases cited above. Upon these facts, this Court is of opinion that the Judge belov?" erred in directing the jury to find the defendant guilty. Per CuRiAii, Judgment reversed and a venire de novo. LARKIN BKOOKS v. ASA J. WALTERS. Where it appeared that the plaintiff, who lived in Virginia, had put a note into the hands of the defendant, who collected it, and at the time of employ- ing another to make demand plaintiff stated that he had once before sent the defendant's receipt over and had got nothing, it was held that this did not amount to proof that a demand had been made more than three years before the bringing of the suit, so as to put the statute of limitations in motion. Action of assumpsit on the common counts, tried before Heath, J., at the Spring Term, 1861, of Washington Superi- or Court. The plaintiff proved that in the year 1855, he placed in the defendant's hands, for collection, a note of one Grifltin, for about $85, and that some time thereafter, the defendant re- ceived the money. The defendant rested his defense on the statute of limitations. By the plaintiff's witness, it appeared that within three years thereafter, and within thi;ee years pri- or to the bringing of this suit, the plaintiff, who lived in Vir- ginia, handed to a witness in Bertie county, in this State, the defendant's receipt for the note ; and that this witness demand- ed payment immediately, which the defendant refused. This took place after the defendant had received the money. This witness also stated, that at the time of handing him the re- ceipt, the plaintifi said, he had sent the receipt over once be- " JUNE TERM, 1862. ti^ Brooks V. Walters. fore and had got nothing on it. At what time this occurred, the plaintiff did not state, nor did he state any thing more of that transaction than that recited. The defendant relied on this as evidence that there had been a former demand of the money and a refusal more than three years prior to the bring- ing of this suit, and called on his Honor to instruct the jury that plaintiff 's claim was barred by the statute of limitations. JEis Honor declined so to charge, but told the jury, among other tilings, that as to the iirst alleged demand, if it was made, (which was a question for them,) the defendant knew when, where and by whom it was made; and the facf; that he gave no such evidence, might be considered by them as tend- ing to show that no such demand was made ; or if made, was made within the limit of the statute. The defendant's counsel excepted to this part of the charge. Yerdict and judgment for the plaintiff and appeal by the defendant. No counsel appeared in this Court for the plaintiff. Winston, Jr., for the defendant. Manly, J. In order to sustain the plea of the statute of limitations, relied upon in the defense, it is necessary there should be proof of a demand and refusal of the money more than three years previous to the bringing of the action. We have considered the matter relied on as proof in this par- ticular, and conclude it ought not to have any weight or ten- dency to establish it. To allow the inference of a demand and refusal to be drawn from proof that the claim had, once before, been sent to this State and nothing collected on it, would be leading the jury into the field of conjecture for mat- ter to found their verdict upon. His Honor below, therefore, might have told the jury that there was no legal proof tend- ing to establish the allegation of a demand and refusal more than three years before the bringing of the action, and that the plea should be found, therefore, in favor of the plaintiff. This result has been attained under the instructions actual- 430 IN THE SUPKEME COURT. Jones V. Willis. ly given, which makes it unnecessary to discuss their propri- ety, No injustice has been done the defendant, and the judg- ment against liim should, therefore, be atfirmed. Per Curiam, Judgment affirmed. Deii on the demise of E. W. JONES v. E. H. WILLIS. Where a tenant entered into the occupation of premises under an express lease from month to month, and he continued the occupation for more than two years, there is no reason why he should be considered as a tenant' from year to year, and thus be entitled to six months notice to quit. What notice a tenant fron*! month to month is entitled to — Que7'e f Action of ejectment, tried before Heath, J., at Spring Term, 1861, of Washington Superior Court. The only question in this cause, was on the necessity of no- tice to quit. The premises sought to be recovered, was a room in a ware-house in the town of Plymouth. The plain- tiff proved that he let the premises to the defendant on 18th of December, 1856, at ten dollars for the first month and five dollars for every succeeding month that he should hold them ; that the defendant then took possession, and has ever since occupied the room, the lessor of the plaintiff having posses- sion of the otlier part of the building. He then proved by a witness that he demanded possession prior to the commence- ment of the suit, but the witness could not say how long prior it was. On this demand, the defendant refused to surrender the premises, saying " the door of the room was on his (de- fendant's) lot, and he was willing to compromise with the lessor." The writ was issued 18th of January, 1859, and there was no other evidence of a demand than that above stated. On an intimation from the Court, that the facts disclosed a tenancy from year to year, requiring six months notice to quit^ the plaintiff submitted to a nonsuit and appealed. JUNE TEEM, 1862. 431 Jones V. Willis. s £. F. Moore, for the plaintiff. Winston, Jr., for the defendant. Peakson, C. J, This Court does not concur in opinion with his Honor on the point upon which he saw proper to have the case put in the Court below. The lease was, in express terms, one from " month to month." To a plain mind, the process of reasoning by which such a lease could be converted into a tenancy from j^ear to year, and thereby make six months notice necessary, before either par- ty could determine the relation of landlord and tenant, would not readily occur. 3Ir. Winston took the position that tlie courts favor tenan- cies from year to year, and that in this case, such a holding would be inferred, from the fact, that the defendant entered in December, 1856, and continued in possession up to Janua- ry, 1859. This position is not tenable. The fallacy of the argument grows out of a failure to distin- guish between a lease at will, or a tenancy at will, which the courts incline to convert into a tenancy from year to year, and a lease like that under consideration, which, in so many words, is one from month to month. A tenancy at will may be determined by either party on short notice — that is, reasonable time for the tenant to pack up and le,ave. A tenancy from year to year can only be determined by six months notice prior to the expiration of the current year, whicfh notice must be given either to the landlord or the ten- ant, as the case may be, in order to determine the relation. The latter, therefore, is the better relation for both parties — for the landlord, because he will have six months' time to look out another tenant — for the tenant, because he has that time to look out another place ; and this conduces to tli-e public good by having all premises occupied and kept in cultivation. Upon these considerations, where there is a tenancy at will, in the first instance, if the possession continues for more than one year, inasmuch as the parties have not fixed on any pre- 482 IN THE SUPKEME COUET. Jones V. Willis. cise time, the courts incine to imply, from the fact of entering under the second year, that the holding is to be from year to year. This reasoning, however, has no application to a case like ours, which was, in the first instance, a tenancy from month to month. In respect to a tenancy from month to month, whether a full month's notice should be given, or half a month's notice would be sufficient, we are not called on now to decide. In Doe V. Hazelly 1 Esp. 94, and in Boe v. Raffan^ 6 ibid, 4, it is held that in a tenancy from week to week, a full week's notice is certainly sufficient ; and in a tenancy from month to month, a full month's notice was of course sufficient. Whether by analogy to the doctrine of tenancies from year to year no- tice for half of the week or month prior to its expiration would not be sufficient is not decided; but it is certain that the anal- ogy is not complete ; for leases from month to month or from week to week, must, of course, be confined to the rent of rooms to live in, or keep stores, and the conclusion, that six months was reasonable time to give notice in case of a tenant from year to year was adopted because of the course of hus- bandry and the time necessary for crops to be planted and matured. Mr. Winston, in the second place, took the ground, that supposing his Honor to have erred in respect to six mouth's notice, yet the decision ought to be sustained, because notice for a month, or at all events, for a half a month, was required in order to determine the lease, and there was no prooY of such notice. When the Judge interrupts the usual progress of a trial bj an intimation of his opinion on a particular point, and the counsel submits to a nonsuit, and appeals, with a view of try- ing that question, and it turns out that his Honor was in er- ror, the case should be sent back for another trial, because it may be that but for this intimation, additional evidence would have been off'ered or other points taken, as, in this instance, further evidence, in order to fix the precise time of the de- JUNE TERM, 1862'. 438: Fagan v. Williamson. mand of possession, or raising the question whether the de- fendant's saying that " the door of the room was on his lot and he was willing to compromise," was not takiing an ad- verse position inconsistent with a tenancy, and by such disa- vowal dispensing with the necessity of any notice. Per Curiam, Let the nonsuit be set aside and a venire de novo. F. F. FAGAN to use of J. H. HAMPTON v. LSWIS WILLIAMSON: The right to bring an action on the case against a sheriff for money collected by virtue of hi.> office, is expressly reserved in the act of Assembly, (Rev. Code, chap. 78, sections 1 and 2,) giving an action of debt on his official bond for the same cause of action. An action of debt on a sheriff's official bond for money collected, and a non- suit therein, is a sufficient demand to enable the plaintiff to sustain an ac- tion on the case for the same cause ot action.. An error in a Judge's charge to the jury, which works no injury to the appel-* lant, is no ground for a venire de novo. This was an action of assumpsit tried before Heath, J., at the Spring Term, 1861, of Washington Superior Court. The plaintiff declared against the defendant for money had and received, and on the common counts. He proved that he recovered a judgment in the county court of Washington, against one Jackson for $ , and tliat execution issued thereon from May to August term, 1857 ; another execution issued to November term, and came to the hand of the wit- ness M'ho testified as to this part of the cause, who was in- structed to place it in the hand.s of the defendant, sheriff of Columbus. Witness saw the defendant a short time after the- 17th October, 1857, and tendered him the execution, to wliich he replied that it was unnecessary to take it, as he had col- lected the money on the former execution — had enclosed it in 434 m THE SUPKEME COURT. ^ Fagan v Williamson. an envelope, and directed it to the clerk of Washington coun- ty court. He added that he handed it to the deputy postmas- ter at Whitesville, Columbus county, with instructions to re- gister it and forward it by mail. The plaintiff proved by the postmaster at Pl^anouth, where the court aforesaid sits, that no registered letter from Whitesville, had been received at his office for the clerk of Washington count}^ court between May and August terms, 1857. The clerk proved that no such ex- ecution or money had been returned to his office. The plaintiff further proved that he had formerly brought an action of debt for this same amount, in which he declared against the defendant and certain others as sureties on his of- ficial bond, and that he had taken a nonsuit in that case. This suit was brought after the return term of the second exe- cution. The defendant contended — First. That a recovery could not be had on this claim in this form of action. Secondly. That the former action of debt was not a suffi- cient demand, a demand being necessary. Thirdly. That the mailing of the money raised a presump- tion that it was received at the office where it was demanda- ble, and that there was no evidence sufficient to overcome the presumption. The Judge charged the jury that the form of the action did not preclude a recovery in this suit ; that if a demand was necessary, they were at liberty to find one, if they found the former suit as aforesaid for the same cause of action and a nonsuit ; that the mailing of the money raised a presumption that it came to hand, and it was for the jury to say whether that presumption was overcome by the other evidence in the case, and that if it was overcome, and they were satisfied the money did not reach Washington county, whence the writ is- sued, they should find a verdict for the plaintiff; otherwise for the defendant. The defendant's counsel excepted. Verdict and judgment for plaintiff. Appeal by the defend- ant. JUNE TERM, 1862. 435 Fagan v. Williamson. Winston, Jr., for the plaintiff. No counsel appeared for defendant in this Court. Manly, J. The judgment ought not to be reversed for any of the causes appearing in the case transmitted to this Court. The record does not inform us as to the ground upon which the exception to the form of action is based, but taking it to be as was suggested in the argument, that there was a higher securi- ty (that is the official bond) by an action on which the sheriff could be made to answer for tlie delinquency complained of, we are of opinion it cannot avail the defendant. The Legislature in providing this higher and more sure security, has express- ly guarded against the inference that the action upon the case, as at common law, was merged therein, and no longer to be used. This will be seen by a reference to the Rev. Code, ch. 78, sections 1 and 2. In the proviso of the second section, the form of the action before us, is specially noted and de- clared to be still open to the citizen, notwithstanding the remedy upon the bond therein given. Thus, we think, what- ever might have been the law, without some saving clause, (into which enquiry we do not now enter,) yet, by virtue of such clause, the action in question is clearly open to resort at the election of persons injured. The case states that an action of debt had been instituted for the same cause against the defendant and others, and a nonsuit suffered previously to the commencement of this suit, and that the Court below instructed the j ury that this, of it- self, was a demand. This is the subject of the second excep- tion. The instruction was undoubtedly correct. It might be gravely questioned whether, at the time, and under the cir- cumstances, under which this action was brought, a demand was at all necessary to sustain it. But supposing it to have been necessary, a former suit for the same cause of action and a nonsuit would clearly satisfy the requirement ; Zhm v. Mc- ClcUand, 4 Dev. and Bat. 458. The instructions in respect to the transmission of the money by mail, and the presumption arising therefrom, which is the 436 m THE SUPKEME COURT. Powell V. Inman. ground of the third exception, does not furnish a proper sub- ject of complaint on the part of the appellant. He had the benefit of instructions on this point, the soundness of which by no possibility could have wrought him any injury. No error having been committed in the case, of which the appellant can justly complain, the judgment must be affirmed. Pee-Cubiam, Judgment affirmed. JOHN G. POWELL & CO. v. EOBERT INMAN. A bond giren aS a pretext to enable one person to set up a claim to the pro- perty of another, so as to defraud the creditors of that other, is void evea as between the parties to the same. Action of debt, tried before Saundeks, J., at the Spring Term, 1861, of Columbus Superior Court. The action was upon a bond, executed by Kobert Inman to Jesse Inman, and endorsed to the plaintiffs. The defendant pleaded General issue, Fraud, Illegal consideration. The plaintifi's proved the execution of the bond by the de- fendant and the endorsement to the obligee, which was after it became due. The defendant then offered the evidence of the subscribing witness, who testified that he was present at the time the bond was executed, and Jesse Inman stated that the bond was giv- en^to defraud his creditors, and that there were then execu- tions out against him in the hands of the sheriff ; that the con- sideration for the bond was a raft of timber, a quantity of corn, cows and calves, about fifteen hundred pounds of bacon, horse and buggy, sows and pigs, ox and cart and a quantity of fodder; and that when the sherifi" went to levy on the pro- perty, it was to be claimed by Robert Inman, the defendant ; but, in fact, the property was to remain in the possession of JUNE TEJRM, 1862. 437 Powell V. Innian. Jesse Inman ; that the bond was not to go beyond the ditch near where they were, but was to be destroyed. The witness further testified, that Robert Inman was present and said nothing. The plain tifls proved that the}' had paid Jesse In- man a valuable consideration for the note ; also, that the pro- perty, above referred to, remained in the possession of Jesse Inman, and that when the sheriff of Robeson went to lev}' on it as his property, Robert Inman claimed it; and said that he had purchased it from his brother, Jesse. There was other testimony on the question, of fraud, all of which was submitted to the jury under the charge of the Court. His Honor instructed the jurj' that if they believed the de- clarations of Jesse Inman, that the bond was given for the purposes, and upon the consideration stated b}' him', the plain- tiff could not recover. The plaintiff's counsel excepted to the charge. Verdict for the defendant. Appeal by the plaintiff^ /Shepherd, Strcmge, and IF. A. ^V right, for the plaintiff. Leitch und M. B. Smith, for the defendant. • Battle, J. This case is brought before us again, for the purpose, as we are informed, of having reviewed the decision which we made in it at December Terra, 1859, (see 7 Jones 28). In the argument now submitted by the counsel for the plaintiff, lie admits the correctness of the general principle, that a contract, the consideration of which is the doing of an act, either malum in ss or inalum prohibitum is void, and no ac- tion at law can be sustained upon it. He also admits that the fact of the contract's being under seal, does not preclude the illegality of the consideration from being enquired into, and urged as a defense. See Broom's Com. 91, Law Lib. 280, and several pages following. But he contends that a bond for the payment of money, tliough made for the express purpose of defrauding the obligor's creditors is valid as against him, bjr force of the Stat. Eliz. ch. 5, sec. 2; Rev. Code, ch. 60, sec. J, 2 438 IN" THE SUPREME COURT. Powell V. Inman. By reference to that statute, it will be seen that bonds are mentioned along with several kinds of conveyances made with the intent to delay, hinder and defraud creditors, which are declared to be utterly void and of no effect, only, howev- er, as against those persons who are hindered, delayed and defrauded of their debts ; and it is inferred that bonds as well as conveyances of property, are good and valid against those who execute them in favor of the obligee and gran- tee. This argument confounds the distinction between the nature and effect of a bond and an executed conveyance. The former is a chose in action, which may require the aid of a court, through the means of an action or suit, to give the obligee the benefit of it, while the latter transfers, at once, the title of the property granted or sold to the grantee, or bargainee. Hence, to the former, the well-established max- im of ex dolo TYialo non oritur actio may apply, while it is en- tirely inapplicable to the latter, which does not require the aid of a court to transfer the property. The fraudulent gran- tee or bargainee has then the advantage of his grantor or bar- gainor, because, having the property by force of the convey- ance, the grantor or bargainor will be met, when he applies to be relieved against it, with the objection that " no court will lend its aid to a man who founds his cause of action up- on an immoral or illegal act ;" Ilolmaii v. Johnson, 1 Cow- per's Rep. 343. The statute of frauds, 13 Eliz. in making void and of no effect conveyances intended to defraud cred- itors, as to the creditors only, and leaving them in full force in other respects as between the parties, does not contravene that rule. But if the statute is to be construed as to its effect upon fraudulent bonds in the manner contended for by the plaintiff"'s counsel, it will violate the rule, and produce the strange and unnecessary anomaly, that while the obligee in a bond founded upon the illegal consideration of compounding a felony, gaming, usury, restraining trade, restraining mar- riage and the like, he may do so if the consideration were that of a most gross and outrageous attempt to cheat and de- fraud creditors. But the words of the statute may be satis- JUNE TERM, 1862. • 43^ Pritchard v. Oldham. fied without the necessity of adopting any such construction. A voluntary bond, executed without any actual intent to defraud creditors, may be avoided by them under the statute, if such an avoidance be necessary to secure their debts, but as between the parties the statute leaves it still in force. By giving to the statute such an operation and no more, the very salutary maxim, to which we have referred, of ex dolo malo nori oritur actio will be left in its full integrity, to pre- vent a recovery by the obligee of a bond conceived and exe- cuted by the parties with the actual intent to hinder, delay and defraud the creditors of the obligor. That the distinction which we have endeavored to point out between bonds and executed conveyances does exists, is, as we think, established by adjudicated cases. That of Ro- berts V. JRoherts, 2 Barn, and Aid 366, (4 Eng. C. Law Rep. 545,) cited by the plaintiff's counsel, and all those referred to by Roberts in his work on Fraudulent Conveyances, which were held to be valid as between the parties, are cases of ex- ecuted conveyances, while not a single instance of a bond made for the express purpose of defrauding creditors has, to our knowledge, been upheld as good between the obligor and obligee. The judgment of the Court below being in accordance with the views which we have now expressed, must be affirmed. Per Cckiam, Judgment affirmed. EASOM PRITCHARD d al v. ALLEN OLDHAM. Where a person was appointed by court a commissioner to sell a slave for partition, and the surety taken by him, although reputed good at the time ©f the sale, turned out to be insolvent before the note could be collected, it was held that an attachment for a contempt for not paying the money into the court, under a rule for that purpose, was not a proper remedy, if ndeed, there wer e any. UO -IN THE SUPKEME COUKT. Pritchard v. Oldham. This was a kule on the defendant to show eanse why an at- tachment for a contempt, should not be issued against him, which came np from the County Court of Orange, and was heard before Howard, J. The defendant had been appointed a commissioner by the County Court of Orange, to sell for partition, a certain negro slave under certain proceedings had in that Court, in the names of the plaintiffs. The slave was offered for sale, and first bid off by Easom Pritchard, one of the petitioners for the sale, but he failing to give bond for the whole sum bid by him, the slave was put up again and cried off to one Jolly at the price of $1282. The case states that a respectable gentle- man told the defendant that Jolly was totally insolvent ; that after he bid oft' the slave, he. Jolly, proposed to take the slave to Pittsborough, where he lived, and in the next week, if he would come to that place, he would give him a bond with John A. Hanks and Wesley Hanks. The defendant enquired of Dr. Davis whether a note given by Joll}^ and the two Hankses would be good,- who replied that it wauld be perfect- ly so ; thereupon, the defendant permitted Jolly to take the slave to Pittsborough. During the next week, defendant went to Pittsborough, and took the bond of Jolly and John A. Hanks as principals, and Wesley Hanks, as surety. The case further states that Jolly and John Hanks were partners in merchandising and trading generally, and now and then negroes purchased out of the State for sale. The general purchased a negro or two on speculation, sending the reputation of Jolly, at the time, was that he was insolvent ; that of John A. Hanks was, that though he had property about him, he was greatly embarrassed and doubtful, but as to Wesley lianks, that he was worth $10,000 or $12,000, principally in real estate ; that he was economical and dis- creet, and as safe as any one for the amount of the note. A week or two after the note was given. Jolly carried the slave out of the State and sold him. The note was, on falling due, put in suit, and a judgment obtained without delay, but the parties had all, in the meantime, become insolvent, and JUNE TERM, 1862. 441 Pritchard v. Oldham. the execution returned unsatisfied. This matter was specially reported by the defendant to the County Court of Orange, and upon a notice to that effect, duly served on the defendant, a 'rule was obtained and made absolute for him to pay into tlie office of the clerk of Orange County Court the amount of the bond, $1282, with interest, or that an attachment for a con- tempt should be issued against him. From this ruling the defendant appealed to the Superior Court, where tlie order below was reversed, and the plaintiffs appealed to this Court. Gr-aham^ for the plaintiffs. Phillips and Norwood^ for the defendant. Battle, J. It cannot be doubted that a person appointed by a decretal order of a court, in the progress of a cause, a commissioner to sell property, and to make a report thereof to the court, is either an officer or a person against whom, in a proper case, an attachment may issue under the provisions of the Eev. Code, ch. 31, sec. 117. If, then, the defendant in the present case, had collected the money for which the slave mentioned had been sold, and had disobeyed an order of the Court to pay it into the clerk's office, an attachment against him would have been proper, because a wilful disobedience to such order would have been a contempt of the Court. But as he had not collected the money for the reasons stated in his second report, was there any thing of criminality or even of negligence or unskilfulness in the discharge of the duties of his appointment, to justify the Court in issuing the summary process of attachmant against him ? We think not. He was ordered to sell the slave in question on a credit of six months, taking a bond and good- security for the price ; he did right in offering tlie slave for sale again, after Pritchard had refused to comply with the terms of the sale. He did wrong, and ran a risk of loss b}'- permitting Jolly to take the slave to Pittsborough before he had given bond and security for the purchase-money ; but the wrong was repaired as soon as tlie bond with security was given ; for the matter then stood as it 442 IN THE SUPKEME COUKT. Pritchard v. Oldham. would have done had the transaction been completed on the day of sale. The sole enquiry then, is, was it negligence in the commissioner to take the bond which he did, as security for the price of the negro ? In the case of Davis v. Marcom, 4 Jones' Eq. 189, we held that where an administrator was or- dered by the court to sell slaves for distribution, on a credit, taking bond with sureties for the purchase-money, he was only responsible, in respect to the sufficiency of the bond, for wilfully or negligently taking such sureties as were not good, or such as he had not good reason to believe were sufficient. As we are not aware of any rule of law which holds a com- missioner appointed by the court to sell property, to a stricter accountability than what is applicable to administrators, that case must govern the present. Here, the commissioner had very good reason to believe that the bond which he took was sufficient. Dr. Davis, a respectable gentleman, who resided in the neighborhood of the obligors, said the bond would be good, and it was proved that at the time when it was given, though one of the principals was reputed to be insolvent, and the other doubtful, yet the surety was worth $10,000 or $12,- 000, principally in real estate, and was regarded as economi- cal and discreet, and as good as any person for the amount of the bond. Under these circumstances, it may well be doubted wheth- er tlie defendant can be held responsible for the loss of the purchase-money of the slave in any form of action, but cer- tainly he cannot be so held in a mode of proceeding which is somewhat criminal in its nature, and which, it would seem, therefore, ought not to be adopted unless there were some- thing of criminality in the person against whom it is directed. See 4 Black. Com. 284, and the referen-ces contained in notes T and 8 of Chitty's Edition. The order of the Superior Court, from which the appeal is taken, is affirmed. Pee Cukiam, Judgment affirmed. JUNE TEEM, 1862. 443 State V. Brown. STATE V. ENOCH S. BROWN. An indictment, charging the stealing of a bank-note of a certain denomina- tion and value, without setting forth by what authority such note was is- sued, is not sufficient to authorise judgment on a conviction. This was an indictment for stealing a bank-note, tried before Howard, J., at the Fall Terra, 1861, of Montgomery Superior Court. The indictment is as follows : "The jurors, &c., present, that Enoch Brown, late, &c., on ifec, at and in, &c., one bank-note, for the payment of twenty dollars, and of the value of twenty dollars, the property of one Benjamin F. Steed, then and there being found, feloni- ously did steal, take and carry awa}^, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State." On conviction, under this indictn:}ent, the defendant's coun- sel moved for an arrest of judgment, which was ordered by the Court, whereupon the solicitor, for the State, appealed. Attorney Generaly for the State. ]^o counsel appeared for defendant in this Court. Manly, J. Bank notes not having any intrinsic value, are not the subject of larceny at common law; Cayle's case, 8 Co. 33, 1 Hawk. ch. 33, sec. 35 ; but have been made so by the legislation of most commercial nations. The statute on tins subject, now in force in North Carolina, is found in Rev. Code, chap. 34, sec. 20 ; from which it will appear that only those bank-notes that have been issued by corporations of the State, or some other of the United States, are now the subject of larceny within our State courts. Whether this limited application of the law of larceny to bank-notes, may not have suffered still further restriction by the political condition of the country, and by the act of the Le- gislature of 1861-'2, ex. session, ch. 23, is not in this case ma- terial to enquire. 444 IN THE SUPREME COURT. McLean v. Buchanan. The bill of indictment chcarges the thing stolen to be a hanh- iwte without further description, while bank-notes of cer- tain classes, to the exclusion of others, are only the subject of larceny. This is not such a description as will enable the Court to see that a felony, under our law, has been com- mitted. It may have been a bank-note as well without the purview of the statute as within ; ^nd as the rule of construc- tion is, that every conclusion will be made against the bill, which has not been excluded by the pleader, either expressly or by necessary implication, we are bound to hold it to be a note of some bank not embraced by the statute. This is sim- ply requiring certainty to a certain intent in general^ which is the rule applicable to indictments. There could be no judgment against the defendant upon the verdict, under this indictment, and it was, therefore, pro- perly arrested in the Court below. • Pek Cukiam, Judgment affirmed. State on relation 0/ JOHN McLEAN v. WILLIAM BUCHANAN ei al The ceremony of acknowledgement in open court, and registration, are not essential to the validity of a sheriff's bond. "Where a debtor lived in one county, and had places of business in two other counties adjoining, and it appeared that a sheriff who acted as a collect- ing officer, went three times during three mouths to such residence, at the end of which time the debtor became insolvent, although it appeared that the debtor was most usually absent from home during this time, it was held that the officer was guilty of such laches as to render him and his sureties liable on his official bond. Action of debt, on official bond of a sheriff, tried before Saundeks, J., at the Spring Term, 1861, of Richmond Supe- rior Court. The breaches assigned, were for failing to collect, and for JUNE TERM, 1862. 445 McLean v. Buchanan. collecting and failing to pay over the money on a note put into his hands on one David A. Boyd, for collection. The plaintiff introduced a paper-writing which was on file in the office of the County Court of*Richmond county, as tiie official bond of the sheriff for 1S56, to which B. 8. JIcDonald \s a subscribing witness. He testified that in his office, outside of the court room, on the day on which the bond purports to liave been executed, all the defendants either signed the bond or acknowledged their signatures in iiis presence, and he signed it as a witness, but they did not acknowledge it in opeu Court, and further, that he was not clerk of the County Court at that time. Louis II. Wehh was then introduced, who testified that at October term, 1856, he was clerk of the County Court of Rich- mond county, and that during that term, the bond in question was oftered by William Buchanan as his official bond as sher- iff, and accepted by the Court, but that no one of the sureties therein named, either signed the bond or acknowledged it in open Court. His Honor decided that this proof established the paper in question to be the official bond of the defendant as sheriff' of Richmond, and allowed the same to be read ; for which ruling, the defendant's counsel excepted. The claim above described, was put into the hands of an acting deput}'^ of the defendant, Buchanan, on the 4th of De- cember, 1856, and it was proved that Boyd, the debtor, was in possession of sufficient property to satisfy it ; that tiie said deputy, on or about the 15th of December, in that year, went to the usual place of Boyd's residence to serve a warrant on liim, but could not find him ; also, that he went to the same place two other times between that time and the 27th of Feb- ruary, 1857, on neither of which occasions could he find him. TT'^. 31. Bost testified tliat he was an officer, and lived with- in two miles of Boyd ; that he had claims in his hands against him for collection between the 4th "bf December 1856 and 27th of February, 1857, and tliat he went to his usual place of re- sidence several times without finding hiin ; that during tliat time Boyd had places of business in the counties of Mont- Ue IN THE SUPREME COURT. McLean v. Buchanan. goraeiy, Cumberland and Anson ; that his residence was in Richmond county, near the line between that county and Montgomery, and that he was, during that time, most fre- quently absent from home. it was also proved, that on the 27th Februar3^, 1857, Boyd conveyed all his propertj- by a deed of trust to satisfy other claims. His Honor charged the jury that if they believed this testi- mony, it established such laches in the deputy as rendered the sheriff and his sureties liable on the bond in question. Defendants' counsel again excepted. Verdict for the plaintiff. Judgment and appeal by the de- fendants. McDonald and Shepherd for the plaintiff. Leitch, for the defendants. Manly, J. Two exceptions were taken on the trial below to the rulings of the Court, neither of which can avail the ap- pellant. No particular formalities are prescribed by law for tb,e exe- cution of the sheriff's bond. If a bond, executed according to the requirements of the common law, be accepted by the court, and the sheriff' thereupon inducted into or continued in office, the bond is obligatory on the parties, although the duty of the court to have it acknowledged and recorded, be omitted. The ceremon}^ of acknowledgement, in open court, and the recording of the bond, are important provisions of law for authenticating the execution of the instrument, and preserving evidence of its existence and contents, but are not essential to its validity as an office bond. See Revised Code, ch. 105, sec. 13, and ch, 44. sec 8. The signing, sealing and delivering of the bond, according to the requirements of the common law, were proved Upon the trial. It is nowhere pro- vided that registration is necessary to make it admissible in evidence, and whether, therefore, it was a bond taken in conformity with the statute, seems not to have been material. JUNE TEEM, 1862. 44T Parker v. Ricks. It was admissible and obligatory between the parties as a com- mon law bond, and no rule of law appertaining to an action upon it, as such, has been violated. So, in whatsoever char- acter it be regarded, no error has been committed to the pre- judice of the defendant. We full}' concnr with his Honor below in the view he took of the question of laches. If seems, from the statement of the case, that the debtor, Boyd, had sufficient means to satisfy the demand, down to the time of making a general assign- ment ; viz. on the 27th of February, 1857; the claim waaput into the hands of the defendant's deputy on the ttth of De- cember, 1856. The deputy, with a view or executing process, on the debtor, visited his place of residence on the 15th of December, and on two other occasions, between that and the 27th of February, 1857, but failed to find him at home on any of the occasions. The debtor resided in Richmond, but had three other places of business in adjoining counties, and spent the greater part of his time away from his place of residence. It does not appear that the officer made any effort to find the debtor, except the three visits stated, and no process was ever executed, nor other means used to collect the debt from the 4th of December to the 27th of February, a period of nearly three months. This was not ordinar}^ care and diligence. — For aught that appears, in the facts of the case, due care and watchfulness, would have secured a different result. Per Curiam, Judgment affirmed. SABRA J. PARKER v. WILLIE B. RICKS. "Where A handed over a sum of money to B, for the use of C, and took from. B a certificate, in writing, expressing that it was the sum given to C in A's will, and obliging B to pay the interest annually to C, it waa held that A bad no right to demand and recover the money from B. 448 IN THE SUPKEME COUET. Parker v. Ricks. Action of debt, tried before Bailey, J., at the Spring Term, 1861, of Edgecombe Superior Court. * CASE AGREED. The action was brought on the following article of writing, given by the defendant to the plaintiif : " This is to certify, that Mrs. S. J. Parker has placed in my hands tiie sura of one thousand dollars, for the use and bene- fit of Miss C. P. Battle, during her life, and also after her death, to remain in my hands until called for by the said C. P. Ba,ttle, the interest to be paid annually to the said 0. P. Battle, for her own use, this being the sum given in her last will and testament to C. P. Battle. May 31st, 1856. (Signed,) W. B. Ricks." On which paper, the following credit is endorsed : " May 31st, 1857, Received sixty dollars in full for the interest up to day and date above written." It is admitted that plaintiif demanded the sum above men- tioned, ($1000,) before suit brought ; also, that C. P. Battle was living when the action was commenced. It is agreed, that if the Court should be of opinion with the plaintiff on the case agreed, judgment should be rendered in her favor for the sum above mentioned, with interest from 81st of May, 1858, otherwise for the defendant. The Court gave judgment of nonsuit, and plaintiff appealed. H. F. Moore., for plaintiff. Strong^ for the defendant. Manly, J. "We can see no reason for reversing the judg- ment rendered in the Court below. Indeed, the case seems to us so entirely free from any question, that we regret the appellant has not furnished us with the grounds of her appeal. The certificate, under date of 21st of May, 1856, is evidence of a purpose, on the part of the plaintiff, to set apart the sum of money, therein mentioned, for the use of Miss Battle, abso- lutely ; the words are plainly such as would be used between persons making a voluntary and unconditional transfer of pro- JUNE TERM, 1862. 449 Dixon V. Warters. perty from one to the other. This is the definition of a gift. A gift is no more revocable, in its nature, than a convey- ance or transfer of property in other modes. Tlie possession being given with the intent to part with the 'p^'0])erty in the thing, the right of dominion for all purposes goes with it. This is too plain to admit a difi'erence of opinion. The fact disclosed by the instrument of writing, t]iat the money, in question, was the sum given to Miss Battle, in the will of the plaintiff, does not affect tlie case. The donor could make a gift of tlie money in presently notwithstanding the provision in her will. The will being ambulatory and revocable, either in wliole or in part, it was competent for Mrs. Parker, in her life-time, to make any disposition of the money which she might think proper. Such disposition would be obligatory, and the legacy be adeemed. The putting the money in the hands of a trustee, during the life of the donor, does not alter the irrevocable nature of tlie transaction. It might answer the purpose of securing more certainly the enjoyment of her bounty to the object of it, but cannot operate to impair it. The recall of gifts, once validly made, is not among the re- sources of those who may be excited by passion, or seized with an extraordinary spirit of gain. Per Curiam, Judgment affirmed. EICHARD DIXON v. JAMES R. WARTERS. A report by a commissioner, in equity, dividing slaves among tenants in common, followed by a decree confirming the same, passes the right of property from the date of the report, and will enable a party, acquirmg such right, to maintain trover for a conversion between the date of such report and the final decree. Held further^ that all the parties to a suit for the partition of property arc es- topped to deny the right of their lellow-takers under such decree. 4^0 IN" THE SUPREME COURT. Dixon V. Warters. Action of tkover for the conversion of a female slave, tried before Osborne, J., at the Spring Term, 1861, of Greene Su- periorOourt. Benajah Dixon, by his last will and testament, gave all his property to his wife, Mary, to divide among his children, and it is admitted that the slave, in question, was a part of that property. Mary, the widow, under the provision of the will, above mentioned, divided the estate, consisting of slaves, money, &c., among the several children of the said Benajah, under which division, the slave in question, was, by deed, assigned to the defendant's wife ; but after Mrs. Dix^ on's death, a bill in equity was filed by Robert Dixon and oth- ers, children of the same Benajah, against the defendant and his wife, who was one of the said children, and other chil- of the same, to set aside the division that had been made by Mrs. Dixon in her life-time, on the ground, that it was unequal between the children. The defendant and his wife were regularly made parties to this suit. Under an order of the Court, commissioners were appointed to di- vide the said property, and it was ordered that the slaves should all be brought forward for that purpose. This was done, and the slave, in question, in the new apportion- ment was assigned to the plaintiff. The report of the commissioners was made to the Court and confirmed. After the apportionment was made, but before the term of the Court, at which the report was confirmed, the defendant sold the slave for the purpose of defeating the plaintiff's claim. There was evidence of a demand and refusal. The Court was of opinion, and instructed the jury, that the defendant was estopped by the proceedings in the Court of Equity, and that on the testimony offered, the plaintiff was entitled to recover. Defendant's counsel excepted. No counsel appeared for the plaintiff in this Court. J. W. Bryan and MoRae^ for the defendant. Manly, J., It will be seen by reference to the case trans- JUNE TEEM, 1862. 451 Dixon V. Warlers. mitted to this Court, and to the papers therein referred to, that a controversy in relation to the division of the estate of Benajah Dixon arose among the legatees, which was settled by a bill in equity. To this bill, both the plaintiff and de- fendant were parties as legatees. The slave, in question, had been a part of the estate of the said Benajah, and was decreed, upon the final hearing of the bill, to belong to the plaintiff. The parties are'^unqueslionabl}'' estopped by the decree. The rights of property, as declared under it, are conclusive upon them, until it is rev evsed; ^^ res adjudicaico est, et mte7'est rei- 2)ubUc(B ut finis sit litiumP We do not now enter into any examination of the justice and propriety of the proceedings and decree in equit}^ These cannot be enquired into in this action, as upon a bill of re- view. The other point, raised by the case, is, whether the action was sustained by proper proof of a conversion. It seems af- ter the division of the slaves was made by the commissioners un- der the decree, and after the same was reported to the Court, but before the confirmation thereof, the defendant refused to deliver up the slave upon demand ; and with a view to defeat the plaintiff's claim, sold her. This was unquestionably a conversion as against him who had the right of property, and the consequent right of possession at the time, and the question resolves itself into this : was the plaintiff vested with these rights ? We think he was. Where a decree or judgment of Court is rendered, declar- ing rights of property in tenants in common of things capa- ble of division and a partition is ordered, made and reported, an inchoate right of property is raised, which the subsequent judgment of confirmation perfects. In such case, the title has relation back to the division, and starts from that time; in like manner as the right of property in an administrator is held to relate back to the death of the intestate, for the more complete protection of estates. There is no error. Per Curiam, Judgment affirmed. 452 m THE SUPREME COURT. Parker v. Richardson. SAMUEL PARKER v. PURDIE RICHARDSON, Executor. In an action on a covenant for quiet enjoyment, it is no defence that the cov- enantor had a life-eslate in the land at the time of making the deed, if such life-estate befallen in, and the covenantee has been evicted by title paramount. ( Wilder v. Ireland, 3 Jones' Rep, S5, commented on and distinguished from this case.) * ■ • Action of covenant, tried before Howard, J., at Fall Term, 1861, of Harnett Superior Court. The action was brought on a covenant of quiet enjoyment, which IS contained in a deed to plaintiff from the defendant's testator, one Haines Richardson, and is in the usual form. The land described in the deed had belonged to one Wil- liam Smith, from whom it descended to his daughter, Flora Ann, who intermarried with the said Haines, the testator. He, (Haines Richardson,) took possession of the land in question, and conveyed it in fee simple to the plaintiff by the deed above set forth, containing the covenant sued on, and he en- tered into possession under it, and held it for several ^^ears. — Haines Richardson had issue of the marriage with Flora Ann, to wit, one William S. Richardson. She and her husband both died, and the said William S. then demanded the premis- es, and having instituted an action of ejectment "against the plaintiff, recovered the same upon his paramount title, and the plaintiff was turned out of possession by a writ issu- ing on such judgment. The defendant contended that inasmuch as Haines Rich- ardson had a life-estate in the land described in his deed, by the curtesy at the time he made his conveyance, although there was a defect in the remainder, there was no breach of the covenant. There was a verdict by consent for the purchase-money and interest, also for the costs of the suit in ejectment by which the plaintiff was evicted, subject to the opinion of the Court on the point of law raised by the defendant's counsel, with leave to set it aside in case he should be of opinion against the JUNE TEUM, 1862. 453 Thompson v. Andrews. plaintiff. On consideration of the point reserved, the Court gave judgment for the plaintiff, and the defendant appealed. J. II. Bryai^ Neill McKay and Btixton, for the plaintiff. Strange, for the defendant. Pearson, C. J. There is no ground on which the correct- ness of the conclusion of his Honor, in the Court below, can be drawn in question. It was said at the bar, that the counsel of the defendant had, on the trial below, relied on the case of Wilder v. Ire- land, 8 Jones, 85. In that case, the life-estate was outstanding ; in this case, the life-estate had fallen in, and the remainderman had made an eviction by a recovery in ejectment, and a writ of posses- sion. The distinction is too plain to admit of further expla- nation. There is no error. Per Curiam, Judgment affirmed. DANIEL P. THOMPSON v. JOHN ANDREWS. Where a person bid off a parcel ofAvheat at an auction sale, and another per- son came forward and gave his note for it, in compliance with the terms of the sale, it was properly left to the jury to determine whether the latter intended to become the purchaser, or to become the surety of the bidder. In order to constitute a pledge, there must be evidence that the property was delivered for that purpose to the pawnee. Action, of trover, tried before Bailey, J., at the Fall Term, 1861, of Orange Superior Court. Smith, the administrator of one Minnis, made a sale, and cried off to Henry Pickhard a quantity of wheat standing in the field unharvested. Pickard named the plaintiff as his 3 454 m THR SUPEEME COURT. Thompson v. Andrews. proposed security to a note he was required, by the terms of the sale, to give. Thompson, when called on to sign the note, as surety, said that he signed as surety for no one but his fa- ther, and asked no one but his father to sign for him, but said he would give his own note for the wheat with his father as surety, or he would pay the money for it. The administrator took plaintiff's note at nine month's credit without surety, which was paid by him at maturity. The administrator deposed that the wheat was threshed with a portable thresher, belonging to the plaintiff, on a tract of land, recentl}' purchased by Pickard, and carried to the mill of the defendant with the wagon, horses and driver of l^laintiff", Pickard being^along ; that the driver on delivering the wheat at the mill, told the defendant that the plaintiff sent him word to keep the wheat until he called for it, or sent him an order for it. Also, that the plaintiff' demanded the wheat or the flour made from it, previously to the bringing of the suit. ^ The defendant alleged that Pickard was the purchaser of the wheat, and offered evidence, tending to show, that Pick- ard had harvested it and hauled it from the place where it grew, to the place above described, and was with the wagon at the delivering of it at the mill, and that he, defendant, had accounted to Pickard for it previously to the demand. His Honor instructed the jury, that if they believed the plaintiff, when he gave his note, intended to become himself the pur- chaser of the wheat, their verdict should be for the plaintiff; but if he designed to carry out the contract of Pickard, ac- cording to the bid, then their verdict should be for the de- fendant. Plaintiff's counsel excepted. Yerdict and judgment for the defendant. Appeal by plaintiff. Graham^ for the plaintiff. Phillijys, for the defendant. Manly, J. The part which the plaintiff seems to have ta- JUNE TEEM, J862. 455 State V. Laughlin. ken (through his agents) in threshing and conveying to the mill the wheat in question, casts some doubt on the owner- ship, and especially upon the true intent of the parties in the negotiation, which resulted in the giving of the plaintiff's note for the wheat. We think, however, the question of property was fairly put to the jury, and in the absence of any request for more spe- cific instructions, was sufficient. Supposing the right of property to have once been in Pick- ard, as found by the jury, there 'was then no evidence to show a pledge of the wheat to secure the plaintiff, in respect to the note which he had given ; an actual delivery for such pur- pose, would be necessary to constitute a pledge, and there was nothing to show this. Per Curiam, Judgment affirmed. STATE V, LAUGHLIN, a slave. A house seventeen feet long and twelve wide, setting on blocks in a stable yard, having two rooms in it — one quite small, used for storing nubbins and refuse-corn to be first fed to the stock, and the other used for storing peas, oats and other products of the farm, is not a barn within the meaning of the statute, Rev. Code, chap. 34, sec. 2, the burning of which is made a felony.. Indictment for arson, tried before Howard, J., at the Fall Terra, 1861, of Robeson Superior Court. The indictment charged the defendant with burning a barn, then having corn in the same. The juiy found a spe- cial verdict as follows, to wit : " That the prisoner did burn, as charged in the bill of indictment, a house, sitting on blocks, built of logs and roofed in, with good floor, and door fastened with padlock, seventeen feet long by twelve feet wide, with 456 IN THE SUPEEME COURT. State V. Laughlin. two rooms, one about three times as large as the other — the small room used for storing the nubbins or refuse corn, to be first fed away to the stock, and at the time of the fire, con- taining five or six bushels ; the other used for storing the peas, oats or other products of the farm, and containing, at the time of the fire, twenty or thirty bushels of peas, some fodder and other things ; the said house being situate in the stable lot, twenty-seven feet from the stable, with two similarly built houses in the same lot, just back of it — one smaller, used in storing the good corn raised on the farm, and the other, the seed cotton, and say, if the Court should be of opinion that the said house was a barn, then they find the prisoner guilt}'' of the arson and felony as charged, otherwise not guilty." The Court remarked, in giving his judgment in the case, " the statute is highly penal and must be strictly construed ; the purpose of the act was to preserve the crops of corn and grain ; the house must be a barn, used in part for storing corn or grain, and must have therein, at the burning, the corn or grain, for the storing of which it is used. Peas are not grain. Did the fact, then, that the refuse corn was placed therein, to be first fed to the stock, make it a barn for storing corn. The witnesses speak of it — some as a barn,, others, a waste-house. The statute being highly penal, the punishment the severest known to our law, the Court holds that it is not clearly with- in the purview of the act. It is, therefore, adjudged that the prisoner be released :" from which judgment the solicitor prayed an appeal to the Supreme Court, which was granted. Attwney Gen&ral and Winston^ Sr.y for the State. Shepherd, for the defendant. Battle, J. When this case was before the Court at June Term, 1861, one of the questions presented was, whether a building, properly called a barn, was the same with one pro- perly called a crib, and it was decided that it was not, and that, therefore, an indictment for arson, in burning a barn,, with grain in it, could not be supported by proof that the JUNE TERM, 1862. 457 State V. Laughlin. building burnt, was a crib with grain in it^ Upon the new trial, which took place in consequence of that decision, a spe- cial verdict was rendered, in which the building was particu- larly and minutely described, and it was submitted to the Court to decide whether it was a barn or not, within the mean- ing of the statute. So, that upon the present appeal, that is the only question presented to us. Arson, at common law, is defined by Lord Coke to be " the malicious and voluntary burning the house of another by night or by day." See 1 Hale's P. C. 566. The house burnt, in order to be a felony, must be a dwell- ing-house, including, however, all outhouses that were parcel tliereof, though not contiguous to it or under the same roof, as, for instance, the barn, stable, cow-house, sheep-house, dairy-house and mill-house, or if the house were not parcel of the dwelling, it must have been a barn, having hay or corn in it ; Jhid. 567. In England, the offense of burning houses and other property, is now provided for by various statutes, among which, the most prominent are, 7 Will. 4 and 1 Vict, chap. 89, sec. 3, which re-enacts, with some variations, the 7th and 8th George 4th, chap. 30, sec. 2. This statute makes it a felony to burn or set fire to " any house, stable, coach- house, out-house, ware-house, office, shop, mill, malt-house, hopoast, barn or granary," &e. In this State, also, the offense of arson depends mainly, if not altogether, upon the statute law. Thus, by the 2nd section, chapter 34, of the Revised Code, it is made a capital felony to burn, wilfully, " any dwell- ing-house, or any part thereof, or an}' barn, then having grain or corn in the same, or store, or ware-house, grist or saw-mill- house, or any building erected for the purpose of manufac- turing any article whatever ; and by the 7th and 30th sec- tions, other provisions are made for the protection from burn- ing of the State house, and other public houses, and houses belonging to any incorporate town or company, in the State. It will be seen that our statute does not mention several of the kinds of houses embraced in that of Great Britain ; as for in- stance, out-houses, stables, coach-houses, offices, granaries, and 458 IN THE SUPEEME COUKT. State V. Laughlin. some others. In the construction of the English statutes, it is settled that it must be proved, on the part of the prosecution, that the house, burnt, comes within the meaning of the stat- ute, and of the description given in the indictments, and as the statutes are hig-lily penal, the construction of them, in these particulars, is very strict. For cases on the subject, see Roscoe's Crim. Ev. p. 276, et seq. Our statute, upon which the indictment, in the present case, is founded, is as highly penal as any known to our law, and must, therefore, receive a construction which will prevent the possibility of the prisoner's losing his life for an offense not within the con- templation of the Legislature. He is charged with burning a barn, and the special verdict finds that he burnt a house of the description therein particularly set forth. If such a house be a barn, he is guilty ; if not, he is not guilty. In Webster's Dictionary, a " barn" is said to be "• a covered -building for securing grain, hay, flax and other productions of the earth." Bouvier, in his Law Dictionary, defines it to be " a building on a farm, used to receive the crop, the stabling of animals, and other purposes." The house described, in the special ver- dict, certainly does not come within the meaning of either of these definitions ; but it does come within the meaning of a crib, which, according to Webster, is a term, used in the Uni- ted States, to signify " a small building, raised on posts, for storing Indian corn," or a granary, which, according to same authority, is " a store-house or repository of grain, after it is threshed ; a corn-house." We have seen that in the English statute, above referred to, a granary is mentioned as a diflfer- ent house from that of a barn, and we believe that in many parts of this State, and perhaps in the greater part of it, there is a well-known distinction between a barn and a granary or a crib, corresponding in the main with the above definitions. Many of the wealthy planters have both kinds of houses, while most of the farmers, in moderate circumstances, have only one. Our conclusion is, that the building, as described in the the special verdict, was not a barn within the meaning ^of the JUNE TEEM, 1862. 459 State V. Jim. statute ; and that not being a barn in itself, it was not made so by having been used for keeping the refuse Indian corn, and for storing peas, oats and other produce of the farm. The statute requires that the house shall be a barn, and shall, be- sides, have corn or grain in it, to make the burning of it a capital felony. The judgment in favor of the prisoner, upon the special ver- dict, must be affirmed, and it must be so certified to the Court below. Pek Curiam, Judgment affirmed. STATE V. JIM, (a slave) A house eighteen feet long, and fifteen wide, built of logs notched up, the cracks covered inside with rough boards, roofed with rough boards, with a good plank floor, and a door about four feet high, containing, at the time of the burning, a quantity of corn, peas and oats, though the only building on the fixrm used for storing the crop, is' not a barn within the meaning of the statute ; Rev. Code, chap. 34, sec. 2. Tuis was an indictment for akson, tried before IIowaed, J., at the Fall Term, 1861, of Lenoir Superior Court. The factSjOf the case are so fully stated in the opinion of the Court, that it is unnecessary to set them out here. Attorney General and Winston^ Sr., for the State. J. W. Bryan, for the defendant. Battle, J. This is an indictment, under the statute. Rev. Code, chap. 34, sec. 2, for Arson, in burning a barn, having corn in it. Upon the trial it was proved, that the house burnt ^fas eighteen feet long, and fifteen feet wide, was built of logs notched up, and the cracks were covered inside with 460 IN THE SUPREME COURT. Parker v. Davis. rough boards, the house was roofed with rough boards, had a good plank floor, and a door about four feet high, of the usual width, which opened to within a log or two of the floor, and was fastened with a padlock. At the time %vhen it was burnt, the house contained a quantity of corn, peas, and oats, and it was the only building on the farm used for storing the crop. The witnesses stated that it was called sometimes a crib, but generally a barn. The presiding Judge charged the jury, that the house was a barn within the meaning of the statute ; whereupon a verdict of guilty was rendered against the de- fendant, and from the judgment thereon, he has appealed to this Court. We difier from the opinion expressed by his Honor, that the house, as described by the testimony, was a barn. The descrii^tion of it does not diflFer, materially, from that set forth in the special verdict rendered by the jury, in the case of the State Y. Laughlin, (ante 455) in which we have decided -at the present terra, that the house burnt was not a barn, but was either a crib or a granary. Toy the reasons given for our opinion in that case, we hold that the house burnt, as proved on the trial in the present case, was not a barn, and that, conse- quently, the prisoner is entitled to a venij^e de novo, and this will be certified to the Court below as the law directs. Pee Curiam, Judgment reversed. D. A. PARKER v. HENRY DAVIS. An inquisition of lunacy is not conclusive against a person dealing with a suppos- ed lunatic ; but he may show that at the time of the contract, such sup- posed lunatic had sufficient capacity to make it. (Cases of Arrington v. Short, 3 Hawks 71 ; Clirisimas v. Miichell, 3 Ire. Eq. 533, and Rippy v. Gant, 4 Ire. 443, cited and approved. Case of Fessenden v. Jones, 7 Jones 14, cited and distinguished from this.) JUNE TERM, 1862. 464 Parker v. Davis. Action of assumpsit for goods sold and delivered, tried be- fore Saunders, J., at the Spring Term, 1861, of Stanly Supe- rior Court. The defendant pleaded, specially, that he had a guardian, regularl}' appointed under a commission of lunacy. There was no contestation as to the sale and delivery of the goods, nor the price ; and it appeared that they were of a proper kind, and useful for the subsistence of defendant and his fam- The defendant's counsel produced the record of the inquisi- tion of lunacy finding the defendant a lunatic and appointing to him a guardian, which was regular in form and not ques- tioned. The plaintiff then proposed to show, by witnesses, that at the time of the dealings, in question, the defendant was of sound mind. The evidence was objected to by defendant, but admitted by the Court : For which, defendant's counsel ex- cepted. It was then stated by the witnesses, that the defendant had, for years, been in the habit of drinking spirits to great excess ; that when sober, he was a man of ordinary intelligence — ca- pable of understanding what he was about and of making a contract; that for the last ten years, he generally came to town sober and went away drunk ; that he had a large family of children, and that the articles in question had been pur- chased either by his wife, or some one of his children, or by himself, when sober, and that they were family articles ; that the account had been drawn ofi" and given to the defendant, who, after taking it away, returned and said, ' all was right' The defendant's counsel objected, that the suit could not be maintained against the defendant, as he had a regular guar- dian, and cited the case Fessenden v. Jones^ 1 Jones 14. His Honor charged the jury, that if they were satisfied the articles had been purchased by the defendant, or by his fam- ily, with his knowledge and approbation, when he was sober, and had sufficient capacity to understand the nature of the transaction ; that the account had been examined by him and 462 m THE SUPREME COUET. Parker v. Davis. admitted to be correct, he then having sufficient capacity to understand, they should find in favor of the plaintiff, but if the evidence failed to satisfy them as to the capacity of the defendant, their verdict should be for the defendant. Defend- ant's counsel excepted to the former part of the charge. Yerdict and judgment for the plaintiff. Appeal by the de- fendant. 'McGorTde^ for the plaintiff. Ashe^ for the defendant. Battle, J. We concur in the opinion expressed by his Honor in the Court below. An inquisition of lunacy is not conclusive, and a person who deals with the supposed lunatic may show that at the time when the contract was made, he had sufficient capacity to make it. This was expressly de- cided by the Court, in the case of Arrington v. Shorty 3 Hawks, 71, and that decision has been confirmed by the sub- sequent cases of Christmas v. Mitchell, 3 Ire. Eq. 535, and Ri])yij V. Gant, 4 Ire. Eq. 443. The counsel for the defendant has referred us to the Revis- ed Code, chap. 57, sec. 1, which enacts that guardians of lu- natics shall have like powers, and be subject to like remedies on their bonds, as guardians of orphans, and he contends that all contracts for articles or for services intended for the bene- fit of lunatics, like those for infants, ought to be made with their guardians, and that if made with the lunatics, them- selves, they are no more binding than such contracts would be if made with minors ; I'essenden v. Jones, 7 Jones, 14. The analog}'- will not hold in cases like the present, because infants must necessarily remain such until they arrive at full age, when the guardianship of them terminates ; but a luna- tic may become of sound mind, and be capable of contracting for himself, and yet the guardianship may continue until an- other inquisition is found, by wliich he is declared to be of sound mind again. Besides, the provision in the Revised Code, to which reference has been made, was taken from the JUNE TEEM, 1862. 46S State V. Brandon. act of 1784, (Chap. 228 of Rev. Code of 1820,) which was long before the decision, to which we have referred, was made. The finding of an inquisition and the appointment of a guar- dian for the defendant as a lunatic, not being conclusive up- on the plaintiff, the testimony oftcred by him to show the ca- pacity at the time when the goods were purchased, was pro- perly admitted, and as no valid objection can be urged against the charge made thereupon by the presiding Judge, the judg- ment must be affirmed. ' Per CuRiAisr, Judgment affirmed. STATE V. WILLIAM L. BRANDON. No declarations of a prisoner made after the commission of a liomicide, as to the manner of the transaction, that are not part of the res gestcc, arc ad- missible for him. If a party deliberately kill another to prevent a mere trespass to property, be is guilty of murder. The law does not recognize any moj-al poiver as compelling a man to do wbafc he knows to be wrong. The insanity which takes away the criminal quality of an act, must be such as amounts to a mental disease, and prevents the accused from knowing the nature and quality of the act he is doing. liSTDicTirENT for MURDEK, tried before Bailey, J., at Fall Term, 1861, of Caswell Superior Court. The defendant was indicted for the murder of one William J. Connelly, liis father-in-law. He was living on a place be- longing to the deceased, some six miles from the residence of the latter, under an agreement that he should have all he made over and above what was required to support his children and three daughters of the deceased, who lived in the house with the defendant. The corn had been gathered and was in a pen on the premises. On the day before the homicide, as was stated 464 IN THE SUPEEME COUKT. State V. Brandon. by one Jachson, the defendant was in his granary with his gun and two dogs ; on being asked what he was doing there, he said that Connelly had gone to 'Squire Richmond's to get a writ, and have hiin put out, and divide the corn, and if he came there, he intended to kill him ; that Connelly had taken his daughter, Jane, to Richmond's, and she had sworn to one lie against him, and he didn't intend to stand it any longer. John Moore swore that he lived with the prisoner ; that the crop of corn, made in 1860, was gathered and put in a pen near the granary ; that Connell}'^ came there, Friday, day of l^ovember, and put his horse in the stable, and the usual salutations passed between Connelly and the prisoner ; that the defendant was sitting in the door of the granary with his gun inside, near him ; that Connelly got on the corn in the pen, and threw a few hands full of corn into the wagon, when the prisoner said to him, " old man get down oif of that pen and go out of the lot, or I will hurt you ;" that Connelly got down from the pen, saying something that witness did not hear distinctly ; that at this time the prisoner came out of the door of the granary, with his gun in his hands, and they walk- ed a few steps towards each other ; the prisoner then raised his gun, took aim at the deceased and shot him ; that the de- ceased was also going in the direction of the stable, where his horse was, and had nothing in his hands when the gun fired ; that he was about 63 years of age. Dr. Broolcs^ after testifying as to the extent of the wound, stated that the father of the prisoner was deranged, at one time, for about two months ; that the prisoner had a sister, an uncle, and an aunt, who had been deranged. He alse testi- fied to the singular conduct of the prisoner when drunk, but did not consider him deranged at that time. Mr. Warf stated, that he saw the prisoner in the granary with his gun, and Connelly on the pen; that prisoner ordered him down ; that Connelly threw several hands full of corn into the wagon, and told John Moore to get the measuring tub ; John said it was locked up and prisoner had the key ; JUNE TEEM, 1862. 465 State V. Brandon. he told Moore to burst the door open and bring it to him ; that every thing there belonged to liira ; Prisoner then said, " old man, get down from there and go out of the lot, or I will hurt you ; you are meddling with that that does not concern you or yours." Connelly replied, "I will show you, you villain, to whom it belongs ;" Connelly got off the pen quickly, and the boys got down at the same time ; tliat the witness then turned towards the gate, and presently heard the report of the gun ; that he then returned, and found ■ Connelly lying with his head within three feet of the post of the granary, and a stick lying near the body of the deceased, and blood upon the hand of the prisoner; that shortly afterwards he examin- ed the hand of the prisoner, and the skin was off for about the size of a ten cent piece. This witness, and several others, testilied as to the conduct of the prisoner, prior to the com- mission of the act, tending to show that he was deranged, and that his ancestors were deranged. The prisoner then offered to give in evidence what he said to Dr. Brooks shortly after the homicide was committed, to wit, that the wound, on his hand, was caused by a blow given by de- ceased with a stick, which caused the blood on his hand. This evidence was rejected by the Court, and defendant's counsel excepted. The prisoner's counsel insisted, 1st, that although the prisoner knew it was wrong to kill the deceased, yet, if he was impell- ed to the act by a moral power, which he could not resist, he was excusable. 2. That if the deceased committed a trespass in attempting to take away the corn, and the prisoner, in order to protect his property, sliot and killed the trespasser, it would be man- slaughter and not murder. The Court charged the jury, that if the prisoner was insane at the time of committing the hom- icide, they should acquit him ; that every one was presumed to be sane until the contrary was shown ; that the prisoner must satisfy them of that fact. Defendant's counsel excepted to the charge. 4:^6 IN THE SUPREME COURT. State V. Brandon. Verdict^guilty of murder. The Court pronounced judg- ment of death, and the defendant appealed. Attoymey General^ and Winston, Sr., for the State. No counsel appeared for the defendant in this Court; Manly, J. The first question, which the record presents, is, whether the declarations of defendant were competent, in his behalf, to show how he received a certain wound. It is stated that the declarations were made shortly after the homicide. There is no principle, upon which these can be held admissible, except as a part of the " 7'es ffestce,'^ and the statement of the case excludes the idea that they were of this nature. The declarations were after the act was past and done. This question has been brought under review in this Court on several former occasions, which will be seen by a reference to the cases o^ State v. Scott, 1 Hawks, 24; State v. Huntley, 3 Ire. 418 ; State v. Tilly, do. 424. The profession- al idea seems to have been that a narrative given by a per- son, who has committed a homicide, as to how it happened, immediately after the act, and when the first proper opportu- nity off'ered, should be admitted. But this evidence, though dictated by what, in divers supposable cases, might be deem- ed a necessity, is so clearly against principle, and entitled, in the greatest number of instances, to so little credit, and is so well calculated to ohscure rather than elucidate a transaction, that the Court have uniformly adhered to their original judg- ment, by which it was excluded. It has been no where, that we are aware of, interpolated as a rule of evidence, upon^ the common law, by legislation or otherwise. In the case before us, tlie circumstances under which the declarations, in question, were made, are so vaguely stated, as not to bring them within any proposed or i-easonable rule. But we make no question about this. Take the statement of the case in any sense, and the declarations are plainly excluded by the well-settled law of evidence in North Carolina. They must JUNE TERM, 1862. 467 State V. Brandon. be a part of the res grstce, and come in us explanation of an act being done when they were made, or not at all. The second question arises upon a position taken by the prisoner's counsel, that if the killing was to protect prisoner's property from the trespass of the deceased, it would be an extenuated case of homicide. In this position, it seems, the Court did not concur. The matter involved in this point, has been before this Court heretofore, on more occasions than one. It seems to have been first carefully considered in the case of the Siaie v. Morgan, 3 Ire. ISO, and, again, in the /State v. McDonald, 4 Jones, 19. In these two cases, it is fully set- tled, if a party deliberately kill to prevent a mere trespass to property, he is guilty of murder. The third and last question, made upon the record, arises out of proofs, in respect to the mental condition of the prison- er. The record states the prisoner's counsel insisted that, although the prisoner knew it was wrong to kill the deceased, yet, if he was impelled to the act by a moral power, which he could not resist, he was excusable. The words, "moral power," may mean threats, duress of imprisonment, or an as- sault imperilling life, which is the usual sense of the phrase, or it ma}' mean, some siqyernatural agency. The former con- struction would make the position of the counsel entirel}^ in- applicable to the case ; we, therefore, adopt the latter. The position, thus interpreted, does not fall within any approved definition of a " non coiivpos mentis.'''' It assumes that the accused knew the nature of his act and that it was wrong. The law does not recognize any moral power compelling one to do what he knows is wrong. "To know the right and still the wrong pursue," proceeds from a perverse will brought about by the seductions of the evil one, but which nevertheless, with the aids that lie within our reach, as we are taught to believe, may be resisted and overcome, otheiwise it would not seem to be consistent with the princi- ples of justice to punish any malefactor. There are many ap- petites and passions which by long indulgence acquire a mas- tery over men more or less strong. Some persons indeed deem 468 m THE SUPREME COURT. State V. Brandon. themselves ineupable of exerting strength of will sufficient to arrest their rule, — speak of them as irresistible, and impotent- ly continue under their dominion ; but the law is far from ex- cusing criminal acts committed under the impulse of such passions. To excuse one from criminal responsibility the mind must, in the language of the Judge below, be insane. The accused should be in such a state from mental disease as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong, and this should be clearly established. This test, a knowledge of right and wrong, has long been resorted to as a general criterion for deciding upon legal accountability, and with a restricted application to the act then about to be com- mitted, is approved by the highest authorities. But we do not undertake to la})- down any rule of universal application. It seems to be chimerical to attempt to do so from the very nature of things, for insanity is a disease and, as is the case with all other diseases, the fact of its existence is not estab- lished by a single symptom, but by a body of symptoms, no particular one of which is present in every case. Imperfect as the rule may be, it covers a great variety of cases and may aid the tribunals of the country in judging of this most diffi- cult subject. The case put of a criminal act committed under the belief that it was commanded by God, would fall under the rule. The perpetrator in such would not know he was doing what was wrong, but on the contrary, believe he was doing what was right in obeying a power who had a right to command him. This condition of mind would constitute in- sane delusion in respect to the particular act committed, and if clearly established by proof of pre-existent facts, would ex- cuse from responsibility. It will thus be seen that instructions, in conformity with the argument of prisoner's counsel, ought not to have been given. If the prisoner knew that what he did was wrong, the law presumes that he had the power to resist it, against all supernatural agencies, and holds him amenable to punish- ment. There is no error in the instructions actually given JUNE TERM, 1862. 469 Tomlinson v. Lono;. npon this subject, and in the absence of any prayer for other specific instructions, there is no omission, of which the prison- er has a legal right to complain. There being no error found upon the record, this must be certified to the Superior Court of law for Caswell, that the said Court may proceed again to pronounce the judgment of the law. Per* Curiam, Judgment affirmed. JOHN 11. TOMLINSON v. W. W. LONG. The sheriff's return on process in his hands, " not to be found in my county," implies that the person to be reached by the process, was not to be found after due search, and if the fact, thus impUed, be untruly stated, the return is a false one. Where a person, to be summoned by a subpoena, was at his home, in the sheriff's county, for fifteen days preceding the day of the return of the pro- cess, though the sheriff lived twenty-five miles from him, and though he was informed that such person would continue out of the county during al\ that time, it was held he was liable for the penalty for making a false re- turn, in saying that he was not to be found. Action of DEBT for a penalty, tried before French, J., at the Spring Term, 1861, of Iredell Superior Court. The declaration was fvi- the penalty of $500, for a false re- turn to a subpoena placed in defendant's hands, to be by him executed, as sheriff of Yadkin county. A suit, in equity, was pending in the Court of Equity of Iredell count}', between John H. Tomlinson, plaintifl:', and B. B. Benham and W. II. A. Speer, defendants, which had been referred to W. P. Caldwell, Esq., clerk and master of the said Court, to state an account between the parties. It was prov- ed by Mr. Caldwell,, that on or about the 18th of November, 1859, he issued a subpoena, in due form, directed to the sher- 4 470 IN THE SUPKEME COURT. Tomlinson v. Long. iff of Yadkin count}^, commanding him to summon J. S. Clay- well, witness for plaintiff, to be, and appear, in Statesville, N. C, on the 10th of January, 1860, and that about the time of issuing said subpoena, he either gave it to defendant. Long, or mailed it to him, directed to Yadkinville, the county seat of Yadkin county, of which the said Long was sheriff, and that the same was returned to him, at Statesville, on the 10th of January, 1860, endorsed, "]^ot to be found in my county." The day when the subpcena came to the hands of the defend- ant, had not been endorsed on the process. J. S. Claywell testified, that he had been a citizen of Yadkin count}'^ for ten years past, and was personall}^ well known to the defendant; that he lived some fourteen miles from Yadkinville, and was at home throughout the montli of December, 1859, except some five days immediately preceding christmas day ; that he returned home on christmas day, and i-emained at home, about one mile from Jonesville, in Yadkin county, during the mouth of January, 1860. The witness stated that he often crossed the river into Surry, but did not i-ecollect that hciwas out of the county from December 25th, 1859, till 10th Janu- ary, 1860. jR. 31. Allison testified, that he was in Yadkin county du- ring the first week in January, 1860, and saw the witness, Claywell. £. B. Benhani, for the defendant, testified that the defend- ant. Long, came to his house, in Jonesville, in December, 1859, while Claywell was absent from the county, and told him he had a subpoena for Claywell, to give evidence in be- half of Tomlinson, in the suit aforesaid, and he told Long that Claywell had left on that day, and would not return to Yad- kin for two or three weeks. This evidence was objected to by plaintiff's counsel, but admitted by the Court. The defendant introduced E. C. lioiigJdon^ one of his dep- uties, who testified, that on the day before the return day of the subpoena, he went to the residence of the witnesss, Clay- well, but did not find him at home ; that Long's post-ofiice is JUNE TEKM, 1862. 471 Tomlinson v. Long. Huntsville, ten miles from Yadkin, and twenty -five miles from Clay well's. On this state of facts, his Honor intimated that the plaintiff could not recover; in deference to which, he took a nonsuit and appealed. Barber^ for the plaintiff. FowU^ Boyden and Mitchell^ for the defendant. Manly, J. After some reflection upon the facts of this case, we arrive at a different conclusion from that of the Court below. It does not appear, definitely, upon what day in December the defendant received the subpo3na. It was either delivered to him personally, or transmitted through the mail from Ire- dell to Yadkin on the 10th ; and as the distance is short, and we are certainly informed that he received it in that month, on some day previous to christmas, it is fair to conclude he received it as early as the 15th. Claywell, the indi- vidual to be summoned, had an established and well known residence in the count}^, and was absent from the county for five days, only, immediately preceding christmas day. We attach but little importance to the distance between the sheriff and witness' residence. The sheriff must be able, eith- ther by himself or deputies, to discharge his duty in all parts of the county, with proper ofiicial dispatch. In like maunncr, we attach but little weight to the misin- formation derived from Benliam." The sheriff' should assure himself of a fact, upon which he bases a return^ by something more certain than the conjectures of wayside men. Without criticisiug the words in which the return, " not to he found^'' is couched, but putting a construction on them most favorable to defendant, viz : that witness had not been found after due search, and our opinion still is, that it amounts to a false return. It was not true, thus, to say, by implication, that proper search had been made. If the sheriff desires to avoid the heavy penalty of the stat- 472 IN THE SUPKEME COURT. Tomlinson v. Long. ute for 2i false return^ he should, in all cases of doubt, return the facts, and not merely his conclusions. By doing so, if it should appear that he has erred, he will have subjected him- self to the penalty of $100, for not duly executing and return- ing, but not to the higher penalty for a false return. This last penalty is imposed only for returns false in, fact^ and not for those which are false only by way of inference^ (the facts be- ing truly stated). This distinction is taken in the late case of' Hassel v. Latham, 7 Jones, 465, The law, as well as christian morality, abhors falsehood. It is especially mischievous and odious in a public officer, and hence the severe penalty imposed upon it in the Code, chap. 105, sec, 17. It is not necessary there should be a criminal intent. This characteristic is probably absent from the pre- sent case. Falsehood, in fact, is the mischief guarded againsti The rigour of the rule is essential to secure, on behalf of the public, a corps of officers, diligent, circumspect and truth- ful, qualities which will be regarded the more indispensable,, when we consider the numerous important and sacred inter- ests, committed to their charge. We repeat that this is- no hardship to the sheriflp. If he be in any doubt as to the legality of his conclusions in making a return, let himi^ return the facts and throw himself upon the judgment of th-e court. He can, in that way, avoid the pen- alty of a mistatement of fact, while he will fall, at worst, on the penalty for negligence, which is comparatively venial. In the present state of the sheriff's return, we think it is false. Tlie nonsuit must, therefore, be set aside, and a venire de- novo ordered. Per Curiam, , Judgment reversed. JUNE TERM, 1862. 473 Albright v. Tapscott. JOHN G. ALBRIGHT v. JOHN TAPSCOTT. -A return made by a sheriff, that is false in fact, although the officer was mis- taken in the matter as to which he made his return, will, nevertheless, sub- ject him to the penalty for a false return. In an action of debt for a .penalty, in which nil debit is pleaded, a verdict finding all issues in favcr of the plaintiff and assessing his damages to $500, will not sustain a judgment of recovery. Action of debt against the defendant, as sheriff of Ala- mance, for making a false return, tried before Bailey, J., at the Fall Term, 186L The action was brought for the penalty of $500, A sub- poena came to the hands of the defendant, as sheriff of Ala- mance county, commanding him to summon one Cynthia Randleman, &c., as a witness for the plaintiff. The sheriff's deputy, to whose hajids the process came, summoned one Ju- lia Randleman, the wife of the defendant, in the suit, and did not summon Cynthia Randleman, and did not have an oppor- tunity of doing so, for she was not in the county during the period prescribed for the execution of the writ. The writ was, nevertheless, returned as "executed." The Court was of opinion, that on this state of facts, the plaintiff was entitled to recover, and so instructed the jury, who returned a verdict for the plaintiff, and judgment being given thereon for plaintiff, the defendant appealed. ]J^o counsel appeared for the plaintiff in this Court. Crraham, for the defendant. Manly, J. The return of the sheriff, which is the subject of this action, is certainly untrue. We have held, at this term, in the case of Tomlinson v. Long^ (ante A:Q^) that it is not necessary the officer should be convicted of any criminal intent. It follows, therefore, that the return is false, in the sense of the statute, Rev. Code, chap. 105, sec. 17, and that the de- fendant, in the present state of the return, is subject to the 474 m THE SUPREME COURT. Albright v. Tapscott. penalty of $500. We refer to what is said in the case of To?n- linson v. Long, as containing the reasons that control our judg- ment in this. The great importance of securing for these returns, absolute verity, being quasi records, and the strong temptations, which exist to cover over omissions by the technical form of a re- turn, lead us to adopt the stringent rule, that every untrue return, in fact, is a false return, within the purview of the statute. It is not difficult to conceive of cases, in which the sheriff might be deceived into a false return without laches on his part. In such cases the power of allowing amendments, so as to state the facts of the case, should be liberally indulged b}'^ the court. By such means, any surprise, into which the officer might have fallen, would readily be obviated. We concur, therefore, entirely with the Court below, in its judgment, as to the character of this return. But there is an irregularity in the verdict, for which the judgment must be arrested. The action is, properly, one of debt. The plea is nil debet. The verdict finds all issues in favor of the plaintiff, and assesses his damages to $500, and interest. This is not such a verdict as consists with the pleadings. It would have been technical and proper, in an action upon the case, for damages, which are secured by the same statute that gives the penalty, but is insensible as a finding in an ac- tion, upon the statute, for the penalty. It is not responsive to the issues, and there can be no judgment upon it ; Archbold's K P. 850. Pek Cukiam, Let the judgment be arrested. JUNE TERM, 1862. 475 Ledbetter v. Arled^e. GEORGE LEDBETTER v. ISAAC ARLEDGE. The provisions of the Revised Code, chap. 31, sec. 50, requiring the return of all writs, process, &c., to be made on the first day of the term, to which they are returnable, does not apply to executions or writs oi fieri facias. Motion for a judgment ni. si. against the defendant, as sheriff of Henderson, heard before Dick, J., at Spring Term, 1861. This case was submitted to his Honor on a CASE AGREED, An execution issuing from the Count}'' Court of Henderson, in favor of George Ledbetter against one William Reese, more than twenty days before the term of the Court, was placed in the hands of the defendant, who failed to return the same on the Monday of the term. On Thursday of the term, to which the execution was returnable, the plaintiff asked for and ob- tained a judgment ni. si. against the defendant, who immedi- ately thereafter paid the amount, called for in the execution, to the plaintiff's attorney, and asked for and obtained leave of the Court to make his return. On the next day (Friday) the defendant asked leave of the Court to strike out the order granting a judgment against him, which was granted, and the judgment ni. si. was ordered to be stricken out, from which the plaintiff prayed and obtained an appeal to the Superior Court. In the Superior Qowvt a. pro /wwid^ judgment was given for plaintiff, and defendant appealed to this Court. No counsel appeared for the plaintiff in this Court. Phillips, for the defendant. \ Manly, J. The provisions of the Code, chapter 31, section 50, requiring the return of all writs, process, &c., on the first day of the term, to which they are returnable, does not apply to executions or writs of fieri facias. This is apparent from a consideration of the section in all its parts, for it is further provided therein, that process, not made returnable or executed as directed, shall be adjudged 476 IN THE SUPREME COURT. Houston V. Neuse River Nav. Co. void upon the plea of the defendant. From which it seems, that it means such process only as a plea could be made to, viz : original, or mesne ; see Duncan v. Hill^ 2 Dev. and Bat. 291. It is also apparent, from the provisions made, by law, for postponing sales under executions, from the first to the later days of the term ; Rev. Code, chap. 45, sec. 14, and from the general practice of the courts. ■ The sheriff is allowed all the days of the term to return a jieri facias^ unless he be ruled, upon motion, and cause shown, to return it on some intermediate day. When the return is made, like other acts of the Court, it stands, by relation, as if done on the first day. It follows that when a sheriff made due return on Thursday of his execution, it was not only in the power, but it was the duty of the Court to strike out the conditional judgment, as soon as the fact of the return was brought to its notice. The proceedings of a court are all mpapei\ until its close, and are subject, in the mean while, to be reviewed, amended or revoked, as may seem to the Court's maturer judgment right and proper. The action of the County Court was strictly in accordance \vith law, and consequently, the ^/'(? /(9/7>z« judgment of the (superior court erroneous, wherefore, the latter should be re- Versed, and judgment be for the defendant. Per Ctteiam, Judgment reversed. WILLIAM J. HOUSTON, Solicitor, v. THE NEUSE EIVER NAVI- GATION COMPANY. An information in the nature of a writ of quo warranto against a corporation, to have its privileges declared forfeited, because of neglect and abuse in the exercise of them, must be filed in the name of the Attorney General of the State, and cannot be instituted in the name of a solicitor of a judicial circuit. In a matter of a public nature, the officer, who acts for the State, does not pay costs to the other party. JUNE TERM, 1862. 47T Houston V. Neuse River Nav. Co. This was an information in the nature of a quo warranto, heard at tlie Fall Term, 1861, of Craven Superior Court. The information sets forth divers causes, why the corporation should be considered as having forfeited its privileges, but from the view taken of tlie case in this Court, neither of these allegations, nor the grounds of defens^, relied on in the answer, ar^ material to be stated. The cause was disposed of in the Court below by api'o /(9r7??.« judgment, that the information be dismissed at the plaintiff's costs, from which plaintiff ap- pealed. J. IV. Bryan., for the plaintiff. Attmore, for the defendant. Battle, J. This is an information filed on belialf of the State by the plaintifi', as solicitor of the second judicial cir- cuit, in the Superior Court of law for the county of Craven, against the defendant, to enquire by what warrant the com- pany is now exercising its coi-porate franchises, it being al- leged that it has forfeited them. The information was filed by leave of the Court, first had and obtained. The defend- ant appeared, by attorne}^, and put in an answer, and upon the hearing in the Court below, the information pr'o forma, was ordered to be dismissed at the plaintiff's costs ; and the plaintiff appealed to the Supreme Court. Upon the argument hei-e, it was objected that the informa- tion was improperly filed by a solicitor, and it is contended that it must be dismissed, because it was not instituted under the order of the General Assembly, or the Governor, or the At- torney General of the State, as directed by the 25th section of the 26th chapter of the Revised Code. The objection is, we think, well taken, and is fatal to the proceeding in the pre- sent form. The information is in the nature of a writ oi quo warranto., instituted on the behalf of t'.ie covereign, and it can be used only in the cases and in the manner prescribed by the sovereign. It follows that, as the Legislature has prescrib- ed in the chapter and section of the Revised Code, to which 478 IN THE SUPREME COURT. Mason v. Williams. ^ reference has been made, that an information filed against a corporation for the purpose of having its franchises declared to have been forfeited by abuse or neglect, must be by the sanction of the General Assembl}', or the Governor, or the Attorney-General, it cannot be filed by any other authority or by any other officer. There are, indeed, oases in which an information in the nature of a writ of quo loarranto^ may*be filed by -a solicitor as well as by the xlttorney-General, but it is in consequence of an express provision of law to that effect. Thus, when a person usurps an ofiice, or intrudes into it, or is found unlawfully holding or executing it, the 95th chapter of the Revised Code, section 101st, authorises the Attorney-Gen- eral or a solicitor for the state, to institute a proceeding of this kind against him for the purpose of trying his right to it. Tlie authority thus given expressly to a solicitor, in a partic- ular case, is au irresistible argument to prove that he has it not in other cases, where it is not only not given to him, but expressly conferred upon another. The order, dismissing the information, is afiirmed, but it is reversed as to the costs. In a matter of a public nature, the officer, wdio acts for the State, does not pay costs to the other party ; State v. King, 1 Ire. 22 ; 8tate v. Banner, Bush. 257. Pee Cukiam, Information dismissed. I WILLIAM S. MASON v. ALFRED WILLIAMS. Where a person purchases a chattel from one who is not the owner of it, and it is admitted by the parties, or found by the jury as a fad, that the purchaser was induced to make the purchase by the declarations or acts of the true owner, the latter will be estopped from impeaching the transaction. Action of teover for the conversion of a steam engine, tried before Heath, J., at the Fall Term, 1860 of Wake Superior Court. JUNE TEKM, 1862. 479 Mason v. Williams. The case was submitted to his Honor and the jury upon the following CASE AGREED. " The title to the engine, in question, %vas in James F. Jor- dan & Co., upon 24th July, 1851, when William D. Cooke, one of the partners, conveyed his interest tlierein to P. F. Pescud, as trustee, for sale, &c. On the 7th November, 1851, James F. Jordan, another partner, conveyed his interest to one W. H. Jones, as trustee, for sale, &c. As was understood between the parties to these conveyances, the partnership of James F. Jordan, tfc Co., which consisted of other partners besides the two mentioned, was still carried on, and so con- tinued to be, retaining the possession of the property, until it became insolvent, at which time, by assignments, its property became vested in the plaintitf, the corporation having con- veyed tlie same in 1855, to one Benedict, in payment ofafirm debt, who, upon 6th of June, 1856, conveyed it to the plain- tiff, as trustee, for sale, &c. After this, P. F. Pescud, being in his own right, and as agent for Jones, about to make sale of the property, conveyed as above, and not knowing that the engine, in question, was included therein, was informed by Mason that it was so included, and that he ought to sell it, he (Mason) having no claim upon it. There was no evidence that the defendant had any knowledge of this conversation before the sale. Pescud, accordingly, a few weeks afterwards, to wit, in No- vember, 1857, offered it at public sale, with the other things, and stated to the bidders that his title was good, asking, if any one present had any claim, but stating, he only sold his right to it and that of Jones. Mason was present, within hear- ing, and made no objection. He also bid for the engine, but it was purchased by the defendant. It is admitted that Mason then believed Pescud's title was good ; subsequently, however, in consequence of the decision in the case Bank v. J^owle, 4 Jones' Eq. 8, he had reason to change his views, whereupon he made a demand for the en- gine upon the defendant, and the latter refused to deliver it^ 480 IN THE SUPREME COURT. Mason v. Williams. It is agreed that, unless defendant was tenant in comraoR with the plaintiff, or as against the plaintiff, sole owner at the time of the demand and refusal, there was a conversion before the bringing of this suit, and that if he were tenant in ■common, there was a conversion, supposing that a claim, to the exclusive ownership, amounted to such." These facts being agreed upon, his Honor -charged the jury in favor of the defendant, who rendered a verdict for the defendant. Judgment; and appeal by plaintiff. Fowle^ for the plaintiff. Phillips^ for the defendant. Battle, J. It appears from the agreement of the parties that at the time when the defendant purchased the steam en- gine in question at th-e public sale made by Pescud, the plain- tiff was the owner of it, but it is contended for the defendant that the plaintiff, in consequence of his declarations and acts, is stopped from asserting his title to the article. The argu- ment is that it must be taken either, that the plaintiff had waived his title, and thereby authorized Pescud to sell the ar- ticle, or that he cannot now be allowed to assert it, because it would be a fraud upon the defendant to permit him to do so. In support of his argument the counsel for the defendant has cited and relied upon the cases of Bird v. Benton^ 2 Dev. Rep. 179, and Cornish v. Abington, 4 Hurl, and Kor. Rep. 549. In the first of these cases, it is held that a sale or pledge of a chattel by a person, who has no title, in the presence of the owner and without objection on his part, estops him from setting up his title to impeach the transaction. In the latter case, the Court says, that if from the actual expressions or course of conduct of one person, the other may reasonably in- fer the existence of an agreeaient or license, and acts upon such inference, whether the former intends that he shall do so or not, the party using the language, or who has so con- ducted himself, cannot afterwards gainsay the reasonable in- ference to be drawn from his words or conduct. To evade the force of these propositions, it is insisted, for JUNE TEEM, 1862. ^1 Mason v. Williams. the plaintiff, that at the time when he spoke to Pescnd', he- was ignorant of his own title, as he was also at the sale, and that there was no evidence to show that the defendant was misled by what he had said or done, or that the defendant had purchased the article, in question, in consequence of his declarations or acts. The counsel for the plaintiff has, in support of his views, referred to the case of West v. Tilghman^ 9 Iredell Kep. 103, wherein it was decided that though the owner of a slave, who is ignorant of his title, stands by and sees the slave sold by a person having no title, and makes no objection, yet he is not thereby estopped from asserting hia claim. We have examined these and the ather cases referred to by the connsel on both sides, and in our opinion the true princi- ple to be derived from them is this : where a person purchases a chattel from another who is not the owner, and it is admit- ted by the parties, or found by the jury as a Jact, that the purchaser was induced to laake the purchase by the declai'a- tions, or acts of the true owner, the latter will be estopped from impeaching the transaction ; see PicTcard v. Sears, 33 Eng. Com. L. Rep. 117. If, then, in the present case it had been stated as an agreed fact that the defendant purchased the steam engine in question from Pescud, in consequence of what the plaintiff told Pescud, or in consequence of the con- duct of the plaintiff at the time of the sale, we should say that the latter could not recover. That fact cannot however be inferred by the Court from any thing stated in the case agreed, and it must be left as a question for the jury, upon whatever competent and relevant testimony the parties may be al)le to ])roduce on the trial, llie case agreed was made up in the Court below, to be " submitted to his Honor and to the jury," and his Honor took it upon himself to decide a question of fact, which he ought to have left to the jnry, in consequence of which, there is error, and the judgment must be reversed and a venire de novo awarded. Pick Curiam, JudgmeEi reversed. 482 IN THE SUPREME COURT. Neal V. Eail Road Company. C. E. NEAL & CO. V. WILMINQTON & WELDON RAIL ROAD CO.* Where freight is carried on a railroad, from station to station, if the owner is not read)' to receive it at its destination, the duty of the Carne?" is discharg- ed by placing it in the ware-house of the company without giving notice to the owner or consignee. It is certainty not required of the ware-house men, at a railroad station, to notify consignees, living at a distance, of the arrival of their goods, either through the mails or otherwise. Where a railroad agent received goods into the company's ware-house, at a country station, which was an ordinary wooden house, which he kept 'fas- tened in the night time with iron locks, bolts and bars, also in the day tinae in the same manner, it appearing that the agent resided two hundred yards from the ware-house, it was held to be ordinary care, and that the compa- ny was not liable for the loss of the goods by theft. Action on tlib case for negligence, tried before Bailey, J. at the Spring Term, 1861, of Edgecombe Superior Court. The following is the case as agreed between the counsel of the pai'ties. The declaration contained two counts : first against defend- ant as " common carriers, and 2nd as warehousemen. The facts are, that about the 1st of May, 1859, the plaintiff deliv- ered to defendant a box of merchandise of the value of $390, at Weldon, to be transported from that place to Rocky Mount. The goods were transported and delivered in the ware-house of defendant, at the latter place, and on the day after the ar- rival, or the second day thereafter, the plaintiff applied for the box, and on examination, it could not be found in the ware-house, but was found, the same daj'-, a few hundred yards from tlie station, broken open and rifled of its contents. The ware-house was an ordinary wooden building, such as the company had at all the other stations, except at Weldon, Goldsboro' and Wilmington, where they are made of biick. The company receive large amounts of freight at this station, for persons residing in Tarboro' and Nashville and their *Judge Battle being a stockholder in the Rail Road Company, took no part in the decision of this Case; JUNE TERM, 1862. » 483 Neal V. Rail Road Company. vicinity. The ware-house usiuilly had in it goods of con- siderable value, and the company had no watch or guard at night for its protection. The agent resided about two hundred yards from the station. The doors of the ware- house were secured by locks, bolts and bars in the usual manner at night, and in like manner in the day time, when the agent was absent. The plaintiif resided, and did business in Tar- boro, about eighteen miles distant, and there was a daily mail from Eocky Mount to Tarboro. The company did not give notice of the arrival of the goods. The defendant is an incorporated company, and has been duly organised. It is agreed that if the Court shall be of opinion that the plaintilfs are entitled to recover, judgment shall be rendered for $390, with interest from 1st of May, 1859, and cost of suit, but if of a contrary opinion, judgment of nonsuit shall be en- tered. The Court being of opinion with the defendant, on the case agreed, ordered a nonsuit, from which the plaintiff appealed. No counsel appeared for the plaintiff in this Court. B. F. Moore, for the defendant. Manly, J. The facts, of tliis case, are similar to those pre- sented in the case of nUliard v. The same Company, report- ed in 6 Jones, 343, and our reflections lead us to the same general conclusions. Where freight is carried on a railroad from station to sta- tion, if the consignee or agent be not ready to receive it at its destination, the duty of the carrier is discharged by plac- ing it in the ware-house of the company, for there is no usage or rule of law which requires the company's servants to de- liver elsewhere than at the station, and from tlie nature of this mode of transportation, it is impracticable to give notice prior to the necessary discharge of the freight. We think, therefore, the duty of the company, as a common carrier, is fnllilled when the packages are placed in the ware-house of the company (no person being present to receive them) with- 484 IN THE SUPREME COURT. Neal V. Rail Road Company. out giving notice to the consignee or agent. The exigences of transportation by steam require this. Other duties then devolve upon the company, viz., those which appertain to a bailment for transportation. The point first occurring in this view of the case is, whether the duty to notify owners or consignees belongs to this particular kind of trust. We do not think it necessary to discuss how this may be in all cases. In the particular one before us, it was not, as we conceive, the duty of the company. The party, by whom the package was owned, and to whom it was directed, resided at the distance of eighteen miles from the station, and had no agent at the place. It cannot be that the ware-house men of the company were required to notify through the mail. The great nuniber and variety of articles transmitted by this mode of conveyance tlirough our country, would make such a duty extremely burthensome, if not impracticable. What may be the rights of the consignees residing at the station, we leave undecided. Those who reside at distances, making commu- nication inconvenient, except through the mails, are not en- titled to notice. The remaining question presented by the case, in the point of view we are now considering, is, whether the company, as ware-house men, took the prc/per care of the packages in question. Ordinary care is what is required, and this is defined hj a recent elementary treatise (Story on Bailments section 41) to be " that which men of common prudence, generally exercise about their own affairs in the age and country in which they live." We have attentivel}' con- sidered the facts bearing upon this enquirj', and conclude there is nothing to show a want of the requisite care. The house is of tlie kind used by pi-udent men to store things of value. It is secured by fastenings appropriate to such buildings — is kept by an agent, who resides a short' distance from it, and who closed it, by its fastenings, at all times, both night and day, when he was absent from it. This satisfies the definition of ordinary care. There may b-2 conditions, of a city, or other community, making a :iglt-watch a proper JUNE TERM, 1862. 485 Hudson V. Critcher. safe-guard, but there is nothing in the previous general his- tory of our country places, or in the proofs respecting this particular locality, which induces us to think that it was de- manded there by the requirements of ordinary care. Upon the whole case, we concur in the opinion of the Court below, and the judgment of nonsuit should, therefore, be af- firmed. Per Curiam, Judgment affirmed. CEPHAS HUDSON v. ANSON CRITCHER. The existence of a claim, in equity, is a sufficient consideration for a promise to pay money or any other thin^:, and such promise may be recovered in an action at law. This was an action of assumpsit, tried before Bailey, J., at the Fall Term, 1861, of Granville Superior Court. The declaration contained two counts : one for the price of two slaves. Jack and Friday, which plaintiff ha^ sold to the defendant, and for which he promised to pay the sum of $287.25 ; the other, the common count in assumpsit. One Paschall testified, that on the 10th June, 1856, the plain- tiff and defendant came to him and asked him to make a settle- ment between them, stating that prior to that time, to wit, about the 16th of January, 1856, the plaintiff had sold to the de- fendant two negro slaves," named Jack and Friday; that he then made a statement of accounts between the parties upon their statements of debt and credit, and that there was a bal- ance in favor of the plaintiff $287.25, the price of the slaves, which balance, the defendant promised the plaintiff that he would pay, and at the same time, he (defendant) made a wri- ting in these words : 5 486 IJN" THE SUPREME COURT. Hudson V. Critcher. "To Hudson— Balance, $287.25;" and handed it to the wit- ness to keep as a memorandum of the amount of said balance. The defendant then produced and ])roved two bills of sale, under seal, dated 16th January, 1856, for Jack and Friday, in which, the payment of the full price was acknowledged. The defendant insisted that the plaintiff was estopped by these bills of sale, and that the debt was entirely taken away, and there was no consideration for the promise to pay the money sued for. His Honor being of that opinion, so in- structed the jury, who found a verdict in favor of the defend- ant. The plaintiff excepted to the charge of the Court, and appealed from the judgment rendered on the verdict. ISTo counsel appeared for tl)e plaintiff in this Court. B. F. Moore, for the defendant. Manly, J. An acknowledgment in a bill of sale, under seal, or in a deed, of the reception of the consideration money is, in general, a bar to any action, at law, for the same. This was very properly recognised by his Honor below as an es- tablished principle. But there remains, notwithstanding, in foro conscientim a claim, which a court of equity will enforce. It is something more than a mere moral obligation. This was decided by the Court in Crawley v. Timberlake, 1 Ire. Eq. 346. It is also settled, that an equitable demand is a sufiicient consideration to support at law a promise to pay ; Loioe v. Weatherley, 4 Dev. and Bat. 212 ; Nohlet v. Green, 2 Dev. 517. When, therefore, parties, between whom there is an unsettled demand of this nature, come to an account and strike a balance, which the indebted party promises to pay, the equitable is converted into a legal demand, and may be recovei'ed by an action, at law, upon the promise. The ac- cepting of such a promise and the consequent abandonment at that time of further strife or litigation, in respect to the claim, is the consideration. Without intimating any opinion upon JUNE TERM, 1862. m Cox V. Cox. the merits of the plaintiff's case in this view of it, we think it ought to have been presented to the jury. Promises, upon equitable considerations, seem to have been maturely considered by the English Judges, m ha7il:, in the case of Hawkes v. Saunders^ 1 Cowper, 289, and we refer to it for a corroboration of the judgment of the Court in Lowe v. Weatherley and Noblet v. Green. In the English Court, the question arose in an action upon the promise of an executor, having assets, to pay a legacy ; this was held to be a promise obligatory at law. The general doctrine of moral and equi- table considerations is discussed, and there is a concurrence of opinion, to the extent, that a present demand in equity, is a consideration sufficient to support a promise in an action at iaw, brought upon it. There siiould be a venire de novo. Per Curiam, Judgment reversed. ESTHER COX v. JOHN COX, A court cannot strike out an entry of a compromise in a suit and order it for trial because it has been imperfectly entered, or because it has not been performed. The proper way ia to amend, nunc pro tunc, so as to make the record speak the truth, and then to enforce the performance of the compro- mise by attachment or other means, usual in such cases. This is an appeal from an interlocutory order of the Supe- rior Court of Davidson, made by Saunders, J., in a suit pend- ing in that Court, for a divorce. The parties, in the case, having compromised on certain terms, an entry was made on the docket, in these words, to wit, '' Compromised and dismissed at cost of the defendant, provided the cost is paid." At the next term thereafter, it appeared that the cost was not paid, and the plaintiff's coun^ 488 IN THE SUPREME COURT. Cox V. Cox. sel moved that the entry be stricken out, and that the cause stand for trial on the docket. To sustain this nuotion, he pro- duced several affidavits, showing that a part of the compro- mise was, that the plaintiff was be restored to her home, and was to be well treated and provided for by her husband ; he also urged the non-payment of the costs, as one of the grounds, for setting aside the entry. The defendant filed his own affidavit, not denying the terms df compromise, as alleged by the plaintiff, and insisting that he has been ready and willing to perform it as stated by her, and giving reasons why the plaintiff had not returned home, and also why the cost had not been paid. The Superior Court, on consideration of the motion and the facts disclosed, made the following order : " It appearing to the satisfaction of the Court, that the entry made by the clerk upon the trial docket, did not contain the full and true terms of the compromise and agreement in said case — that said defend- ant has not complied with the said compromise and agree- ment, it is ordered that the case stand for trial at the next term of this Court." From which order, the defendant prayed an appeal to the Supreme Court, which was allowed. Kittrell and Miller^ for the plaintiff. Gorrell^ for the defendant. Manly, J. This is an appeal, by leave, from an interlocu- tory order of the Superior Court for Davidson. Pending a suit between the parties for a divorce, a compromise was agreed upon and partly entered of record, some of the conditions of the compromise being omitted. At the term next after the compromise, evidence was laid before the Court, by affidavit, of the omission above stated, and of the non-performance gen- erally, of the conditions ; whereupon the Court ordered what was upon the record to be stricken out, and the case to stand upon the docket for trial. We think this order cannot be supported, because oi defect JUNE TERM, 1862. 489 Cox V. Cox. of power in the Court. Compromises put a speedy end to contentions and, therefore, commend themselves to the favor- able regard of the courts. They are entered of record, and may be enforced by rules upon the respective parties, to per- form, and by attachments, if need be. The courts cannot un- make any more than they can make them at pleasure ; but will see that they are properly entered upon the records, vi^heu made, and faithfully carried into execution, if practicable. Without discussing the powers which the court might have over such compromises, in certain states and conditions of them, it is sufficient to say that neither the imperfect state of the record, nor the neglect of one party to perform, and the consequent dissatisfaction of the other, would furnish the court witii an occasion for the exercise of a power to abrogate. This disposes of the question before us, and shows that there is error in the order appealed from. The proper course would have been to amend the record as to the terms of the compromise nunc pro iunc^ so as to make it speak the truth, and then to compel its performance bj^ the exercise of such powers as are usual and proper with the Court to enforce its rules. The powers of amendment are unquestionable, and the powers to enforce are also clear ; Freeinan v. Morris^ Busb. 287 ; Kirkland v. Mangum^ 5 Jones, 313. We take this occasion to reaffirm that we interfere with no discretionary power of the superior court. The order, com- plained of, does not lie within the Court's discretion, but is a mistaken exercise of power. This opinion should be certified to the Court below, to the end, that the said order may be reversed and the Court pro- ceed. Per Curiam, Judgment reversed. 490 IN THE SUPREME COURT. Foust V. Trice. Doe on the demise of DANIEL FOUST v. G. W. TRICE et al One who comes in as landlord to defend an action of ejectment, cannot ob- ject that no notice to quit has been given to the original defendant. The Act of 1861, (2d extra session) chap. 10, sec. 4, did not affect questions^ as to the continuance of causes coming before a court, whose sittings commenced upon Monday of the week, during which, the act was ratified. An occupant is incompetent to give evidence for the defendant in an action brought to recover the land, of which he is in possession. The declarations of an occupant, as to the manner in which he came into pos- session of the land, in question,, are competent, as evidence against the de- fendant, in an action of ejectment. Ejectment, tried before Bailey, J,, at the Fall Term, 1861, of Orange Superior Court. The case was called on Thursday of the term, when the de- fendant alleged he was not ready for trial, and prayed a con- tinuance, 1st, for the absence of James Pender, the occupant of the land, in dispute, who was detained from Court b}'^ sick- ness ; that he expected to prove by Pender that he never was- the tenant of Foust, the lessor of plaintiflP, but was in fact and in truth the tenant of the defendants ; tliat he was car- ried on the land, by the force and fraud of one Hugh Kirkpa- trick, and that being there, he became the tenant of the de- fendants before this suit. The Court ruled that Pender was not a competent witness, if present, for which the defendant excepted. 2nd, for the want of the evidence of one Wm. G. George, which was set forth in the affidavit and admitted by the plaintiff. The lessor of the plaintiff exhibited no title, but alleged that James Pender, the occupant of the land, was his tenant, and insisted that the defendants, who were admit- ted to defend as landlords of Pender, were estopped to deny his (plaintiff^s) title. He called as a witness the aforesaid Hugh Kirkpatrick, who testified that he rented the land, in question, from the plaintiff^'s lessor, in the last of the year 1853, or the first of 1854 ; that he was to give, as rent, one third of the produce of the then cleared ground, and if he cleared new ground, was to have the product of that rent-free JUNE TERM, 1862. 491 Foust V. Trice. for two years ; that he did not clear an}'^ new ground, but cul- tivated the cleared land, or part of it, during 1854-5 and '6 ; that at the end of 185G, he gave up the privilege of clearing, and agreed for the year 1857, to rent only the cleared land ; that at some time during his lease, he could not say when, but which other testimony fixes to have been 17th of Janua- ry, 1854, he carried James Pender from a house where he (Kirkpatrick) had a lease, upon the land in dispute, put out from liis wagon the family and goods of the said Pender, in the woods, about twenty yards from a road, one-fourth of a mile from the cleared land, and then told said Pender that he might stay there, rent free, as long as he had any thing to do with the land; that Pender gave his assent to this, and wit- ness' negroes assisted him iu setting up forks and construct- ing a shelter, under which his family staid until they cut logs and built a cabin near by, in which they had over since resi- ded ; that Pender soon after cleared a patch of land for a gar- den, which he had ever since cultivated, but had never paid any rent. The plaintiff then offered to prove the declarations of Pen- der, while in possession of the land, to the effect that Kirkpa- trick carried him upon the land by his own consent. This was objected to by the defendants, but admitted by the Court. The defendants offered to show title in themselves, which was objected to by plaintiff and ruled out, and defendants' coun- sel excepted. The defendants produced evidence, tending to show, that Pender was carried on the land by force and fraud, and did not agree to hold the land from Kirkpatrick or Foust. The defendants' counsel moved the Court to instruct the jury, that even if Kirkpatrick were believed, this action could not be maintained, because it was brought prior to the year 1857. 2ndly. That the defendant, Pender, was entitled to notice to quit, or a demand of possession before the action could be maintained, of which there was no evidence. His Honor instructed the jury, that if Kirkpatrick was not 492 IN THE SUPREME COURT. Foust V. Trice. believed by them, the plaintiff was not entitled to recover, but if they believed, from his evidence, that Pender went to occupy the land under him, or that after he went upon the land, he consented to remain there under Kirkpatrick, the plaintiff was entitled to recover, provided they believed that at the end of the year 1856, Kirkpatrick had given up the woodland and taken a lease for the cleared land, only, for the year 1857, and if this were so, this action could be main- tained, and there was no necessity for a demand of possession or notice on Pender to quit. The defendmits' counsel again excepted. Verdict and judgment for plaintiff. Appeal by the defend- ants. Phillips, for the plaintiff. Graham, for the defendants. Manly, J. Kirkpatrick, at the beginning of the year 1854, entered on the land as the tenant 'of Foust, under an agree- ment that he was to hold, for an indefinite time, the whole tract, paying as rent a part of the crop of each year, made on the cleared land, and was to have anj'- land that he should clear, rent free, for two years. This certainly made Kirkpatrick a tenant from year to year. He afterwards put Pender in pos- session of a part of the wood-land under an agreement that he might stay there as long as Kirkpatrick had any interest in the land. Pender built a cabin and cleared a small patch .and became the assignee of Kirkpatrick, in respect to the land of which he took possession, and was thus a tenant un- der Kirkpatrick, holding from year to year, so long as Kirk- patrick's tenancy under Foust, might continue. The question is, how was Pender affected by the fact, that in 1856, Kirkpa- trick agreed with Foust, to give up his tenancy in re- spect to the wood-land, and hold only the cleared land. In respect to Kirkpatrick, he had become a tenant from year to year, entitled to six months notice to quit, and Kirkpatrick held in the same way under Foust, and had a right to assign JUNE TEEM, 1862. 493 Foust V. Trice. or make a sub-lease of the same estate. It follows, as we think, that the agreement made by Foust and Kirkpatrick, could not have the effect of determining the estate of Pender and con- verting him into a wrong-doer or a tenant at sufferance, lia- ble to be subjected to the cost of an action without notice of any kind. On the contrary, our opinion is, that the effect of the sublease was to communicate to Pender a right to have the same notice from Foust that Kirkpatrick was entitled to, or, at any rate, to reasonable notice, so as to give him time to remove from the land before he was liable to an action. It would seem, therefore, if Pender had defended the action, and put his defense upon the want of notice, it would have been an answer to the action; but as he does not defend, and Trice makes the defense for him, and is allowed to do so up- on the ground of being his landlord, the case is said to be al- tered. The application on the part of Trice, to be allowed to defend in the place of Pender, presupposes that Pender is the tenant of Trice, so that Pender having entered as the tenant of Foust, must, on this presumption, have attorned or turned over to Trice, whereby he disclaimed or disavowed his ten- ancy under Foust, and thus put himself in the wrong and dis- pensed with the necessit}' of notice. Upon the first presentation of this question to us, we inclin- ed to the opinion that as a landlord, who defends in place of his tenant, is only allowed to make such defense as the ten- ant could have made, and is concluded by any matter which would have concluded the tenant, Balfour v. Davis, 4 Dev. and Bat. 300, so he should be allowed to make every defense which the tenant could have made, had the landlord not in- terposed. But, upon further consideration, our opinion is, that the point is with the plaintiff. If we suppose Trice had not applied to defend in the place of Pender, but Pender had made defense himself, and at the trial, in reply to his defense, for the want of notice, the plain- tiff had proved that, before the action was coml^enced, Pen- der had accepted a lease from Trice and agreed to become 494 IN THE SUPREME COURT. *— — — — , Foust V. Trice. his tenant, snch proof would certainly have dispensed with the necessity of notice. If we allow Trice, in defending the action as landlord, to be neitlier more nor less restrained than Pender would ha've been, it will follow that the application to be allowed to de- fend as landlord, and his being on that ground, allowed to defend in place of Pender, concluded the fact, as against him, tliat Pender had accepted a lease from, or had otherwise at- torned and agreed to hold under him ; and Foust was there- by dispensed from the necessity of notice. That is to say, dis- pensed, by reason of such supposed disclaimer of tenancy un- der Foust ; Archbold's law of landlord and tenant, 53, Law Lib. 225. On this ground, therefore, the holding of the Court below, on the principal point in the bill of exceptions, is supported. Upon the other points, we think the ruling of the Court was also correct. There is nothing in the motion for a con- tinuance to withdraw its decision from the ordinary discretion of that Court, unless it be the statute of 1861-'2, ex. ses. chap. 10, sec. 4; and that turns out, upon examination, not to ap- Y>ly to it. The chapter of the statute in question was in force from and after its ratification, i. e., after the 11th Sept. 1861. The Court began its session on the ninth of the same month, and all acts of court, by the doctrine of relation, stand as if done on that day. There is no reason for excepting the acts of the Court, now in question, from the operation of this doc- trine. Therefore, although the order of Court was not made until the 12th, it related back to the 9th, and was not affected by the statute ; Farley v. Lea, 4 Dev. and Bat. 169. We are also of opinion, that the Court properly held that Pender, in case he had been present, would not have been a competent witness for the defendant. As tenant, in posses- sion, he was directly interested in defeating plaintiff's re- covery ; for the legal sequence of such recovery, would be the eviction of the tenant from the land. Pender's continuing in possession of the land, warranted also the ruling of the Court, upon the admissibility of his declara- JUNE TERM, 1862. 495 Dgbson v. Finley. tions, in regard to the nature of his possession. The princi- ple of a person in possession being heard, through his dedara- tions, to explain the act of possession, is now extensively ap- plied, as will be seen by reference to the cases cited in second edition of Dev. and Bat. in a note to Askew v. Reynolds^ vol. 1, p. 367, and in the case of Marsh y. Ham'pton^ 5 Jones, 382. The circumstances, under which the declarations were made, may not entitle them to ranch weight, but their admissibility and credibility are quite different queetions, and triable, gen- erally, by different tribunals. The judgment should be affirmed. Per Curiam, Judgment affirmed. Dot on the. demise of JOHN DOBSON v. JAMES FINLEY. Where the second call of a boundary is clearly established, the first may be ascertained by running the course reversed, and measuring on it the dis- tance called for. A commiseion to take a deposition that recites that it issued from the " su- preme" court of McDowell county, for a suit pending in McDowell Superi- or Court, authenticated by the signature of the clerk, and seal of the Su- perior Court of McDowell county, is so palpable a misprison, as to author- ise it to be regarded as a commission issuing from the superior court. Where a white — was called for as a corner, and a white-oak was pointed out nearly in the course, by a marked line leading to it, and by other cir- cumstances, it was held a proper question to be left to the jury, whether the white-oak was the corner intended. Tins was an action of ejectment, tried before Osborne, J., at the Fall Term, 1860, of McDowell Superior Court. The lessor claimed title as the heir-at-law of one Dobson, and exhibited a grant to his ancestor, bearing date 18th De- cember, 1799. The controversy was as to the location of the 496 IN THE SUPREME COURT. Dobson V. Finley. grant. It called for two pines on Beard's line on the south side of a hill, and running west one hundred and sixty (160) poles to a pine, Thomas Young's old corner ; thence south crossing the maple swamp branch, 100 poles to^a white ; thence east 160 poles to a pine, Terapleton's corner ; thence north, to the beginning. pine 160 p. w. 2 pines. T. Young's corner. It was in proof, that the beginning corner could not be found, and that Beard had no land at the place where it is alleged to have stood, but there existed a hill, and on the south side of it, there were several pine stumps and decayed pine timber, and running thence 160 poles, the line reached a pine, which was the corner of a tract formerly owned by Thos. Young and one Tate as tenants in common, and running thence south one hundred poles, no white-oak or other object answering as a corner was found, but varying the course a few degi'ees to the west, and extending the line 40 poles, a marked line was found crossing the maple branch, some of the trees, on which being blocked, the marks corresponded in age with the grant, and a white-oak was reached marked as a corner, but which was not blocked ; it stood very near, but on the opposite side of a drain, which in winter afforded running water, but in summer was dry. In order to show that the pine was known as Thomas Young's corner, the plaintiff in- JUNE TERM, 1862. 497 Dobson V. Finley. troduced a grant, bearing date in 1798, to one Beard, for an adjoining tract of land, one of the calls of which was for a pine, Thomas Yonng's corner, which it was proved was the same pine contended for by the plaintiff, as being in his sur- vey. This deed was objected to by defendant, but admitted by the Court. Defendant excepted. The lessor of plaintiff also offered in evidence the deposition of one Evans. The commission, under which it was taken, re- cited that the same was taken under an order from the " su- preme" court of McDowell county, and it lacked the or- dinary attesting clause of the clerk, but it named the suit and it was signed by the clerk of the superior court of Mc- Dowell, and was under the seal of that court. The defend- ant's counsel objected to the admission of this deposition, but the Court over-ruled the objection, and the defendant again excepted. Evans testified that, for many years, he had owned and lived on the adjoining tract to that in controversy ; that he knew the pine corner, and for many years, it had been known as Thomas Young's corner, and that there was an old marked line from the pine to the white-oak, and that the white-oak was the corner of the Dobson grant. The defendant contended that as the call, in the grant, did notdesignate the white-oak, or any other natural object, as the corner, but called for a course south and a distance of 100 poles, the plaintiff was restricted on that line to c6urse and distance, and called on the Court so to instruct the jury. But his Honor charged the jury, that it was necessary that the lessor of the plaintiff should prove to their satisfaction that his grant was located as he contended ; that though the beginning corner had not been proved, yet, if they believed that it had existed at the south side of the hill, they would 60 find, and for this purpose they might consider the testimo- ny which had been introduced to establish the second corner of the grant ; that if they believed, from the proof, that the pine was Thomas Young's corner as called for in the grant, and then measuring the line as the surveyor testified, it would extend 498 IN THE SUPREME COURT. Dobson V. Finley. to tliB south side of the hill, and notwithstanding the imper- fect description, that the line of the grant was the marked line proved to exist, and that the white-oak was the corner of the grant, they might find it to be so. Defendant's counsel again excepted. Yerdict and judgment for plaintiff. Appeal by defendant. Phillips, for the plaintiff. • No counsel appeared for the defendant in this Court. Pearson, C. J. We concur in the opinion with his Honor in the Court below, upon all the points, which are presented in the statement of the case, Iv Supposing the pine to be established as the second cor- ner, could the first, a beginning corner, be located by revers- ing the course and measuring the distance called for, from the pine back, that is, on the reversed course. His Honor ruled that the beginning corner could be fixed in this way : we agree with him. If the second corner is fixed, it is clear, to mathematical certainty, that by reversing the course and mea- Buring the distance, you reach the first corner ; so there is no question about over-ruling either course or distance by mea- suring the line, and the object is to find the corner by observ- ing both course and distance. 2. The deposition of Evans was properly allowed to be read; the word " supreme" being evidently a misprison of the clerk, instead of " superior:" This is palpable ; because there is no supreme court in McDowell county. The signature of the clerk and his seal of ojjice, gave full proof of the authenticity of the commission. 3. We concur in the opinion, that in order to establish "the pine" as a corner by reputation. The call in Beard's grant, issued in 1798, was competent evidence, and, indeed, was the strongest sort of evidence to show that " the pine" was known as Thomas Young's corner ; and we were at a loss to see on what ground the evidence could be objected to, but we are toldj oil the argument, that the objection was, that it did not J ONE TERM, 1862. 499 Dobson V. Finley. appear that the grantee, Beard, or tlie surveyor, were dead, and so that this recital in the grant, which must be consider- ed as *' hearsay evidence," coining eitlier from the one or the other, was not competent. The misapprehension proceeds from not distinguishing between evidence, by reputation, and hear- say evidence, as it is called. It is settled that botli kinds of evidence are competent in questions of private boundary in this State; although in England it is confined to questions of public boundary, that is, the lines of parishes and counties and tlie like matters of public evidence. In the latter, to wit, hearsa}' evidence, it is necessary as a preliminary to its admis- sibility, to prove that the pci'son, whose statement it is pro- posed to offer in evidence, is dead ; not on the ground, that the fact of his being dead, gives any additional force to the credibility of his statement, but on the ground, that if he be alive, he should be produced as a witness ; whereas, it is man- ifest, that in respect to evidence by reputation, this prelimi- nary question cannot arise ; therefoi-e, proof by repu- tation, that is, recitals in old deeds and grants, inscriptions on monuments and the like, has always been deemed com- petent, without enquiring as to whetlier the parties to such deeds and grants, or the man who ingraved the inscription are living or dead, for the fact, itself, tends to establish the reputation, or received opinion, in regard to the particular matter ; for instance, in our case, the fact that is recited in a grant to Beard, issued in 1798, that this pine is Young's cor- ner, is evidence, that the pine was known and admitted to be Young's corner, which is what is treated of, in the books, as establishing a boundary by reputation, and differs greatly from " hearsay evidence." 4. The call for a white , with a blank as a corner, does not present a question of ambiguity of description, but of an imperfect description ; in which case, if the description can be made perfect by an implication furnished by the context of the instrument, the omission may bo supplied witiiout fur- ther proof; as a legacy of 300 is given to a daughter, to be paid out of the proceeds of tiie sale of a tract of land, the 500 IN THE SUPREME COURT. Dobson V. Finley. couit, from the context, supplied the omission of the word " dollars," and so made the description perfect. In our case, there is nothing in the deed to enable the Court to infer what sort of a corner was intended ; a white-oak, or white-ash, or or white-pine ; so, without further aid, the omission could not be supplied, and course and distance would govern. But we agree with his Honor, that the existence of marked line trees, crossing the maple branch, beyond the point where the dis- tance gave out, which, when blocked, corrresponded in age with the grant and that at the point of intersection of the course of the second line, and the reversed course of the third line, a white-6>a^ was found marked as a corner for the coming and leaving line, in respect to which, no practical surveyor can be mistaken, were facts proper to be submitted to the jury, on which to warrant them in coming to the conclusion that the white-oak, was the corner, and in that way supply the omis- sion in the description. Per Cukiam, Judgment aflBrraed. \* Hon. John M. Dick, one of the Judges of the Superior Courts, died since the last Term of this Court, and Hon. Thomas Ruffin, Junior, was appointed by the Governor and Council of State to fill his place, ad interim. TO THE PRINCIPAL MATTERS OP VOL. 8, JONES' LAW. ABATEMENT— PLEA IN Vide Endorsement, 2. ACTION. Vide Contract, 7. ACTION AGAINST SHEEIFF FOR MONEy COLLECTED ADMINISTRATION. 1. Debts on a deceased person, assigned to one after the death of s.ifh np- 2. Where an administrator with a will annexed died hivinr. \n hi. u i njoney arising fron. the sale of land, decreed to be ol^ f?r tL L'rent ADVANCEMENT. ^^bn^o^m7' P"' f ''"'" '"'^ ^'^^ P°-''^«^''^"°" «f l^is child, with an inten- AMENDMENT. 1. All Courts have the inherent power to revise and amend their record, and make them conform to the truth. Ashe v. Streator,2b6 ' 502 INDEX. 2. The power of the county courts to amend their records, is a discretion- ary power, subject to the revisal of the superior court on an appeal, but the Supreme Court has no power to examine into the correctness of tht; exercise of such discretion in the courts below. Ihid. 3. Where, however, the superior court erroneously decided that a county court had no power to make an amendment, it was held that this Court, on an appeal, would correct such error. Ih. 4. Where a verdict was rendered for more than the amount claimed in the writ, in a case where the measure of damages was certain, and there was no certain criterion by which to show a mistake or misapprehension, it was held not proper to allow an amendment of the writ. Ashe v. De- Eosset 240. Vide Compromise. ADVERSE POSSESSION. Vide Statute of Limitations, 1. 5. AFFIDAVIT IN ORDER TO BE ALLOWED TO PLEAD. Vide Ejectment, 3. ALLEGATIONS IN A PETITION. Vide Pleading, G. ALIAS WRIT. Vide Statute of Limitations, 2. APPEAL. 1. No appeal will lie from the County to the Superior Court, which must necessarily be ineflfectual for the purpose for which it' was prayed. — Clark v^ Latham, 1. 2. Where a court refuses to quash a defective indictment, upon the ground, that they deem it sufficient, an appeal will lie, and the judgment will be reversed and the cause sent back, that the Court may pi-oceed with the motion according lo its discietion. Slate v. Brannen, 208. 3. One who is not a party to a bill in equity, cannot appeal or petition to rehear or file a bill for a review. Thompson v. Cox, 311. Vide A.mendment, 3 ; Practice, 6. APPEAL BOND. 1. Where, upon an appeal from the County to the Superior Court, the suit pended for three terms m the latter court, when a motion was made to dismiss the appeal, for defects in the appeal bond, it was held that the appellant might, as a matter of right, file a sufficient bond, and prosecute his appeal, and that the order of the Court below dismissing the appeal, ■was a proper subject for the revision of this Court. March v. Griffith, 264. 2. Appeal bonds sent from the County to the Superior Courts, are made by 1st and 10th sections of ch. 4, Revised Code, a part of the record sent up, and cannot be questioned by plea and proof, at the instance of the sure- ties. Whitehead v. Smith, .351. APPRENTICE. Vide Assault and Battery. ARBITRATION. 1. Where an arbitrator disposes of matter which was i-eferred to him. and also of matter not referred, and the two are in their nature separable, it INDEX. 5ti3 ■IS the (5nty of the Court to givo judgment for that wliich is within the terms of the submission, and ipject that which is without OriMn v Hadley, 82. "2. An arbitrator has no right to award himself a fee for his services, unless the power to do so is expressly contained in the submission. Jbid. Vide Costs, 2. ARSON. 1. The wilful and malicious setting fire to (he house of another, the burn- ing of which is only a misdemeanor, will become a capital felony ff a dwelling-house or barn, with grain in it, is thereby burnt, where such burniuL' is the probable consequence of the first illegal act. iSlaie v. Laughlin, 354. 2. Upon an indictment for the felonious burning o^ a barn with grain or corn in it, a prisoner cannot be convicted upon proof that he burntacriV; with corn in it. Jbid. 3. A house seventeen feet long and twelve wide, setting on blocks in a stable yard, having two rooms in it — one quite small, used for storin<^ nub- bins and refuse-corn to be first fed to stock, and the other used for stor- ing peas, oats and other products of the farm, is not a barn withm the meaning of the statute. Rev. Code. chap. 34, sec. 2, the burning of which is made a ielony. State v, LaiujhUn, 455. 4. A house eighteen feet long, and fifteen wide, built of logs notched up the cracks covei-cd inside with rough boards, roofed with rough boardsk with a good plank floor, and a -door about four ft^et high, oon'taiuin<*- at the tune of the burning, a quantity of corn, peas and oats. thoui(), oha>"ter 14, does not antiiorise a defendant in ejectment, where the plainliif lias filed an aflidavit, liiat such defendant entered as^ his tena'.it, to plead without giving security for costs, by filing an affida- vit iliat lie is unable, on account of his poverty, to do so. Lorvks v. Carier, 381. 4. One wlio conies in as landlord to defend an action of ejectment, cannot object that no notice to quit has been given to the original defendant. — Fonst V. Trice, 490. Vide NoTicic to Quit, 1, 2 ; Trijspass, q. c. f. ENDORSEMENT. 1. It is no olijection to the endorsement of a bond, thai the presumption • oi payment Ironi the lapse of time, was appHcable to it, when the endorse- ment was made. McLean v. KcDugald, 383. 2. An asj^ignment, witiicut consideration, passes the title, and where such assignment was made to evade the law reirulating the venues of actions, the objection, to be good must be taken by plea in abatement. Ibid. ENLISTMENT OF A MINOR. Vide H.vBEA.s Conrrs. ENTRY ANEW. Vide Trespass q. c. f., 2. ESCAPE. In an action of debt on a sheriff's bond for the escape of a debtor imprison- ed under a ca. sa., the jury are not bound to give the whole sum due- from such debtor, but should give the damages really sustained by the escape. Willey v. jEure, 320. ESTOPPEL. 1. An acknowledgement by the bargainor in a deed, that he has received the consideration money, is a bar in a conit of law, to any action for the re- covery thereof. Mendenhall v. Parish, 105. 2. Where a person purchases a chattel from one who is not the owner of it, and it is admitted by the parties, or found bj' the jury as a fact, that the purchaser was induced to make the purchase by the declarations or acts of the true owner, the latter will be estopped from impeaching the trans- action. Mason v. WiUiams, 478. Vide Diccree for division of slaves; Trespass, 1. EVIDENCE. 1. A receipt signed by a sheriff for a sum of money, "to be applied to the »12 INDEX. payment of a judgment," obtained against the defendant at a previous term of a court of the county in which the defendant hved, and of which the maker of such receipt was sheriff at the time, is no evidence that an execution was in his hands when the money was paid to him. Coving- ton V. Buie^ 31. 2. A registered copy of a clerk's bond may be read without other proof, and, of course, the original, when proved and registered as the acts pro- vide, may also be read thus without being proved at the trial. Short v. Currie, 42. 3. It seems at common law, official bonds were not subjected to the same tests of strict proof and cross-examination as instruments between pri- vate persons. Ibid. 4. Where a fact, proposed to be proved by a party, is admitted by the op- posite side, It is not error in the Court to refuse to let it be proved by witnesses. Pridgen v. Bannerman, 53. 5. Where, in an action brought to recover the value of certain slaves, the plaintiff sought to set aside a conveyance of them to a daughter, and offered evidence to show that the donor had grand-children who were poor and in need of her bounty, ic was held competent for the defendant to introduce in evidence, in order to rebut this testimony, a conveyance by the donor of other propsrty to these grand-children. Hughes v. Deb- nam, 127. 6. Where the question between the parties was, whether the plaintiff had agreed with a third party to take him for the performance of the contract sued on, instead of tiie defendant, and the tender of a sum of money by such third party, and its refusal and the concomitant expressions of the plaintiff, were relied on against him, it was /ieM that a receipt prepared by him and offered as the condition on which lie would receive the money, was competent evidence. Myers v. Cherry, 144. 7. In order to show that a witness in a cause was excited at the horrible crime alleged against a slave, and was, therefore, not fully to be relied on, it wa.s held competent to ask him, on cross-examination, whether he had not taken up and whipped other negroes. State v. Sam, 150. S. In order to weaken the foice of a witness' evidence on cress-examination, it was held competent to show his temper and feeling towards the cause, independently of any prejudice, or ill-will towards the accused, personal- ly. Jhid. 9. Where it was sought to prove the value of plaintiff's services during a term of seven months, it was held an immaterial question for the defend- ant's counsel to ask witness the value of such services for half an hour, during which witness saw plaintiff at work. Madden v. Purterjield, 166. 10. Where, in a suit upon an apprentice bond, the question was, whether the relator was of age at the bringing of the suit, and his mother was introduced to testily as to his age, it was held that a recoi'd of births, made in the family IBible, under the dictation of the m( ^ 24. An occupant is incompetent to give evidence for the defendant in an TTi^e'ldO^ '"^ ''^''"^'''' ^^"^ '''"'^' ""^ '^^"""^ ^'^ '^ ^" possession. Foust 25. The declarations of an occupant, as to the manner in which he came into possession of the land, in question, are competent, as evidence against the detendant, in an action of ejectment. Ibid. Vide Holograph will; Presumption or tact; Rape, 1; Secret trust. EXECUTION— SATISFACTION OF. Vide Evidence, 1. EXECUTOR— WARRANTY BY. Vide Judge's charge, 5 ; PleadinG; 5. 514 INDEX, FALSUM IN UNO, &c. Vide Witness. FALSE RETURN. 1. The sheriff's return on process in his hands, " not to be found in my county," implies that the person to be reached by the process, was not to be found after due search, and if the fact, thus implied, be untruly stated, the return is a false one. Tomlinson v. Long^ 469. 2. Where a person, to be summoned by a subpoena, was at his home, in the sheriff's county-, for fifteen days preceding the day of the return of the process, though the sheriff lived twenty-five miles from him, and though he was informed that such person would continue out of the county during all that time, ic was held he was liable for the pe' alty for making a false return, in saying that he was not to be found. Ibid. 3. A return made by a sheriff, that is false in fact, although the officer was mistaken in the matter as to which he made his return, will, neverthe- less, subject him to the penalty for a false return. Albright v. Tapscott, 473. FAMILY RECORD. Vide Evidence, 10. FIERI FACIAS— WHEN RETURNABLE. The provisions of the Revised Code, chapter 31, section 50, requiring the return of all writs, process, &c., to be made on the first day of the term, to which they aie returnable, does not apply to executions or writs of fieri facias. Ledbetter v* Arledge, 475. FRAUD. 1. A naked declaration of a debtor in embarrassed circumstances, that an assignment of a note, theretofore made by him was bo)ia fide and for valuable consideration, is no evidence, as against creditors, that such was the fact, and such assignment was held to be void. Orifiin v Tripp, 64. 2. Where an alleged testator, in a paper wi'iting, propounded as his will, devised and bequeathed certain property to the child of his housekeeper, a white woman, which child was proven to be a mulatto, but which the mother had induced him to believe was his, it was held that tliis furnish- ed no evidence to support the allegation that the will was obtained by fraud and undue influence. Howell v. Troutman, 304. Vide Secret trust. FRAUDULENT CONVEYANCE 1. Where a father, who was largely indebted and insolvent, made a deed for his land to his son, who was under age and received from him money, which he had earned as day wages, in "art payment, and his note for the remainder of the price, such deed was held to be voluntary and void as against creditors. Winchester v. Reid, 377. 2. A bond given as a pretext to enable one person to set up a claim to the property of another, so as to defraud the creditors of that other, is void, ■even as between the parties to the same. Poivell v. Inman, 436. FREE-NEGRO. Vide Assault and Battery ; Rape, 2. GAMING. Only those who bet, and those who play at a game of cards where there is betting, at some of the prohibited places, are liable to be indicted un» der the statute, chap. 34, sec. 75, Rev. Code. State v Brannen, 208. INDEX. 515 GIFT— RECLAMATION OF. Where A handed over a sum of money to B, for the use of C, and took from B a certificate, in wiiting, expressing that it was the sum given to C in A's will, and oblio-in? B to pay the interest annnually to C,'"it was held that A had no right to demand and recover the money frorn B. Parker v. Ricks, 447. GUARANTOR— NOTICE TO. It is a rule *f law, that one liable in case another does not pay, is entitled to notice of the default of the primary debtor before suit can 'be brouo-ht against him, and it forms no exception to the rule, that such primary debtor Avas insolvent at the date of tiie original transaction, or becameso afterwards. Reynolds v. Ednerj, 406. HABEAS CORPUS. 1. A soldier who is under arrest, and in confinement for a violation of or- ders, cannot procure his discharge by means of a writ of habeas corpus on the allegation that he was an infant at the time of enlistment. Nor can he or his guardian raise that Question before the civil authorities, while he is in custody, and amenable for trial before a military tribunal In the matter of GraliavK 416. 2. Whether a minor of the age of twenty years, who enlisted under the provisions of the act entitled "an act to raise 1(»,0{;0 State troops," and has taken and subscribed the oath prescribed for enlistment, is ent'i- tled i£> his discharge on the gionnd of his nonage, and that he' enlisted without the consent of his guardian — qiiere ? Ibid. HERTFORD AND MONTGOMERY COUNTIES. Vide Color of title. HIGHWAY. A road only one mile long, and from ten to fifteen feet wide, leading from a public highway to a church, and used by the people of the neighbor- hood for sixty years in going to and from the chuich, and which con- nected with a country road leading to a mill in the neighborhood, and to a railroad station, but which had never been under the charge of an overseer, nor worked as a public highway, is not a public highway so as to subject one to indictment for obstructing it. State v. McDaniel, 284. HIRE OF A SLAVE. Vide Contract, 7. HOLOGRAPH WILL. That a hologiaph script was seen among the valuable papers and effects of the decedent eight months before his death, is no evidence that it was found there ai or after his death. Adams v. Clark, 56. HOMICIDE. 1. If a party deliberately kill another to prevent a mere trespass to proper- ty, he is guilty of murder. State v. Brandon, 463. 2. The law does not recognize any moral poioer as compelling a man to do what he knows to be wrong. Ibid. HUSBAND AND WIFE. Vide Deed, 2 ; Parties. 516 INDEX. INDIAN RESERVATIONS. Vide Treaties with Indians, 1, 2. INDICTMENT. An indictment, charging the stealing of a bank-note of a certain denomi- nation and value, without setting forth by what authority such note was issued, is not sufficient to authorise judgment on a conviction. State v. Broivn, 443. INFANT— DEED OF. 1. An infant who has executed a deed for land, cannot make the deed void or valid by any act of his done while under age. McCormic v. Leggett, 425. 2. To make the deed of an infant valid, he must, after corning of age, do some deliberate act by which he takes benefit under the deed, or ex- pressly recognizes its validity. Ibid. INFANT— NOTE OF. Vide Fraudulent Conveyance, 1. INQUISITION OF LUNACY NOT CONCLUSIVE. An Inquisition of lunacy is not conclusive against a person dealing with a supposed lunatic ; but he may show that at the time of the 'Contract, such supposed lunatic had sufficient capacity to make it. Parker v. Da- vis, 460. INSANITY. The insanity which takes away the criminal quality of an act, must be such as amounts to a mental disease, and prevents the accused from knowing the nature and quality of the act he is doing. State v. Brandon, 463. ISSUE OF FACT. Vide Practice, 5. JAIL FEES. The master of a slave committed to jail on the warrant of a justice of the peace for an oftence cognizable in the Superior Court is liable for jail-fees, although the grand jnry, upon an enquiry, may have refused to make presentment against such slave. State v. Peter and Jess, 346. JUDGMENT. Vide Verdict, 1, 2. JUDGMENT AGAINST ADMINISTRATOR— EFFECT OF. In an action against an administrator, on his administration bond, for the non-payment of a judgment previously rendered against him, such judg- ment is conclusive evidence against him, both as to the debt and the ex- istence of assets. Bo7id v. Billups, 423. JUDGMENT— SUMMARY. The statute. Revised Code, chapter 29, section 5, intends that motions for summary judgment aganst delinquent sheriffs, &c., shall originate in the county courts. Buchanan v. McKenzie, 95. Vide Penalty against Sheriffs. INDEX. 51T JUDGE'S ClIARGK 1. To leave a question to the jury, without some evidence bearing upon the iTiatter. and upon which they raight base their verdict, is error. — . Bond V. //«//, 14. 2. A judge annot bo required to give instructions to the jury upon an as- sumption oCliicts, not supported liy evidence. 8iate v. €hrtf, 25. 3. Where there are several possibditics of fact, different from the inference intended to be drawn from the evidence oflered, a Judge is not required to note one such possibility, and specifically bring it to the attention of the jury. Ibid. 4. On an issue before tiie Court, there is no error in refusing to give par- ticular weight to a rebutting fact, and where the Judge thought the tesh tiniouy pre[)onderaling against said fact, it was not error to say of such fact that it was immaterial. Pridyen v. Bannerman^ 53. 5. Upon a question of warranty or no warranty, it waa held to be error in a Judge to charge, that the fact that the alleged warrantor was actmg in lUo capacity of an executor, was not a matter for the consideration of t hi' jury. Brake V. Bnincs, 122. »;. Where the charge of a Jmlge is in favor c^f a party, such party cannot make it a ground of objection. Hughes v. Debnam. 127. 7. Junes are at libeity to iufei- the motives of parlies from their conduct therefore where, in an action for an assault and battery, it was proved that the defendant came to the house of the plaintiff, with whom he had been before on friendly terms, and said to him, " How dare you send a letter to my house," and immediately as-siulted him, it was held error in the.Judge to charge tlie jmy, liiatthere was^io evidence thai the letter was olVensive or insulting, and liiat they could not infer that it was sc. Bond V. Warren, 191. Vide Boundary, 1; Plkaping, 4. JURISDICTION. 1. The county courts have no jurisdiction, hy bill, at the suit of creditors, to convert a purchaser of land into a trustee, on the allegation of fraud and collusion. Thompso7i v. Cox, 311. 2. The powers of a court of limited jurisdiction cannot be enlarged by im- plication. Ibid. 3. The jurisdiction of the county court to order a partition among tenants in common, does not extend to money. Billups v. Riddich. 163. 4. A petition against an executor for a filial portion, &c., will not lie for money or other property delivered by him to a legatee for life. Ibid.. Vide Practice, 5 ; Road. JURY—QUESTION FOR. Vide Boundary, 5. JUSTICES— CONTRACT BY. Vide Contract, lOj 11. JUSTICE'S TRIAL. Vide Waiver, 2. JUS POSTLIMINII. Vide Trkspass, q. e. f. 2. LAND CONSIDERED AS MONEY. Where real estate, belonging to an infant, has been converted into person- alty by a sale, under the decree of Court for a division, the fund will con- 2 518 INDEX. tinue to have the character of realty, and be transmissible according to the law of descents, until a different character is impressed upon it by some act of the owner. Jones v. Edwards, 336. LAPPAGE. Vide Ejectment, 1. LARCENY. Where the prosecutor lost a carpet bag on the public highway, and direct- ed one to get it for him, and he did so as his bailee, but concealed the ar- ticle, and denied having found it, it was held that this was bat a breach of bailment, and not larceny. State v. England, 399. LIABILITY OF PUBLIC OFFICERS CIVILLY. The justices of a county are not responsible to the owner of property for injuries to it, occasioned by defects in public bridges under their control. Kinsey v. Tlie Magisti-aits of Jones, 18G. LIMITATION IN REMAINDER. 1. A legacy given immediately to a class, vests absolutely in the persons composing that class at tiie death of tlie testator ; and a legacy given to a class subject to a life-estate, vests in the persons composing tliat class at the death ol the testator, but not absolute!}', foi- it is subject to open so as to make room foi- all fiersons composing the class, not only at the death of the testator, but also at the falling in of the intervening estate. Mason v. White, 421. 2. Where une thus included in a class with an ir.tervenmg estate, died be- fore the falling in of sucli estate, there is no ground for holding that his estate was divested by this event. Ibid. 3. Where one devised, in 1828, to a trustee, to the use and benefit of a wo- man, foi' her life, remainder to the use of all her children, it was held that by force of the statute of uses, the legal estate for life, was executed in the woman, and that it made no difference that chattel property was conveyed to the trustee by the same will. Wilder v. Ireland, 85. 4. Held further, that the legal estate in the remainder, by force of the same statute, passed to the children she had at the time of the devise, subject to the participation of such as she might thereafter have. Ibid. Vide Deed of gift. LUNACY AS A DEFENSE. The modern decisions have qualified the old doctrine, tliat a man shall not be heard to allege his own lunacy or intoxication, and these are now held to be a defense to acts done under their prevalence. Morris v. Clay^ 21G. MANDAMUS. 1. Where an act of Assembly, establishing a new county, appointed com- missioners, by name, to ascertain a site, and ourchase a tract of land for a county town, and required the justices of the county to appoint com- missioners to lay oft' lots and sell ihem, it was held not to be a sufficient return to an alternative mandamus to compel the justices to the perfoim- ance of their duties, to allege that the locating commissioners, in dis- charging their duties, were prompted by improper motives. Lander v. McMillan, 174. INDEX. 519 2. Where an act of Assembly establishing a new county, made it the duty of certaui commissioners, to purchase a tract of land, and having taki>ii a deed for it, to file such deed in the office of (he County Court, 'and then for the justices of the county to do certain acts prescribed, it was held that the justices were not entitled to any other nolice that the commis- sioners had acted than the filing of such deed ; especially as no notice is required, by the act, to be given them. Ihid. 3. The proper way for the justices of a county to make return to a man- damus, is for them to convene, and a majority being present, to fi.x nnon the facts they mean to rely on by way of defense, and appoint someone of their body to make affidavit, and to do all other things required by the proceeding. Ibid. MONEY ARISING FROM SALE OF LAND. Vide Administrator, 2. MISPRISON. A commission to take a deposition that recites that it issued from the "su- preme" court of McDowell county, for a suit pending in McDowell Su- j5erior Court, authenticated by the signature of the clerk, and seal of the Superior Court of McDowell county, is so palpal.le a misprison, as to au- thorise it to be regarded as a commission issuing A-om the superior court. Dohson V. Finhy, 495. ■KEaLIGENCE. L Where machinery was consigned to the agent of a rail-road, to be for- warded to the plaintiff, over such road, aiicl it was negligcnll'v detained for a time, it was held that the defendants were not liable a"s common carriers for this neglect, but only as bailees. Foard v. Rail Road Co , 235. 2. Where several pieces of machinery were shipped to the defendants' agent to be forwarded to phiintiff, and they were described in the bill of lading as '■' three pipes in one bundle, and two single pipes." and they wefe delivered by the .ship's agent to the defendants' agent,' who had a copy of the bill, and by some means, the direction on one of the single pipes became illegible, and it was not forwarded, it was held that these factr crop, for hauling the re- imund.n- to tlie ciih. it was held not to subject him to the pennlty impos- e(i hv selling a deceased person's estate otherwise than at public auctio-:. McDamel v. Johns, 4L4. PETITION AGAINST AN INQUISITION OF LUNACY. Vide CERTroRAUi, 4. PLE.\DING. a. Though a covenant be with two or more, jointly, yet if the interest and (;aiise ot action ot the covantees be several, the covenant shall be taken to be several, and each of the covenantees may bring an action for his particular damage, notwithstanding the words of the covenant are joint- Little v. Hohhs, 179. ■2. Where a debtor delivered to his .creditor, without endorsement, a bond 522 INDEX. on a third person as collateral security, with an a_2:reement,, that it shoullf be returned if not collected, and the creditor took from a constable a re- ceipt for the paper for collection, as being received from him, (the credit- or) it was held in a suit aj^ainst the constable, on his oflieial bond, for failing to collect, that the creditor was the proper person to declare as relator. Chipley v. Aibea, 204. 3. A judgment, in favor of " L. &. M." trading as a firm, is valid, and is competent evidence in a suit brought by the constituents of such firm, in their individual names set out in full. Lash v. Arnokl 206. 4. Where a declaration contams two counts, and testimony is given as to both, and the Judge charges as to both, and a general verdict is given for the plaintiff, if one of the counts be defective, or an error has been committed as to one of them, the defendant is entitled to anew trial. Wilson v. Taium, 300. 5. An action against a person as " executor" for an act done, or a. contract made by hiin after the death of his testatator, cannot be sustained, and the words '" as executor" rejected as surplusage ; as may be done where the action is for the party on his own possession, and these words are impropei'ly inserted. Beaiy v. Gingles, 302. C. Two or more separate p^roprietors of land, cannot sustain a joint petition for a ditch to drain their lands, without alleging that a common ditch would drain the lands of all the petitioners. Shaw v. Biirfoot, 344. 7. Matter wliipb does not affect the title, but only affords an objection to the further prosecution of the suit, as it is then constituted, as marriage or death, or the plaintiff's taking possession, must be pleaded or other- wise specially brought to the notice of the Court ; but matter that goes to affect the title as the confirmation of an infant's deed, may be given ia evidence under the general issue. McCormic v. Leggeit, 425. Yide Contract, 4, 5 ; Quiet enjoyment, 3. PLEDGE. In order to constitute a pledge, there must be evidence that the property was delivered for that purpose to the pawnee. Thompson v. AndreivSj 453. PONDING BACK WATER. 1. The contin\)ance of an overflow of land by the ponding back of water \ for twelve years, does not justify the presumption of the grant of an ease- ment. Griffi,n V. Foster, 337. 2. It is not competent, either as a bar to the action or in mitigation of dam- ages, for the defendant to show that for twelves years, neither the plain- tiff nor the party from whom he purchased, had complained of the over- flow of his land. Ibid. POSSESSION OF STOLEN PEOPERTY. Possession of a stolen article, raises a presumption of theft by the possessor, only in case siich possession is so recent after the theft, as to show that the possessor could not well have come by it otherwise than by stealing if Grerjory v. Richards, 410. POSSESSION BY BAILEE. Vide Larceny. POWER OF COURT TO SET ASIDE PROCEEDINGS. 1. Where two J? /as had been issued to different counties, on the same jndgmentj and one had been satisfied befoi^e the retura term, it was held. INDEX. 623 in order to vacate a sale made of the defendant's land on the return day, under the second execution, to be competent for the court to quash and set aside sucli second execution, Adams v. SmaUwood, 258. 2. Where a,Ji. fa. on a justice's judgment was levied on land, and the reg- ular proceedings had in the county court for subjecting the land, and a sale made by virtue thereof, it was held that the county court, at a sub- sequent term, has no authority, on motion to sot aside the^i. fa. on the justice's judgment. Henneii v. Taylor, 281, Vide Practice, 6, 8. PRACTICE. 1. According to the general imdcrstanding of the profession, where parties have gone into trial without a formal declaration, the plaintiff is to be taken to have relied on one suited to the case made by the proof. Davis V. Gabion, 28. 2. The statute, Revised Code, chapter 31, section 114, authorising a refer- ence in suits upon the bonds of Sherifls and other public officers, does not embrace the case of a bond given by a deputy sheriff for the indem- nity of his principal. Willis v. Mdvi/n, G2. 3. The fact that a county court, by a special statute, cannot hold jury trials, does not deprive a party of his common law right, to have issues of fact tried by a jury. Buchanan v. McKeneie, 91. 4. Where on a writ of error, a judgment of the county court, refusing to let a party plead, was reversed in ihe superior court for error, the proper course was, to send the case back to the county court, that the plaintiff, in error, might be restored to all things which he had lost, and it was held to be error for the Judge to give leave to tho party to enter his ple.n-^ in the Superior Court. Ibid. 5. Where a statute requires that a proceeding shall originate in the county courts, and matteis of fact are involved therein, which cannot be tried in the county court, because jurisdiction to try issues of fact has been taken away by special act of Assembly, the proper course is for the issues to be made up in the county court and transmitted, by an order, or by a cer- tiorari, to the superior court for trial. Buchanan v. McKenzie, 95. 6. A judgment on a ca. sa. bond, during the term at which it is renilered, is in fieri, and may be set aside on motion ; and an appeal hom the Coun- ty to the Superior Court, from an order setting aside such judgment, is erroneous, and will be dismissed on motion. Williams v. Schimvierhorn, 104. 7. A suit at law. cannot be removed into this Court by consent. Rodman V. Davis, 134. S. Courts of Pleas and Quarter Sessions have power to set aside a verdict and judgment, and order a new trial during the terra. Scaf v. Bufkin, IGl.' 9. The power of the Courts of Pleas and Quarter Sessions, to set aside a verdict and order a new trial, is entirely discretionary, and the propriety of its exercise cannot be enquired into upon appeal. Ibid. 10. Where a petition was filed for partition of slaves and money, and there was no answer, no jutlgment pro confesso, no issue made up, and no or- der made for setting the ca^-e for hearing, it was held erroneous for the Court to pass a decree. BUlups v. Riddick, 1G3. 11. The Act of 18G1, (2d extra session) chapter 10, section 4, did not af- fect questions as to the continuance of causes coming betbre a court, whose sittings commenced upon Monday of the week, during which, the act was ratified. Foust v. Trice, 490. Vide Compromise ; Ejectment, 3 ; Mandamus, 1, 2, 3 ; Tkial of a nolM COMPOS ; Waiver, 2. 524 INDEX. PEELIMINAET ISSUE. Vide Trial of a Non Compos. PRESUMPTION OF PACT. Where, in a suit for the loss, by fire, of a quantity of rice, deposited at a mill to be beaten, it was proved that the general custom of" the mill was to give a receipt to the owner of the rice delivered, expressing the quan- tity and the terms of deposit, it was held, in the absence of pi-oof that the custom was departed from in this particular instance, that there was a presumption tliat such a receipt was delivered to the plaintiCf. Ashe v^ DeRosset, 240. PRESUMPTION OF HONESTY. , 1. At law, the rule is, that fraud never is presumed, and he who alleges it must prove it. Tomlinson v. Payne, 108. 2. It may be taken as a general proposition, that every man is presumed to be honesL in his dealings, until the contrary is proved. Ihid. PRESUMPTION OF PAYMENT. Vide Endorskment, 1. PRINCIPAL AND SURETY. Where a person bid off a parcel of wheat at an auction sale, and another person came forward and gave his note for it, .in compliance with the terms of the .'Jale, it was propeily left to the jury to determine whether the latter intended to become the purchase, or lo become the surety of the bidder. Tliompson v. Andrews, 453. PRIVITY. Vide Contract, 8. PROBATE OF A WILL. Before a will can be received by our courts, as having been established by a tribunal in another State, it must appear by the record that such will was duly passed on by it, and tliat such tribunal was the court of pro- bate of the domicil. Toionsend v. Moore, 147. QUASHING AN INDICTMENT. Vide Appeal, 2, QUASHING PROCEEDINGS. Vide Power of court to set aside proceedings. QUIET ENJOYMENT. 1. Where a grantor of land in anotber State, entered into a covenant of quiet enjoyment, and after his death, his widow recovered of the grantor a sum certain in lieu of her dower, (the law of the State subjecting all lands to dower, of which the husband was seized during coverture) it was held that such recovery was an eviction, and the covenantee was entitled to recover the amount paid. Jachson v. Hanna, 188. 2. Where a covenantee sued on his covenant for quiet enjoyment, on ac- count of a recovery of a sum certain off of him by the widow of the cov- enantor for her dower, and it appeared that only a part of the recovery was patd when the suit was brought, and the remainder afterwards and INDEX. 525 before the trial, it was held that the covenantee was entitled to recover the whole snra. Ibid. 3. The action on a covenant of quiet enjoyment is transitory, and though entered into in another State, may be sued on in this State. Jhid. IJUO WARRANTO. An information in the nature of a writ of qrio ivarranto a,t;ainst a corpora- tion, to have its privilej^es declared forfeited, because of neglect and abuse in the exercise of them, must be filed in the name of the Attorney Gen- eral of the State, and cannot be instituted in the name of a solicitor of a judicial circuit. Houston v. Neuae Rivfr Nav. Co, 47G. RAPE. 1. The inference arising acrainst the truth of a charge of rape, from a long silence on the part of the female, is not a presumption amounting to a rule of law, but is a matter of fact, to be passed on by the jury. State V. Peter, 19. Yidc CaK.VAL KNOWl.KUGE OF A FKMALE INFANT. RAIL ROADS AS COMMON CARRIERS. 1. Where hvight is carried on a railroad, from staliuu to station, il the own- er is not ready-to receive it at its destination, liie duty of the airrier is discharged by placing it in the ware-house of the com])any without giv- ing notice to the ownei' or consignee. Neul v. Rail Road Co. 4S'2. 2. It is certainly not required of the ware house men. at a railroad sta'.ion, to notily consignees, living at a distance, of Uie arrival of their goods, either tiu'ough the mails or otherwise. Ibid. RECORD OF AN APPEAL— ITS CONCLUSIVE CHARACTER. A'ide Appkal Pond, 2. RECORD OF PROBATE IN ANOTHER STATE. Vide Probate of a will. RECORDARI. Where the president of a rail-road company was informed that a suit was about to be brought against his company, before a justice of the peace, and believing that a recovery in such suit would be unjust, gave instruc- tion to the most convenient station-agent, to attend the trial, and in case of a recovery against the company, to appeal to couit, and such agent was a diligent and faithful officer, but from ignorance of the law, failed to procure security for the ap})eal, it was held that there was no such laches on the part of the president, as deprived the company of a I'ight to a, recordari. Rail Road Co. v. Vinson, IPJ, REFERENCE TO CLERK. Vide PnACTiCE, 2. REFUNDING BOND. Vide Statute of Limitations, S. REGISTERED COPY. 1. The ICth section of the 37th chapter of the Revised Code, makes a certi- fied copy of a registered deed competent evidence. Hughes v. Dehnarn^ 127. 526 INDEX. 2. Slight and immaterial mistakes in the registration of a deed of gilt will not avoid it. Ihid. Vide Evidence, 2. RELEASE. Vide Estoppel, 1. REMEDIAL LEGISLATION WHERE COURT HOUSES HAVE BEEN BURNT. Vide Color of title. REMOVING A FENCE. Where a party has neither possession, nor right of possession to land, he cannot, upon an indictment for nnlawfully removing a fence therefrom, raise a question as to a right of entry, nor is it any defense to him that he did the act to bring on a civil suit, in order to try the title. State v. Oraham, 397. REMOVAL OF A SUIT TO SUPREME COURT BY CONSENT. Vide Practice, 7. REMOVING A DEBTOR. 1. Where a party, with his horse and biigg}'^, carried a debtor to a railroad station, and there procured the money to enable hiin to leave the State, with the intent to assist him in the purpose of avoiding his creditors, it was held to be a fraudulent removal within the statute. Moffitt v. Bur- gess^ 342. 2. The declaration of a debtor fraudulently removed, that " he intended to get the defendant into a scrape," was held to be immaterial. Ihid. REPAIRS TO A VESSEL. Vide Attachment, 1. RETURN OF PROCESS. Vide False Return, 1, 2, 3. , ROAD. Whether there was a necessity for a public road, between given termini, is matter which cannot be re-examined in this Court. Pridgen v. Banner- man. 53. Vide Overseer of Road. RULE IN-SHELLY'S CASE. Vide Deed of gift. SALE OF LAND. 1. Where an administrator petitioned for the sale of his intestate's land, set- ting forth the number and amount of the debts existing against the es- tate, and a decree passed for such sale, in a suit by an administrator de bonis non, to recover a surplus over and above the debts, such decree was held not to be conclusive as to such debts, although the persons, to whom the land was devised, were made parties. Laiia v. Russ, 111. 2. A sale of land, by a decree of a court of equity, is,, in effect, a saJe by INDEX. 52? the owner of the land, through the agency of the court. Williams v Council, 229. S. Notice is not required to be given to the creditors of a deceased person on an apphcation by the administrator or executor to sell the real estate for the payment of debts, Revised Code, chap. 46, section 45, &c. Tliomp- son V. Cox, 311. 4. Nor is the fund raised by such sale nnder the control and direction of the court making the order of sale. Ihid. 5. After passing the order for the coiifirnialion of a sale, made by virtue of Uie statute, Kev. Code, chapter 4G, section 4.5. &c., the jurisdiction of the court is at an end, and a petition lo open the biddings under such sale, will not be sustained. Ihid. SCHOOL FUNDS. Vide Chairman of Common Schools. SCIRE FACIAS. Vide Dktinue. SEAL. A square piece of paper affixed with a wafer to an instrument, opposite to the name of the donor, in the place where the seal is usually placed, will in the absence of proof that tiio donor intended otherwise, be valid as a seal. Hughes v. Dcbnam, 127. SECRET TRUST. W here one owned and possessed slaves for 15 years, and they were run out of the State secretly, by the owner, into another Stale, and then ta- ken in hand by the defendant, who carried them into a distant State and sold them, and received the money about the time the plaintiO's judg- ment was obtained against the owner, it was held that tiiis was some ev- idence of a secret trust, for the use and benefit of the debtor, to enable him to defraud his creditors. Morrison v. McNeill, 45. SEISIN OF ANCESTOR. Vide Statute of Limitations, 7. STAY LAW. The provision of the Act of Assembly, passed on the 11th day of May, 1861, commonly called the " Stay Law," forbidding jury trials, and trials be- fore justices of the peace, and the issuing of execntions, and sales under executions and deeds of trust, held to be unconstitutional and void. — Barnes v. Barnes, 366. SET OFF. Money paiil by B, the surety of A, is a good set-off against a note payable to A, which was endorsed after it fell due. Harrington v. Wilcox, 340. SHERIFF. Vide Summary Judgment. SHERIFF. Vide False Return, 1, 2, 3. 528 INDEX. SHERIFFS BOND, 1. The ceremony of acknowledgement in open court, and registration., are not essential to the validity of a sheriff's bond. McLean v. Buchanan., 444. 2. Where a debtor lived in one countj^, and had places of business in two other counties adjoining, and it appeared that a sheriff who acted as a collecting aflicer, went thi'ee times during three months to such r'isidence, at the end of which time the debtor became insolvent, although it appear- ed that the debtor was most usually absent from home during this time, it was held that the officer was guilty of such lashes as to render him and his sureties liable on his official bond. Ibid. SLANDER. 1. The words, " You as good as stole the canoe of J. H ," are not actionable, pet se. Stokes v. A7-ey, 6G. 2. It is not actionable, per se, to charge a white man with being a free ne- gro ; and it does not alter the case, that such white man was a minister of the gospel. McDowell v. Bowles, 184. 3. In a declaration lor slander, in charging the plaintiff with pcijury in an- other State, it must be averred that, by the laws of such other State, per- jury is an offense to which is annexed an infamous punishme'nt. Spar- row V. Maynard, 195. 4. Words charging one with an attempt to commit a felony, however odi- ous, are not actionable per se. ]Vilsoii v. 'futmn., 300. 5. Reports that the plaintiff swore to a lie or lies in a distant county, can- not properly be submitted to a jury in an action of slander as elements, from which a jui-y are to make up an estimate of their own of the cha- racter of the plaintiff. Luther v. Sheen, 356. SLAVES. Vide CoNTR.\CT, 9 ; Deeb of Gift ; Jail fees. SOLDIER UNDER ARREST. Vide IIabe.vs Corpus. STATUTE OF FRAUDS. L Where the land of one of two sureties of a third person was sold under execution for the debt, and the other surety bid it off, it was held that an agreement for the owner of the land to pay the debt, and take an assign- ment of the bid to hiin, was not affected b}^ the statute of frauds. Hock- aday v Parker, IG. 2. Where a remaniderm slaves, during the particular interest, was offerred for sale at auction, when certain written terms were proclaimed by the crier, and the delendant was the last and highest bidder, but the propei- ty was not delivered to him, in a suit for not complying with the terms of sale, it was held that the contract was within the statute of frauds, so far as the bidder was concerned, and no action would lie against him.- — Edwards v. Kelly, 69. Vide Contract, 8. STATUTE OF LIMITATIONS. 1. Where a bailment is once established, a mere possession under a claim of title with the use of property as his own, unaccompanied by an act upon the part of the bailee, changing the nature of his holding, will not set the statute of limitations in motion. Koonce v. Perry, 58. INDEX. 529 2. Wliere a writ in slander was issued, returnable to a term of the Court, and no alias issued from such return term, but a writ is;